British lawyer denies ‘manufacturing affidavits’ for war crimes trial

To read more about the Salauddin Quader Chowdhury death penalty decision, read here

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British lawyer denies Chief Justice ruling that he ‘manufactured affidavits’ for Salauddin  

David Bergman  

Toby Cadman, a British lawyer who represented a number of the men accused of crimes committed during the country’s independence war of Bangladesh, has denied that he ‘manufactured’ six affidavits ‘to save his client Salauddin Quader Chowdhury’, as stated in a judgment handed down by the appellate division.  

The statement was made by Chief Justice Surendra Kumar Sinha in the judgment published at the end of September which upheld the death sentence imposed on the senior BNP leader for the commission of four offences of crimes against humanity allegedly committed on 13 and 17 April 1971. 

The Chief Justice said that it was 'beyond doubt' that Cadman had manufactured these affidavits. The six affidavits were given by individuals living outside Bangladesh, including a former prime minister of Pakistan, a former United States ambassador, and the chairman of one of the country’s leading media group, who claim that Salauddin was not in Bangladesh at the time these crimes were committed.  

The affidavits include one from Muhammad Osman Siddique, which says that he was on the same flight as the accused when he flew to Karachi on 29 March 1971. In another statement, Karachi-based Muneeb Arjmand Khan stated that he ‘received’ Chowdhury from the airport on that day and took him to ‘Mr Yusuf Haroon’s residence, known as Seafield.’  

He also says that he was also amongst those who took Chowdhury to Karachi airport when he moved to Lahore ‘after about 3 weeks’ to go to Punjab university. Amber Haroon Siddiqui, the chairperson of Dawn newspapers, also provided an affidavit which states that on arrival in Karachi, Chowdhury lived at her family house, (known as ‘Seafield’) for ‘about three weeks. … We used to have discussions at the dinner table where [Salauddin] would join me, my sisters and my parents,’ it stated.  

Salahuddin’s defence lawyers submitted the six affidavits to the International Crimes Tribunal a few weeks after the court had restricted to a maximum of five the number of defence witnesses who could be called to testify in defence of 23 offences commited on ten different dates. 

No similar restriction had been imposed on the prosecution, who called a total of 41 witnesses. 

In its judgment, the International Crimes Tribunal ignored the contents of the affidavits stating that the defence had ‘intentionally refrained from proving those documents by recalling defence witnesses.’ 

In the appellate division judgment, Justice Sinha – as part of his consideration of the affidavits - referred to the arguments of the Attorney General, Mahbubey Alam and various articles published in the online media concerning Toby Cadman’s defence work. He then concluded that, ‘These opinions sufficiently prove beyond doubt that Mr. Toby Cadman has been propagating against the trials by the International Crimes Tribunals as a Overseas lawyer for the offenders of War Crimes and crimes against humanity and he has manufactured all these affidavits to save his client Salauddin Qader Chowdhury.’ 

Toby Cadman, however, forcefully rejected the allegation. ‘I reject the allegations in their entirety. They are unwarranted and unsupported by any credible facts. I was only involved in the taking of one deposition and assisted the defence team generally on defence strategy,’ he wrote in a statement to Bangladesh Politico.  

‘If the Court was concerned as to veracity or legitimacy of the statements they could have easily called any of the witnesses to give live evidence where their statements could have been tested in an open adversarial process,’ he said.  

Bangladesh Politico has also spoken to four of the six people who gave affidavits from outside the country, and they all deny that Toby Cadman had any involvement in the preparation of these affidavits.

14 Nov 2011: Spotlight on British lawyers

This post deals with the order by the tribunal criticising the three British lawyers who are part of Sayedee's defence team.

For comments see the end of the post

[The post dealing with the order relating to the application seeking the recusal of the tribunal's chairman, also given on the same day, will be up shortly.]

Right at the beginning of the days hearing, the chief Prosecutor Mr. Golam Arif Tipu rose and told the tribunal that on 10th of November, there was an article in the Daily Sangram, (a Jamaat-e-Islami paper) which mentioned that Nizamul Haque the chairman of the tribunal, was ‘unfit to proceed with the case as chairman of the tribunal in view of his being a member of an inquiry commission. Well this is a very vital issue which effects the dignity and performance of this court. I invite you to take action.’

Justice Zahir Ahmed asked him to sit down and then asked the defence lawyer Tajul Islam to come up. The judge said that the tribunal had received an e-mail addressed to the register of Tribunal from some foreign lawyers namely Toby Cadman, Steven Key and John Cammegh where they expressed their view that the chairman of the Tribunal should resign, and asked whether the foreign had consulted with Islam?

[To download the letter that was sent, click here]

Islam said that ‘they had no personal discussion with me. Perhaps the seniors discussed it. Personally they did not speak with me.’

