Sayedee was again present at this hearing, which had been set to deal with the
18 August adjourned application relating to charge framing. Instead, the court first dealt with a bail application. See comments at end.
Bail Application
He said that on 14th July 2011 the prosecution raised the following objections against the bail application of the accused: (i) the accused is an influential character and likely to interfere and influence witnesses and hamper the trial process; (ii) there is a prima facie case of allegations of Crime against Humanity and genocide against the accused; and (iii) considering the brutality of 1971 there was no ground to release the accused on bail.
He argued that by order dated 14 July 2011, the tribunal denied bail to the accused holding that cognizance of offence under section 3(2) of the International Crimes Tribunal Act 1973 had been taken against the accused and that this was a case where detention of 8 or 9 months could not be termed as a long detention in either Bangladesh's national law or international law.
That rule 34(3) now provides that “At any stage of the proceedings, the Tribunal may release an accused on bail subject to fulfillment of some conditions as imposed by it, and in the interest of justice, may modify any of such conditions on its own motion or on the prayer of either party. In case of violation of any such conditions the accused may be taken into custody cancelling his bail”.
He then set out the reasons why bail should be given
First, the accused is unlikely to tamper with witnesses or evidence or interfere with trial proceedings. He said that the prosecution has already admitted that the accused is not named in the 6 General Diaries filed in Pirojpur Sadar and Zianagar (Indurkani) Police Stations alleging that witness intimidation had occurred.
He said that on 31 May 2011, the full investigation report had been handed to the prosecution and that under Rule 11, this indicates the completion of all investigations: “After completion of investigation, the Investigation Officer shall submit an Investigation Report together with all the documents, papers and the evidence collected during investigation of offence(s) as specified in the Act committed by a person(s) before the Chief Prosecutor (emphasis added)”.
He said that under the newly inserted Chapter VIA of the Rules of Procedure, a number of measures can be ordered by the tribunal to ensure witness protection and prevent witness intimidation or interference. He added that the accused’s residence is in Dhaka and that the alleged crime bases concern the Pirojpur District nearly 300km away in the south-western region of Bangladesh.
He also argued that:
- he is a religious scholar and a man of good character. - the accused is willing to surrender his passport before the competent authorities and to undertake that he will not apply for travel documents without prior permission from the tribunal. - he is also willing to comply with a residence condition to reside at his address at 914, Shahidbagh, Dhaka 1217 whereby his presence can be regularly checked and monitored. He is willing to report to this Tribunal on an agreed regular basis. - the accused is willing to undertake that he will not travel to any crime-base areas without prior permission from the tribunal. He is also willing to undertake not to contact any prosecution witnesses or to interfere with the trial proceedings.
In conclusion on this point he said that here is a lack of evidence connecting the accused to any claims of witness intimidation as well as the imposition of several factors safeguarding the trial process and witnesses. This includes the:
i. conclusion of the investigation report;
ii. the newly inserted witness protections provisions; and
iii. the bail conditions volunteered by the accused as an additional guarantee.
And therefore the tribunal should recognise that it is unlikely that the accused will tamper with witnesses or evidence or interfere with trial proceedings.
2. He argued that bail can be granted to an individual even when he is accused of serious crimes. He said that on 14 July 2011 the prosecution opposed bail on the basis that there was a prima facie case establishing allegations of crimes against humanity and genocide against the accused. The prosecution also submitted that there was allegation of killing more than 50 persons against the accused and considering brutality committed in 1971 the application for bail of the Accused should be refused.
He argued that the jurisdiction of the tribunal under section 3 (2) of the International Crimes (Tribunal) Act 1973 as amended 2009 solely concerns crimes of a serious and grave nature including crimes against humanity, genocide and war crimes and that as under Rule 9 (5) and 34 (3) of the Rules of Procedure, the tribunal provides for two manners in which bail can be granted both throughout the investigation and proceedings, it isy submitted that the tribunal envisages that bail can be granted regardless of the nature of allegations formed.
He said, that other international tribunals all have jurisdiction over crime against humanity and genocide and further all of the tribunals provide for the right to provisional release, and in the case of Prosecutor v Hadizihasanovic at the ICTY, it was held that the rule regarding provisional release/bail must be interpreted in light of the ICCPR and that in this regard, no distinction should be made between domestic criminal and international criminal proceedings.
