Mizanul Islam started proceedings by informing the court about Sayedee’s absence. The accused Petitioner could not come before the Tribunal, because of his mild heart attack; he will have his angiogram tomorrow. He had a heart attack on 14th June, 2012- right after getting back from his elder son’s funeral ceremony. So, we need an adjournment.
Justice Nizamul Huq: He is suffering from the same disease for a long while. He is suffering from ‘long ailment’. Rule-43A of the ICT Rules of Procedure says that the tribunal may proceed on in the absence of the accused. We will pass the order that- he has not come today.
Mizanul Islam: It would not be brought under the purview of the long ailment, My Lord. You may call for a report, though there is already a report about the condition of his health.
Tajul Islam: We would like to provide you with a written application for adjournment. Our client is suffering seriously. He is at his death bed, he has got a heart attack, and already he is holding two rings in his heart. He will get an angiogram tomorrow by the prescription of his physician. We would like to apply for an adjournment.
Justice Nizamul Huq: No way Mr. Tajul.
Tajul Islam: My Lord, You have said that the proceeding will run by complying with the provision of rule-43A of the International Crimes Tribunal Rules of Procedures- 2010. It is not expected that the accused is lying on the hospital bed by getting a heart attack. His elder son has died yesterday, his mother died on last October- when he was in Prison. The terms of Rule-43A will not be applicable here. I would like to read the following rule before your Lordship-“43A. If the accused on bail fails to appear and or the accused being in custody refuses to come to Tribunal for any reason and or he could not be brought before the Tribunal due to his long ailment, the Tribunal shall have authority to proceed with the proceedings in presence of his counsel or pass any order which it thinks fit and proper.”
The rule does not say that the trial would not be stopped if the accused is absent. He has suddenly got a heart attack, on the next day he will have his angiogram. Now, to run the trial like this is an inhumane act. His human rights as well as his fundamental rights will be hampered if the trial runs in his absence. We have come with an application you will find the doctor’s report at the Annex- A.
Then he read out the report of 16-6-2012 which stated that the accused Petitioner Delwar Hossain Sayedee ‘had a heart attack on 14-6-2012. He has got a severe pain in his heart when returning to Prison from the funeral of his elder son. The doctors of Prison cell has came to the decision to send him to the Ibrahim Cardiac Hospital. The Doctors of the Ibrahim Cardiac Hospital after checking the accused Delwar Hossain Sayedee said that he had suffered a mild heart attack. On 16-6-2012 at 9:30 A.M. a medical board has examined the following accused. Afterwards they came to the decision that- the accused needs a coronary angiogram for his heart.’
On Monday he will have the angiogram. Before this time he has got his treatment at the Royal Bromton Hospital of England. He is already holding two rings in his heart.
Justice Nizamul Huq: What would be the benefit if you get the adjournment?
Tajul Islam: It is not known whether he will live or die tomorrow. At this moment is it justifiable to conduct the trial?
Justice Nizamul Huq: Rule-43A says about the long ailment. He is suffering for a long time of the same disease.
Tajul Islam: It is not proper to run the trial in his absence.
Justice Nizamul Huq: You are submitting before the Court of Law. You have to be alert about choosing your language when speaking before court. If there was any benefit about getting this adjournment, then we might think of the matter.
Tajul Islam: The principal of law is to run a proceeding in the presence of an accused.
Justice Nizamul Huq: The reason behind the rule 43A is to allow a proceeding to continue if the accused is either sick or absent. We know you are very much sympathetic about the condition of the accused. You are talking about the matter of long ailment, but whether there has been any point raised about the prejudice?
Tajul Islam: Let me read the Rule again. [Then he has read out the following rule once again.] He is unable to come here just for one day. Why do you count it as a long ailment? If he was absent for a long time in that case you might run on the trial in his absence.
Justice Nizamul Huq: Tell me if there is no problem to run the proceeding in his long absence, what is the problem to run the same when he is absent for a short term.
Tajul Islam: It indicates that you are trying to complete all the matter in a hurry to follow the Government’s verdict to complete all the proceedings within December.
Justice Nizamul Huq: Tell me the point of the chance of prejudice.
Mizanul Islam: I would like to say something My Lord. You may proceed the trial in absence if it is so long. Among his 4 sons two were involved with maintaining communication with the defence counsels. Among those two sons one has died last week, and the another son is busy helping the accused at the Hospital. The other members of his family are staying at Pirojpur. And the accused is already having two rings in his heart and got a heart attack on 14th instant. So, the defence counsels will not gain the proper assistance from the son. Though there is no provision about the mandatory assistance of the acquaintance of the accused, but it is needed to run the trial smoothly. There is not a single incident in the whole world that this type of trial has run in the absence of the accused.
Justice Nizamul Huq: For heavans sake don’t say that there is no single incident in the whole world. Afterwards it may be found that there are several incidents.