The judge then asked Mr. Sayedee to come to the front of the court and he was asked whether he had ‘engaged any foreign lawyer in your case’. Sayedee said that they were appointed through local lawyers. One judge asked whether the lawyer consulted with him before sending this e-mail? And Sayedee responded by saying he did not have the opportunity to consult with them.

There was then a minor verbal spat when the prosecution raised an issue about whether Islam was whispering into Sayedee’s ear or not, and Islam said that he had a right to assist his client. ‘It is a client’s legal right to get legal advice,’ he said. After one comment was made by one of the prosecutors, Islam said that he was being threatened. The judge responded that he was also receiving threats.

Justice Zahir said, ‘we are asking Mr. Sayedee and if he doesn’t understand then we will repeat the question.‘

Justice Fazle Kabir then passed the order relating to the recusal application which is posted on a seperate page.

After that order was given, the senior lawyer on the defence team Abdur Razzaque (who was only in court because the tribunal was dealing with the recusal application) was asked about the letter that was sent by the three British barristers to the Tribunal. Razzaque said that these men are very senior lawyers, with one having represented Milosovicz, another having worked with Steven Rapp and that the tribunal should take the matter up with the Bar Standards Board whether or not there has been a breach.

‘I am in agreement with contents of the letter, but they have decided to send the letter,’ he said. ‘I do not support the writing of the letter, but I support its content.'

The judge then read out section 709 of the Bar Standards Board code (see below in order) and asked whether the barristers were entitled to write such a letter.

Razzaque said that the barristers thought they had that right. He said that the barristers were appointed from outside Bangladesh and so the Code of Conduct for the Bar of England and Wales was not applicable. He said that although barristers in UK can only be instructed by solicitors, they can be directly appointed by clients from outside the UK and in such cases, the Code of Conduct for Bar of England and Wales would not apply. ‘They are writing the letter from outside the country. They have been denied the right to come to Bangladesh,' he said

The judge said that he had looked at the Bar council code over the last two evenings, and did not find any exception like this.

The judge asked whether the barrister had consulted with the him before sending the letter. ‘No they did not,’ Razzaque

Justice Zahir then read out the following order:

Yesterday, 14 November, was for hearing of application filed by accused Delwar Hossain Sayedee on 27 October seeking recusal of Mr Justice Nizamul Haque the honorary chairman of the ICT.

Pending the application for recusal, on 9 November, the registrar of the tribunal received an e-mail communication from Mr Toby Cadman stating

‘Please find attached a letter for the attention of the Chairman of the Tribunal. We would be most grateful if it is brought to his attention as soon as possible. We submit this letter with the greatest respect to the Honourable Chairman, but consider it appropriate in the interests of justice to ensure that a highest standards of professional integrity are maintained before the Tribunal.’

The said letter dated 8 11.2011 was an e-letter titled, ‘Recusal letter’ and was signed by Mr Steven Kay QC, Toby Cadman and John Cammegh all from the chamber of Anthony Berry QC of 9 Bedford Row, London WC1, introducing themselves as the counsel representing Delwar Hossain Sayedee. It was addressed directly to Mr Justice Nizamul Haque, tribunal chairman and asked him to recuse himself as chairman of the ICT with immediate effect.

After perusal we are really surprised to note that under what authority and power does Mr Toby Cadman, Mr Steven Kay and John Cammegh work and sent such an unusual address to chairman by mail to a supreme court judge of Bangladesh.

Some three international names have been claimed to be representing Delwar Hossain Sayedee. We have perused the Vakalatnama [power of attorney] for representing Sayedee, and we could not find any excuted Vakalatnamfor these international names, in favour of the accused .

We also asked Sayedee in open court whether he has engaged any foreign lawyer or not. He responded that he has some foreign lawyer who had been instructed thorough his national lawyer for giving them legal advice but that he has no personal knowledge of what they say and write.

In a footnote in the mail it had been noted that this e-mail and any file attached are confidential and legally privileged, that the e-mail is intended solely for person or individuals to whom it is addressed, and that if the e-mail is sent to the wrong person it should be deleted and that the sender should be notified or the IT manager of the chambers on 0207 489 2809. But it is sorry to say that the attached letter has been forwarded to the national press and the Daily Sangram published the contents of the letter on 10 November 2011. So it is very clear that said letter was not at all confidential

The main intention of these persons was to humiliate a judge of the supreme court of an independent sovereign country..

Sending correspondence to a judge of the supreme court and sending said e-mail to print media is unheard of and is not a proper procedure.

We anxiously wanted to know from the Learned counsel Mr Tajul Islam whether he has any discussion with these men before the e-mail was sent. He replied that he had no personal knowledge about the said e-mail.

As Mr Steven Kay, John Cammegh and Toby Cadman are not officially engaged lawyers as per the court before us on behalf of the accused Delwar Hossain Sayedee they are only foreign national members of a law chambers in London UK.

They are neither citizens of Bangladesh nor members of the Bangladesh bar council so we find it difficult to understand what promoted them to send such a letter addressed to chairman as to his recusal in a sub-judice matter.

