Govt PR problem on UN detention ruling

There are a number of points to be made about the opinion of the UN Working Group on Arbitrary Detention which ruled that that the manner in which the International Crimes Tribunal detained without charge one Bangladesh Nationalist Party and five Jamaat-e-Islami leaders was ‘arbitrary’ and a breach of international law. The ruling was adopted in November 2011, but was not put into the public realm until 7 February.

To download the opinion
To read about the UN Working Group

1. Government PR debacle

The opinion by the UN Working Group is simply a PR disaster for the government.

In recent weeks the government - along with a number of its ‘surrogates’ - have been trying to push back against some critical coverage of the International Crimes Tribunal. At recent events both the law minister and the Chair of the National Human Rights Commission have gained headlines in Bangladesh by saying that the due process standards at the ICT are higher than any other international tribunal. Similar comments have been made by the senior lawyer Amirul Islam. And then along comes this opinion.

To me, what is remarkable – putting to one side for now whether one agrees or not with the working group's opinion - is that the government did not respond to the UN Working Group in time, so the group's opinion was reliant primarily on information provided by the defence lawyers; the Working Group could not take into account the Tribunal's view about why it considered its own detention decisions reasonable and within international standards.

One must assume the Bangladesh foreign ministry must know the procedure – indeed it would have been written in the letter that the working group sent to it seeking a response - that if the government does not respond in time then the working group would still make an opinion.

The government says that it sought a time extension. But even assuming that it did, the working group can only provide an extra one month, which would have meant that it had to respond near the end of December. Since the government says that it submitted its response in early February, obtaining a time extension would not have been of much use. It is also questionable whether the government did in fact seek a time extension within due time, since it is clear from the timings the working group did not give the government an additional one month extension, and published its report in December rather than November.

To compound this error of failing to respond, the government has not prepared any public response to the opinion of the working group. When I first contacted the foreign ministry which was perhaps 48 hours after the report was put in the public domain, the ministry appeared not even to have been aware of it.

When, the Ministry under my prodding did find out about the report, they appeared supremely unconcerned that the Working Group had published an opinion without having had the benefit of the government's response. The foreign ministry did not criticise the opinion, it was not clear whether it even had a copy of it. A senior official said that the working group would publish the government's response in due course, and that seemed to be sufficient for them. The official seemed totally unaware of the PR disaster that this report represented for the government. Right now the defence have an independent UN working committee report that says that the Tribunal's detention of six accused was arbitrary and in breach of international law - and the government has done nothing to argue against such an opinion.

What the government could still do is publish its own response to the committee, or a version of it. There is no restriction as far as I can see in them doing this. However the foreign ministry are currently taking a position that it would be wrong for them to do so.

2. Rights and wrong of the decision about detention

The reasoning contained in the UN working group's ruling is not as detailed as one might have hoped. However, my own view on the findings is as follows.

• putting to one side whether the detentions were a breach of international law or not there was always a legal problem detaining the men without charge. Although, rule 9(2) of the Rules of Procedure allows the tribunal to detain people for the purposes of investigation, section 11(5) of the International Crimes Tribunal Act 1973 only provides the tribunal the legal power to order their detention once the accused are charged. (NB: The reason why the law may have been drafted in this way – i.e not providing greater powers of detention - is that it was originally drafted to deal with the Pakistani POWs who were being detained in India. There was therefore no need to have a power to detain them during investigation.) The prosecution argued in court that there was no contradiction between section 11(5) of the Act which they said did not relate to a situation when investigation was proceeding, and rule 9(2) which they said only dealt with detention during investigation. Rule 9(2), the prosecution argued, was supplementary to section 11(5) of the Act, not in contradiction to it.
  
  I was never persuaded by that argument nor indeed was one of the countries most senior criminal lawyers who is in charge of prosecuting the BDR mutiny cases on behalf of the government. When the defence raised this issue in court, the Tribunal dismissed this arguments without giving any reasons.
  
  It would have been much better had parliament amended the Act in order to allow these pre-charge detentions to take place. Since it did not, the argument about legality of the detention was bound to be subject to further questions - as indeed it has with the UN working group report.
  
  It should be noted that the UN Working Group states that its ruling on the arbitrariness of the detention is not simply dependent on whether or not detention is lawful, but on a view of 'inappropriateness, injustice and lack of predictability' of the decisions relating to detention. So its opinion does not simply relay on whether or not detention is a violaition of the ICT Act or not.
• having detained the men, I have been concerned whether there were good legal reasons for the tribunal to repeatedly refuse bail to the five Jamaat-e-Islami men, whilst investigation into them was continuing. Why do I say that? First, none of the accused were trying to escape jurisdiction prior to their arrest - although they all must have been pretty aware from the media that they were soon to be arrested. Secondly, the defence lawyers argued that they were happy for their clients to abide by any conditions imposed by the tribunal, and suggested to it a number of pretty stringent ones. Thirdly, Md Alim had been given bail, 'on humanitarian grounds' because he was in a wheelchair, and on the basis of these conditions there had been no suggestion that he had tried to interfere with the investigation or otherwise break bail conditions. If he could be given bail on strict conditions, why could the other accused not? Fourthly, they were being required to stay in pre-trial detention for a long time. And fifthly, the tribunal, in all its bail decisions never set out clear reasons why bail should not be given.
• However, having said all that, it should be noted that the pre-trial detention of men accused of war crimes is not unusual – and the Bangladesh tribunal is reflecting the  practices that have existed elsewhere. Richard Rogers, the former head of the  defence office at the Extraordinary Chambers in the Courts of Cambodia provides the following information which is important to note for context:

• 'At the International Crimes Tribunal in Rwanda, 10-15 accused were held in detention for over 10 years before their guilt or innocence was determined by the trial chamber. Two had to wait for 16 years before a trial judgment was rendered.
• At the Extraordinary Chambers of the Courts of Cambodia the first accused, Duch had been held in arbitrary detention for 10 years prior to his transfer to the ECCC. The sentence reduction that the trial court awarded Duch to compensate him for this illegal detention, was reversed last week by the Supreme Court Chamber. Again, this puts the court in breach of international fair trial standards.
• Another example from the ECCC is Ieng Thirith. After doctors found that she was unfit to stand trial the trial court it ordered her release. But then the Supreme Court Chamber reversed the order to release on the basis that she might get better. So now a mentally unfit women in her 80s, who is supposedly presumed innocent, must languish in detention for more years. She has already been in detention for 4 years.
• And then we have the ICTY – which is another fully-fledged UN court - the court has reversed the burden on the parties so that now the defendants must justify why they should be provisionally released, rather than the prosecutor showing why they should remain detention. Again, this runs contrary to the Working Group's suggestion that detention should be the exception rather than the rule.
• At the International Criminal court the first accused, Thomas Lubanga, has waited almost 7 years in detention without been judged. His case had to be halted twice because of breaches of his fair trial rights by the Prosecution. Yet he still remains in prison to this day.''

This does not necessarily make the Bangladesh tribunal detention decisions 'right', but it certainly does provide an important context to any failings there may be on its part.

3. The decision about legal representation and disclosure
The working group's decision also mentions its concerns about the legal representation of accused (in particular it said in relation to lawyers not being present during interrogation), and disclosure of evidence (in relation to not being able to see the investigation agency's case diaries).

