Alim indictment review order

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9 Jul 2012: Alim trial opening

Tribunal Two
Following the end of the morning session, the afternoon was set for hearing the opening statement into the trial of Abdul Alim.

Please note that between Mid-April (when the case was moved to Tribunal two), and 9 July (the beginning of the trial) no detailed notes of proceedings are available. However the key orders/ applications involving tribunal two in this period are set out below..

- Prosecution application for charge framing 

- Defence response 

- Tribunal order of Indictment

- Defence review application

- Tribunal order on review application

The Prosecutor Rana Das Gupta mentioned to the court that the defence could not go to all the places mentioned in the formal charge sheet to collect evidence. We have been to 3 places only.

Justice Obaidul Hassan asked why it has taken such a long time to present the case

Prosecutor Rana Das Gupta said that the prosecution had to prepare documents along with evidence collection and visiting of the spots. That is why we could not make it faster.

Justice Shahinur Islam asked the prosecutor to proceed.

Prosecutor Rana Das Gupta started to read out the opening statement from page one.

The war of independence gave us our national identity. But if we remember the role of the Shanti Committee, we cannot ignore the fact that it has an adverse effect on the nationals of Bangladesh. Shanti Committee through its activities pushed our national identity towards the religious fundamentalism and religious blindness. By destroying our nationality is such way, it has thus attempted to destroy our nation. The Shanti Committee along with the Pakistani Government has dishonoured the constitution of Bangladesh. My lord, it may seem irrelevant to the case but it is not. The defeated power of the war of independence is always against the freedom of our country. It is a sheer conspiracy against our future generation by them. We already know about the vicious fact that during the war of independence the Shanti Committee was engaged in genocide, rape, murders, loot and many other crimes.

Justice A.T.M. Fazle Kabir : Mr. Rana Das Gupta, please skip these pages and start reading from the point of national election.

Prosecutor Rana Das Gupta: My lord, I will skip the pages as you said but please do consider the unread pages as well.

If we focus on our national elections, we will find out that there has been conspiracy against Bangabondhu Sheikh Mujibor Rahman and his followers. The member of Shanti Committee and their companions have willingly served the Pakistani Army and helped them to oppress the Bangladeshi.

There are certain significant activities of the Shanti Committee that we can name, like-

1. They worked against Bangabondhu Sheikh Mujibor Rahman and his followers. They were against the independence of Bangladesh.

2. They formed Shanti Committee and misrepresented the national image of our country by committing unforgivable crimes during the war of independence.

3. During the war India was helping us but they considered India as rival.

4. They were against the freedom of our nation but they titled us as treacherous.

5. Their hostility was not limited within political rivalry but also expanded in the forms of several fierce crimes.

I am presenting the opening statement against Abdul Alim, former leader of Convention Muslim League and minister of the then Pakistan Government. He is a power political leader of Joypurhat Mohokuma, Bogura. He was also a minister of former BNP government. He was strongly against the Language Movement of 1952 and worked on behalf of Pakistan Government during the war of independence. We can find the proof from ‘The Daily Sangram’, October, 1971 that Abdul Alim was a powerful leader of Convention Muslim League.

Rana Dasgupta said the government issued proclamation against Alim under the Collaborators Act, 1972, and arrested him in March 1972. Through a government investigation it was proved that allegations brought against him for his activities against the liberation war was true, added the prosecutor. Even documents from the defence say that in March 1972, Alim was arrested for co-operating the Pakistani forces and he was released on bail in 1974.

He also worked as a minister from 1977 to 1981 in the time of Ziaur Rahman government. Before surrendering to the army in 1971, he was involved in several operations of Pakistani Army, for example ‘operation searchlight’. He as a leader of Convention Muslim League along with other defeated parties of the election of 1970, worked against the liberation of Bangladesh.

On 9 April, 1970 after the election the proposal to form ‘Nagorik Shanti Committee’ was raised. On 12 April, 1970 Shamsul Huda order to form Shanti Committee and on 15 April, 1970 the name of Shanti Committee was finalized.

Prosecutor Rana Das Gupta also mentioned the name of the book ‘Witness to Surrender’, written by Siddiq Salik. In that he wrote that the Pakistani Army had to depend on the cooperation of the local people and the only people that came forward was the rightist, the top leaders of Jamaat-e-Islam and Muslim League.

After that Prosecutor Saiful Islam started to read out.

The Shanti Committee helped the Pakistani Army during the liberation war by providing them electricity, telephone, accommodation and other facilities. The Shanti Committe has major contribution in forming Rajakar Bahini. By attacking the religious sensitivity, they tried to spread the revolt. They were encouraged by the Pakistani army to oppress the people of east Pakistan. They forced people to help the Pakistani army. They worked as an auxiliary force for the Pakistan government.

Prosecutor Saiful Islam mentioned a conversation between Henry A Kisinger and Mr William in Washington DC. In the conversation they were talking about the cooperation of the Shanti committee and Rajakar bahini during liberation war.

On 13 June, 1971 there was a news published in ‘The Daily Songram’ where it was said that to keep peace in the country we have to follow the way of guerrilla and the people of Rangpur were praised for opposing the Pakistani army.

Shanti Committee helped to form and find the member of the Rajakar Bahini and the proof is found in the government official documents of that time. One of the Captain of Pakistani army named Capt. Ijahar Hossain wrote that the Pakistani army helped to train the Rajakar bahini. In the Kolbagan field and Mohammadpur Physical Training Centre the Pakistani army gave training to the member of Rajakar Bahini and the duration of the training was 1 week to 1.5 week. Their recruitment and salary of the Rajakar bahini was monitored by the Shanti committee. The leader and followers of the then political party Jamat-e-Islami was also member of the Shanti committee and as they were involved in all those crimes (genocide, rape, loot etc.), we can call Jamat-e-Islami as a party of criminals.

Accused Abdul Alim in his own house in Joypurhat Mohokuma, Bogura district, set up training camp and recruiting centre for the Rajakar bahini. He formed Shanti Committee in Joypurhat and then he contributed in forming Rajakar bahini. Major Afzal and Abdul Alim had close relation and they together committed many crimes. Belated Shawonlal Bajlal was one of the richest businessmen in Joypurhat and in the 3rd week of April, 1971 Abdul Alim forced him and his family to leave the country. Then he captured his house, shops, rice terrace etc. and he also took his Volkswagen car. He also teased Soleman’s daughter who was an ayurvedic practitioner. On the 25th year of Pakistan there was assembly in the Altafunnesa moidan in Bogura and in that assembly he blamed the freedom fighter for creating chaos and warned that those who will disturb the peace of the country will not be relieved. He has tortured the freedom fighters.

On 6 March, 2011 the investigation officer Z.A. Altafur Rahman presented the investigation report. The investigation report, proof and statement of the witness were sent to this tribunal in January, 2012. There were 17 allegation charged against Abdul Alim. The allegations are divided into three type and they are genocide, to force people to immigrate and murder related.

The constitution of Bangladesh was amended in 1973 to authorize criminal prosecution of any person accused of “genocide, crimes against humanity or war crimes and other crimes under international law.” Bangladesh also enacted the International Crimes (Tribunal) Act of 1973 to establish a process for such prosecutions. War crime prosecutions have become common over the last decade or so, but in 1973 the people of Bangladesh were taking pioneering steps to prevent impunity for grave atrocities, steps that drew praise from the international community at the time. After the 40 years of independence the accused Abdul Alim’s crime is going to be revealed. His crime was versatile and it directly or indirectly interrupted the republican image of our country. If we do not punish the treachery of the accused, we will step ahead in the path of destroying our future generation. The accused cannot only be blamed for the crimes but also for organizing conspiracy against the nation. We have to admit them as criminals and their vicious crimes as punishable in order to save our history. And those who killed our national leader Bangabondhu Sheikh Mujibor Rahman they are against our national conscience.

We have presented the formal charges of this case in front of the court. And we know that after the liberation war these criminals (Rajakar, Albodor, Shanti bahini) hid for few days and then took the advantage of time and came out in daylight.

They have been an obstacle in establishing democracy.