Though discussed earlier that there is no proof of engagement in court as defence lawyer, we have seen statement that claim that they are members of the defence team and also claim that accused Delwar Hossain Sayedee as their clients. The accused DHS are also stated in open court that they were engaged by his national lawyers.

So a lawyer who claim an accused as his client has to maintain the code of conduct of his own country, as well as the code of conduct where the accused resides.

Now let us see whether there has been at all maintenance and respect for the code of conduct of his own bar.

Mr Toby Cadman, Mr John Cammegh and Mr Steven Kay QC on a number of occasion have made public statements, given appearances, attended political events at discrediting the justice process of the tribunal.

Such examples of this are set out below
- Steven Kay QC on 12 Oct 2011, on website, ‘A wolf in sheep’s clothing’
- Toby Cadman on 15 August 2011, on Al Jazeera. Also on 16 October 2011, a public statement on behalf of defence team made to media, including on Toby Cadman’s own website, titled, ‘The international Crimes Tribunal Bangladesh: International Standards and Fundamental freedoms’. Also on 24 Aug 2011, a public statement on his website stating ‘Defence Team takes a Stand’
- John Cammegh on 8 November 2011, a statement, “The Bangladesh War Crimes Trial: Reconciliation or revenge’ published on the webiste of the International bureau.
- Finally all of them by own signature sent a letter to ICT by name on 9 November 2012

We want to repeat here some parts of the Code of Conduct of Bar Council of England and Wells and standards of professional.

Section 7, para 701. ‘A barrister … must not undertake any task which: (i) he knows or ought to know he is not competent to handle.’

It is not established that they are ‘competent to handle’ this case by standing for a client in a court of law, and Toby Cadman and two others of the same chambers definitely know that they are not members of the Bangladesh Bar Council so cant stand for accused before this tribunal.

Even then, they took the task of defending Sayedee, so appear to be in clear violation of 7.01 of Code of Conduct.

If that term ‘competant to handle’ not apply then as not physically before the tribunal, but to help other lawyers in providing advice, Toby Cadman and others should maintain respect for para 709 which states that ‘A barrister must not in relation to any anticipated or current proceedings or mediation in which he is briefed or expects to appear or has appeared as an advocate express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings.'

All of them have made public statements, given appearances, aimed at discrediting the justice process of the tribunal and then sending letter on 9 November, not only addressed the letter to tribunal but also sent to national press so that on 10 November Sangram published contents of the same e-mail

So action of Steven Kay etc appears to have violated clause 7.09.01 of the code of conduct of Bar Standards Board, 8th edition of Bar Council which came into effect in October 2004.

They can say that they have a right to express their views. Yes, can do it by para 7.09.02 in an educational or academic context but sending e-mail to chair of the tribunal and then to print media cannot come under para 7.09.02

We are of the view that Mr Toby Cadman, Mr John Cammagh and Steven Kay QC have breached the provision of para 7.09 of Code of conduct of Bar council of England and Wales.

Ask that the register or his deputy to send copy of this order and copy of e-mail to bar standards board and for their perusal and consider the content of the order

May a copy of this order be sent to miniser of law, Justice and Parliamentary Affair to undertake above procedure before the standards board. Accordingly the matter is disposed of.

Comments
I think this matter may well be a bit more complicated than the tribunal (or indeed vocal supporters of the prosecution, and indeed local defence lawyers) are making out.

1. First of all it seem pretty clear that the three barristers have to comply with the Bar Standards Board code. There is an exemption for 'international work' (see annex one to the code) but the three barristers do not appear to fall within it. Moreover, in my correspondence with Tony Cadman about this (see more below: any quotes are from a statement that he has given), he has not tried to make this argument.

So the senior defence lawyer Abdur Razzaque's point made in court that the three barristers did not appear to comply with the code is incorrect.

2. The next question is about whether, under the Code, it was appropriate for the barristers to send this letter to the chairman of the tribunal. It is very unusual for lawyers to correspond with a judge.

Lets us first look at the three British lawyers response to this. All in all they seem to be making five points:
(a) that the letter 'communicated was addressed solely to the Chairman' who was not a party to the proceedings about his recusal;
(b) that the issue involved a very serious matter and it was written in the greater interests of justice: 'One of the most valued principles in ensuring a fair trial is the right of an accused to be heard before an independent and impartial tribunal ... It remains our position that we acted in the interest of justice to bring to the attention of the tribunal the serious issue concerning its composition because we are concerned about the fairness of proceedings. Ensuring that each accused person appearing before the Tribunal receives a fair trial by an independent and impartial tribunal according to the highest standards of fairness and due process is an essential requirement for ensuring that justice is not only done, but importantly it is seen to be done. "
(c) that they have been prevented from addressing the court: 'In light of the fact that foreign counsel practically prevented from representing accused before the ICT and acting in the best interest of their clients that there exists a need to highlight concerns expressed as to the Chairman's position.'
(d) that the 1973 Act prevents either party from challenging the position of a judge therefore direct communication with the judge is necessary: "It is also noteworthy that Section 6(8) of the 1973 Act does not permit the challenge of any judge for whatever reason. This appears to be the position adopted by the Tribunal in our recusal petition."
(e) that they did not breach the professional standards as it 'is equally a requirement that one must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person. This of course must be read in conjunction with the overriding requirement not to bring the administration of justice or the judicial system into disrepute.'