I have discussed elsewhere the issue of the relative lack of importance of legal representation during interrogation here in Bangladesh (see point 6 of this blog). Point 4 of that same blog also deals in general with the issue of disclosure; but the point about the defence not having access to the investigation agency's 'case diaries' - specifically prohibited by the 1973 Act - is a new one. In Bangladesh, investigation case diaries are never disclosed to the defence!

4. Lack of Bangladesh media attention
It is notable how few media outlets covered the UN working group report - and apart from the article in  New Age (the paper I work for) and Ittefaq - it has split effectively on 'party' lines. The three opposition papers - Noya Diganta, Sangram, and Amar Desh - did publish details of the UN working group's report. All the other media outlets, who either taken an explicitly supportive position either of the government or at least of the tribunal (including  Daily Star, Prothom Alo, Bdnews24.com, Independent and the Sun) did not. How can one explain this?

The report is clearly newsworthy - both the Daily Star and Bdnews24.com have covered opinions of the UN Working Group prior to this one, so it is not as though these news outlets consider the UN working Group  irrelevant.

Perhaps they never received the press release issued by Toby Cadman, the defence lawyer with its copy of the ruling. This is possible, I suppose, but I doubt that journalists at these news papers/websites did not receive them. I would assume that the ICT defence team would have sent them out.

Unfortunately, I reckon it is just down to editorial decisions made by journalists/editors at these media outlets who simply do not want to publish anything that could the rock the boat in relation to the tribunal, and are perhaps worried about a government backlash against them.

Whatever ones views about the tribunal, this UN report was clearly newsworthy, and is not good for independent journalism in Bangladesh that so many papers appear to have deliberately ignored it.

17 Jan 2011: SQ Chowdhury applications

This was the second hearing where Salauddin Quader Chowdhury (SQC) had been brought before the tribunal. See blog relating to the hearing on 20 December 2010 at which the Tribunal had passed an order adjourning the hearing so that his lawyers could gain powers of attorney.

I was not present at this particular hearing. This blog comprises extracts from the applications filed by SQC and from the Tribunal's order, along with press reports of what is said to have taken place at the hearing.

The Tribunal heard four applications filed by SQC: one for permitting him to attend parliamentary session and parliamentary standing committee meetings. Another for recalling the production warrant earlier issued against him; a third one for seeking the certified copies of case proceedings; a fourth one for giving him treatment in a specialised private hospital. There was also an application from the prosecution for his arrest and detention

Legal Representation
It appears that SQC did not instruct any lawyers to represent him in court.

Press reports suggest that at the Tribunal, Chowdhury sought the assistance of 20 lawyers. The Tribunal however is quoted as saying, "As per rules, if you (Chowdhury) file a petition, then you have to move it, nobody can assist you. If your lawyers file a petition, then they have to move. You can choose one of the two."

SQC is said to have responded by asking, "Under which rules, can I not get assistance from the lawyers?" He repeatedly requested the Tribunal to permit him to have lawyers assisting him, without instructing them.

In the Tribunal order it was stated: 'He himself wants to conduct his own case. No vakalatnama (power of attorney] has been filed by accused but wants 20 lawyers to assist him. He is at liberty to conduct his own case or to get his own lawyer .'

Attendance at parliament
In his first application SQC said that he was a sitting member of parliament and also a member of the public accounts committee, and of the parliamentary standing committee of the Ministry of Law, Justice and Public affairs.

He said that parliament has been summoned to sit on 25 January, and that he wants to participate in the session as a duty to his electorate, and that he needs to sign cheques necessary for his constituency. 'That as a member of parliament I have to sign a number of documents such as allocation of test relief projects to various ministers and directorates, sign checques from discretionary funds ...'

The application says that he has not been formally charged with any crime, and adds, 'I have neither been notified nor received any certified copies or any petition for my arrest nor any certified copy of any order from this Tribunal.' He adds that there is precedence for those appealing a conviction to attend parliament.

The Tribunal said that Chowdhury can seek permission from the High Court under the writ jurisdiction to attend parliament session. In its order it ruled:

‘As this matter does not come within the purview of the ICT we are of the view that this application is not entertainable in law for want of jurisdiction for the tribunal. The application is disposed.'

Recalling orders of issuance of Warrant of Arrest and production warrant
This second application states that section 11(5) of the 1973 International Crimes Tribunal Act only allows a warrant of arrest to be issued if that person has been 'charged' and that rule 2(5) of the Rules of Procedure defines 'charge' to mean, 'the accusation of crimes against an accused framed by the Tribunal.' The application goes onto say that since no charges have been framed an arrest warrant cannot be issued against him. It adds that Section 16 of the Act sets out what is required to constitute framing of charges, and that this has not been done.

The application also quotes Rule 30 which states that 'After cognizance of an offence is taken, the Tribunal shall issue process or warrant, as it thinks fit and proper ..'

It also refers to the forms annexed to the rules of procedure which suggest that warrants of arrest can only be issued after an accused person has been charged.

The application also states that 'There is no cogent evidence to show that I ever posed any threat to the prosecution team or any individual whilst the prosecution team was in Chittagong looking for clues against me ...'

He is reported to have said in court that detaining him in this manner would be ultra vires (beyond the power) of the ICT Act, 1973 and that the rules 6 and 9 of the Rules of Procedure under which authority the Prosecution sought custody warrants against him, are contradictory with section 11 of 1973 Act.

[This is the same argument that the defence lawyers for the Jamaat-e-Islami accused had argued but which the court rejected (see point 3 and comments at end) without giving any reasons..

The prosecutor, Zead Al-Malum argued that SQC should be kept in custody.

He said, “Chowdhury committed, and led others to commit the crimes mentioned in the section 3(2) of the ICT Act, 1973.”

Malum stated that Chowdhury snatched weapons from the Pakistani soldiers and shot to death Natun Chandra Singh, founder of Kundashwari Oushadhalay in front of a temple in his residence, killed 35 persons in Jagatmallopara and another others 69 in Unashattorpara in the port city.

Led by SQ Chowdhury, Malum stated that under this direction the peace committee, Razakars and Al-Badar were formed and committed genocide against the Hindus and the believers of Bangali nationalism. He said that Chowdhury is the son of Fazlul Quader Chowdhury, the then chief of East Pakistan Muslim League. During the nine-month Liberation War, their Good-Hill residence became a torture cell, Malum said.

A probe into crimes against him is going on, Malum said. Some documents have already been found; if he is arrested and interrogated, more information about him can be found. Moreover, he said, the witnesses are in fear of Chowdhury.

Malum also alleged that Chowdhury could flee abroad if he remains free, and so he should be kept in custody for effective investigation.

SQC refuted the allegations made by the prosecution

He requested the judges to look into how many Hindus were sheltered in Gool-Hill during the nine-month war.

The BNP leader claimed he was not involved in politics before joining Bangladesh Muslim League in September 1979.

“No allegation against me had been reported in the media before I joined Bangladesh Muslim League. People had elected me parliament member six times because I am innocent. I plead not guilty,” he claimed.

The Tribunal rejected the defence application relating to the unlawfulness of the arrest warrant. In relation to this, the order read:

'A similar application was filed in this tribunal by another incumbent, Nizami and others seeking same relief and upon considering legal position, it was rejected. We do not find any new reason to differ with that order.'

