Tuesday, November 13, 2012

Habeas corpus argument in the High Court

On 6 November a Habeas Corpus petition was filed in the High Court relating to the alleged abduction of the defense witness Shukho Ranjan Bali by law enforcement agencies the day before. (A Habeas Corpus petition is a petition to 'seek the body' and is a long standing remedy available in common law countries to deal with unlawful state detention and alleged disappearance).

The full application can be read here.

Below are details of the oral arguments made by the international crimes tribunal defence lawyers (on behalf of the petitioner Abul Kalam Azad from Bhandaria in the District Pirojpur) and then those of the Attorney General.

The respondents in the petition were:  the Ministry of Home Affairs, Inspector General of Police, Rapid Action Batallion, Superintendant of Police, Deputy Commissioner (Detective Branch), officer in charge of Shahbag Police station, the inspector general of prisons, the Superintendent and Jailer of Dhaka Central Jail and the Deputy Commissioner.

It was first taken up for hearing on the morning of Wednesday 7 November before the bench of Justice Naima Haider and the assistant judge Kurshid Alam Sarkar.

On the seventh when it came up, initially Naima questioned whether the application should be heard in her court since it involved detention and there was another court relating to these matters. Razzaq however argued that this was a constitutional matter and this court had jurisdicaiton over such issues. Justice Naima seemed to accept this. However, an Assisstant Attorney General told the court that the Attorney General was busy that afternoon, and so needed time. The High Court then said that the matter would come up for hearing on Sunday 11 November. Razzaq said that the matter needed to be heard immediately but the court confirmed that the hearing would be on Sunday. ‘First thing on Sunday,’ said Razzq, and the court agreed.

On Sunday morning, a lawyer from the AG’s office asked for the matter to be ‘passed over’ on the list as the Attorney General was busy on another matter. He subsequently came to the court at around 11.30 and asked for it to be heard in the afternoon and the court agreed.

Petitioner arguments
In the afternoon, Barrister Razzaq spoke on behalf of the petitioner. He made the following arguments:

- He had been coming to the tribunal for the last year and the only day that the gate has been locked and lawyers have been asked to get out of their vehicles was on the 5 September. On every other day the vehicles have gone outside the tribunal entrance and lawyers have bene dropped off there.. The only explanation for this was that ‘the law enforcement agencies were waiting to arrest someone’  Only the defense lawyer Mizanul Islam, who is in a wheelcahir and I were allowed to stay in the cars. Everyone else had to get out. ‘This speaks volumes’

- Bali came to court the day before as well.

-  The car that abducted Bali came from inside the tribunal. It was a plan of the law enforcement agencies. They cannot deny it. A witness came to court in broad daylifht and was abucted. And it is the duty of the other side to explain what happened. Lord Avebury in his blog said that the incident had to be investigated..

- A defence lawyer went to file a General Diary entry with the police but they refused to accept it, and did not give any explanation.

- the incident happened shortly after 10. Soon after that we all mentioned what happened to the tribunal and as follow decided to file a GD entry. The least a lawyer can do is to file a GD entry. This is the kind of thing that is happening in the country now – GD entries are rfused. Why should the police refuse to accept the GD? What is the explanation. The Chief Law officer will explain why. My submission is that there is no earthly reason why they should refuse. It speak volumes .

- the detained person’s life is at stake. He lost his brother in 1971. He came to court to despose. Suddenly disappeared.

- article 32 of the constitution states that no person shall be deprived of life and liberty other than a court of law. His personal liberty has ben taken away from his otherwise that in accordinace with law. But the other side simply does not see, does not hear.

- article 31 could have been enough protection , but Article 32 was included in the construction to provide an abundance of caution.

- his wife is bedriddren, with very young children.

- There is a duty upon the other side to bring him to court within 24 hours, But this has not been done. His lbertiy has abeen taken away, but there is no liability. All we are asking for is a rule. Nothing more, nothing less. This is one of those caes where the court should give a rule.

The Attorney General response
- It has not been seen that this witness has been kidnapped. This is a wrong application. What has been seen is a mob attacking police officers. This is not a bona fide application, but a male fide one. It is an attempt to stop the trial, to make the trial questionable, and that is the reason why some lawyers came with this application.