On these arguments, I would make the following points:
- Although the Bar Standards Code does not say directly that a Barrister cannot write directly to a judge, I think there is a general assumption that such a practice is very questionable. It is true that the letter was sent directly to the chairman, and not to the other judges - but at the time of sending, I don't think the British barristers knew that he would not be sitting when this application was heard. However, it should be noted that whilst the application before the tribunal sought an order from it recusing him from sitting, the letter directly asked the tribunal chairman himself to recuse himself - so arguably the letter touches on a different (though connected) point than the application before the tribunal.

- It would seem to me difficult for the barristers to argue that because they cannot represent their clients in court, they have to write a letter to the judge to this effect. This is because there are local lawyers who are representing the same client, who the foreign barristers work closely with, and who can equally make this point to the tribunal.

- For the Bar Standards Board it is likely to come down to an issue of balance: Assuming it is generally wrong for barristers representing a client to write letters to a judge involved in the case, is this principle overridden by wider interests of justice. This will be the key question in hand, to which we will have to wait and see.

3. The next question is whether or not (a) the letter should have been distributed to the media and (b) whether the barristers should generally be publishing statements as they do, some of which are directly send to the media.

Although the tribunal has assumed that the British lawyers distributed this letter to the media, as far as I know there is nothing to show that they did. I, myself was infact sent a copy of the e-mail/letter that was sent to the registrar in the afternoon of 9 November. It was from an e-mail address that I did not recognise, and comes up with no entries when googled. As I was suprised to received the letter, I immediately e-mailed Tony Cadman to ask him about it, and it was clear from his response that he was suprised that I had received it.

It is much more likely that the letter was sent to local Bangladesh media by one of the local lawyers or perhaps one of supporters of the defence team in Bangladesh. the question then becomes whether or not the foreign lawyers authorised this to happen, and we don't know that at the moment. It of course could also have been sent by the registrar's office, but I think that is very unlikely.

Putting that issues to one side, apart from section 709 of the Bar Standards Code (quoted by the tribunal), there is also specific guidance that the BSB has produced relating to the interpretation of this section. The Tribunals appear not to have been aware of that, or if they were, they did not mention this in their ruling. (see this page and go to 'Commenting to the media on cases' in third batch of guidance).

The operative parts of this states:

There is no longer anything to prevent barristers informing the press about their client's view of the proceedings or what their client is seeking to achieve. It is obviously essential that the client should agree to whatever is said on his or her behalf.

Similarly, there is nothing to prevent barristers informing the press of the facts of a particular case or of the particular legal issues that will be discussed. They should be careful, however, not to add any personal views about the merits of the case or the appropriate outcome.

Under the sub-title, 'Bringing the Administration of Justice into Disrepute' it goes onto say:

'Barristers should be careful to express themselves carefully if they are commenting on cases in which they have been involved. It will almost invariably be inappropriate to make allegations about the good faith of a judge or other judicial officer or to use inflammatory language.

The purpose of these rules is to protect the independence of barristers. While barristers owe strong duties to their lay clients, they also owe an overriding duty to the court and should be careful not to bring their independence into question.'

This guidance makes it clear that the key issues in relation to the media, is that (a) a barrister cannot give his personal views, but only that of his client and (b) that their comments should not 'bring the administration of justice into disrepute' by for example the questioning the 'good faith of a judge' or by using inflammatory language.

I think we can assume that all the comments made to the media are the views of the client, or are said with the consent of the client - there is nothing to suggest otherwise (see point 5 below about the issues of representation).

Do the comments bring the 'administration of justice into disrepute'? First part of this is to see whether they have they questioned the good faith of a judge? It does not seem that the letter does that. The letter specifically states: 'This is not a question of personal integrity or personal attack on character,' and focuses instead on 'the appearance of bias in the case against our client.' I also don't think that any of the other statements/ documents mentioned by the tribunal - if one cares to read them (see links above) - question the good faith of the judge.

The second part of this is whether the letter/statements use inflammatory language? The language of the letter itself is very far from inflammatory - and indeed goes out of its way to be polite. Whilst the statements do raise serious criticisms about the legal procedure relating to the tribunal and concerns about the charges laid against Sayedee, it is also difficult to see how you can say that they are inflammatory.

In its statement, the three British lawyers also argue that any criticisms that the tribunal may have with their conduct, must be seen within an over-riding objective, which they as lawyers say they have in representing their client: 'It is difficult to imagine how the criticisms made [by the tribunal] can be interpreted as a breach of this overriding objective,' they state.