In relation to the prosecution application for detention, the order reads:

'An application was made under section 6 and 9 of the 1973 Act. The prosecution presented evidence of SQC's involvement in crime. During the investigation Mr Chowdhury himself in audio has threatened witnesses, as such he is required to be detained for effective investigation

SQC says that he was not present in the country for most of 1971. He says that he was not a member of any political party. He joined the muslim league in 1979. He is accused as he is son of his late father.

We note that that he is alleged to have been involved in the killing of Nuton Chandra Sinha, 35 people and 69 people in 1971 and that he made threatening statements captured in audio and visual. We are not going to decide on the truthfulness of the allegations.

He should be detained for a considerable time in order to complete a fair investigation until 19 April.

Let a copy of the allegation report submitted by investigation agency to the prosecution as annexed with the petition be served upon the accused SQC for his perusal.

Copies of certified orders
In the application, SQC said that an order was passed on 30 December 2010 by the Tribunal but he has not received a copy of it. Nor has he received any copies of applications filed by the prosecution. 'I have not even been informed the content of the application filed by the prosecution ... that without certified copies of records ... I would not be able to defend myself effectively on the present matter which would impede the requirements of a fair trial.' [This is similar to a previous application relating to Nizmai and others (see blog link above, point 4) which was rejected.]

The court told Chowdhury that he would not get a copy of the court's orders - only the final judgment, through which he can appeal to the Appellate Division. Chowdhury would also get all documents of allegations against him after formal charges were framed. The Tribunal order stated that:

'This petition also filed previously by Nizami and others that was earlier rejected as there is no procedure to supply certified copies of interlocutory order of this Tribunal. However when trial comes then he will be supplied with the copies of the document required for the trial in order to prepare his defence.'

Application to be sent to a specialised hospital for treatment
In his application, SQC claims that about 15 Rapid Action Battalion, and Detective Branch police came to his house in the early hours of 16 December, and he was 'tortured' for six hours. A doctor was also present at the time. He claims in the application that the torture included:
- repeated beating to the face and head with boots while being pinning down by people standing on his chest;
- repeatedly hitting the heels of his foot with a bat until the bones in one heel broke;
- slitting the right side of my stomach several times with a blade;
- putting tools on his toenails with tools until they were partly ripped off;
- tying him to a chair and taking turns in kicking his entire body with boots and bearing with bats;
- pouring cold water into his nose while holding his mouth shut inducing vomit
- repeated hitting of elbows with a bat;
- holding his mouth and nose shut until he almost fainted
- electrocuted on the private parts of his body.

During this period, the application says that he had to be revived three times. He was then taken to Bangubandhu Sheikh Mujib Medical University Hospital at 6.30 am, where doctors revived him and recommended that he be moved to ICU. He then says that he was taken to Detective Branch HQ at about 7.30. He says that some reporters had taken some video footage of his bloodstained clothes at the hospital.

The application goes on: "After arriving at the DB headquarters, the officers ordered me to wash all the blood off my body and change my bloodstained clothes I refused to do so. The officers handed over me to the Detective Branch police in the DB HQ and left. At approximately 8 am, some of the same officers came back to the DB HQ with some more officers who introduced themselves as members of RAB. They carried some of my clothes with them. They ordered the Detective Branch policeman that they be left alone with me. At this time, the proceeded to beat me for an hour tying me down and administering punches and kicks all over my body. They ripped off my bloodstained clothes and ordered me to wash my body. Finding me unable to stand, they carried me to the washroom and hosed me down. Two officers assisted me in putting on fresh clothes after which they tied me down again and began punching and kicking me for a second time, this time for one and a half hours. Finding it necessary to change my clothes once again due to the bloodstains on my new clothes, they carried me to the washroom again, hosed me down again, and helped me to put on fresh clothes. After this they made me sit on the ground while they continued their verbal abuse. I asked for water which they gave me after aproximately one hour. While my ears stopped bleeding, the officers had trouble stopping the bleeding from my nose. One officer kept wiping my nose intermittently until the bleeding stopped. Around midday the officers noticed that I started hyperventilating.'

The application goes onto say that the DB asked his family, who were outside, whether he took any medication, but they refused to assist the police as it was their responsibility.

The application says that later that day he was taken to the Chief Metropolitan Magistrate where the police sought ten days remand. His lawyers told the magistrate that he had been tortured. SQC was also allowed to speak at the hearing, and 'I showed the learned court blood stained marks on my trousers and I was unable to stand unassisted.'

The application says that after the hearing, he was tortured four more times by electrocution.

On 22 December, his lawyers filed an application before the magistrate to be sent to BSMMUH for treatment, and he was taken there on 4 January, but did not get proper treatment, the application claims.

At the Tribunal, SQC is reported to have said, "I am a heart patient. Torture in jail has worsened my condition. I had electric shocks for two hours and at the same time they checked level of my blood pressure. They then again I was shocked repeatedly."

"I need to be in a specialised private hospital. I have no confidence in public hospital," he said

In its order, the Tribunal stated:

'On an earlier occasion a writ petition was filed by wife in high court with the same prayer. Order to send him to hospital was stayed by appellate division. The Supreme Court is dealing with this matter and so we are not in a position to deal with this matter. We direct the jail authority to provide necessary treatment to the accused in accordance with the jail code.'

Comments
1. Again application setting out arguments why warrant of arrest was 'ultra vires' rejected without providing any reasons.
2. Detailed torture allegations provided by SQC not even referred to in the order, and no comment of any kind made by Tribunal members;
3. Again notable that Tribunal refuses to give certified copies of its own orders even to the accused. Why is this? I have been told by a source in the Tribunal that it is to prevent the accused from going to the High court to challenge the orders. I don't know if this is true. But there can surely be no reason why the Tribunal does not give copies of orders relevant to them, to the accused. Indeed it remains unclear why the orders are not made public.

28 Oct 2010: Tribunal Rules Amendment

On 28 October 2010, the Tribunal published an amendment to its rules - the “International Crimes Tribunal Rules of Procedure (Amendment), 2010.”.. You can see the Tribunal's original rules here.

One of the objectives of this amendment appears to be an attempt in part to deal with criticisms, argued by the defence, that the Tribunal did not have the power to issue an arrest warrant against a person who was not charged with an offence. The defence had argued that section 11(5) of the International Crimes (Tribunal) Act 1973 only allowed the Tribunal to issue a warrant for the arrest of a person who had been 'charged' with an offence - and that rule 9(1) of the Tribunal's rules which allowed the Tribunal to order the arrest of a person if it considered that it was "necessary for effective and proper investigation", was ultra vires. (To read more about this issue, see this blog) and also point 3 of this blog)

In support of its argument, the defence had pointed out that the warrant for arrest (set out in form 3 of the schedule to the rules) referred to a person 'charged' with an offence under the Act and the production warrant (form 4) referred to a person being asked 'to answer to a charge'.

The Tribunal had ruled relating on 21 September 2010 in relation to defence arguments relating to the Nizami, Molla,  Kamruzzaman and Mojahid that it did have the power to issue an arrest warrant without a person being charged - but gave no reason for this, and the Tribunal did not in court refer to the problem of the wording in the warrants. (see points 3 of blog referred to above)

The new amendment changed the wording of these warrants so that the Tribunal could  issue a warrant against an 'accused' person - and not just a person charged. The definition of the word 'accused' was also changed. In the original rules it was defined to mean the "person against whom formal charges is submitted before the Tribunal" and in the new rules it was defined to mean a person "whom an investigation of an offence under the Act has been started.”

