Tuesday, July 3, 2012

25 Apr 2012: Sayedee prejudice allegation

After the orders relating to Salauddin Quader Chowdhury, the cross examination of Md. Helal Uddin, the Investigation Officer was about to begin when the defence made a number of applications relating to adjournment and to privileged communication. These were passed to the tribunal who read them. The tribunal asked Haider Ali, the prosecutor to respond.

Hadier Ali argued that adjournment should not be allowed simply on the ground that the defence counsels are not ready for cross examination. When a lawyer takes a brief, that means he is ready with the case. With regard to the un-served prosecution documents, he said that the defence have previously filed many applications for the un-served documents. We have already given copies of those documents to them. I need to check if any further document remains un-served.

He also said that the prosecution opposed privileged communication with the accused as the defence counsels have had already had several privileged communications with the accused and this is no longer required.

Mizanul Islam responded to this by saying that since the prosecutor said that they need to check whether there are any more unserved documents, it means that they admit that there may be some documents that remains un-served.

He then made a comment about the previous day’s proceedings. He said that everyone knows that during a Hartal day in Bangladesh it is not safe to use any transport and that is why the tribunal did not fix any case last Sunday since Hartal had been declared to take place on that day. He said that it has become a practice in the High Court and the lower courts not to sit on Hartal day as it is not safe to use transport as vehicles may be attacked. He explained that this was the reason is why the defence had filed an application for adjournment through their junior counsel who had taken the risk to come to the tribunal. ‘You understood our difficulties and adjourned the matter for Tuesday,’ he said.

He went on to say that on Monday evening the opposition again called hartal for Tuesday and again junior counsels filed an application for an adjournment. ‘We cannot take the risk of our life for this case. The judges and the prosecution may come since they are escorted by armed police. We do not have that security. In fact one of the judges of this court and some other staffs also could not come on Monday and Tuesday due to Hartal. There were other three cases in your court on Tuesday which you adjourned as the Accused could not be brought to the Tribunal due to Hartal. Even Public exams are also postponed due to Hartal. How you can expect us to come on a Hartal day. But despite all these difficulties you continued proceeding on Tuesday in our absence,’ he aid.

He claimed that his client as highly prejudiced by that. He had no legal representation on that day and in our absence the tribunal allowed the prosecution to exhibit certain papers and document which we would have seriously objected to.

He also pointed out that since he used a wheelchair, he was at particular risk.

He then went onto discuss the adjournment application. He said that the prosecution has given 175 new documents which have now been exhibited. There are in addition another 14 documents which have been exhibited though the defence have not been served any copies. ‘We have already identified these documents in paragraph 4 of my application’ he said. ‘The investigation officer have told us about 13 books that the prosecution intends to rely upon without serving us any copy. We were not aware of these 13 books before yesterday. It appears that almost 5000 pages new documents are exhibited by the investigation officer. I have to go through these documents before I can start cross examination of IO. I must get an adjournment of sufficient time to prepare for cross examination of IO’ he argued.

In relation to privileged communication, he asked how can the prosecution say that there is no further need for this with the accused – since only the defence counsel can know about this. ‘I had no chance to get any instruction from my client about these new documents,’ he said.

Abdul Razak, on behalf of the defence, also made some comments. He said that Hartal is not a holiday. It is very risky to use any transport during Hartal and it is the tribunal’s duty to look after the interest of the lawyers coming to your tribunal. ‘The other courts in Bangladesh do not proceed on any case on a hartal day as they know the difficulty of the lawyers. Heaven will not fall if one or two days are adjourned for hartal,’ he said.

He also said that it was not lawful for the tribunal to have exhibited the previous day the 15 prosecution witness statements that were received in evidence under section 19(2) of the 1973 Act. He said that it they had been present that day they would have raised serious objections to that.

The chairman said that this issue is still open and the defence can file an application for review and that if after that the tribunal finds it not lawful the tribunal may exclude them from the list of exhibit. He claimed that the Accused was not prejudiced due to absence of the defence counsels.

Razzaq however argued that his client was seriously prejudiced. He told the tribunal that it should follow the tradition of our other courts and not continue the court proceeding on a hartal day.

The prosecutor Haider Ali then responded by saying that there is no law in Bangladesh that the court should not proceed on a hartal day and that if the prosecution can come then the defence counsels can also come. He added that the prosecution have already given all the relevant papers to the defence and that if any documents remain to unserved then they will not be considered by this tribunal – the law will take its own course. He again said that Privileged communication is no longer required..