They have created anarchy in the country after liberation war.

Apart from Sheikh Hasina’s time (Awami League government), there was no peace in the country.

They (the defeated power of liberation war) are creating incitement among mass people and have distorted our language and culture. They have directly opposed the liberation war. They have introduced the politics of religious blindness, politics of clash and vulgarity. They have deprived the mass people specially the women from their rights. They are like cancer for our nation.

From 1948 to 1973 the process of judging of genocide in Bangladesh was initiated from Nuremberg and it was improvised by including more war crimes with genocide. In 1948 the Genocide Convention took place. Again, between the Nuremberg trials in 1945 and the establishment of the International Criminal Tribunal for the former Yugoslavia in 1993, there were no examples of a legal institution trying crimes against humanity. In 1971 30 lach people were killed, 2 lach women were raped and 1 crore people as refugee went to India. In comparison to world’s other countries’ genocide, the judgement started after a long delay. Still the process of judging the criminals of World War 2 is going on. The gravity of the justice to this crime are-

- To save the future generation

- To bring peace in national life and not to let the criminal lead normal life

- The victim of liberation war deserve justice

- Those who helped the freedom fighters need to show profound respect

- If the criminals are not punished that will encourage crime

Prosecutor Rana Das Gupta : This is where our opening statement ends.

The opening statement was 42 pages in total.

Justice A.T.M. Fazle Kabir : The opening statement was well written and full of emotion. But I expect that both prosecution and defence will help us to be neutral.

Prosecutor Rana Das Gupta : Obviously My Lord.

Defence lawyer A.E.M. Khalilur Rahman: My Lord, I had a vital accident in 2010 and I am still taking treatment. It would have been great if the tribunal allow us with more time for preparing defence documents and list of witness.

Then A.E.M. Khalilur Rahman asked Prosecutor Rana Das Gupta whether he has any objection if the tribunal fix the next date after the holy month of Ramadan and Rana Das Gupta mentioned section 11(3) b which prevents the non-relevant delay of tribunal activities.

Defence Lawyer (junior) Tarikul Islam raised objection and said we want to inspect the mentioned picture of Abdul Alim with 26 people. The picture we have been given is not clear. One more thing is that our honourable Prosecutor Rana Das Gupta has called accused Abdul Alim ‘killer’, which he cannot say till the judgement.

Justice Obaidul Hassan : Prosecutor Rana Das Gupta brought the charge against him, he did not call him ‘killer’. What do you want to inspect specify it.

Tarikul Islam : The picture of Abdul Alim with 26 people.

Justice Shahinur Islam : You have to bring your prayer in the format of an application

Prosecutor Rana Das Gupta (to A.E.M. Khalilur Rahman): You have said that those 26 people are alive then what is the necessity of inspecting the picture?

A.E.M. Khalilur Rahman : My Lord, we will bring the application at the next hearing.

A.T.M. Fazle Kabir (to A.E.M. Khalilur Rahman): We are considering your physical inability and giving you the maximum time. If it would be someone else we would not allow this much time. Next hearing will be on 6 August, 2012. Please prepare your list of witness and other document.

A.E.M. Khalilur Rahman : Thank you My Lord.

16 Apr 2012: Tribunal case transfer

After the court dealt with the Sangram contempt matter, Golam Arif, the Chief Prosecutor, then asked if the case of Quamrazzauman could be transferred to tribunal number 2

Tajul Islam, the defence counsel questioned whether the defence counsel also had the power to seek a transfer of a case to another tribunal.

Justice Nizamul Huq said that the defence could apply to the Court, and the Court may take steps.

Justice Nizamul Huq passed the following order (summary)

The Chief Prosecutor has filed an application for the transfer of this case to the Tribunal-2. We’ve heard both the Chief Prosecutor and the Defence Counsel. We’ve gone through the application and consider the present position of the cases. There are 8 cases pending before this tribunal. We’re of the view that- this case may be transferred to the Tribunal-2 for quick disposal; so the application is allowed

Let the instant case be transferred to Tribunal-2 with immediate effect.

A similar application and order was made relating to Alim and Mollah.

The tribunal then move onto deal with an application by Chowdhury

27 Mar 2012: Alim cognisance, bail

The tribunal informed Salahuddin Quader Chowdhury and his lawyer that there would be a delay in providing the order for indictment against him as the new judge needs to familiarize himself with the case, and that once he has done so he will then be able to pass the order.

The matter was fixed on 4th April, 2012.

The hearing them moved onto discuss the cognizance application against Abdul Alim

The prosecutor, Advocate Rana Dash Gupta said that from the Investigation it has been found that the accused Abdul Alim was the leader of the then Pakistan Muslim League. From the witnesses statements which has been found from the investigation it is clear that he was the Chairman of the Peace Committee and he was the Razakar Commander. It has been found from a photograph that the accused Abdul Alim was standing beside the Pakistan Army infront of 26 arrested young man. From the statements of witnesses’ it has been made clear that he was the member of Peace Committee and was involved with the Razakar Committe.

If he didn’t possess any superior status, then there was no way for him to stand beside the Army Commander. At that time that which has been committed and happened in Joypurhat district was done with his direct direction and provocation. Now, our question is, other than a big shot; who hold the status to give direction of such a atrocities?

Justice Nizamul Haq: Okay. If anyone gives direction from his home to commit a particular act; whether it would fall under the superior responsibility.

Advocate Rana Dash Gupta: Yes, My Lord. Before the 26 detained young men, who could hold the status to stand beside the Army Commander? It can be assumed that the accused certainly held the superior status.

Justice Nizamul Haq: Mr. Prosecutor, section- 4(2) of the ICT Act-1973 reads as follows-  “Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.”

Now, Mr. Prosecutor, as per this section whether the matter of “subordinates” comes under this case? On your view what is your findings from the aforesaid photograph?

Advocate Rana Dash Gupta [Prosecutor]: From the investigation, it is found that he was liable for that offence under superior responsibility.

Justice Nassim then passed the order (summary)

Accused Abdul Alim is present today in the Tribunal. The matter of cognizance is taken. We have perused the formal charge, investigation report and other documents as submitted. We are in the opinion that there is a Prima Facie Case against the accused. As such cognizance under- 3(2), 4(1), and 4 (2) is taken against the accused. The accused is present before the tribunal. So, no notice is required to be served.

At this stage the Chairman directed the defence counsel to come with the bail petition.

Munshi Ahsam Kabir, for Alim argued that there was no misuse of the bail petition granted by the tribunal till now. His physical condition should be considered carefully. And his health condition deteriorates during the period of his bail.

Advocate Rana Dash Gupta [Prosecutor]: My Lord, my learned friend appearing on behalf of the petitioner would like to say that as the petitioner has not misused the bail, so he should be granted with the extension of bail. But here my question is: whether justice would be denied to the victims and the family members of the martyrs of 1971. The offences under section-3(2) are non-bailable offences.

My Lord, I would like to say that Mr. Abdur Razzak, the defense lawyer has referred the case of Mr. Abdul Alim, in the time of taking the cognizance of the issue of Mr.Golam Azam and urged to consider the matter of his age and physical condition. Your Lordship has rejected that argument when considering the gravity of the offence.

The chairman then said, have you gone through the order? There are other matters which have been taken into consideration other than only the gravity of the offence.

Advocate Rana Dash Gupta then referred to the other international tribunals for the trial of Crimes against humanity and the incidence of accused staying in the custody other than being granted bail.

As the accused petitioner was a powerful leader in 1971 and he was elected as a Member of Parliament at 1978, so he does not hold a normal status. Now we would like to pray to your Lordship to send the accused to the custody of the Jail authority, thus reject the petition of the defence counsel.

Defence Counsel: My Lord, my learned friend has a lot of international cases including the Chamber of the Court of Cambodia; but he was unable to present whether there was any single incident to reject the bail after granting it.

Justice Nizamul Haq: Mr. Counsel as you have stated that- the accused petitioner’s physical condition has deteriorates during the bail. Could you please produce supporting papers in regard of this?