He referred to the case of Prosecutor v Stanisic, where he said both the Trial Chamber and Appeals Chamber at the ICTY held that: “the gravity of charges cannot by itself serve to justify long periods of detention on remand” and that the ICTY has on a number of occasions provided provisional release to accused persons formally charged with crime against humanity and genocide.
He finally submitted that the nature of any potential charges to be brought against the accused does not prevent the Tribunal from granting bail.
3. He argued that bail is a right and not a privilege - that the amended Rules of Procedure provide for the right to be presumed innocent under Rule 43 (2) and the presumption of innocence is also enshrined in Article 14 (2) ICCPR: “Everyone charged with a criminal offence shall have the right to be presumed innocent until guilty according to law”.
He argued that following this guarantee under Article 14 (2) ICCPR, Article 9 (3) ICCPR provides that “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.”
He submitted that the presumption of innocence enshrined in Rule 43 (2) of 2010 Rules and Article 14 (2) ICCPR is a fundamental principle and as a result the provision for bail is a right and not a privilege under domestic and international law. Following Rules, 9(5), 33 and 34(3) of the 2010 Rules (as amended on 28 June 2011) and Article 9 (3) of the ICCPR, this right arises at any stage of judicial proceedings and in particular the right to bail is fundamentally upheld during pre-trial proceedings.
He finally argued on this point that that under Article 9 (1) ICCPR: ‘No one shall be subjected to arbitrary arrest or detention". that the Human Rights Committee’s constant jurisprudence has defined the notion of “arbitrariness” as being broadly interpreted and “to include elements of inappropriateness, injustice, lack of predictability and due process of law. This means that remand in custody must not only be lawful but reasonable and necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime."
As a result, it submitted, the prosecution erred in its opposition to bail on the grounds that victims suffered atrocities in 1971. This illustrates that bail is being refused as a point of retribution and not because it is both reasonable and necessary as required under the ICCPR. An attempt to punish the accused for events suffered in 1971 before any finding of guilt is contrary to the accused right to be presumed innocence.
4. He argued that the accused should be granted bail to seek full-time medical attention as he suffers from a number of ailments including diabetes, cardiac disease and chronic arthritis in the neck, upper limbs, waist and knees. Considering the acute health conditions of the accused on 26th May 2011 the Jail Authority had to admit him in Ibrahim Cardiac Hospital and Research Institute (‘ICHRI’), and that although on 11th June 2011 he was taken back to the Dhaka Central Jail, t accused is still very sick and is of very old age requiring full-time treatment in specialised medical hospital and care of his family members.
He finally set out the conditions that the defence proposed could be imposed upon Sayedee if the tribunal were to give him bail:
i. surrenders his passport before this tribunal;
ii. does not apply for any travel documents without the prior permission from the tribunal;
iii. resides at 914, Shahidbagh, Dhaka - 1217;
iv. reports to this tribunal on an agreed regular basis;
v. does not travel to any crime-base areas without prior permission from the tribunal;
vi. does not contact any of the prosecution witnesses; and
vii. does not interfere with any part of the trial proceedings.
He added that a family friend of the accused would be willing to grant surety.
The chief prosecutor Golam Arif (Tipu) responded on behalf of the prosecution. He said, these points for bail petition are presented by the defence over and over again. He said that old age is a common problem for this trial, as the crimes happened 40 years ago and the accused are all over 60 or 65.
He argued that the accused should not be granted bail because he can interfere with fair trial and it will be an impediment for the trial process. He also argued that the offences are also so grave and the trial is of such magnitude that the accused can not be granted bail.
Tajul Islam responded by saying that. ‘Today, prosecution’s only objection is that he will interfere with the trial. We would ask my lordship to at least grant the accused bail once for now. He will surrender his passport to the Tribunal so there is no chance of absconding. If, after granted bail, prosecution says it once that he impeded the trial just take him into custody again. We will have no problem with that. But we pray for the bail because the accused has no intention to interfere with the trial nor will he abscond.'
The prosecution responded by saying that Sayedee is a man of tremendous influence and it is likely that he will interfere with the trial. He also said that the tribunal has already taken cognizance against the accused petition and today is fixed for charge hearing. So the bail prayer may be rejected.