Another defence counsel Tajul Islam then also added that the defence were highly prejudiced due to the court proceeding on the previous day without them. He said that large documents had been newly served on the prosecution and adjournment is required to go through these documents, and without this it is not possible for the defence to start cross examination of the investigation officer.

He said that the prosecution was required to serve all documents before commencement of trial – and now it is complaining that the defence is filing applications to get copies of documents which have not been served.

Justice Zaheer Ahmed then asked Mizanul Islam whether he really needed adjournment for these newly exhibited documents who responded by saying that he has to go through all these newly served documents to determine whether to ask any question on them or not. ‘How can I decide what question to be asked if I do not go through these documents?’ he said.

The chairman said that the defence lawyer could cross examine on other issues and leave the questioning on the new documents till the end.

Mizanul Islam however said that this is not the way to cross examine a witness and he needs to have a comprehensive knowledge about all the prosecution documents before cross examination starts

The chairman read out the following orde (summary)
The accused filed an application for adjournment to cross examination of the investigation officer and direction upon the prosecution to serve un-served exhibited documents and praying for privileged communication with the Accused. The learned counsel appearing for the defence Mr. Mizanul Islam submitted that on 24th April 2012 the examination in chief of the prosecution witness No. 28, Mr. Haider Ali was completed and today is fixed for cross examination of this witness. The prosecution has submitted a big new documents list which is given in the application. They also exhibited some new documents copies of which were not given to the accused. These documents, books, materials, CDs, website were not served upon the accused before the trial. These documents contains about 5000 pages documents and he cannot start cross examination of the witness without going through these documents and they need time for preparation. Mr. Misanul Islam also prayed for the unserved exhibited documents. He also prayed for privileged communication with the Accused about these new documents.  
The learned prosecutor Mr. Haider Ali submitted that under law there is no scope to adjourn for cross examination of the Investigation Officer. All the documents were served at least before exhibiting. According to him no fresh privileged communication is required as the defence counsels had privileged communication with the accused earlier.
In support of the submissions made in the applications Mr. Abudr Razzaq and Mr. Tazul Islam also submitted.  
The statement that the list of documents were not given upon the accused at the time or before commencement of trial has already been raised by the defence side. We can remember that we gave earlier direction and the prosecution complied with those direction. There may be some documents which are not yet been served. We have already passed order that if any copy is not given then the Defence can inspect that document. If it is not possible to inspect the documents then we will not consider those documents. Repeatedly we have said that the prosecution should serve all documents. At the time of examination in chief the defence counsel informed us that many of the documents were not served. But we allowed inspection of those documents.  
Now the concern is whether the accused should be allowed adjournment for cross examination of the Investigation Officer. But some more matters were also submitted by the lawyers. This matter was fixed on day before yesterday. The judges, prosecutors, journalist and even the junior defence counsels were present except the senior defence counsels. We therefore adjourned the case for that day at the prayer of the Defence counsels. Yesterday also we, the prosecutors, journalists and the junior defence lawyers were present. We told them that they should note down the proceeding and if any legal point raised then we will keep that open for the senior defence counsels. The learned defence counsel Mr. Mizanul Islam today argued that it was not correct to exhibit the witness statements received under section 19(2) of the International Crimes (Tribunal) Act 1973. He informed that the Defence will file a review petition. If the review is allowed then those exhibits will be deleted and law will take its own course. According to our previous order about section 19(2) we have already shown our concern that these witness did not take oath and these statements are not tested by cross examination. But from the submissions of the Defence Counsels we can scent some dissatisfaction about our yesterday’s proceedings. We can confirm that we will not do any thing that may prejudice the defence. We have already informed that in any prejudicial matters we keep that open so that the defence can argue. After that statement of the Tribunal how a lawyer can say something from which we can scent dissatisfaction. We are considering every difficulty of the defence counsels seriously. If we find any real difficulty on any day then we will not hear the matter on that day. But yesterday many lawyers came to the Supreme Court.
With regard to the unserved documents we are still of the view that the documents or materials which are not served yet, the defence should be allowed to inspect them. If no inspection is possible then those documents will not be considered by us.  
Regarding Privilege communication it is our view that there is no bar to privilege communication. The lawyers can discuss with the accused during the recess. Even then we are allowing privilege communication on 1st May 2012 from 10.00 am to 01.00 pm of two defence counsel namely Mr. Tanvir Ahmed Al-Amin and Mr. Monjur Ahmed Ansari. 
Then the tribunal moved onto the start of the cross examination of the investigation officer by the defense

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