Defence Counsel then produced the papers

Advocate Rana Dash Gupta: It would be better, if our learned friend would supply the copies of the medical reports to us.

Justice Nizamul Haq then passed the following order:

As regards the extension of bail, the learned counsel for the petitioner submits that he has not misused the scope of bail. He has further submitted that- the petitioner had co-operated the Investigation Officer. He submitted that his physical condition has further deteriorated. He thus submits that- he has not misused the bail, so extension of the bail was sought.

Mr. Rana Dash Gupta, prosecutor submits that it is a case of crimes against humanity and genocide. He submitted that if the physical condition of the petitioner deteriorates then he could be treated in the Prison authority. He further submits that except this case, all the other accused are on custody and have not been granted bail.

We have heard learned counsel for the accused and the prosecutors. It is a fact that aall other accused are on custody, except this petitioner. It is a matter that his lower part of the body is paralyzed.

He has not misused the bail. He has also co-operated the investigation officer. It is clear that he would not frustrate the bail. So this old crippled man should not be sent to the custody. And we are in point to grant him bail on the same condition. And the petitioner should submit his latest medical reports to us.

We hereby direct the prosecution to submit the formal charges, witness testimonies and other documents to the registrars’ office by 1st April and 2nd April, 2012 is fixed for the defence to collect the documents from the office of the Registrar.

The matter shall be heard on 24th April, 2012 for charge hearing.

The tribunal then moved onto dealing with the the defense response to the charge-framing application against Azam

22 Mar 2012: Mujahid charge framing 3

The date was set for a cognizance hearing in relation to Abdul Alim

Justice Nizamul Haq passed the following order (summary)

Today Mr. Abdul Alim is present before the tribunal. Today is fixed for passing order on cognizance matter. But today one of our members of this tribunal is not present with us. Under Rule-26(1) the presence of all the members is required in case of cognizance matter. So, today the order cannot be passed. 27th March, 2012 is settled for passing the order. 

And the accused had prayed for the extension of bail. Let the bail be extended till the next date. And the accused has to be produced before the tribunal on that day. 

The matter of Mujahid then came up for hearing

Advocate Munshi Ahsan Kabir said that he we would like to submit a discharge petition but needed to have some time. The prosecution team has taken only a short time to present their argument, but we need time.

Justice Nizamul Haq: Mr. Munshi, please start your argument. Then it would be easier for us to pass an order. It is so odd to adjourn Court right within half an hour after start-up.

Advocate Tajul Islam, the Defence Counsel supported his colleague and said, My fellow counsel would like to present his submission by submitting the discharge petition. For the end of justice we require time.

Justice Nizamul Haq: Mr. Islam; we would like to write it on the order paper that, The defence has started their argument. Justice Fazle Kabir: Could not you please start your argument by two lines?

Advocate Munshi Ahsan Kabir [Defence counsel]: My Lord, there are 24 statements of the accused which have been found from the 32 counts produced by the prosecution team. The prosecution has failed to show whether there was any offences of Crimes against Humanity, which was committed by the accused. He was admittedly a leader of Islamic Chatro Shangha [Islamic Student Alliance]. Mr. Mujahid got admitted in the Law faculty of the University of Dhaka at January, 1971. He was not involved with Al-Badar.

On 25/03/1971 the overall situation deteriorates. However Mr. Mujahid admits that- the organization [Islamic Chatro Shangha] was so small that he became the Secretary of Dhaka region.

My Lord, it is easily assumable, what was the actual condition of that small student organization which holds only 125-130 members. So this small student organization could not be termed as the auxiliary force.

Justice Nizamul Haq: Mr. Munshi; you state that the organization was so small, but you know Mr. Munshi, it is a matter of evidence. The prosecution has stated that Albadar was formed by the members of ICS and the accused was the President of Islamic Chatro Shangha [ICS]. Al-Badar has borne out from the wings of ICS.

Advocate Tajul Islam [Defence Counsel]: My Lord, the question you have asked is a matter of evidence. The allegation against Mr. Mujahid has been brought just to create a situation of Political Persecution. The main aim was to harass the accused. The masterminds behind the trials are responsible for this ground of harassment. To eradicate and destroy a particular group is their main aim.

We will submit it on your argument that- There are a lot of documents and statements which shows that- he was the leader of Islamic Chatro Shangha [ICS]. A man is free to run on a particular belief. The endeavor from which the then Pakistan was formed was a noble cause. To protect the country from any kind of eradication, one can certainly support a side by observing the Muslim Sovereignty. Now, it is not clear, how could supporting a cause, result in anyone to the charge of committing Crimes against Humanity.

The prosecution has brought the charge of superior responsibility under section- 4(2). Now, if it is the situation in this case, then will the prime minister be responsible for the crimes and offences committed each day in the country, as because she is the chief of the country? Committee to eradicate the Collaborators and the killers of 1971 has urged to eradicate Jamate Islami. But who has assigned them for the eradication of a particular political group.

Justice Nizamul Haq: They are not the Jamaat-e-Islami eradication Committee.

Tajul: My Lord, the Prosecution is just referring that it has been stated in Daily Shangram- ‘the sovereignty of Pakistan should be protected.’ But just for this simple headline no one would be liable. 40 years have been passed since 1971; but after this long time why the students of that time have been brought before this tribunal under the charge of Crimes against humanity; it is totally clear as because they are playing some important political roles right now. My Lord on that time there were the involvements of some ministers and Army’s with the mass killings and destructions. But they have not been brought before the tribunal.

At this stage, the defence has prayed for the adjournment.

Barrister Abdur Razzak, the defense counsel said that he would like to have 15 minutes to talk with his client and the court agreed,

Justice Nizamul Haq passed the following order:

Accused Ali Ahsan Mujahid has been produced before the tribunal. Today is fixed for charge hearing matter. Defence counsel Mr. Tajul and Mr. Kabir has started their submission. It was incomplete. Let the date be fixed on 28th March,

15 Mar 2012: Alim bail application

The case of Abdul Alim first came up before the court. The chairman mentioned that the defence counsel has submitted an application for the extension of his bail

The prosecutor, Advocate Rana Dash Gupta stated that today they have submitted the formal charge against Mr. Abdul Alim. So, now at this stage, the application from the defence side to extend the bail ought to be rejected.

Justice Nizamul Haq passed the following order: (summary below)

Today was fixed for submitting formal charge against Mr. Abdul Alim. And the Prosecution has submitted the formal charge against him. Mr. Abdul Alim was asked to be present before the tribunal. And he is present today.

Mr. Tajul Islam appearing on behalf of the Defence party submitted that the petitioner has not abused the aim of the bail. As such, for the ground of Justice, his extension of bail is to be granted.

Mr. Rana Dash Gupta argued that as today, the formal charge has been submitted, so the accused petitioner should not be allowed on bail, no more.

Now, we’ve to fix a date for the cognizance of the matter of offence. Since there is no misuse of bail by the accused petitioner, so he would be allowed to have the extension of bail.

22nd March, 2012 is fixed for the cognizance matter and till date his bail is extended. He is asked to be present before the tribunal on that date.

After this the court then moved onto hearing the continuation of the charge framing application of Nizami. 

16 Jan 2012: Alim bail

Abdul Alim is the only one of the accused who has been given bail. The prosecutors have received an investigation report from the investigation agency but no formal charge has been submitted. The question of whether his bail should be extended came up before the tribunal. Alim was in court in his  wheelchair.

(Also on the this day the 13th witness in the trial of Delwar Hossain Sayedee gave evidence, the defence lawyer Mizanul Islam undertook his cross examination, and there was an application for investigation report  to be given to the defence)

Prosecutor Haider Ali came to the dais and before he started his submission that bail should not be granted, Tribunal Chairman Justice Nassim asked him some questions.

Chairman Justice Nassim: Is there is misuse of the privileges of bail by the accused petitioner?

Prosecution: I have to find that out.

Chairman Justice Nassim: That means there is no such misuse of privileges. Then what is your ground for protesting the extension of the bail of the accused?

Prosecution: Whether the circumstances while your Lordship allowed the bail of the accused petitioner has been changed or not?