The tribunal then passed its order
"This is an application for bail against the accused petitioner Delawar Hossain Sayedee. Mr Tanvir Ahmed Al Amin, learned counsel, appearing for the accused petitioner, submits that the accused petitioner has been detained for a long time without trial and there is no chance of tampering with evidence and interfering with trial if he is granted bail by this tribunal. "Learned counsel further submits that there is no chance of interference as the investigation process is now over and we are waiting for the charge hearing to take place. If the bail petition is granted the accused is ready to comply with any condition imposed by the Tribunal. The learned counsel also submits that the accused petitioner is innocent until proven guilty. So the accused petitioner may be granted bail on that ground. The prosecution opposed the bail prayer by submitting that the accused petitioner is a very influential person in the society and have influence over his locality. If such influential person is granted bail by the Tribunal there is a chance of tampering with the witnesses and there is a chance of impeding the trial. Learned prosecutor also submitted that the defence is presenting the same grounds and the Tribunal has rejected those before and new grounds have to be considered. As such the bail prayer should be rejected. "We have considered all the submission from the defence and the prosecution and earlier we also perused the formal charge and the applications forwarded by both parties. The tribunal has taken cognizance of the offence and the charge hearing will now take place. The submissions made by the learned counsel were previously made before the tribunal. So we find no ground to reconsider the bail petition. Therefore the bail application filed the defence is thus rejected."
Adjournment petition and illegible documents.
The tribunal chairman told Tajul Islam, the defence lawyer, that, ‘we considered the prayer regarding illegible documents and passed an order last time that those will not be admissible as evidence in court.’
Tajul said, ‘My lord before proceeding I would like to share a joke with everyone. “The king asked his minister, “Why did the cannon not fire?” The minister said, “There are 101 reasons and the first one is that the gunpowder was wet. The king said, “There is no need to explain the other 100 reasons.” My lord, we didn’t have enough time to prepare for the charge hearing, we couldn’t meet the client and take his instruction. As we are not ready, we don’t see any point in going for the next step, just like the failed cannon and gunpowder story.
He was about to discuss the issue of the illegible documents, when the tribunal chairman said, ‘We already said that those will not be admissible.’ Islam said that, ‘in the Tribunal’s order there is a provision that new evidence can be submitted. These 72 pages that are illegible, was relied upon by the prosecution. The formal charge was a reflection of all those documents. If they couldn’t even read them themselves how they could consider this for the formal charge.’
The tribunal chairman said, ‘But we said that they will not be considered. We cannot instruct anyone to submit or not submit evidences. It is up to them and we decided that we will not consider the illegible ones.’
Islam said, ‘My lord, there could be some documents of our interest in those illegible documents. We might find something that could go against their arguments.
He added that the defence had still not received the copy of the 10 August hearing.
He said, the tribunal took cognizance of the offence on 14 July 2011. The prosecution took 42 days to submit the formal charge. But we are not even getting one tenth of the time that they got. As a state party of ICCPR we have the obligation to follow the international rules which require proper access to documents. 'We humbly submit that the prosecution can benefit from the illegible documents. The prosecution also did submit that it is not their duty to supply all the documents. ICT rules of procedure 18 (4) provide that ‘the Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.’
So, it is a duty of the prosecution under rule 18 (4) that submit legible copies of document for defence preparation, he said.
Islam then discussed the issue of privileged communication. The Bengal Jail court rule 683 and 687 provides that the accused is entitled to have privileged communication with suitable room where the lawyer and the client can have private and confidential meeting. 'We only could consult with our client on one day, which was not privileged at all. 22 August 2011 was a holiday and we didn’t receive the order copy which requires the jail authority to give privileged communication.'
The tribunal chairman said, ‘We know that you didn’t receive the order copy. You will get it soon’.
Islam went onto say that ‘our submission is that there is a violation of article 14 (3) (b) of ICCPR rules. We should be allowed more time for preparation.
'Finally we want to submit', Islam said, 'that if we can’t take instructions from our client we can place no arguments at all. This trial is a very complex one and I’m still finding it hard to understand so many aspects of it. Such as, I still don’t understand what crimes against humanity is/ how it is defined. We also submit that Eid vacation is coming and it will be hard for us to go through the documents. So we pray for adjournment at least till Eid vacation.' The tribunal chairman asked the prosecution whether they were ready?