These changes don't deal with the overall criticism of the use of rule 9 to arrest a person, but it does remove some of the points that supported the defence's position.

The amended rules also dealt with another problem in the original rules (not brought up by the defence) that Tribunal had no clear power to order the production of a person, who was already arrested and detained in relation to another offence, to the Tribunal. Rule 9(1) only refers to issuing a warrant of arrest - not appropriate for a person already detained. A new rule 9(4) has therefore been introduced which states that:

“If a person is already in custody in connection with an offence or any case other than under the Act and the Tribunal is satisfied that a detention order is necessary for effective and proper investigation of any offence under the Act, the Tribunal may issue a production warrant and direct the person to be detained in custody.”

These amendments do raise questions about the legality of the production warrants issued prior to these amendments - in relation to first four Jamaat detainees. Tribunal decisions however cannot be challenged.

21 Sept: Defence applications relating to Nizami and three other accused

On 21 September, following the adjournment of the application relating to Sayedee (see post), the defence argued five applications before the Tribunal relating to Nizami, Mojahid, Molla and Kamruzamann which had originally been filed on the 2 August 2010 (see post on 'delay'). Of these applications, the one challenging their continued detention is the most significant (see no.3). A summary of what took place is set out below, along with a number of comments, and relevant legal extracts.

1. Application for the Execution of letter of attorney
The Tribunal Chair asked Tajul Islam why letters of attorney was necessary, since the lawyers already had vakalatnamas (letter of authority). "What is the purpose of this? application."

Islam suggested that it had been necessary for previous High Court proceedings (see post on challenge to First Amendment of the constitution). He however agreed not to press the application.

2. Application for recalling the order issuing the warrant of arrest.
Advocate Alal for the defence stated that the Rules of Procedure can not provide powers to the Tribunal over and above the powers granted in the Act. He mentioned that section 11(5) of the Act set out the only circumstances when a warrant of arrest was issued. The Tribunal asked him then to explain the meaning of rules 6 and 9 of the Rules of Procedures - dont they give a power to issue an arrest warrant, they asked? Alal said that these rules were contradictory to section 11(5).

The Tribunal member, Fazlul Kabir then said, "The warrant of arrest in relation to the four men was never in fact formally executed. First, the police were unable to execute it, then the court ruled that the men should be presented before the court. Warrant of production is not the same as a warrant of arrest" He then asked, "How can we recall the warrant if it was not executed?"

The Tribunal chair then, putting that issue to one side, said: "Section 11(5) says that a warrant of arrest can only be issued if there has been a charge. But we have issued the arrest warrant under rules 9(1) which allows a warrant to be issued if it is necessary for investigation. Why should the warrant be recalled?"

The defendant lawyers then agreed not to press the application

3. Application relating to recall of detention order
The defence lawyer, Tajul Islam, argued that although Rule 6 and Rule 9 of the Rules of Procedure allowed warrants of arrest to be issued, they were 'ultra vires' to the act. He argued that section 11(5) sets out the only circumstances in which a warrant of arrest can be issued - which is when an accused has been 'charged' - and that the court cannot frame rules that go beyond this. He said that section 22 of the Act states that the Rules can be framed by the Tribunal but that they must be, as the section states, "Subject to the provisions of this Act".

The Tribunal member Fazlul Kabir interjected and said that whilst it is correct that the rules cannot "contradict" the Act, in this case rules 6 and 9 are not in contradiction with 11(5) of the Act - that they are simply providing more powers to the Tribunal. "Is there any prohibition saying that we cannot increase out powers of arrest?" he asked.

Tajul Islam responded by saying that although there is no direct prohibition, the intention of the wording of section 11(5) is very clear that this was the only circumstance when a warrant of arrest can be issued. He submitted that the rules 6 and 9 were in contrdiction to section 11(5) of the Act.

Islam then read out section 9(1) and emphasised the words, "necessary for a .... investigation". He said that when the application relating to Sayedee's warrant of arrest was discussed in court (earlier that day - see post) the Tribunal had stated that the prosecutor had not set out the reasons why it considered that detention was neecessary - and as a result the prosecutors agreed to file a new petition. Islam then said that this shortcoming was the same in relation to the application for detention in the case of Nizami etc

He also said that section 9 requires the investigation officer (through the prosecutor) to persuade the court that an arrest is "necessary for effective and proper investigation".

He also questioned, why detention was necessary, when the men were already in detention in relation to other cases.

He said that the detention of the men were 'male fide; as they were being detained for political purposes in the name of War crimes.

"The prosecution is using the process of this court to harass these persons. We cannot go to any other court. We cannot challenge any order from this Tribunal," he said.

He said that these men were not members of auxillary forces. They are political leaders.

He also argued that no applications has been made against any member of the army personel accused in 1973 of war crimes. 195 men were identified he said but no application has been made against any of them.

He concluded by saying that these proceedings must be fair and neutral.

In response to the defence application, prosecutor Zead-al-Malum responded. He said that the challenge to the Act and the rules was included in the writ petition 6836 (see post) but that in the end it was not pressed. As a result a question of recall does not arise.

He said that investigation was on going. If the men are released, documents will be destroyed, the men will leave the country, or they will interfere with the evidence.

The Chief Prosecutor himself spoke and made this point. "The law is very clear and there is no departure from the Act or the Rules. The rules are supplemtary and compatible with the the Act. There has been no breach of law."

Tajul Islam then tried to bring to the court's attention a newspaper article from the newspaper Sangram [a Jamaat newspaper] which criticised the manner in which the incidents were being investigated

The court then passed this order (This is not word for word)

"The petitioners filed an application to recall the order of detention passed on 2 August 2010 and the release the petitioners from custody. Md Tajul Islam, for the petitioners submitted that the Tribunal did not have jurisdiction to issue the warrant of arrest by its order on 2 August. He submitted that the law and and the rules do not authorise the issuing of a warrant of arrest. He also submitted that these men were respectable men within society, two of whom were ministers and that they were being arrested in a male fide manner and being treated in a male fide way.

In its reply to the petition, Zead-al-Malum submitted that the accused had argued the matter in the High Court in a Writ Petition regarding the Act and the Rules and the power of the Tribunal, and ultimately that petition was rejected as 'not pressed'. and that as a result, the petitioners are prevented from bringing the same argument in this Tribunal. He also argued that these men were very influential in society and that they may hamper the investigation as they are influential everywhere, and on this submission opposed the petitioners release.

On 2 August 2010, the Tribunal issued a warrant of arrest on being satisfied that it should be issued to ensure an effective and proper investigation. Investigation is going on. No new facts have come to us. All the men are influential people. We are of the view that if released the investigation may be hampered. We are therefore inclined to reject the petition."

4. Application for certified copies of documents
Tajul Islam said that in the interests of a fair trial, as required by section 4(2A) of the 1973 Act, his client should be given copies of the papers.

The Tribunal chair said that you he would get details of the charges at least 21 days before the trial starts. "You can inspect the documents now but you can't copy them," he said.

"The Act does not give you the authority to take certified copies. You have no right to obtain certified copies," he added.