Justice Zaheer: What do you mean? There are 2 screws in the back of the accused petitioner and he is using the wheelchair. Do you want to say that the screws have been removed from his back?

Prosecution: No, my Lord.

Chairman Justice Nassim: Mr. Prosecutor, can you please confirm that the interrogation of the accused has been done (at his place)?

Prosecution: Yes, my Lord.

The Tribunal Chairman Justice Nassim then made the following order in this matter:

In compliance with the order the accused petitioner has surrendered before the Tribunal and he has not misused the privileges of the bail. Thus the Tribunal is pleased to enlarge the bail granted to the accused or further time i.e. he will be on bail as before. Prosecution has confirmed that the interrogation of the accused has been done. The accused need to be present on the day (15.03.2012) fixed for submission of the formal charge.

18 Oct 2011: Alim bail

This hearing concerned an application by the prosecution to interrogate Md Alim, one of the two Bangladesh Nationalist Party leaders (BNP) detained by the International Crimes Tribunal.

Under the Rule 16 of the ICT rules of procedure, the tribunal can pass an order that an accused person be given into the custody of the investigation agency if the tribunal itself considers it to be ‘indispensable’.

The defence lawyer, Tarikul Islam sought an adjournment since the defence's lead lawyers were either out of the country or otherwise busy.

There was also an application for an extension of his bail, and an application for extension of investigation period.

It was a very short hearing.

The tribunal passed the following order:

'Application filed by accused petitioner for extension of bail is taken up for hearing. It appears that since entered on bail, accused is appearing on dates fixed, and not deviating in any manner from the order, invited to extend bail. Let bail be granted to Alim to next date.

The application filed by prosecution for extention of investigation period is taken up for hearing. 16 Oct was date fixed for progress report and prosecution have submitted progress report which has been perused. On perusal we find investigation is proceeding and prosecution is applying for further time to undertake investigation

We are of the view that three months time maybe allowed for prosecution for submitting formal charges, or progress report which ever is appropriate. Let matter appear on 16 January 2012 for submission of formal charge or progress report.

The application for interrogation under section 16(1) is taken up for hearing. It is our view that should consider application in presence of accused petitioner. Let him appear at this tribunal next Sunday 23 oct 2011 for consideration of application filed by prosecution.

21 July 2011: Alim in court

Md Abdul Alim was brought to the Tribunal and a progress report into his investigation was submitted by the prosecution.

Alim is the only one of the accused who has obtained bail. See here for hearing where he got bail.

Haider Ali, a prosecutor, said that progress in the investigation was good, evidence has been found, and pointed to parts of the report which explained why the investigators needed more time, and what evidence had already been obtained.

He then sought 6 months to complete the investigation. The tribunal chair however said that the rules say that every three months the tribunal shall review the investigation report.

Another prosecutor, Mr Zead Al Malum then stood up and started to read out various passages of a press release that had been issued by the Jamaat-e-Islami which was critical of the tribunal. The tribunal chair then said that he should raise it again after they passed the order.

After consultation between the judges for a few minutes - the longest pre-order consultation between the judges so far - the following order was passed:

‘Accused Md. Abdul Alim alias M A. Alim is present in the Court today. The prosecution has submitted a progress report regarding the development of the investigation of the case against him. Copy has been served. We have perused the report. We have heard Mr. S Haider Ali, the learned prosecutor who stated that the investigation is going on in this respect and have collected evidences about atrocities committed during war of 1971. He prayed for further time to continue the investigation.

On the other hand Mr. M. Tajul Islam, learned counsel appearing on behalf of the petitioner stated that the accused-petitioner is on bail. As such he has no objection if time allowed for conclusion of investigation, but objected to some averments made in the progress report.

We have heard both the side. We are of the view that for the ends of justice some more time for prosecution to complete investigation. Let the date be fixed on 16-10-11. On that day the the investigation agency is to submit investigation report or progress report whichever is available. The accused-petitioner must also be present before this tribunal on that date.

After passing the Order, the prosecutor, Mr Zead Al Malum again stood up and read out parts of the Jammaat press release.

The chairman said that this was not a public document, but that if it had been published in the newspapers they would have issued a suo-moto rule in relation to it. He told the prosecutor that he should raise the issue in a formal application to the tribunal.

28 Apr 2011: Sayedee interrogation request

The hearing on 28 April 2011 dealt with two issues. The presence of Mr. Abdul Alim (the only accused to have got bail from the Tribunal (see blog)) and an application by the prosecution to take Sayedee into remand for questioning

Alim
This was a very short hearing. Counsel for the accused, Advocate Tajul Islam, told the tribunal that his client has been complying with the conditions set out in the Tribunal's March 31 bail order.

Prosecutor Zead Al Malum told the tribunal that the investigators have not yet submitted any investigation report against Alim, but the investigation is in progress, he said.

The Tribunal ordered that he appear again on 21 July, and that the investigation agency submit a report on their investigations by then.

Sayedee
This was the fourth application filed so far by the prosecutors seeking the interrogation of one of the accused. So far the Tribunal has dealt with applications relating to Nizami, Mujahid (on 5 April and 31 April, 21 April) and to Salauddin Quader Chowdhury (on 19 April). For each of these three defendants, the Tribunal finally ordered that the accused should be remanded for one day with the investigation agency in a 'safe house' for questioning.

The arguments both by the prosecution and the defence in relation to the application involving Sayedee was very similar indeed to the previous hearings involving Nizami and Mujahid and so the summary here is relatively brief.

The prosecution application argued by Mr.Sayed Rejaur Rahman sought remand for 3 days. He said that investigation was in progress and that interrogation was necessary as the investigation was nearly finished. He said that they had a lot of documents and evidence that needed to be tested. He said that a house in Dhanmondi had been gazetted

Before Tanvir Ahmad Al-Amin responded to the application for the defence, he made two points. First he argued that it was inappropriate for the prosecution to use the name 'delu' in its application. (This point has been raised in previous hearings). The Tribunal said that whether he is in fact 'Delu' or not will be a matter for evidence. The chair said that it was common in applications for nicknames to be used to identify people. The defence responded that it is not useful if in fact this is not his name. The lawyer argued that in the future they should not use the word 'Delu'

The lawyer then pointed to a part of the prosecution application in which Sayedee was termed as a 'criminal' rather than as an 'accused'. 'It is accepted that a person is innocent until proved guilty,' the lawyer said. The Tribunal chair responded by saying that if it is written in the prosecution submission that he is a criminal, he will not be proved as criminal by merely claiming so. The Tribunal also said that a person is innocent until proved guilty.

Subsequently one of the other Tribunal members told the prosecution that they should not use the word 'operadi' (criminal) in their application. 'The terms used should be fair,' he said.

Al-Amin then went on to argue against the interrogation application. He said that Section 16(1) of the 1973 Act had not been fulfilled.

He argued that the investigation officer needs first to form an opinion that remand is necessary. "There is no information or evidence in the application that can allow him to form an opinion that remand is indispensable. Just general allegations.' He also said that the investigation officer must make this opinion 'objectively' - it is not enough for him to subjectively believe that there is sufficient evidence there must be an objective basis.

The Tribunal asked, 'Where do you get this from that there must be an objective basis for the investigation officer's opinion'. The lawyer said that this was implied. He then referred to a House of Lords Case, R v A, to support his view that 'the investigation officer must objectively decide that necessary. That it be indispensable, not just necessary.'

'Indispensable means that if the information can be obtained in any other way, then that should be tried. The prosecution has not submitted documents to satisfy that custody of the accused is indispensable.' he said.

Al-Amin pointed to the application and said that there was nothing written as to why it was necessary that the accused should be in remand. He said that it was not stated why an interrogation 'in cell or at jail gate was not equally efficacious.'

He then argued that there was no evidence that the 'safe house' was really safe and secure. The lawyer argued that the house needed substantial changes to make it safe and secure. He also argued that there house was not properly equipped in case there was a medical emergency, and pointed to the age and health condition of Sayedee.