They say this in the context of the criticism they have of the tribunal which are set out in their statement as follows:

(1) The First Constitutional Amendment removes all fundamental rights and removes any right to bring a jurisdictional challenge to the International Crimes (Tribunal) Act 1971;
(2) The International Crimes (Tribunal) Act 1971 excludes the application of procedural norms by expressly removing the Criminal Procedure Act and Criminal Evidence Act;
(3) The Presidential Order No. 16 of 1973 grants immunity from prosecution one side to the conflict without exception;
(4) The International Crimes (Tribunal) Act 1971 prevents any interlocutory appeal or judicial review;
(5) The International Crimes (Tribunal) Act 1971 prevents any challenge to any decision issued by the Tribunal with the exception of conviction and sentence;
(6) There is a complete absence of rules of evidence and disclosure;
(7) Counsel is prevented from having privileged communications with their clients;
(8) The Tribunal has resisted the application of international law;
(9) There are no clear definitions of crimes;
(10) The People’s Inquiry Commission has prejudged the guilt of some of the accused;
(11) Those convicted by the Tribunal are liable to a sentence of death;

It will be upto the Bar Standards Board to determine whether the foreign lawyers have breached its code in relation to dealing with the media. However it would seem to me, that in the context of the concerns which the barristers have with the tribunal (and of course the BSB will be looking at these concerns through the eyes of British lawyers and the standards that they expect) that it is unlikely that the Board will find against them on this particular point.

5. Another issue raised by the tribunal is the question of whether the British lawyers can be said to represent Sayedee. I don't fully understand the point being made here by the tribunal, however I think the argument is that since there is no power of attorney with the court, then they have no right to send a letter to the tribunal on behalf of Sayedee.

However, clearly the foreign lawyers do represent Sayedee - having been instructed by the local Bangladesh lawyers. I am not clear why they would need to give the court a power of attorney if they are not arguing before it or filing applications.

6. Final point. Abdur Razzaque, the lead defence lawyer, told the tribunal that he was not consulted about the letter to the tribunal chairman. I think this is difficult to believe. It is clear that the foreign and local lawyers work closely together and the idea that Abdur Razzaque was not aware of the letter being drafted and sent, does kind of beggar belief! I think the local lawyers have to be a bit more straight about this kind of thing - particularly when they are making these comments inside the tribunal.

Govt bans entry of British defence lawyer

What could be behind the government's thinking to ban a British barrister, instructed to represent all five of the Jamaat-e-Islami leaders accused of war crimes? (see: ICT accused UK lawyer ‘banned’ from entering Bangladesh), and confirmation that it was the Home Ministry that was behind it)

If the government wanted to increase people's suspicion about the government's intentions and motives concerning whether it was willing to allow a fair trial of those accused of war crimes during the 1971 war of independent, to take place, well banning the defence lawyer from coming to Bangladesh is certainly a successful way of doing that.

This will now be used, perfectly legitimately one has to say, to argue that the right set out in the International Crimes Tribunal's rules of procedure for the accused to choose their own lawyers is rather void of meaning.

And it just looks so bad! When the government is being criticised right now by most (all?) independent observers of this tribunal for failing to live up to the standards the government originally promised, banning a defence lawyer to come into the country does not look good.

These days, on many issues when the government is given a gun, it will just shoot itself in the foot!

No doubt the government find's Toby Cadman involvement in the trials annoying. He, along with the two other British lawyers, are helping the Jamaat raise concerns concerning both the law under which the tribunal is operating as well as the legality of many of the tribunal's actions. That is of course his job.

But these criticisms would have no resonance if there was no substance to them. Unfortunately there is, and almost all his concerns are echoed by independent international human rights organisations and international lawyers.

Rather than banning lawyers, the government should take steps - by making changes in the law and to the ICT's procedure and operation - so that these criticisms have no traction.

It has had two years to do this, of course, and has in that time made only minimal changes. (see: New Age article, Convicting the Guilty or Fair trial for the accused?)

Lets hope that the government has a change in mind.

First, however, if the Bangladesh government is listening, do let Toby Cadman in!

16 May 2011: Criticism of British lawyer

Two applications were dealt with at this hearing; an application seeking improved transportation for five of the accused from the prison to the tribunal premises, and another application seeking revision to a previous order to ensure that doctors at Ibrahim Cardiac Hospital provide Dewar Sayedee Hossain treatment.

Prior to dealing with these issues the Tribunal raised two initial points - one relating to an article in the Daily Sangram, and another relating to criticism of a press statement given by Toby Cadman, a British barrister who is part of a team of lawyers representing the Jamaat-e-islami accused.

Report of Daily Sangram
Right at the beginning of the hearing, the Tribunal chair said that he has some issues he wanted to address.