He then gave the following order:

"This is an application to get copies of the documents relating to case ICDB misc 1. Tajul Islam submitted that for the purpose of a fair trial, he wanted to get certified copies of documents. It was opposed by the prosecution. Section 16(2) of the Act states that copies of formal charges and documents will be given at a reasonable time before the the trial. Rules 60(11) - says that the registrar has the power to supply a certified copy of the judgment of the Tribunal upon an application filed by the accused.

In consideration of both the sections and the rules, the defence has no right to get certified copies of records in Tribunal at this stage. So we are not inclined to accept this peitition and it is rejected."

5. Application of stay
The defence lawyer Advocate Fakrul argued for the defence. The Tribunal Chair asked the defence, "Is there any proceedings to stay?" He said that in order for the proceedings to start, section 9 of the 1973 Act states there must be a formal charge, and this has not happened. Fakrul did not initially respond to this question but argued a number of points including that the transfer of cases from the magistrate court to the Tribunal was illegal. The Tribunal members, in response to that point, said, "We did not receive any records."

The Tribunal then passed an order in the following terms.

"An application was made to stay the proceedings in relation to Misc case 2/2010. Mr Fakrul Islam argued that the proceedings have been illegal and as such there should be a stay or proceedings. It was opposed by the prosecution. The proceedings of any case in this Tribunal will start with the submission of the formal charge. There are no proceedings in thie Tribunal. Miscellaneous case is a just that a miscellaneous case which arrises out of some applications filed by the prosecutor and the defence. There has been no formal charge. Proceedings have not started and therefore there cannot be a stay of proceedings. Application rejected."

6. Application for transfer of cases back to magistrate court
The court gave an order in the following terms:

"We received an application to send the cases relating to one that was filed at Police Station Palabi in 2008, and the other filed in Police Station Keraniganj in 2007 back to the Magistrates court. Mr Tajul Islam argued for the petitioners. He states that these cases were pending in the magistrates court and then transferred to the Tribunal. He submits that these cases do not come within the purview of this Act and as such should be sent back.

The two cases were not brought to this Tribunal and were not received by this Tribunal. They were sent to the Investigation Agency. Investigation officers can investigate any information that is brought to them, and take appropriate action. There is no scope to send the cases back to the Magistrates court. Application rejected."

Comments
1. It is notable that the ruling of the Tribunal relating to the defence application seeking recall of the detention order (no. 3 above) neither summarises the defence arguments properly nor sets out any kind of detailed reasoning in response to them. So for example, the order does not mention:

• the relationship between section 11(5) of the Act and Rules 9 and 6 of the Rules of Procedure. (As is set out above, in the course of proceedings, the Tribunal members did make some points on this issue, but their final view on it, and the reasons for rejecting the defence lawyer's interpretation was not mentioned in the order.
• the argument made in the defence's written application (though not argued in court) that its view that the men must be charged with an offence before an arrest warrant can be issued is supported by the text of both the warrant of arrest and the production warrant which that the men have been 'charged' with an offence. (see point 5 in this post
• the defence argument that if the application filed by the prosecution about Sayedee's arrest was inadequate (see comment made by the Tribunal earlier in the morning of the 21 Sept, see previous post), then so was the one filed in relation to these four defendents.

The failure by courts to provide proper reasoning for their decisions is not something unique to the Tribunal - it does happen in other courts in Bangladesh. However, this does not excuse the Tribunal since it was supposed to be working to 'international standards.'

Due to section 24 of the 1973 Act* and the First Amendment of the Constitution (see post), the defence can not appeal this order. The order may, however, become relevant at an appeal following conviction. However, any future court looking at this order would have no idea at all of the defence arguments, or indeed response of the Tribunal to them. This is an area of Tribunal that surely must significantly improve.

2. Whether the warrant of arrests were lawful or not depends on the relationship between 11(5) of the Act and rule 6 and 9 of the Rules. Section 22 of the Act states that rules can be made, "subject to the provisions of this Act". However, it is notable that neither of the three parties to the Tribunal - the prosecution, the defence nor Tribunal members - considered case law relating to the meaning of these words which are common in other legislation and have been interpreted.

Without looking at this case law it is difficult to see how the Tribunal can come to a conclusion as to whether or not the rules can be created that allow a warrant of arrest to be issued in a situation different from that envisaged by section 11(5) of the Act. (I will try and look at what this case law says, in a separate post).

3. As mentioned above, the defence cannot challenge this (or any other) order issued by the court. The extent to which this is such a significant problem is exemplified with the Tribunal order following a challenge to the order of detention.

The context of the challenge that (a) the Tribunal members themselves drafted the rules, and (b) the Tribunal members themselves issued a warrant of arrest on the basis of these rules. For the Tribunal to rule in favour of the defence, it would have to acknowledge (i) that rules 6 and 9 were incorrectly drafted; and (ii) its order issuing a warrant of these rules was wrong.

It is difficult to imagine any tribunal ruling against itself in this fashion. This is exactly why it is so important for there to be openings to challenge these 'interlocutory' orders. The inability to challenge these order is highly problematic and goes against international norms.

4. As noted above (see application 5), the Tribunal rejected the application seeking the provision of certified copies of documents that were filed with the Tribunal.

However, the defence lawyers have confirmed to me that the prosecution has now provided them ordinary copies of all the filed applications. It seems that the prosecution gave at least one of the copies in court after the Tribunal asked it to do so - and the others were given informally.

If this is the case, it remains very unclear why the Tribunal rejected the defendant's application for certfied copies of the applications?

Oddly, however, the defence has stil not been provided copies of any of the court orders.

5. Apart from the one application challenging the detention order, the prosecution did not make any response in court to the others applications. Despite this, the Tribunal, in its orders, stated that the applications were "opposed" by the prosecution.

It is not clear how the Tribunal knew the position of the prosecution since no one from the prosecution team made any statement in court.

This may be of no significance all all - but it is rather baffling.

Relevant Legal Extracts
Section 11(5) of the 1973 Act: "

Any member of a Tribunal shall have power to direct or issue a warrant for, the arrest of, and to commit to custody and to authorise the continued detention in custody of any person charged with any crime specified in section 3."

Rule 6 of the Rules of Procedure:

"If the investigation officer has reason to believe that any offence has been committed, he shall proceed in person to the spot, investigate the facts and circumstances of the case, and if necessary, take steps for the discovery and arrest of the accused."

Rule 9(1) of the Rules of Procedure:

"An investigation officer, through the prosecution may obtain a warrant of arrest from the Tribunal for 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."

Section 24 of the Act states:

"Bar of Jurisdiction.- No order, judgement or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any court of other authority in any legal proceeding whatsoever, except in the manner provided in section 21."

Section 21 states:

"Right of appeal.- (1) A person convicted of any crime specified in section 3 and sentenced by a Tribunal shall have the right of appeal to the Appellate Division of the Supreme court of Bangladesh against such conviction and sentence.
(2) The Government shall have the right of appeal to the Appellate Division of the Supreme Court of Bangladesh against an order of acquittal.
(3) An appeal under sub-section (1) or (2) shall be preferred within sixty day’s of the date of order of conviction and sentence or acquittal.”