Mizanul Islam: Whatever I was saying the system is that the trial will not continue in the absence of the accused. But you are asking how the accused will be prejudiced? The question of law and the matter of prejudice are different. The matter of law is that in the case of his long absence the trial may run. But here you are saying that he is suffering from the same disease from a long time. We have uttered that- one of his son has died and another is busy with the formalities of the Hospital. We will not get the simple assistance from him. In this way we will be prejudiced. If the trial may run, in that case he will not be able to observe his proceedings. The accused was born on the decade of 40s and his sons were born on the decade of 70s. They might not answer many things in the correct manner in the way the accused might be able. His mother has died when he was in the Jail custody. Now, if the trial runs in its own motion; the accused will certainly be prejudiced; and his human rights will be ignored.
Justice Nizamul Huq: Mr. Prosecutor; would you like to say something?
Haidar Ali: May it please your Lordship. We are very sympatheitic about the troubles the family members of the accused are facing. I would like to say about the matter of law. There has been a term of long ailment. He will have his angiogram tomorrow. If there is no matter of prejudice arose, then the proceeding may run in its own course.
Mizanul Islam: Senior Prosecutor has said like you My Lord. His explanation is similar to you. He has said that if there is a chance of prejudice, only in that case, the case might have been adjourned. Now the proper assistance from the family members might not have been available in this period.
Justice Nizamul Huq: The Court might not consider the matter in this manner. if the adjournment id allowed, in that case the rule will be redundant.
Mizanul Islam: With due respect I would like to disagree with the ruling of My Lord. The aim of this rule is to ensure the proper and smooth pathway of the proceeding of the trial. It is to ensure the proceeding in the case of the absence of the accused. It has been made out to ensure that- the trial is running on without any obstacles. There is no mentioning in the rules that the trial should have to be run in the absence of the accused. It has been said that the trial may go on.
The members of the Tribunal consult among themselves before passing order.
Justice Nizamul Huq Passing Order (summary)
Justice Nizamul Huq: He is suffering from the same disease for a long while. He is suffering from ‘long ailment’. Rule-43A of the ICT Rules of Procedure says that the tribunal may proceed on in the absence of the accused. We will pass the order that- he has not come today.
Mizanul Islam: It would not be brought under the purview of the long ailment, My Lord. You may call for a report, though there is already a report about the condition of his health.
Tajul Islam: We would like to provide you with a written application for adjournment. Our client is suffering seriously. He is at his death bed, he has got a heart attack, and already he is holding two rings in his heart. He will get an angiogram tomorrow by the prescription of his physician. We would like to apply for an adjournment.
Justice Nizamul Huq: No way Mr. Tajul.
Tajul Islam: My Lord, You have said that the proceeding will run by complying with the provision of rule-43A of the International Crimes Tribunal Rules of Procedures- 2010. It is not expected that the accused is lying on the hospital bed by getting a heart attack. His elder son has died yesterday, his mother died on last October- when he was in Prison. The terms of Rule-43A will not be applicable here. I would like to read the following rule before your Lordship-“43A. If the accused on bail fails to appear and or the accused being in custody refuses to come to Tribunal for any reason and or he could not be brought before the Tribunal due to his long ailment, the Tribunal shall have authority to proceed with the proceedings in presence of his counsel or pass any order which it thinks fit and proper.”
The rule does not say that the trial would not be stopped if the accused is absent. He has suddenly got a heart attack, on the next day he will have his angiogram. Now, to run the trial like this is an inhumane act. His human rights as well as his fundamental rights will be hampered if the trial runs in his absence. We have come with an application you will find the doctor’s report at the Annex- A.
Then he read out the report of 16-6-2012 which stated that the accused Petitioner Delwar Hossain Sayedee ‘had a heart attack on 14-6-2012. He has got a severe pain in his heart when returning to Prison from the funeral of his elder son. The doctors of Prison cell has came to the decision to send him to the Ibrahim Cardiac Hospital. The Doctors of the Ibrahim Cardiac Hospital after checking the accused Delwar Hossain Sayedee said that he had suffered a mild heart attack. On 16-6-2012 at 9:30 A.M. a medical board has examined the following accused. Afterwards they came to the decision that- the accused needs a coronary angiogram for his heart.’
On Monday he will have the angiogram. Before this time he has got his treatment at the Royal Bromton Hospital of England. He is already holding two rings in his heart.
Justice Nizamul Huq: What would be the benefit if you get the adjournment?
Tajul Islam: It is not known whether he will live or die tomorrow. At this moment is it justifiable to conduct the trial?
Justice Nizamul Huq: Rule-43A says about the long ailment. He is suffering for a long time of the same disease.
Tajul Islam: It is not proper to run the trial in his absence.