He asked whether Mr Shahidul Islam, reporter of The Daily Sangram, was present and asked him to come forward. (Daily Sangram is known as a jamaat-e-islami paper)

The Tribunal then mentioned a report was published in the Daily Sangram which claimed that the Tribunal members held a two-hour ‘closed-door meeting’ with some people. (It was not clear exactly with whom it was alleged that the meeting was supposed to have taken place, but the journalist subsequently said that the article had alleged that the meeting had taken place with: AK Khondker (an AL leader); M. Hamid, a TV Producer, and members of the sector commander forum, General A Harun and General Shafiullah), The Tribunal chair said, ‘Where did you get that information? Who instructed you to write this report?’

The journalist initially did not say anything, but after being asked again by the Tribunal chair said, ‘Earlier, there was this similar kind of report published in another newspaper. I saw the report and did mine.’

The Tribunal chair then said, ‘We have good relationship with lawyers -- counsels and prosecutors. I know Mr Tajul Islam, sometimes we have tea together in my room and we chat -- is this also some kind of closed-door meeting? You think you can write whatever you want? Is there any basis to your reporting?’

‘You have to apologise to the lawyers and the judges in The Daily Sangram saying that what you published was wrong and baseless.’

Criticism of Toby Cadman (British barrister instructed by Jamaat defence lawyers)
The tribunal chair then asked Tajul Islam, the defence counsel, to come forward.

The Tribunal chair then said, ‘This is the age of internet, isn’t it? We are connected to the whole world through internet. What we say, what we do, every piece of information is available online. There was a foreigner who came to this court in the hearing as an observer. We gave him the permission to appear here. Although he is a foreigner we gave him the chance after special consideration. Before leaving the country he did a report on the hearing. It was mentioned that if any Bangla translation was needed one could contact Mr Tajul Islam. That means Mr Tajul has a professional connection with him, and later Cadman admitted that he was not an observer, he was an adviser to the defence.'

Islam replied, ‘Yes, he was’.

The Tribunal chairman then read from a statement that Cadman had issued on 6 May 2011. 'Persons arrested on the basis of reasonable suspicion of having committed a criminal offence are also entitled, under international law, to a number of additional safeguards. For example being brought promptly before a judge, being provided with information detailing the nature of the allegations, being entitled to challenge the lawfulness of custody and independently of this being entitled to make a reasoned bail application. None of these rights have been made available.’

Then the following exchange took place between the Tribunal chairman and Islam.

Tribunal: Was [the accused] not brought in front of this court as early as possible after issuance of warrant? Answer me.’
Islam: yes.
Tribunal: ‘….being provided with information detailing the nature of the allegations – was he not provided with this?
Islamd: Yes.
Tribunal: ‘lastly, being entitled to challenge the lawfulness of custody and independently of this being entitled to make a reasoned bail application, didn’t you do it?
Islam: Yes.

The Chairman then said ‘If all those four cases were taken care of, how could he say, “None of these rights have been made available.”?

‘And, he said if anyone prefers Bangla translation Tajul Islam could be requested. Who is this Tajul Islam? ‘ ‘It’s me’ said Islam..

He then asked the lawyer why he did not do anything about this. One of the other Tribunal members then said, 'Mr Tajul, as a Bangladeshi citizen, do you think such comments from a foreigner are acceptable? A person who is not a part of this prosecution and tribunal shouldn't write anything like this, and as a part of [the Tribunal] you should have replied.'

Another tribunal member said: ‘Can we comment like this on a British citizen or against any other country? Are we allowed to say anything against a foreigner? We have sovereignty. We can talk about ourselves, but not a foreigner -- just like we can’t comment on a foreigner or other country.’

Islam said, ‘It was his opinion. It was his responsibility. I don't take any responsibility.

The Tribunal chair then said, ‘Didn’t it strike you? At least as a citizen, law abiding person of this country, you should have defended the tribunal. You have to defend the law; you have to defend the tribunal.’

Islam said, 'It is his responsibility. I don't take any responsibility … I have nothing to comment on this.’ The Tribunal then said, ‘But you should have defended the tribunal.’

The Chair then asked Islam to continue with the hearing.
(See comment at end of blog),

Application for improve transportation
The first application related to seeking improved transport to and from the prisons to the court. He said that the four accused - Mr Motiur Rahman Nizami, Ali Ahsan Md Mujahid, Md Kamruzzaman and Abdul Kader Molla - all had different ailments which had been discussed in an earlier hearing. Islam then summarised what these ailments were. (see hearing on 21 May)

He said that on a number of occasions the accused travel in vehicles which are ‘unfit to be driven’ He said that there were no windows, just a gap at the top of the vehicle. He said that rain and dust come into the vehicles. He said that the vehicles were very cramped with accused having to sit sideways, and that the seat were sometimes broken.

He said that taking into account their health and old age, they were seeking an ambulance or other vehicle to be provided, which the accused will pay for.

There was then an exchange between the Tribunal members and Islam.