Sept 21/22, 2010: Application relating to arrest of Sayedee

Delwar Hossain Sayedee is in prison on charges unrelated to alleged 1971 crimes. On 21 July, however, the prosecution filed an application with the Tribunal for it to issue a warrant for his arrest on charges relating to war crimes, crimes against humanity etc. On 5 August (see post), the Tribunal heard the prosecution's application and, because he was already in prison custody on other charges, issued a "production warrant". First because of his health and then because of renovations being undertaken in the Tribunal court room, hearings related to the application were adjourned on two occasions. (see post about delays).

On 21 September, Sayedee was produced before the Tribunal for the first time. Here is a summary of what took place in court in relation to this application on 21 and then 22 September Following the summary, I make some comments on the proceedings.

[It may be helpful to read this post along with a previous post (setting out the defence arguments against arrest/detention of the four other defendents) and the post immediately following this one (setting out what happened to these applications]


Syed Haider Ali stood up and argued for the prosecution. He first read out from the hard copy of the prosecution's original application that had been argued before the court on 5 August which set out allegations against Sayedee.

The Tribunal chair then told the prosecutor that he needed to answer the key question; how was section 11(5) of the 1973 Act compatible with Rules 6 and 9 of the rules of procedure. (Sections are set out at end of post)

The prosecutor read section 11(5) of the Act and agreed that it stated that an arrest warrant could be issued against someone who had been charged. The Tribunal chair then asked the prosecution, to "please satisy us whether this person has been charged under the Act."

The prosecutor then read out a number of sections from the Act and argued that it set out provisions relating to a number of different stages in the Tribunal process - investigation, prosecution and punishment. He then said that section 11(5) needed to be read in the context of the whole Act, and it only related to one aspect of the Act. It is "not an independent section" he said.

He then quoted rules 6 and 9 of the Rules of Procedure which he said clearly stated that a warrant of arrest could be issued during the process of investigation and before charges have been laid.

He then said, "there is no other alternative but for the Tribunal to issue an arrest warrant during investigation."

He said, during the investigation so far, evidence has been found and there was a risk that some evidence could be destroyed. If Sayedee is not detained, "he can destroy the evidence".

The Tribunal chair then asked the prosecutor why it was that in the section of the application dealing with "grounds", there was nothing saying that an arrest was "necessary for effective and proper investigation". The prosecutor said that this was contained in the prayers, but the Tribunal members responded by saying that it must be in the 'grounds' of the application. It was not enough to simply say these things orally in court, it must be part of the application, the Tribunal said.

The Tribunal agreed with the prosecutor that the application dealt with the gravity of the alleged offence, but said that it did not explain the why his detention was necessary. "why should we issue a warrant?" the Tribunal chair asked.

The Tribunal chair said, "what is the purpose of keeping him in custody. Can you atisfy the Tribunal?"

The Chief Prosecutor then offered to file a supplementary application. The Tribunal chair said, "We want to be satisfied, that is all. Still now we are not satisfied."

He told the prosecutor, there will be "no more adjournments. This must be produced tomorrow."

The case was then adjourned to the following day, Wednesday, 22 September with the Tribunal requesting that Sayedee be produced in court.

On Wednesday, the prosecution submitted a supplementary affidavit. Before he was able to start his application, the Tribunal Chair pointed out that Sayedee was not present in court and that it has received a note from the jail saying that he was sick. The Chair said that as he had already passed an order saying that the application should be heard in Sayedee's presence, the application would not be heard today without him, and that the matter would be adjourned.

Tajul Islam for the defence then got up and said that the court cannot simply delay proceedings so that the prosecution has time to fill in "the lacuna". "Yesterday you said that there was not enough evidence to allow the application".

The Tribunal chair told Islam that he could raise all these issues at the next hearing.

Another defence lawyer then got upto speak. He said that he wanted to raise a question about the "production warrant." He said that the warrant was unlawful. He tried to read out the wording on the warrant and was shouted down by the Tribunal Chair. "Take you seat", he said. (It appears that the lawyer wanted to state that the production warrant assumes that the accused person has been charged, since the word "charge" is used in the warrant - see point 5 in this post).

The Tribunal then read out the following order (this is not word perfect).

"The suspect Sayedee has not been produced before this Tribunal today by the prison authorities following the prodcution warrant being issued. The suspect is said to be sick and unable to move. As such he could not be produced. The Tribunal in its earlier order expressed its desire to pass the order in the presence of Sayedee, and he is not in court today. The prosecution submitted its application today for which prayer for time is included. Supplementary petition will be heard on 12 October 2010. Issue a production warrant accordingly."

Comment
1. Further Adjournment: It is unclear why on Wednesday 22nd, the Tribunal insisted on a further adjournment. On the previous day, along with this application relating to Sayedee, the court had heard six applications relating to the other four defendants currently detained in custody who were not present in court at the time (see next post discussing these applications). If applications and orders can be given against four defendents when they were not present in court, why did the Tribunal require an adjournment the following day when Sayedee was absent? The order justifies the delay by reference to a previous ruling it had issued requesting that Sayedee be present in court - but since the Tribunal Chair, at the end of the first day, had specially told the prosecution that no more adjournments would be allowed, it seems rather odd that the court then gave nearly a three week adjournment.

The Tribunal registrar explained to me that there was a difference between a hearing relating to an arrest warrant (where the person to be arrested should be present) and the other applications following an arrest warrant (where the defendents did not need to be present). When this was put to Tajul Islam, the defence lawyer for all five accused, he said that he did not think this was a legitimate distinction being made.

When I asked Islam why he simply did not tell the court that, as his representative, he did not mind that his client was absent, Islam told me that he also preferred Sayedee to be present in court when the order was given! So, perhaps no harm has been done by yet a further adjournment!

2. Tajul Islam did though make a further allegation which is rather difficult to believe. He says that Sayedee's family had told him that Sayedee was in fact well enough to be brought to the court on the 22nd. Islam alleges that the government had manipulated the jail authorities to get them to say that he was unwell so that the court could give yet another adjournment allowing the prosecution to strengthen its warrant application.

It is a bit difficult to believe that the government would go to these lengths - particularly because, if the allegation was true, when Sayedee next came to court, the truth would easily become known. Moreover, I would argue that an adjournment does not really help the prosecution. Although the court is putting the prosecution through its paces (i,e asking for a supplementary application) it is pretty clear, going by the previous Tribunal decisions of the Tribunal, that the court will pass an arrest or detention order against Sayedee. So what would be the purpose of the government buying time?

However, it will be interesting to see what happens when Sayedee is next brought to court - and whether the defence try to substantiate its allegation.

Relevant law
Section 11(5) of the 1973 Act: "Any member of a Tribunal shall have power to direct or issue a warrant for, the arrest of, and to commit to custody and to authorise the continued detention in custody of any person charged with any crime specified in section 3."

Rule 6 of the Rules of Procedure: "If the investigation officer has reason to believe that any offence has been committed, he shall proceed in person to the spot, investigate the facts and circumstances of the case, and if necessary, take steps for the discovery and arrest of the accused."

Rule 9(1) of the Rules of Procedure: "An investigation officer, through the prosecution may obtain a warrant of arrest from the Tribunal for 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."


Links
bdnews24.com - Sayedee Back to Jail, 22 Sept 2010

Defence arguments against arrest and detention

This post summarises the key arguments set out in the applications filed by lawyers acting for the five detained Jamaat-e-Islami leaders against their arrest and detention. They are due to be heard on Tuesday 21 September (see blog, about the delay in hearing the applications). The arguments are set out here without comment.