- First point. If you look at the words of section 102(b)(1), it is clear that one should not come to the court when there is disputes on matters of fact. The court must be satidsgey that person is in custody, and for that reason, , in the past the bar used to fiel habeas corupus along with an ordre of detention. You have to show that prima facie the person is in custody. There is here no t paper for the arrest or detntion of this person. So if there is no proof or evidence that party has been detained by the law enforcement agencies, how will this court take cognisance that he is in custody.

- There is no paper that says he is in cusody. So if not in custody, then petition can be entertained. So can this court et involved when there are disputes over matters of fact.

He then read out various parts of the petition, and also the press cuttings annexed.

- I want the court to note that in the application the petitioner says that the defence case was forcefully closed. I take a serious objection to this word. The use of the word is contemptuous.

- the whole alleged incident is ‘absolultely ridiculous. The only witnesses are the defence lawyers.

- he kept on emphasising as he read the petition that the application contained matters of disputed fact. ‘Can court decide all these things. In what jurisdiction’

- he pointed out that the application says that the family went around police stations trying to find Bali. ‘Keep in your mind that they said family here’.

- he pointed out the defence informed the tribunal who passed an order. He said that he went to tribunal. Section 8 of the International Crimes Tribunal says that the tribunal has the power to pass any order in any form. When they have gone to the tribunal and thr tribunal does not pass order, cant just take the matter to this court. When given notice to the tribunal and the person is a witness to that tribunal, how can he come to this court.

- In any case no order of the tribunal can be challenged, except that of conviction ot the appellate division. He has bene infront of the tribunal. The tribunal did not act according to their prayer . So the matter ends there.

- I want to know whether there is a any genuine case here. The petition is absolutely male fide.

- and who is the petitioner Azad. He does not come from the same police station. And Azad is a muslim whilst Bali is a Hindu

- why did they file this application. They want to make the trial controversial, and as regards this have held a press conference on the 5th. The press conference on the 5th at the press club was televised. Abdur Razak was present. . So they hold a press conference againt the trial and then come to this court to make this petition which is undeniable.

- Look at the Daily Star on the November 7th. Look how the police are taking a beating.

- The tribunal here is following procedure. Section 10 lays down how the trial should be organised. The summing up has been started on the 5th so there ws no question of presentation of witness. There would be summing up and then judgement.

- Look what Tajul Islam said accusing the tribunal of involvment in the abduction. ‘Is the application bona fide, absoulutey not.’

- It is clear that the lawyers went to request an order from the tribunal. The tribunal looked into the matter and there was investigation by chief investigator. After being satisfied that nothing happened, no order was passed. He cannot now go to any court. He must go to the appellate division. The is a device only to make the trial controversial, that this trial is not fair. They held a press conference. They are determined to make the trial controversial.

- In this matter there is no paeper to show the court that the person has been detained., and so court may not pass an order

- the issue of the General Diary– this is another question of fact. Whether tye went there etc. If the GD really was not filed then they would have immediately held a press conference, and the fact that they did not should not not true.

- this is nothing but to make a show before the countryand the media that they are not being treated fairly

Petitioner response
The fact that there was violence is an entirely seprate matter. Even if there was violence, it has nothing to do with this case. So the first point of the AG is misconceived.

The court has issued rules when people have been abducted. [He passed the court two orders from the court] And after the issuing of the rule in the case of Golam Mutoza, he was released. So this is not without precedent.

Went to the tribunal only as a matter of curtesy.. I have to. It is our duty. WE did not challenge, we brought the matter to his attention. He did not pass an order, and rightly so and this court and this court alone has jurisdiction. So this point is misconceived.

We did not hold a press confrence on the 5th, only a press briefing outside the court. The press conference was on the 6th

Both the detainee and the petitioner are both in the distrct of Priojpur. The constituion say that ‘any person’ can file a petition.

The closing arguments in the case only happened at 2pm. Not at 10.30. We had an application that day on whether we could examine him.

Yes there was a walkout of judges but it was not a boycott.

Yes, contempt proceedings have been issued, but that is very diffcent from saying that he was held in contempt

The learned friend could not show why a rule should not be issued.

The Court said that judgment would be given on Tuesday, 13th November in the morning

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