One prosecutor said, ‘Yes, my lord. What we want to say is that we are hearing the same arguments over and over again. Maulana Deloar Hossain Sayedee is a great philosopher and a great orator. The trial should start quickly other wise he can influence the trial. The law gives them three weeks and they got their three weeks’.
Islam said ‘My lord, the prosecution should see their own face in the mirror. There had been numerous times that they asked for more time, over and over again. They took 42 days to submit the formal charge. I humbly submit that we will be prejudiced if this goes on, but the prosecution will not be prejudiced. Furthermore, one minister was reported in the media saying that the charge hearing will surely start from August. Public will think that there is a connection between this remark and the rush to start the charge hearing.'
The tribunal chairman said, 'Look, ministers say so many things. If the charge hearing doesn’t take place in August, in September they are going to say that the charge hearing will take place in September surely. There is no escaping from those.'
Islam said, ‘But we feel that such remarks should be cautioned by the Tribunal. The tribunal has criticised earlier comments that it didn’t like. If the tribunal can take judicial notice of what [Toby Cadman] said then why it cannot take such notice for the comments of the Ministers on the trial process.’ It should be the same case. There is no rush to start the charge hearing my lord. Justice hurried is justice buried.
'Maulana Delwar Hossain Sayedee is a good orator, of course, but for good cause. He used his oratory power all his life to call people toward the good path, path of religion. He never used his power to influence people in the wrong direction. So, how his oratory power is now a threat? It seems that my client is being prejudiced because he is a good orator. Since when having a good quality became a thorn for someone? He always led people to good path with his power, why would he do otherwise now?’ Islam said
The tribunal chairman then told the prosecutor that he may start his argument and we will pass the order for the adjournment petition later.
Tajul asked how that was possible? ‘If we don’t get the reasonable time we can’t take part in the hearing.’
The tribunal chairman asked him to sit down. ‘We will pass the order later,’ he said. The chief prosecutor started the application for charge hearing. ‘The papers that we have submitted today contain material for your lordship to consider. Based on our formal charge your lordship has taken cognizance of the offence on 14 July 2011. Along with the formal charge we have submitted the investigation report containing witness statements, newspaper cuttings and other documents. The materials justify the framing of charges against Maolana Delowar Hossain Sayedee." After a few minutes he then called Mr Haider Ali to proceed with the charge hearing.
Haider Ali then got and spoke. He said that ‘Pirojpur district in Barisal Division is one of the places where some of the atrocious incidents took place that happened between 25 March 1971 and 16 December 1971. They are all stated in the formal charge. An Investigation agency was formed according to ICT act section 8, and the investigation officials thus appointed carried out the investigation and prepared the investigation report. The official investigation started on 21.07.2010.’
The tribunal chairman interrupted him and said, ‘You should better go straight to your argument rather than citing history. No need for all the explanations.’
The prosecution said that he thought there should be at least a little bit of explanation.
‘On 23 June 1756,’ he continued’ ‘the British rule had started in the subcontinent and after almost 200 years of colonisation Pakistan and India were born in 1947. Pakistan was divided in two states East and West Pakistan, which were 1200 km apart (2400 km in seaway). There were also difference in language and culture. West Pakistan started hitting at East’s culture over and over again. They deprived East of equal rights and economic development. They also came down on the language of the then East Pakistan, Bangla, which ended up in Language movement in 1952. In 1970 6-point movement happened and East Pakistan won the election and was on its way to form the government. But West Pakistan was not willing to do so. Then the West Pakistan force attacked the East on 25 March 1971. It was not a sudden attack, the build up was going on since 1948. The incidents that took place in Pirojpur were just a part of the whole massacre of the country. '
'In 1971, almost 98-99 per cent of Bangladeshis were united and fought against the Pakistani force. But there were some others who joined hands with the Pakistani force and in collaboration were involved in all crimes such as murder, rape, looting, arson etc. They formed groups such as ShantiBahini, Razakar, Al Badr, Al Shams to carry out their operations. How these groups were formed is stated in the formal charge.