It is interesting that the lawyers have not applied for 'bail'. Tajul Islam, the main lawyer acting for the accused, explained that this was because they believed the detentions were "void ab initio." He said that, "The question of bail only arises when formal proceedings have started."

The lawyers have filed four applications on this issue, seeking:

• the return of the records of two criminal cases back to the court of the Chief Metropolitan Magistrate;
• recall of the order of issuance of warrants dated 26th July 2010;
• recall of the order of detention dated 2nd August 2010 and to release the petitioners from custody;
• stay of all further proceedings pending before the International Crimes Tribunal.

The arguments set out in the applications are as follows:

1. There is no provision in either the International Crimes (Tribunals) Act 1973 or the Rules of Procedure that allows the transfer of cases pending before the Chief Metropolitan Magistrate between it and the Tribunal - and therefore the transfer was "without jurisdication, illegal and void."

The lawyers are referring to two cases - one filed on 25 January 2008 relating to alleged crimes committed in Pallabi and the other filed on 17 December 2007 relating to alleged crimes in Keraniganj. The first four defendants have been arrested on the basis of allegations in these cases.

2. The arrest warrants dated 26 July 2010 were issued in violation of section 11(5) of the 1973 Act - as this only allows the Tribunal to issue a wrrant of arrest against a person who has been "charged" with a crime.

The section states: "Any member of a Tribunal shall have power to direct or issue a warrant for, the arrest of, and to commit to custody and to authorise the continued detention in custody of any person charged with any crime specified in section 3."

The word 'Charge' is defined in rule 2(5) of the Rules to mean "the accusation of crimes against an accused framed by the Tribunal"

The application states, "Since no charge has yet been framed by the Tribunal against the accused petitioners, the issuance of a warrant of arrest against the accused petitioners is in violation of section 11(5) of the 1973 Act read with Rule 2(5) of the Rules."

3. Section 16 of the 1973 Act sets out the particulars to be included in the charge and the manner of framing charges against an accused person. It states that:

"Every charge against an accused person shall state:
(a) the name and particulars of the accused person;
(b) the crime of which the accused person is charged;
(c) such particular of the alleged crime as are reasonably sufficient to give the accused notice of the matter with which he is charged."

No charge in the manner contemplated under section 16 has yet been framed against the accused petitioners.

3. There are no proceedings pending before the Trbiunal under section 9 of the Act and as such the Tribunal has no authority to issue warrants of arrest against the accused petitioners.

Section 9(1) states that the "Proceedings before a Tribunal shall commence upon the submission by the Chief Prosecutor ... of formal charges of crimes alleged to have been committed by each of the accused persons."

'Formal charge' has been defined in Rule 2(1) of the Rules to mean, "Accusation of crimes against the accused in the form of a petition lodged by the prosecutor with the Tribunal on receipt of the Investigation report."

The application states that no formal charge has yet been drawn up or framed against any of the accused. No investigation report has been submitted by the Investgation agency. "In the absence of an Investigation Report, no question arises of the prosecution submitting formal charge of crimes agsint the accused petitioners in the manner contemplated under section 9(1) of the 1973 Act read with Rule 2(11) of the Rules. As such no proceedings can be said to have commenced against the accused petitioners under section 9(1) of the 1973 Act. Accordingly the order of issuance of Warrant of Arrest dated 26 July 2010 is patently illegal and liable to be recalled for ends of justice."

4. Rule 29 of the Rules provides that the "Tribunal shall take cognisance of an offence against any accused upon examination of the formal charge, the investigation report, the papers, documents and the evidence submitted by the prosecutor, in support thereof if they disclose a prima face case for trial of the accused person."

Rule 30 of the Rules goes onto state that, "after cognisance of an offence is taken, the Tribunal shall issue process of warrant as it thinks fit and proper, in accordance with rule 22."

5. ICT-BD form No 03 (warrant of arrest of accused), and ICT-BD form No 04 (order requiring production in court of accused in prison) clearly indicate that the Tribunal may issue warrants of arrest against an accused person only after he has been charged with an offence under section 3 of the Act. "Since the accused petitioners have not yet been charged with an offence under section 3 of the 1973 Act, the order of issuance of Warrant of Arrest is patently illegal and liable to be recalled for ends of justice."

Background
1. A senior independent and highly respected Bangladesh lawyer had previously expressed his concerns about the legality of the warrant of arrest along the lines set out in para 2 above. See: Questions raised about arrest warrants.

The prosecution is relying on rule 9(1) which states that the:

"investigation officer, through the prosecution may obtain a warrant of arrest from the Tribunal for 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."

The argument made by Advocate Anisul Huq is that this rule appears to be inconsistent with Section 11(5) of the Act which states that a person can only be arrested once that person has been charged. He goes onto say that the Act trumps the rules when there are any inconsistencies.

2. The forms referred to in para 5 above, are appended to the Rules of Procedure. They are both set out below

ICT-BD Form No 03
Warrant of Arrest of Accused

To ----------- Metropolitical Police Commissioner ------------/Police Super, District --------/ the officer in Charge, Police Stattion ............., District

Whereas

--------------- (name of the accused) of ---------------- Police Station -----------------District ------------- stands charged with the offence punishable under section 3 of the Interatnional Crimes (Tribunals) Act 1973 you are hereby directed to arrest the said accused and prodcue him before the Tribunal

Given under my hand and the seal of the Tribunal as directed, this the --------- day of ------- (month) of ------------ (year)

By order of the Tribunal

Registrar

ICT-BD Form No 04
Order Requiring production in court of accused in prison

International Crimes Tribunal, dhaka
ICT BD Case No

To The Officer in Charge of the Jail at ----------. Wheras the attendance of ------------ at present confined/detained in the above mentioned prison, is required in this tribunal to answer to a charge of the offence punishable under section 3 of the International Crimes (Tribunal) Act 1972 of for the purpose of the proceeding of the cases as mentioned herein.

You are hearby required to prodcue the said accused under safe and sure conduct before this Tribunal on --------------------- day of -------------- 20------------ by 10.00 AM for the purpose of the said proceedings, and after this Tribunal has dispensed with his further attendance cause him to be conveyed under safe and sure conduct back to the said prison.

Given under my hand and the seal of the Tribunal as directed, this the ------ day of ------ (month) of ---------- (year).

By Order of the Tribunal

3rd Hearing, 5 Aug 2010: Production warrant issued against Sayedee

On 2 August, prosecutors filed a petition with the Tribunal, asking it to issue an arrest warrant against Jamaat-e-Islami Nayeb-e-Ameer Delwar Hossain Sayedee alleging that he was involved in war crimes during 1971.

Following this application, a hearing took place on 5 August.

The application for an arrest warrant was made following the transfer of a case that had been lodged with in Pirojpur. A freedom fighter Mahbubul Alam of Tengrakhali under Zianagar Upazila filed one case with Zianagar police station on Aug 31 2009, and Malik Pashari of Chithlia filed another case on August 12 2009.

At the hearing the prosecutor Rezaur Rahman set out some specific allegations against Sayedee. According to the bdnews24.com and the Daily Star's reports, the prosecutor said a contingent of the Pakistan army led by then captain Ejaj went to Pirojpur. A meeting then book place between Captain Ejaj, and Delwar Hossain Sayedee, who pledged to provide the Pakistan army full cooperation to the army for "saving Pakistan".