He then pointed to the 8 year old High Court order, referred to previously, that required interrogations to take place in prisons. 'This has not been applied, he said. ''Lordships, why did jail authority not make changes in light of the BLAST judgement.' He said that the jail authority had a legal obligation to comply.

The prosecution then replied and explained that there was no reason why the safe house should not be considered safe. He said that the safe home was appropriately equipped and doctors could be made available if there was an emergency.

The Tribunal then made its order:

This is an application filed by the prosecutor praying for an order under section 16(1) to commit the arrested accused Delwar Hossain Sayedee in the custody of the investigation officer for a period of 3 days for purpose of interrogation is taken up for hearing.

Application for not committing the said accused in the custody of the investigation officer for interrogation has also been filed by defence and is taken up for consideration.

Syyed Rejaur Rahman appearing for the prosecution argued that for proper investigation of the case the accused person should be committed in the custody of the investigation officer for purpose of investigation. He further submitted that the government has by gazette notification declared the house no-405/b, road-27. (New house no-20/a. road no-16) Dhanmondi, as Safe home and interrogation if allowed should be done in that house. Further submitted that materials collected by Investigation agency required to be examined by the investigation officer. He also submitted that some materials also collected by investigation agency during investigation which connect the accused person to the offence in question and for testing those documents it is necessary for taking him in custody.

It was further submitted that the investigation of the case is at the fag end and if the investigation will be prohibited the whole investigation will be defeated and incomplete.

Also submitted that the investigation agency has the right to interrogate the accused person for getting the whole picture of occurrence and this right should not be taken away. So prayed for custody of accused person in custody of investigation officer.

On the other hand Mr. Tanvir Ahmad Al-Amin appeared for the accused petitioner and submitted that the prosecution could not make out a case under section 16(1) of the Act to commit the accused person in the custody of the investigation officer. Further submitted that there is nothing in the petition that investigation officer was satisfied objectively for the purpose of committing the accused person in the custody of the investigation officer for interrogation and that no materials were available in the petition for the Tribunal to form its opinion that such order is indispensable.

He further submitted that the safe home as has been stated by the prosecution is not safe for accused person considering his security. Furthermore not stated in the application that there was arrangement for medical treatment in case of emergency when known that accused person is diabetic and heart patient.

We have heard both the parties. On perusal of petitions we are or the view that the reasons for committing the accused person in the custody of the investigation officer have been satisfied and investigation officer was satisfied that this interrogation is required for proper investigation. Also of the view that this committal of accused person in custody of the investigation officer is indispensable for proper investigation of this case. As such we allow the petition with the following conditions.

It is stated that that accused person is a diabetic with heart problems. Considering this we are inclined to allow this petition with some conditions stated below

The accused is given to the custody of the investigation officer by the Jail authority for interrogation in designated safe house for person of one day.

The jail authority shall produce the accused person at 10 am and take him back from custody at 5 pm.

The investigation officer is required to arrange a room for interrogation.
We also direct the jail authority to depute one doctor of the jail hospital to be present at the adjacent room during period of investigation.

The investigation officer should also allow one advocate of the accused in the adjacent room with the doctor.

The advocate and the doctor are allowed to see the accused at interval time. The doctor present should be able to look at health condition of the accused person if necessary.

The investigation officer will inform the jail authority and lawyer at least 48 hours before the time of interrogation.

The investigation officer will not put any pressure or threat on the accused during investigation.

The accused must be questioned in the language he speaks, Bengali, so that he can understand questions and give responses to them, and at the conclusion of the interrogation or questioning the accused shall be offered the opportunity to clarify anything he has said, before the Investigation Officer.

At the same time, the Investigation Officer comply with 16(2) of the Rules 2010.

With these conditions, the prayer is allowed.

Let a copy of the order be sent to the Superintendent of Dhaka Central Jail for information and necessary action. Copy thereof also be sent to investigation agency and the defence counsel.'

The following was then added to the order by the Tribunal chair:

'Also perusal of case find that investigation of case at fag end and we are of the view that interogation of the accused person is indispensable.'

Comment
At least this time the tribunal ruled that in its view interrogation was 'indispensable' (previously the Tribunal's orders had not even stated that interrogation was 'indispensable' as required by rule 16). The only reason he gave was that the the investigation was at the 'fag end'. I am not sure if that is a sufficient a reason to decide that interrogation was 'indispensable', but at least a reason was given.

31 Mar 2011: Alim gets bail

This is the third day of hearings relating to the arrest/detention/bail of Abdul Alim. There was previously a hearing on 27 March, and 28 March.

It started of with the Tribunal reprimanding the Chief Prosecutor for allowing Alim to be sent to Gazipur jail, two hours away from Dhaka, rather than Dhaka Central Jail which is what the Tribunal order had stated.

Tajul Islam for the defence got up said that he had filed a supplementary application.

He again enumerated the accused Alim's medical condition. Prostate and eye problems that required operations, arthritis, cant move without wheelchair etc.

He then said that the supplementary application proposes certain conditions that the tribunal could impose for granting bail. These are:

1. The petitioner surrenders his passport before the competent authority;
2. He does not apply for any travel documents without the prior permission from the Tribunal;
3. He resides at the residence of his elder son Mr. Faysal Alim at flat No.3/ A and 3/ D, House No. 81, Road No. 03, Block-F, Banani Residential Area, Dhaka-1213;
4. He reports to a local police station on an regular basis;
5. He does not travel to any areas where he is alleged to have committed crimes, specially to Joypurhat, without prior permission from the Tribunal;
6. He does not contact any of the prosecution witnesses;
7. He does not interfere with any part of the investigation process.

He then went onto say that 'the proposed house to be resided in by the petitioner is owned by the elder son of the petitioner namely Md. Faysal Alim. ...That the house is an apartment building which is easily accessible to the investigators if necessary for quizzing the petitioner in connection with this case. .. That it is stated that the house is situated in a very known place which is very much accessible and observable for the investigators or for the law enforcing agencies, if required.'

He said that Mr. Faysal Alim, the son of the petitioner is a well known businessman and is the Secretary General of Bangladesh Mobile Phone Importers Association and a member of the Dhaka Chamber of Commerce and Industries and is willing to provide surety of an agreed amount as a condition for bail.

He went on to say, 'That the physical conditions of the accused petitioner has deteriorated after his arrest and his left leg has become completely crippled and he needs to take physiotherapy regularly for his arthritis problem, and his left ear is completely non-functioning and considering all the above conditions this Tribunal may grant bail to the petitioner on humanitarian grounds and for ends of justice.'

He concluded reading out from the supplementary petition by stating 'that the petitioner is an old, sick and physically inactive man and he has been living an isolated life in his own residence for the last couple of years and he has not been taking part in any social or political activities and he is totally inactive in politics and in such situation it is not possible for him to influence the witnesses or process of investigation politically.'

Islam then spoke in response to the prosecutor's written response to the bail application.

He quoted the prosecutor's submission as saying that there there was no provision for bail in war crimes cases. Islam then refered to Rule 2(3) of this tribunal's Rules of Procedure where he said that there was a definition for bail which states that, 'Bail refers to setting an accused at large on furnishing bond before the Tribunal.' He argued that, as a result of this definition, there was a clear provision of bail.

He then referred to Rule 65 of the Rules of Procedure and Evidence relating to the International Crimes Tribunal for Yugoslavia concerned with 'Provisional Release'. This states that

(a) Once detained, an accused may not be released except upon an order of a Chamber.
(b) Release may be ordered by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.
(b) The Trial Chamber may impose such conditions upon the release of the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others.
(d) Any decision rendered under this Rule by a Trial Chamber shall be subject to appeal. ...'

He again also referred to Article 58 of the Rome Statute (see previous blog) and again stated that all the conditions had been met.

He said that bail was allowed both in the ICT's own rules and in rules of other courts.

He also said that it was 'impossible' for the accused to find a stand alone house, as was proposed by the prosecutor in his written submission. That in the building where it was proposed for the accused to stay, there were 20 flats, of which 8 were owned by sons of the accused.

Ialam was asked whether he was seeking bail on the merits of the case or just on humanitarian grounds and he responded, 'not on the merits of the case.'

