After passing the order about the investigation report, the tribunal then heard the defense application relating to their alleged harassment.
1. That this application has been filed under section 6(2A) of the International Crimes (Tribunals) Act, 1973 read with Rule 46A of the International Crimes Tribunal-2, Rules of Procedure, 2012 to direct the law enforcement agencies not to harass Defence Counsel and not to interfere with the chambers of Defence Counsel without a lawful search warrant and not to prevent the Defence Counsel from discharging their professional duties. On 09.010.2012, 10 to 12 individuals (some of whom were armed) identified themselves as members of the Detective Branch and forcibly entered the premises of the lawyer of the Applicant and harassed the lawyers and staff working there. Such individuals had no lawful purpose or objective at the premises of the lawyers. They entered the lawyers’ premises to create fear and panic and also to prevent a fair trial. Hence, this application has been filed.The Tribunal passed the following order.
2. That Mr. Muhammad Tajul Islam, Advocate, Supreme Court of Bangladesh is Counsel for the Accused Petitioner. He appears on a regular basis before this Hon’ble Tribunal. He has been a practicing lawyer before the Supreme Court of Bangladesh for the last 14 years. He is widely respected by members of the Bench and the Bar.
3. That on 9th October 2012, at around 4.00 PM 10 to 12 individuals (some of whom were carrying arms) trespassed into the law chambers of Mr. Tajul Islam situated on 8th Floor of Paltan Tower, 87 Purana Paltan Lane, Dhaka-1000 (hereinafter to as the chamber). These individuals claimed to be members of the Detective Branch of the Police (hereinafter referred to as DB) and entered all the rooms with their arms creating panic amongst lawyers and clients. The so-called members of the DB did not inform those present what (or whom) they were looking for. The so called DB members interrogated the associates of Mr. Muhammad Tajul Islam and his clients. Mr. Muhammad Tajul Islam was not present in the chamber at that time but, his Associates, including Mr. Mizanul Islam, who is also an officer of this Hon’ble Tribunal, and other members of staff were present.
4. That at one point the associates of Mr. Muhammad Tajul Islam asked the DB members whether they had any search warrant. They (i.e. the DB members) replied that they had no search warrant. The associates further asked the DB members whether there was any specific allegation or reasonable ground for trespassing into the chamber and interrogating the clients and associates. The DB members did not give any answer. At that point the associates of Mr. Muhammad Tajul Islam informed the DB members that they were harassing the lawyers and clients who were seeking legal remedy. After around half an hour the DB members left the chamber.
5. That the armed individual (who described themselves as members of the DB) had no specific purpose in entering unlawfully into the chamber. They entered the chamber with arms solely to create panic and harass the lawyers of the accused before the International Crimes Tribunals. These individuals were carrying arms into the chamber of defence counsel solely to threaten the lawyers. This action by them has had a serious adverse effect on the guarantee of a fair trial under section 6(2A) of the International Crimes (Tribunals) Act, 1973 (hereinafter referred to as the said Act).
6. That the law enforcement agencies are now being used to prevent a fair trial for the accused. They are threatening lawyers. Recently a number of reports have also been published in widely circulated newspapers reporting that the law enforcement agencies are planning to arrest defence counsel because of the role played in defending the accused before the International Crimes Tribunals.
7. That it may be mentioned here that a General Diary No. 561 dated 10 October 2012 was lodged in relation to the events of 9 October 2012 at Paltan Model Police Station by Mr. Muhammad Tajul Islam. A copy of this General Diary is attached with this application and marked as Annexure A.
8. That the action of so called DB members is unprecedented and is an interference with the conduct of a fair trial. While the prosecution lawyers are being provided with security from the law enforcement agencies, defence counsel are being deliberately threatened and harassed by so called law enforcers and thereby obstructed from discharging their professional duty. There is no equality of arms in the matter of security for lawyers. Defence lawyers have to carry out their professional duties in circumstances of extreme insecurity.
9. That it is respectfully submitted that defence counsel are the officers of this Hon’ble Tribunal and they should not be prevented from discharging their professional duties. It also respectfully submitted that the clients who are seeking relief from this Hon’ble Tribunal should be allowed to communicate with their lawyers without any harassment and interference. The communication of clients with their counsel should also be privileged. However, the conduct of the law enforcement agencies have interfered with a fair trial.
10. That it is respectfully submitted that to ensure the ends of justice, the law chambers of defence counsel should not be subject to search without warrant and their clients should not be harassed within the chambers.
11. That for the abovementioned reasons, the Accused-Petitioner humbly prays that this Hon’ble Tribunal may be pleased to direct the law enforcement agencies not to harass Defence Counsel and not to prevent the Defence Counsel from discharging their professional duties and not to enter the chamber of the defence counsel without a search warrant.
Wherefore it is most humbly prayed that this Hon’ble Tribunal would be graciously pleased to pass an order directing the law enforcement agencies not to harass Defence Counsel and not to prevent the Defence Counsel from discharging their professional duties and not to interfere in the chamber of the defence counsel without a search warrant and/or pass any further order(s) as it may deem fit and proper.
Abdur Razzaque the learned senior counsel by filing an application on behalf of the defence counsel Mr Tajul Islam submits that on 09.10-2012 at about 4.00 P.M. some plain dressed DB [Detective Branch] personnel entering into the chamber of the applicant situated on 8 Floor of Paltan Tower 87 Purana Paltan Lane Dhaka without any search warrant or lawful authority caused harassment and panic, despite verbal resistance of the co-counsels of the applicant present there. The applicant apprehends that such act of the alleged unknown DB personnel was aimed to cause obstruction legal responsibility of the applicant who is defending the persons accused of crimes against humanity before the International Crimes tribunal. The applicant has already made General Diary NO. 561 dated 10.10.20t2 at Palton Model Poiice Station stating the incident.
We have heard the learned counsel for the applicant and the learned Prosecutor.
The learned counsel appearing for the applicant has submitted that a counsel defending a parry to a criminal trial must have lawful safeguard to his respective professional responsibility and his recognized rights. But the alleged unknown DB personnel illegally had caused obstruction to the discharge of lawful professional responsibility of the counsels defending the accused persons before the tribunal. Having regard to the submissions of the defence counsel we hold that since the learned counsel for the defence has taken recourse of law by lodging GD with Model Paltan police station stating the alleged incident now the concrned authority is supposed to go ahead with inquiring into the matter according to law. However, considering the legal and factual position, we are inclined to direct the authorities concrned to report the development of the inquiry with reference to the respective GD before this Tribunal on the alleged matter on 22 November 2012. Let copy of this order be communicated to (1) the Police Commissioner, Dhaka Me6opolitan Police and (2) the Officer-in-Charge Model Paltan Police Station, DMP for information and necessary compliance.