The prosecution went onto say that after establishing close links with captain Ejaj, Sayedee established Razakar, Al-Badar and Al-Shams comprising the anti-liberation forces including the local Jamaat-e-Islami. He said that this was done to establish themselves as an auxiliary force of the Pakistan army in Pirojpur and its adjacent areas.

He went onto say that these groups took a stand against freedom fighters and the pro-independence citizens and committed murder, arson, looting, rape and also forced women to go to the Pakistan army personnel allowing them to be raped.

Specifically, the prosecutor alleged that Sayedee and his associates along with the Pakistan armed forces entered the houses of pro-independence citizens living at Chishtia village of Pirojpur. - Alamgir Poshari, Mahbub Poshsari, Chan Mian, Jahangir Poshari and Kanchan Poshari - at around 3pm on May 8, 1971, where they looted their money, gold ornaments and valuables.

He also alleged that their houses were set fire to.

It is then alleged that on instructions of Sayedee, men killed more than nine people and handed over several people to the Pakistani occupying forces to be killed.

In addition, the prosecutor alleged that at around 10:00am on June 2, 1971, criminals led by Sayedee and associates of the Pakistan forces entered a Hindu area at Umedkhali village at Pirojpur on the eastern side to Tengrakhali village, and looted money, gold ornaments and valuables, and torched their homes.

It was also alleged that they held the people of the village hostage, tortured them by tying them to coconut trees and then shot them dead.

After hearing this, the Tribunal however however, did not issue an arrest warrant.

The tribunal chairman said that."Since the suspect is in jail custody, we are inclined to issue a production warrant first asking the jail authority to bring the said suspect [Sayedee] and hear the application [submitted by the prosecution for Sayedee's arrest warrant] in his presence,"

He also fixed that date for hearing of the six separate petitions filed earlier by the defence in relation to four other Jamaat leaders.

bdnews24.com: Sayedee to stand before Tribunal, 10 August, 5 August 2010
Daily Star: Tribunal hears war crimes of Sayedee, 5 August 2010
bdnews24.com: War crimes cases against Sayedee sent to Tribunal, 21 July 2010

2nd Hearing, 2 Aug 2010: 4 Jamaat leaders brought to court

At the second hearing (at which I was present) the four Jamaat leaders were brought to the Tribunal. What followed is best described in the bdnews24.com report

"In his ruling on Monday, the tribunal chairman said that the suspected men had been brought before the tribunal following his previous orders. "The suspected persons are now present in the dock, "he said.

He said that he had seen the report of the investigation officer who stated that "the warrant of arrest could not be executed on the four suspected persons as they were already in prison in relation to different cases".

The tribunal chairman then ordered the "suspected persons be sent back to prison" to await further orders from the court.

Prior to the order, advocates Tajul Islam tried to make an application to the tribunal on behalf of the four defendants.

The lawyer said that he had three applications – an application seeking the execution of the letter of authority, an application seeking certified copies of the complaint against them and other orders passed by the tribunal, and an application praying for a recall of the warrant of arrest.

The tribunal chief, however, stated that before making any application, it must be lodged with the registrar. "We have some procedures in this court," he said.

Links
Bdnews24.com: Jamaat leaders to be kept in custody, Aug 2 2010
Daily Star: 4 Jamaat leaders in war trial dock, Aug 3 2010

1st Hearing, 26 July 2010: Arrest warrants issued against 4 Jamaat leaders

The first hearing of the Tribunal took place on 26 July and dealt with a prosecution petition, lodged a day earlier, asking the tribunal to issue arrest warrants against four Jamaat-e-Islami leaders - Jamaat Ameer Motiur Rahman Nizami, its Secretary General Ali Ahsan Muhammad Mojahid and senior assistant secretaries general Muhammad Kamaruzzaman and Abdul Quader Molla.

The Daily Star quoted the Chief Prosecutor, Golam Arif Tipu, as telling journalists, after he had filed the petitions, that:

"We have submitted a petition against the Jamaat leaders seeking necessary lawful steps from the tribunal to keep them confined. We made the prayer so that they cannot escape or create obstruction in the investigation and that the investigation agency can smoothly conduct probes into the allegations against them of committing genocide, murder, rape, torture, loot, and arson during the Liberation War of 1971."

The registrar of the tribunal confirmed to me that the arrest warrant was sought on the basis of investigation into two cases that had originally been filed as normal criminal cases at police stations.

One was a case initially filed with Pallabi Police Station in 2008 by Mohammad Amir Hossain Mollah, a wounded freedom fighter and resident of Pallabi's Duaripara, accusing the four Jamaat men along with three other, and three non-Bangalees for the massacre of 345 people.

The case was sent to the Tribunal on July 21 this year by the Chief Metropolitan Magistrate's court.

The second case was filed with Keraniganj Police Station in 2007

At the hearing on 26 July (at which I was not present), the prosecution requested the Tribunal to issue arrest warrants on the basis of rule 9 of the Rules of Procedure, that the arrests were "necessary for adequate and effective investigation."

It was argued that their detention was necessary in order to avoid them interfering with the investigation. It appears that apart from making this general assertion to the court, no details were given to the court by the prosecution as to the basis for thinking that the men would interfere with the investigation, or whether there was any evidence that they had already done so.

The Daily Star reports the prosecutor as saying that said the investigation agency was conducting an investigation and had already found evidence against the four Jamaat leaders relating to offences under section 3(2) of the International Crimes Tribunal Act.

No other details were provided

The newspaper goes on to report this dialogue took place between the Tribunal and the prosecution:

"Chairman of the Tribunal Justice Nizamul asked the chief prosecutor to give his submission as per the requirements of the section 9(1) of the Rules. In response, the chief prosecutor said there are plenty of materials about the four suspected war criminals.

The chairman asked him, "What are the specific allegations against the four persons?" In reply, Tipu said being united with the Pakistani occupation forces and army as an auxiliary force, the alleged persons took part actively in killing, rape, loot, and crimes against humanity and peace.

Member of the Tribunal Justice Fazle Kabir asked about the places of occurrence. "It was the entire Bangladesh," Tipu replied to the court.

Justice Kabir said Bangladesh cannot be the place of occurrence and asked the chief prosecutor to mention specifically about the places of such occurrence he mentioned against the four.
But the prosecution could not mention any specific places of occurrence."

Tribunal Chairman Justice Nizamul Huq ordered that "Warrants of arrest should be issued against these four people to ensure effective and proper investigation." He also asked for the four men to be produced before the Tribunal on 2 August,

No defence lawyers were present at the hearing. A prosecutor told the Daily Star, that the Jamaat leaders had no right for lawyers to be present during hearing seeking the issuance of arrest warrant as the Tribunal had not "taken any charge against them into cognisance."

Comment
There is a question as to whether the Tribunal had the power to issue an arrest warrant at this stage in the proceedings - an issue which will be discussed in a later blog.

See: 1971: Questions raised about arrest warrant

Links
Daily Star: Int'l crimes tribunal starts proceedings today, 26 July
Daily Star: Arrest order for 1971 genocide, 27 July

Amendment: The last sentence of the post was titled as 'comment' to prevent any confusion from the preceding text. A new link was also added