Haider Ali for the prosecution then stood up. His application in response to Islam's petition for bail and supplementary application made the following points:
In his application:
- denied that Alim was ‘using a wheelchair because of his illness’
- claimed that the procesuction have provide information necessary to allow an arrest warrant under Rule 9 of the Rules of Procedure to be used.
- said that it is ‘false, fabricated and baseless’ for the defence to allege that there was no evidence to suggest that witnesses were being threatened.
- said hat it is ‘entirely false’ for the defence to claim that the allegations made against Alim are vague, or that Alim saved thousands of lives
- said that the ailments that the defence say that Alim is suffering from ‘are not compatible with his medical certificate’
- stated that it is ‘wholly false’ to say that Alim cannot move without a wheelchair, and not correct that he cannot interfere with witnesses as he cannot leave his home
- claims that that the defence argument that bail is a right nor a privilege, and that the prosecution had failed to establish ‘substantial reasons’ for detention, is not ‘relevant with the existing law’
- stated that the allegations against the accused are so serious that Alim should not be entitled to bail, even with conditions.
- argued that the ‘International Crimes (Tribunals) Act 1973 (as amended in 2009) is compatible with the [law relating to] International Criminal Tribunal on Yungoslavia and the International Crimes Tribunal on Rwanda as well as other international laws. And there is no provision to enlarge a person accused of crimes against humanity which is proved and hence the application for bail is not maintainable
- said that the proposed conditions for bail set out by the defence ‘are not applicable for this bail petitioner
- claimed that the building where it is proposed by the defence that Alim stays is five stories and consists of twenty flats where several families live, that the building is not owned by the sone of the bial petitioner solely and that it why it is risky to enlarge the accused on bail’

He argued that the accused was fit to go to jail and would receive all appropriate treatment.

He argued that Article 58 of the Rome Statute needed to be read with Article 60(2). This states that: 'A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions.'

Ali said that this meant that if the Tribunal was satisfied that 'There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court' - the words stated in 58, para 1 - he had to be detained.

He said that the interpretation was 'crystal clear'.

He said that the accused was directly involved in serious offences committed in 1971. 'He has directly participated in them'.

That although all the allegations relate to Alim's home district, 'he committed offences throughout Bangladesh' and was therefore not necessarily safe to stay in Dhaka.

That he has previously come to Dhaka in March 2010 without any problems to his health.

That the medical team that examined him said that he was 'stable at present'

Tajul Islam, for the defence, then made some additional comments. He criticised the way in which medical examinations are done in Bangladesh. He disagreed with the prosecutions interpretation of Article 58 of the Rome statute.

He said that the Tribunal has 'inherent power to give bail.'

The prosecutor Ali then responded and said that 'illness is part of life, medicine is available in the prison.'

There was then a gap of about two minutes when the Tribunal members had short conversations with each other and then the Tribunal chair gave the following order:

'The accused MD Abdul Alim, has been produced in the Tribunal today and is present in the dock. The application for bail which was filed earlier for the accused person, was taken up for hearing. Mr Tajul Islam, learned counsel, appearing for the accused, submitted a supplementary petition to the application for bail, which was received. AM Haider Ali, also submitted a written submission agsinst the prayer for bail of the accused, which has also been kept on record.

Mr Tajul Islam submitted before the Tribunal that the accused person was a minister and also a member of parliament. He is above the age of 80. He has many different diseases and also cannot walk freely, and can only move with the help of a wheelchair.

He submitted that at moment he did not want to seek bail on the merits of the case, but only in consideration of illness, and on humanitarian grounds. In support of the submission, he submitted medical documents showing that he had an operation on his prostate gland, other illnesses and that he has prescriptions.

After the arrest of the accused person, when the police sent him to Tribunal he was examined by a board of doctors and a certificate was provided. On persual of the certificate we find that he has diabetes, hypertension, arthritis and also had difficulties in walking. It is stated this his condition was stable at present and needs to continue his medicine. We have also seen the accused in the Tribunal.

Syed Haider Ali has submitted that there is no disagreement that the accused has some diseases but that medical treatment was available in jail and that he has already obtained treatment and medication in Jail.

It was further submitted that considering the gravity of the the offences and that treatment was available in jail, the accused should not be given bail.

We have heard the learned counsel. Upon perusing the medical records we find that the accused person is an old man aged more than 80 years old, and also in the police report it is stated that he is 80 years old.

Also ... he can only move freely with the help of a wheelchair. He was brought to the tribunal by a wheelchair carried by the police.

Mr Tajul Ialam further submitted that in the case of bail, he is happy to follow conditions given by Tribunal. He also made some offers about condition in his application.

In consideration of the age of the petitioner, his sickness, difficulty in moving freely, bail should be given under certain conditions.

1. The accused petitioner must submit his passport before the registrar of the Tribunal to be kept on record.
2. The accuser petitioner is to stay in the address given in the bail petition, that is 2/C and 2/D, house no 81, Road 3, Block F , Benani Dhaka, home of his sons and he must not leave or change address without prior approval of the tribunal.
3. He must not make any statement for print or electronic media or make any contact with a witness, victims, political personalities or any political party.
4. He must cooperate with the investigation body as and when required.
5. He must not make any contacts with any victim or witnesses directly or by telephone or by any other means.
6. If he has a cellphone, he must give the cell number to this Tribunal.
7. He must not abuse privilege of bail by whatever means.
8. He must be present in Tribunal on date fixed.

If any of these conditions are violated or not following by the accused person, the bail granted shall stand cancelled and he will be taken into custody.

Issue this order accordingly. He is granted bail on the conditions and with two sureties of 1 Lakh, one from his son and another from [unclear name]. Failure to give surety he will be kept in detention.

He will come to the Tribunal on 24 April.

28 Mar 2010: Alim bail application

On the evening of 27 March, following the warrant of arrest, issued by the Tribunal earlier in the day, (see blog), Abdul Alim was arrested from his house in Joypurhat and brought to Dhaka.

On the 28 March, Alim was brought before the Tribunal (Rule 34(1) of the ICT Rules of Procedure state that the 'police shall produce the arrested accused direct before the Tribunal within 24 (twenty-four) hours of arrest excluding the time needed for the journey'.)

There was a morning and an afternoon session

Morning session
Supported by a policemen either side of him, Alim was 'carried' up the stairs to the court which is situated on the first floor and put into the dock, where he was allowed to sit. His lawyers then came to talk to him.

Advocate Zead Al Malum appeared for the prosecution and gave the Tribunal members various police documents relating to the arrest of Alim.

Malum argued that he should be detained in custody. Mallum again read out from the report prepared by the investigation agency which stated that Alim was the chairman of the peace committee in Joypurhat, and in that position 'with the assistance of Razakars and Pakistani occupation forces Alim was involved in the killing of 10,000 people in Joypurhat during the 1971 War' and the murder of the local Awami League leader Dr Abul Kashem on July 26, 1971. (see previous (blog)

The same arguments made the previous day, in relation to seeking a warrant for Alim's arrest, were made.

Tajul Islam for the defence then stated that he would like to make an application for bail. He read out rule 34 of the ICT Rules of Procedure, which states:
(1) The Police shall produce the arrested accused direct before the Tribunal within 24 (twenty-four) hours of arrest excluding the time needed for the journey.
(2) When the accused is produced before the Tribunal under sub-rule (1), he shall be sent to the prison if he is not enlarged on bail by the Tribunal.(emphasis added).

Malum then stood up and said that the prosecution had only just obtained a copy of the bail application.

There was discussion between the Tribunal members and Tajul Islam whether or not it was necessary for the defence to actually file a bail application, and the Tribunal decided that he should just give his arguments as though there was no written bail application.

Islam said that the defence lawyers have still not seen the application, nor have they seen a copy of the investigation report.

He said that although the previous day's order had required that the copy of the investigation report should be given to the accused person along with the warrant of arrest, this had not been done.

The Tribunal told him that he would get a copy of the application, and gave some reason (not audible) why there might have been a delay.