Justice Nizamul Huq: You are submitting before the Court of Law. You have to be alert about choosing your language when speaking before court. If there was any benefit about getting this adjournment, then we might think of the matter.
Tajul Islam: The principal of law is to run a proceeding in the presence of an accused.
Justice Nizamul Huq: The reason behind the rule 43A is to allow a proceeding to continue if the accused is either sick or absent. We know you are very much sympathetic about the condition of the accused. You are talking about the matter of long ailment, but whether there has been any point raised about the prejudice?
Tajul Islam: Let me read the Rule again. [Then he has read out the following rule once again.] He is unable to come here just for one day. Why do you count it as a long ailment? If he was absent for a long time in that case you might run on the trial in his absence.
Justice Nizamul Huq: Tell me if there is no problem to run the proceeding in his long absence, what is the problem to run the same when he is absent for a short term.
Tajul Islam: It indicates that you are trying to complete all the matter in a hurry to follow the Government’s verdict to complete all the proceedings within December.
Justice Nizamul Huq: Tell me the point of the chance of prejudice.
Mizanul Islam: I would like to say something My Lord. You may proceed the trial in absence if it is so long. Among his 4 sons two were involved with maintaining communication with the defence counsels. Among those two sons one has died last week, and the another son is busy helping the accused at the Hospital. The other members of his family are staying at Pirojpur. And the accused is already having two rings in his heart and got a heart attack on 14th instant. So, the defence counsels will not gain the proper assistance from the son. Though there is no provision about the mandatory assistance of the acquaintance of the accused, but it is needed to run the trial smoothly. There is not a single incident in the whole world that this type of trial has run in the absence of the accused.
Justice Nizamul Huq: For heavans sake don’t say that there is no single incident in the whole world. Afterwards it may be found that there are several incidents.
Mizanul Islam: Whatever I was saying the system is that the trial will not continue in the absence of the accused. But you are asking how the accused will be prejudiced? The question of law and the matter of prejudice are different. The matter of law is that in the case of his long absence the trial may run. But here you are saying that he is suffering from the same disease from a long time. We have uttered that- one of his son has died and another is busy with the formalities of the Hospital. We will not get the simple assistance from him. In this way we will be prejudiced. If the trial may run, in that case he will not be able to observe his proceedings. The accused was born on the decade of 40s and his sons were born on the decade of 70s. They might not answer many things in the correct manner in the way the accused might be able. His mother has died when he was in the Jail custody. Now, if the trial runs in its own motion; the accused will certainly be prejudiced; and his human rights will be ignored.
Justice Nizamul Huq: Mr. Prosecutor; would you like to say something?
Haidar Ali: May it please your Lordship. We are very sympatheitic about the troubles the family members of the accused are facing. I would like to say about the matter of law. There has been a term of long ailment. He will have his angiogram tomorrow. If there is no matter of prejudice arose, then the proceeding may run in its own course.
Mizanul Islam: Senior Prosecutor has said like you My Lord. His explanation is similar to you. He has said that if there is a chance of prejudice, only in that case, the case might have been adjourned. Now the proper assistance from the family members might not have been available in this period.
Justice Nizamul Huq: The Court might not consider the matter in this manner. if the adjournment id allowed, in that case the rule will be redundant.
Mizanul Islam: With due respect I would like to disagree with the ruling of My Lord. The aim of this rule is to ensure the proper and smooth pathway of the proceeding of the trial. It is to ensure the proceeding in the case of the absence of the accused. It has been made out to ensure that- the trial is running on without any obstacles. There is no mentioning in the rules that the trial should have to be run in the absence of the accused. It has been said that the trial may go on.
The members of the Tribunal consult among themselves before passing order.
Justice Nizamul Huq Passing Order (summary)
Accused Delwar Hossain Sayedee could not be produced today as he is admitted in the Ibrahim Cardiac for his angiogram. It is reported that his angiogram will be conducted tomorrow by the doctor of the same hospital. The report of the doctors for his angiogram has been annexed with the petition. The accused is a patient of heart for a long time. Suddenly on the death of his son, he was given a parole on 14th instant and on the same day got a heart attack.
Mizanul Islam appearing on behalf of the accused has prayed for the adjournment on the ground that if in his absence the proceeding continues the accused will be prejudiced. By presenting the rule 43A of the ICT Rules of Procedures Mr. Mizanul Islam says that the adjournment should be allowed to him. Further he has submitted that his son who assists the defence in several matter is now involved with the formalities of the Hospital.
This is a matter which everybody should think through. Rule- 43A of the ICT Rules of Procedures empowers the Tribunal to run the proceeding in the absence of an accused. But for the humane ground, after the submission of Mizanul Islam the Tribunal is allowing 3 days adjournment and the matter will be dealt with at Wednesday.The Court is adjourned.
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