'The accused was also engaged in murder, rape and loot during that time and the investigation officers went to Pirojpur and took statement from the tortured. They also found one mass grave. As Pirojpur is a coastal area and has a lot of rivers, most of the dead bodies were thrown away in the river. There is a detailed description in the 11-14 volume.
'There are also the copies of statements from the witnesses in front of you.
'These incidents happened 40 years ago. The defence is saying that it is a problem for them, but in the meantime it is a big problem faced by the prosecution too. We have also seized some documents but it is not presented here as it is very delicate and may get destroyed if moved to frequently. Now we are going to go through the statement of the witnesses. We also submitted a proposed copy of the charge.
The accused is Maulana Delwar Hossain Sayedee aka Delu aka Deliya born on 1/2/1940. Permanent address Pirojpur and present address Shahidbag, Dhaka.
In his educational certificate his name is stated as Abu Nayeem Md Delwar Hossain Sayedee. We came to know that he does not have the educational qualification to put the title “Allama” that he uses before his name. Sharsheena Madrasa also told us that he does not have the educational qualification to write “Allama”.'
He then started to go through the charges.
Charge 1 he said involved the allegation that turing the period 3 May 2011 and 16 December 1971 he was involved in murder, rape and forcefully converting Hindus to Muslims. He initiated the Razakar group in his area and set up torture camps. This was all part of the planned Pakistani annihilation of Bangladeshis who were the majority in whole Pakistan.
He mentioned two witness statements in support of this Abdul Latif (witness no 18) and Mokhles Moshari (witness no 15). Their statement says he helped establish the Razakar camps and murdered people there. He was also involved in the killing of a girl who helped the Muktibahini (Liberation force).
He then moved onto count 2, and referred to witness No. 45 in volume 2 of the witness statements.
The tribunal chairman then said that ‘We can’t find the witness statement copy? Where is it?’
The prosecutor said, ‘You will find it in Part 2, there is a second part of the witness statements.’
The tribunal informed the prosecution they only had one volume of witnesses and the defence was also served with one volume. If there was another volume then it should be submitted first to the tribunal and the defence.
After searching through the tribunal documents, the chairman said that they couldn’t seem to find it.
The prosecution then found the copies, ‘We have found three copies. Here they are my lord.’
The tribunal says, ‘No, we cannot let you continue, because the rule says you have to submit four copies – three for the judges and one for the defence.‘
The tribunal passed the following order:
'Application praying for reasonable adjournment and submission of legible documents was taken up for hearing. At the outset, Mr Tajul Islam, learned counsel, appearing for the accused petitioner pressed arguments regarding illegible documents. The Tribunal has already passed the last order regarding illegible documents and Mr Tajul also did not deny that. Regarding the petition for reasonable adjournment Mr Tajul strongly argued on the factual point that they could not prepare themselves for the charge hearing. The prosecution opposed the prayer for adjournment saying that they were ready. However, we, not passing order regarding the adjournment, asked the prosecution to start the hearing of charges. During the hearing, it was revealed that there are some anomalies in service of copies of documents regarding some statement of witnesses to the tribunal and the accused. The prosecution is thus directed to submit the missing copies regarding statement of witnesses in this tribunal and to the defence today. Let the hearing of the charge matter be adjourned till tomorrow.'