A tribunal member said, ‘The tribunal can’t decide if some one is sick or not. It’s the doctors’ duty. Now, you are saying [the accused] are sick, and you need ambulances as their transport, as moving them from place to places with prison vans has been detrimental for their health. I have to say noone can avoid jerking and traffic in the road.’

Islam said. ‘We need an ambulance because the sitting arrangement is really bad in the prison vans.

The chairman then said, ‘We can’t pass an order on which type of vehicle should be used because there are security issues. Using an ambulance could prove to be unsafe for the accused. Who will take the responsibility? Prison vans are at least secure, but ambulances are not.’

Islam said, ‘But the prison van’s condition is absolutely terrible.’

The Tribunal chairman then said that, ‘Unfortunately, we can not compromise with the security issues that are concerned. We will strongly ask the concerned authority and issue a caution, so that the accused are taken care of properly. The authorities have to consider the condition of the accused, and upon considering their health, they can choose the type of vehicle to be used.’

The Tribunal then passed the following order:

‘This is an application filed by Mr Motiur Rahman Nizami, Ali Ahsan Md Mujahid, Md Kamruzzaman and Abdul Kader Molla, praying for transportation of them by an ambulance or any other similar motor vehicle. We have heard the learned counsel and perused the application.

It appears that considering the health condition of the accused persons earlier different orders were passed authorising specialised food and treatment in BIRDEM hospital.

Mr Tajul Islam submitted that the prison vans by which the accused persons are transported from one place to another being not “health-friendly”, and as such the accused persons, being patients of different diseases and feeling uncomfortable while they are being transported, and as such for their comfortableness, an ambulance or different vehicle which is more comfortable for aged person than that of prison vans may be allowed and prison authorities ought to be directed to arrange such things even at the cost of the accused person.

Mr Haider Ali, learned prosecution appearing for the prosecution submitted that prison authority is authorised under law to arrange vehicles if at all required and for that prisoners need not pay cost. Further submitted that order from the Tribunal would put the prison authority in embarrasment, and it is the responsibility of the prison authority to decide what kind of vehicles to be provided for comfortable transport of accused person.

We already passed an earlier order that the accused persons are aged and some signs of ailments are available, also ordered specialised food and transfer to hospital as and when required. We are of the view that it’s the prison authority’s duty to provide the accused proper vehicles, which are required for their comfortableness whilst they are transported. As such we direct prison authority to look after the health conditions of the accused person and provide them vehicles which are health friendly when they are transported from one place to another.

With this direction, the application is allowed.’

Mr Tanvir Ahmed Al-Amin, the lawyer acting for Sayedee then stood up and the court said that they would pass a similar order for him.

Medical treatment application
Sayedee’s lawyer then sought a revision of an order relating to his medical treatment. He told the Tribunal that the accused was taken to BIRDEM the previous day. 'He was first taken to the Arthritis department and tested, and then he was taken to the diabetic department and that was fine too. But, when he was taken to Ibrahim Cardiac Hospital for heart condition, the doctor said, “We are not in a position to treat him. Because the court order says BIRDEM but we are Ibrahim Cardiac. If the court doesn’t directly order us, we can’t treat him.”'

Al-Amin said that the Diabetic Organisation Bangladesh is the mother organisation of BIRDEM and ICH. And for clarification, he asked that the order be change so that it includes Ibrahim Cardiac Hospital.

The Tribunal chair said, ‘This is outrageous. A doctor is bound to treat his patients. What if the accused breaks his leg and he is taken to Mitford Hospital – would they say, we don’t have our name in the order so we won’t treat him?’

He added, that the prison authority can decide where to take the accused, whether its BIRDEM or Mitford, but a doctor can’t decide which patient to cure and which not to. ‘How can a doctor says this? This is unbelievable,’ he said.

Al-Amin said that he was not going to disclose the doctor’s name, as the patient has to go to the hospital, and his life depends upon his treatment.

The Tribunal passed the following order:

‘This is an application to direct the direct jail authority to comply with the direction dated 20.04.2011 regarding medical treatment of the accused petitioner. Mr Tanvir Ahmed Al-Amin learned counsel appeared for the petitioner submitted that the application was filed on 8 May 2011 but after filing on 15 May 2011, accused petitioner was taken to BIRDEM hospital and given treatment and further submitted that as also had cardiac problem he went to cardicac hospital for treatment, but that the doctor denied giving treatment as the court order only stated BIRDEM hospital and not cardiac hospital and these are separate entities.

Mr Syed Rezaur Rahman, learned prosecutor, said this is a technical error of doctors. According to him, when name of BIRDEM is mentioned, the doctor of cardiac hospital could have given the accused treatment. In matter of giving treatment the prosecutor did not raise objections.

Having heard submission, we direct, the words, Ibrahim Cardiac Hospital and Research Institution, be inserted after the words BIRDEM hospital in the order dated 20.04.11 so the accused petitioner may get treatment at the cardiac hospital if necessary. The prison authorities are directed to arrange treatment to the accused petitioner as and when required. The petition as such is allowed. May a copy of this order be served on prison authorities for compliance.’