Islam then said that since rule 34(2) says that the Tribunal can send an accused person to custody if he is not enlarged on bail, this means that the Tribunal can issue an order for bail.

He said that there was 'no substantive material' in the investigation report that justified the warrant of arrest to be issued.'

'Alim was a 81 year old man. He cannot walk. He has had a prostate operation twice. An eye operation twice. The doctor said that he cant walk due to arthritis.'

The Tribunal members then had a short discussion between them and said that the defence should file a fresh bail application and the Tribunal should sit again at 2pm. The Tribunal chair also said that the investigation report will be given in the interval.

However the Tribunal rejected the defence application to be given a copy of the actual 'application' for a warrant of arrest. The Tribunal said that the Investigation report itself would give information on the substantive submissions by the prosecution, and a copy of the application was not necessary

The defence argued that they should have a copy of the application since it is on the basis of that application that they are seeking bail.

The Tribunal asked under what provision in the Rules of Procedure is the defence relying on

The prosecution said that there was no provision in the rules to allow the defence a copy of the application.

The defence said that the 'Rules do not contain everything.' The Tribunal, however, kept to its position that the defence should not have a copy of the application.

Afternoon session
By the afternoon, the court had provided Alim a wheelchair.

Advocate Malum for the prosecution was the first to speak and said that they had only received a copy of the application at 1.45pm, and had not had a chance to read the documents. He prayed for more time to consider the application.

Advocate Tajul Islam for the defence made his submission for bail, reading out from his application. He said the following things:
- Alim was a member of parliament and also a cabinet minister (textiles) between 1978/79 and then then a minister of communication between 1979-82.
- that he suffers from arthritis and cant move without a wheelchair.
- his passport gives his date of birth as 01 Nov 1930 and he is 81 years of age.
- the prosecution filed an application on 27 March and the Tribunal issued a warrant of arrest.
- the police arrested him at 9pm from his residence in Joypurhat town and took him on a 7 hour journey.
- he is very sick and physically unable to walk and was brought up to the court by resting on the shoulders of the police.
- that rule 9 of the ICT rules of Procedure say that the Tribunal may issue a warrant for the arrest of a person at any stage of the investigation, if he can satisfy the Tribunal that such arrest is necessary for effective and proper investigation.
- that 'in the present case the prosecution miserably failed to produce any materials to show that the petitioner has been creating any obstacle in holding effective and proper investigation or tampering with the evidences in any way. That since the prosecution failed to substantiate the rerquirement of Rule 9 for issuance of warrant of arrest of the petitioner cannot be put under detention in connection with the case rather he may be enlarged on bail for securing end of justice'.
- that 'the investigating authority failed to produce a single piece of evidence regarding interference with the investigation by the petitioner rather they have mere made a statement that due to not arresting the petitioner many of the witnesses are scared but there is no specification when, how and to whom the petitioner made threats. That this statement has been made just to make an excuse to arret the petitioner according to their sweet wish.'
- that as there is no supporting evidence he cant be detained.
- that the 'report of the investigating agency is full of some vague and indefinite allegations made against the petitioner. That the gist of the allegation made against the petitioner is that he has passed Order upon the military officers to kill the people and freedom fighters but a man of general prudence can understand that the military forces act under their superior command not under the command of a civilian and as such the petitioner can no way be responsible for any activities committed by the military.'
- the accused never committed any offences alleged against him, 'rather he has saved lives of thousands of people of his locality during 9 months of the war of liberation'
- that he is an 81 years old man, with various diseases, including diabetes, prostate problems, eye problems. he has two operations on his prostate and two on his eyes, that the petitioner has been suffering Rumotology and he has been suffering from pain in Neck in both sholder and Nerve Pain in Lower limb and that he needs to pass urine after 30 minutes
- that 'in the above conditions the petitioner needs specialized treatment and close observations and nursing which is not possible in jail custody.'
- that 'the petitioner cannot even stand without help of others and cannot move without wheel chair and in such situation if the petitioner is not released on bail his life will be unbearable in the jail custody and considering this humanitarian aspects the petitioner may be enlarged on bail.'
- that he has been under house arrest for the last 1.5 years and 'and the police kept him under 24 hours observations in his house for the last one and half year and in such situation it is not humanly possible to abscond or to tamper with the evidence and process of investigation in any manner'.
- that the 'petitioner participated in the historic language movement and was sent to jail hajat and he is in no way involved with the alleged criminal activities committed in the year 1971 rather as a popular public leader he has saved lives of thousand of peoples including freedom fighters and the members of the Hindu community. That the people of the locality remember this event with due respect till today. That the allegation of killing of ten thousand people in Joypurhat by the petitioner is a cock and bull story which will prove false in investigation in future.'
- that he is ready to hand over this passport and given any secruity necessary, and report to the police weekly and can be directed to stay in a specified residence.
- that internationally a significant number of people has been given bail who were in pre-trial detention, and taking this into consideration he should be enlarged on bail.

He then discussed various provisions of statutes relating to other International Tribunals which allowed bail. He read out Article 58 of the Rome State of the International Criminal Court. This states:

'At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that:
(a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and
(b) The arrest of the person appears necessary:
(i) To ensure the person's appearance at trial;
(ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or
(iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.'

He said that the bail conditions proposed by the accused satisfy all these requirements, so detention is not necesasry. In relation to (i) the petitioner is always ready to appear before the tribunal at any date. In relation to (ii) he said that the prosecution has 'miserably failed to substantiate allegations' that investigation is being obstructed. In relation to (iii), he said there is no question that the accused could repeat the offences alleged.

He said that he should not be detained unless there was 'substantive evidence of interference'

He referred to Rule 9 of the ICT rules of Procedure that says that the Tribunal be 'satisfied' that 'arrest is necessary for effective and proper investigation'. He said, 'you have seen the condition of the accused. How can this person abscond.'

'Considering his age, health, physical condition, that he will surrender his passport, that he will confine himself to his residence, that any amount of surety will be given.

'It is 40 years since 1971. He could have absconded in that time. It is impossible for him now to tamper with evidence, to interfere with investigation.'

'He is ready to face trial. If he is taken into custody, what would be the benefit?'

'In relation to Article 58 of the ICC statute, I will appear, I will not obstruct, there is no possibility of repeating the same crime.'

At this point, Islam finished, and the Tribunal had a conversation with Islam about needing more information from him, in relation to page numbers in his petition referring to his medical records and also where his client would reside in Dhaka if he was given bail.'

Prosecutor Malum then brought to the attention of the court an article from the Daily Newspaper Kalor Konto - but it was not clear what this article was about (this will be clarified, and this blog updated)

The Tribunal then passed the following order:

'Accused Alim has been presented in this Tribunal in compliance with order passed yesterday. He is present in the dock.

Mr Zia Malum, learned prosecutor appearing in this Tribunal submitted that prosecutor had made out a case of an order in favour of detention of the accused in custody. On the other hand Mr Tajul Islam, learned counsel appearing for the accused person, by filing a petition for bail submitted that that this is a case where no order shall be passed directing the detention of the accused because he is an old man, above 80 years of age, he is a patient, he cannot walk and needs use of a wheelchair. No case has been made again under section 3(2) of the Act and he is ready to agree to all provisions imposed by the Tribunal in this respect.

Upon perusal of the application for bail, we find some mistakes in the the petition.

Mr Tajul Islam prayed for permission to correct the mistakes. The learned prosecutor also submitted that he had only just read a copy of application for bail and needed some time for consideration and will file a petition opposing bail.

We have heard both sides and are of the view that both sides have substance.

The hearing of the bail petition application will be adjourned under 31 March.

In meantime, the accused Mr Abdul Alim will be returned to Dhaka Central Jail and the the jail authority is directed to look after his health conditions and provide him medical treatment on the advice of the doctors as and when requested.

After the hearing I spoke to the accused's eldest son on the phone. He said that the allegations against his father was 'baseless'. '

'It was not possible to kill 10,000 people as Joypurhat which only had 30,000 people. It is a personal vendetta against him by some people.'