Press briefing by defence given by Tajul Islam
Tajul - You all know today was the date fixed for hearing of charges against Maulana Sayedee. We filed a petition asking for more time. We had few key points in our petition for adjournment. We didn’t receive legible copy of all the documents that we were supposed to get. We didn’t get the opportunity to consult with our client because we didn’t have the certified copy of the Tribunal order and without that the jail authority will not let us have the privileged communication. So we couldn’t take the instruction from the client. We also submitted that we didn’t have the opportunity to adequately prepare for such special case and we couldn’t take instructions from the client. We didn’t get the documents in time and whatever was provided after that had illegible documents. So we prayed for a reasonable time and wanted the hearing to start after Eid vacation. The Tribunal, after hearing our petition, didn’t even pass any order on that and asked the prosecution to start the charge hearing. They started the hearing and then it was found out that they didn’t submit some documents to the court and also to us, which they were supposed to give us on 19 July 2011 after the Tribunal passed the order on 14 July; we received the documents on 27 July 2011. So, you can easily see that they didn’t even submit all the documents till today that they were supposed to provide on 19 July 2011. Time and again we are asking for more time and the court is refusing. But we haven’t got all the documents yet. In these circumstances it is impossible for us to continue with the hearing of this complex trial as a defence lawyer. After seeing all these, the tribunal fixed tomorrow for the hearing again, I don’t know why. Because we haven’t got the document yet, whereas the tribunal also said that for preparation we will get at least three weeks after getting the documents. Probably prosecution will give us the documents today or tomorrow. Let’s see what order the tribunal gives tomorrow. We also asked why there is such a rush to start the hearing so quickly while we didn’t get the documents, we didn’t have privileged communication and we couldn’t consult the client. Why is there a need to quickly frame the charge and forcing it upon us? There is no need to haste as the client is in custody already. We also reminded the court that the law minister said that the charge hearing of Maolana Sayedee’s case will start within August. When the tribunal gives us this scanty amount of time, and when they don’t want to give orders on our adjournment petition, very reasonably there would be doubt in public’s mind that probably this court is following the dictation of the minister. So, we think that public confidence will take a hit and there would be doubts about this Tribunal. The Tribunal said that they are not taking minister’s remarks in consideration. I said if the Tribunal can be so critical about what Mr Cadman said in the press conference why won’t they take the minister’s remark into consideration or be critical about it. After saying all these, they still proceeded with the hearing but we said we will not take part in the charge hearing under the circumstances. Now the hearing is adjourned till tomorrow only.
Journo: There was another argument from your side that the allegations against Sayedee are new...
D – Yes, before 2008 there were no allegations against him. There was no question against him raised by any newspaper or in any history books that he was involved in those crimes happened 40 years ago. But when he became active in politics, when he is about to contribute greatly in politics and when he became a threat for his political rivals then recently just to harass him these allegations were raised. So, we said he is a victim of political vendetta. There is no proof that he was involved in all these war crimes, millions of inhabitants of Pirojpur will testify that. What happened against him was the greatest lying of the century. We have said this before and saying it today. We said that it is possible to prove him innocent if there is a fair trial. Journo: Will you take part in tomorrow’s hearing?
D – If we are not granted reasonable time we can not take part in the hearing. We might come tomorrow but we don’t even have enough materials to take preparations. Prosecution hasn’t still provided us the documents, so there is no question of being totally prepared by tomorrow.
Journo: What happened to the bail petition?
D – The bail petition was rejected for the sixth time today. The prosecution couldn’t answer to any of our arguments, so to speak. The Tribunal also didn’t mention that the Prosecution couldn’t oppose any of our grounds/arguments, they only said similar prayers were rejected before and there is nothing new. Our stance here is that there is new ground created everyday. My client is in custody one more day today than yesterday. As time goes by, new grounds for bail petition will be created. It’s been so long that he is detained, so we can always seek bail.
Prosecution press briefing
"Today was the day fixed for hearing of framing of charges against Maulana Delwar Hossain Sayedee. The defence prayed for more time and petitioned for an adjournment. The Tribunal said they want to continue with the hearing as the prosecution is ready. During the charge hearing we started to read the statement of some witnesses. Then it was found that there are little anomalies with the documents. The list of witnesses was a bit incorrect. One of the copies of statements was not there. We found three copies in our files. But the Tribunal said we have to provide four – three to the judges and one to the defence. As we had three copies, the Tribunal adjourned the hearing till tomorrow. Journo: Do you think your side was not adequately prepared?
P – This didn’t happen because of inadequate preparation. Some documents were missing only.
Comment
1. It is difficult to see what can be the justification for continue to keep Sayedee any longer in detention - other than for political considerations, which of course is not what the court is supposed to be about. The tribunal gave no substantive justification for denying bail and did not engage with ANY of the arguments made by the defence. It is really quite something how the tribunal does not feel it needs to engage with any of the defence's arguments. There is no evidence that he will flee, and as the defence said, if there remains some kind of concern about interference with witnesses, though it appears rather difficult to see how this could happen under the conditions proposed by the defence, why not give him bail and see whether the risks claimed by the prosecution arise.