The tribunal chair finished the hearing by saying that he has something to say to the reporters. ‘You should be careful while speaking in the TV. We observed that you say some incorrect things there. This is not right.’

Comment
After this hearing, I contacted Toby Cadman and Tajul Islam. Cadman stood by his comments, whilst Islam said that that he did in fact agree with at least three of the four comments made by Cadman but felt intimidated by the Tribunal. Below is an article I wrote at the time on this, but was not published:

British barrister ‘stands by’ ICT criticisms

The British barrister representing five Jamaat-e-islami leaders accused of war crimes during the 1971 war has defended the criticisms he made of the International Crimes Tribunal which on Monday the ICT chairman Justice Nizamal Huq described as inaccurate.

In an e-mail sent to New Age, Tony Cadman, one of three senior barristers from the London based chambers Nine Bedford Row who have been instructed by the political party, said that, ‘I fully stand by what I previously stated.’

He however said that since he had not been ‘present in court and [did] not hear precisely what was said by the Judges,’ he would not at this time respond in public to the Tribunal chair’s comments.

‘I fully intend to write to the Tribunal, through the Registrar, and explain my position and respond to any concerns or criticisms they have about what was set out in my statement,’ he told New Age.

On 6 May, at the end of what he said was his fifth visit to Bangladesh, Cadman issued a press release that strongly criticized the ICT and in particular the lack of rights he said was available to the detained accused.

In the five page statement, one paragraph read, 'Persons arrested on the basis of reasonable suspicion of having committed a criminal offence are also entitled, under international law, to a number of additional safeguards. For example being brought promptly before a judge, being provided with information detailing the nature of the allegations, being entitled to challenge the lawfulness of custody and independently
of this being entitled to make a reasoned bail application.’

In bold type, the statement added, ‘None of these rights have been made available.’

At the beginning of Monday’s Tribunal hearing, the Tribunal chair read out the paragraph and asked Tajul Islam, the accused’s main Bangladeshi counsel to answer questions about the accuracy of this claim.

‘Was [the accused] not brought in front of this court as early as possible after issuance of warrant?’ Islam said, ‘yes’

‘Being provided with information detailing the nature of the allegations, was he not provided with this?’ the tribunal chairman further asked. ‘Yes,’ said Islam.

‘Lastly, being entitled to challenge the lawfulness of custody and independently of this being entitled to make a reasoned bail application, didn’t you do it?’ Islam again responded, ‘Yes’.

The Tribunal chairman then criticized Islam for failing to inform Cadman that his views were wrong, ‘Why didn’t you do anything against this?’ he asked.

Judge AKM Zahir Ahmed added, ‘Mr Tajul, as a Bangladeshi citizen, do you think such comments from a foreigner are acceptable?’

Islam responded by saying, ‘It is his responsibility. I don't take any responsibility … I have nothing to comment on this.’

However, after the hearing, Islam told New Age that he had no option but to agree with what the Tribunal asked him. ‘I had no option to say, yes. They were leading questions.’

He told New Age that he in fact agreed with Cadman on three of the four criticims that he had made. ‘The accused have not been given copies of the allegations against them. They have only been given copies of the application filed for warrant of arrest and subsequently for interrogation,’ he said. ‘This is not the same as the copy of the allegation against them.’

In relation to being able to challenge the lawfulness of the accused’ custody, Islam said that in the defence lawyers; view ‘the law did not allow detention prior to the framing of the charges, and there had been no way of appealing the Tribunal’s decisions involving detention.’

On the issue of the bail application, he said, ‘We have made a bail application, but the order given by the Tribunal was not reasoned. The reasons that were given in our application were not reflected in the order of the Tribunal.’

He however said that Cadman was wrong to suggest that the accused were not brought promptly before the tribunal after a warrant for their arrest was issued.

Following the Tribunal’s rebuke of the British lawyer, the Tribunal passed two orders on Monday - one directing the jail authorities to provide improved transport to the accused when they travelled from jail to the Tribunal, and the other to allow Delwar Hossain Sayedee to be able to visit the Cardiac Hospital and Research Institute when necessary.

In a previous order the Tribunal had allowed them to visit Birdem heart hospital

In the five page press statement made a week ago, Cadman – who has acted as both a prosecutor and defence counsel in international war crimes tribunals – said that ‘Bangladesh has the opportunity to show the world that it is a model of the judicial process, but as it currently stands, there is a danger that this court could be seen as nothing more than a tool of political retribution.’
He says the accused men ‘are being held pending trial without fair representation … They have been interrogated under circumstances that breach the most basic fundamental rights. They have been denied access to the medical treatment requested. Unless something is done, they will be tried by a Tribunal which has powers not only to prevent them from defending themselves but also to issue the death penalty. This would be a travesty of justice.’