I attended the prosecutors media briefing and asked the Chief Prosecutor, why he was not satisfied with the conditions that the accused promised to abide by. He said 'Conditional bail is illegal.' When I asked him to clarify whether he meant that in Bangladesh it was not lawful for the courts to impose conditional bail, he said, 'It is not done.'

27 Mar 2011: Alim arrest sought

Two prosecution applications were dealt with at this hearing. First an application for the arrest of Abdul Alim, a former BNP minister, and secondly an application to question Motiur Rahman Nizami, the ameer of the Jamaat-e-islami who is already in detention.

Application for arrest of Abdul Alim
Advocate Haider, on behalf of the prosecution argued that the Tribunal should issue a warrant of arrest from Alim. He read out from a report, prepared by the investigation agency. The main points that were stated in court are below:

The accused M A Alim is involved in the commission of all kinds of crimes against humanity during the period of the Liberation War. It is primarily found from the witnesses and evidences recovered in the investigation that accused Alim, being a leader of Muslim League in the region of Joypurhat under the district of Bogra, gave his active support in the commission of all kinds of activities and crimes, getting involved in the anti-liberation activities; giving his assistance to the collaborators of the invader army during the nine month tenure of the Liberation War.

It is also found during the investigation that, the accused joined in politics of the Muslim League in 1958. He was given the responsibility of divisional secretary of the organization in 1962. In 1964, he became chairman of the district council of grater Bogra region.

The accused being a local leader of The Muslim League, and taking his position against the Liberation War of Bangladesh, was appointed chairman of the Peace Committee (Shanti Committee); and with the help of the invading army, building a Peace Committee and a Rajakar Division, he committed various crimes involving killing, looting, raping, burning and destroying of houses, shops, banks etc.

Evidence shows that during the nine-month long Liberation War, the Peace Committee, and the Rajakar Division, under the leadership of Alim, brutally killed tens of thousands of peace-loving, unarmed, freedom-loving people of all ages under the direct or indirect supervision of the invading army in the border area of Joypurhaat. On 24 July 1971, the invading army, with the help of local Rajakars took Doctor Abul Kashem from his own residence and kept him in detention, and tortured him. When Abul Kashem was taken to the Peace Committee’s office, which was situated in the drawing room of Saonlal Bazla, an inhabitant of the locality, the members of the pakistan army detained and tortured him under the direction of Alim. Finally, killing him, they threw away the corpse in the sugar cane field on 26 July 1971.

The Pakistan-army captured another two persons along with freedom fighter Fazlu and took them to M A Aleem’s residence at C O office colony. Then Alim announced a death sentence on the three detained persons in presence of the villagers. He gave direction to kill the followers of ‘Joy Bangla’ (Bangabandhu). Later, those three so-called accused persons were killed, after keeping them detained to Alim’s house, in the slaughter house of Khnjanpur.

It is also found in the investigation that, Alim, founded a Rajakar recruitment camp in his own residence and maintained the responsibility of recruitment. It was under his direction that the Rajakars and the Pak-army, surrounding the Hindu inhabited area of Karaikadipur village, heinously killing about 165 innocent Hindus in the later part of April in 1971. After looting the houses, they burnt them.

In the later part of 1971, the Pakistan army took some 26 coachmen from the road to the residence of M A Aleem, where they were detained for some days, and the Pakistan army killed them in the slaughterhouse of Khanjanpur under the direction of Alim.

Besides, during the Liberation War the Rajakars and the Pakistan army conducted great violence against women; and it is proved that Abdul Alim publicly said that, “There is nothing wrong in violence against women by the army during a war”.

Abdul Aleem along with his supporters captured about 26 freedom fighters from the village of Mangalbari, blindfolded them and tied their hands behind the back and took them on a truck displaying them around the town; and Alim calling them the followers of India, ordered them to be killed in open daylight. And evidence shows that after killing some of them, they threw them in the well of Akkelpur Madrassa and killed the rest in Khanjanpur slaughterhouse, they threw away the dead bodies.

A picture of the destitute freedom fighters with tied up hands in front of a smiling Abdul Aleem as the chairman of the Peace Committee of Joypurhaat with Major Afzal of the Pakistan Army, the leader of the operation for the detention and killing of the freedom fighters, has been recovered during the investigation. Through it, it is proved that Alim was an active collaborator with the Pakistann army with all kinds of crimes committed against humanity.

In addition, evidence shows that, the accused M A Aleem, conducted propaganda with Major Afzal openly in various remote areas of Joypurhaat in various times saying that the Hindus are the enemy of the Muslims and declating the freedom fighter as miscreant fduring the Liberation War.

Evidence has been found against the defendant Alim Father-Late Abdul Wahed, Mother-Late Latifunnessa, Village-Joypurhaat Sadar Rasta, Police station and District Joypurhaat during the investigation of thee most barbarous genocide, destruction and crimes against humanity under section 3(2) of the International Crimes (Tribunal) Act, 1973.

Haider Ali for the prosecution, said 'This is fact. It has been uncovered in investigation, and we have the materials to prove it.'

He pointed to rule 9(1) of the ICT Rules of Procedure which allow the Tribunal to issue a warrant of arrest if is 'is necessary for effective and proper investigation'.

He argued that further investigation was not possible unless Alim was detained, as witness were already being intimidated.

Reading from his application, he said: 'There is more evidence against him which is being collected. As the defendant has so far not been arrested, many of the witnesses are scared. Defendant MA Aleem is a very influential, dangerous and mightily powerful person. At this stage, in order to ensure a fair and effective investigation, it is vital to arrest the defendant Abdul Aleem. It is also necessary to interrogate him after arrest.'

There was discussion between the Tribunal and Haider about Alim's age, and Haider said he was 80 or 81 year of age.

No lawyer for the defence was allowed by the Tribunal to make any representation on behalf of Alim. After a minute or two the Tribunal chair read out the following order:

'This is an application filed by the prosecution praying for the issuance of a warrant of arrest for the accused MA Alim, son of Md. Abdul Wahed of village Joypur, Shadar Road, under Joypurhat under rule 9(1) of the ICT rules of procedure 2010.

The court heard from the learned prosecution Syed Haider Ali and perused the application and the the report of the investigation submitted to the prosecution by the investigation agency.

In the application some facts have been brought alleging involvement of the accused in the commission of offences involving section 3(2) of the International Crimes Tribunal Act 1973. The learned prosecutor further submitted that they have got sufficient evidence against the accused.

It was further submitted that witnesses are now facing difficulties in giving their statements to the investigation authority and also are now terrorised thinking of further repercussion to them after becoming a witness in the case, and for that reason wants the issuance of a warrant of arrest for effective and proper investigation.

In the application, the age of the accused was stated as 80 years old. We have given our anxious consideration regarding submission of learned prosecutor and the age of the accused person.

Upon consideration of all the factors we are of the view that at this stage a warrant may be issued for the production of the accused.

In rules 34(1) of the ICT Rules of Procedure it have been clearly stated that police shall produce the arrested accused directly before this tribunal within 24 hours of arrest excepting the time needed for the journey.

Upon consideration of all the facts and rules we are directing the Inspector General of Police to arrest the accused person Mr Alim and the police are directed to comply with rule 34(1), and produce the accused before the Tribunal accordingly. On that date the Tribunal will issue further order.'

At this point, apparently the end of the order, Advocate Tajul Islam, for the defence got up and said that for the last year and a half, Alim has been under house arrest, and that he cant move and that arresting him in these circumstances would be 'degrading punishment for him'.

The Tribunal then added to its order the following:

'The authorities are directed to look after the health of the accused person when bringing him before the tribunal.

May a copy of the report submitted by the Investigation Agency be served along with the warrant to the accused person.'

Application for questioning of Nizami
Syed Rezaur Rahman, for the prosecution, got up and started to make an application seeking the custody of Motiur Rahman Nizami, who has been in detention since August 2010, so that he could be questioned.

However, very soon into the application, the Tribunal members asked a number of questions: 'Where will he be taken. Where can he stay? These things must be known by the Tribunal You have to place him in a good condition.'

The advocate then sought time to give a supplementary application.

The Tribunal passed an order adjourning the hearing until 5 April 2011.