16 Sep 2012: Mobarak Hossain bail

The tribunal first dealt with the case of Mobarak Hossain who has been enlarged on bail. The tribunal asked the prosecution whether a progress report was ready, and they said that it was.

Md. Shajahan then appeared on behalf of the petitioner and submitted a petition to the Tribunal seeking bail.  After perusal the Chairman said to the lawyer that he would like to say that- by getting the bail you are staying in a calm and quiet condition, thus you have not frustrated the condition of the bail and you are praying for the extension of the bail. 

Then he asked the Prosecution- if they have anything to say. Sultan Mahmud Simon appearing on behalf of the Prosecution has stated that they  have submitted the progress report of the investigation. There is an anomaly about his age in his several certificates. His name is also in the list of Razakars, and there is a charge against him for the crimes against humanity. There is no ground to enlarge him on bail, so we are drawing your kind attention for the cancellation of bail.

The Chairman then passed the following order (summary below)

Accused Md. Mobarok Hossain alias Haji Mobarok Hossain is present before the Tribunal today. On 16-7-2012 he has been enlarged on bail for two months and was directed to be produced before the Tribunal after two months. Today he is present. Md. Shahajahan on behalf of the petitioner has submitted an application for the extension of bail on behalf of the accused petitioner. We have perused the Application. On the other hand Sultan Mahmud Simon on behalf of the Prosecution has submitted the progress report. We have perused that. Along with the report the Prosecution has submitted a prayer for the cancellation of bail. It is alleged that the accused is threatening the witnesses; a GD entry has also been attached with it. One of the witnesses has made statement before the Magistrate. So, according to the Prosecution there is no scope for the enlargement of bail. We have perused the prayer. 

We have perused everything and the accused has prayed that he has not misused anything which can frustrate his enlargement of bail. The Prosecution has alleged that- the accused is threatening the witnesses. We are giving a caution to the witness that he is not supposed to do these sorts of activities. If things continue like this his bail will be rejected. So the prayer for bail of extension is allowed for 2 months, i.e. 15-11-2012. He is to be produced on the following day and the Prosecution is ought to submit the progress report of Investigation.

26 Aug 2012: Azharul bail rejection order

The tribunal passed an order on the application of the petitioner Azharul Islam for bail (see summary below)

This is an application for bail of the petitioner Azharul Islam. We have heard counsel Abdur Razzak on behalf of the petitioner and Zead Al Malum on behalf of the Prosecution in details and perused the application. Abdur Razzak submitted on the bail petition by stating that-upon a warrant of arrest by the Tribunal the accused has been arrested and this petition has been filed on behalf of the Petitioner.
On 16th August, 2012 the petitioner has been released on bail of 11 cases pending in CMM Court. The counsel also submits that although there are no materials to connect the petitioner in this case he has been arrested.

Thus he seeks bail on the following 2 grounds: 1. The warrant is a malafide one: 2. On the cause of medical ground he is ought to be released on bail.

Since he has been enlarged on bail there is no ground of the accused of being absconded. There is no ground that he may abscond. Abdur Razzak further submits that having failed to detain him and only to keep the accused in the custody the Government which is against the Jamate Islami has initiated the proceeding. So, this being a malafide one he should be enlarged on bail. Second ground is for medical ground. He is a diabetic patient for 20 years. He further submits that the Jail doctor has prescribed him root canals for his teeth. And the accused is also in need to change his glasses. But the applicant is not allowed to visit the specialized Doctor for his ailment. As such considering his medical condition the counsel submits that he should be enlarged on bail.

Prosecutor Zeyad Al Malum submitted that the petitioner was the President of Islamic Chatro Sangha of Rangpur and was involved with atrocities of 1971. He further submitted that the ICT does not allow anyone to be released on bail if the Tribunal think that necessary. Though one of the accused has been enlarged on bail the Prosecutor submitted that the ground of malafide intention is not a reasonable ground.

For proper investigation when it appears before the investigation authority that it is necessary to arrest him then they have asked to the Tribunal for issuing an arrest warrant.

We have heard both the Defence and the Prosecution.

It is a case of crimes against humanity and other crimes as stated under ICT Act. There is no way to enlarge someone on bail if the Tribunal doesn’t think that necessary. But the Tribunal has introduced the provisions of bail for some grounds and already enlarged an accused on bail. It is found from the petition of the Defence that the City Scan and MRI along with other treatments are needed for his ailment. We have found that it could be done under the supervision of Jail Authority. Considering the benefit of the case we don’t find any ground for bail, thus the prayer is rejected.

In the medical reports we have found that the accused is needed to be checked with MRI, City Scan and other treatments. So, the Jail authority is directed for proper treatment in the post graduate medical hospital and if needed it is to be done outside the Jail in the required place. The Investigation agency is directed to inform the Tribunal by the Chief Prosecutor about the development of the Investigation. The Investigation agency is directed to submit the progress report by 14/10/2012 and the petitioner is required to be produced on the same day.

Then the Chairman asked Mizanul Islam about some documents that need to be provided by the Prosecution under section 9(5). Chairman said, in case when the copies would be illegible then the documents would have been inspected. Mizanul Islam said, The aim of the inspection is to take notes, the custom is the pencil notes should be taken. Prosecutor Mir Ikbal Hossain said that it should be stated which documents they would like to inspect, defence have only stated about the ID card, if they would like to inspect that they might do that. Chairman said okay we will look at the matter.

18 Jul 2012: Azam ramadam bail rejection

Justice Nizmaul Huq passed an order on the previous day's bail application for Golam Azam. Summary is below

This is an application for bail filed by the accused petitioner Mr. Gholam Azam. Mr. Abdur Razzak appearing on behalf of the petitioner has submitted that although many things have been stated in the application but he has highlighted one point. That is, holy Ramadan is coming and Mr. Gholam Azam is an old man. He wants to perform ‘Etekaf’ and the rozas as well. For a long while he is performing these except on the year 1992 when he was detained in the prison. It is believed by the accused petitioner that it might be his last Ramadan in his life. To perform the rozas and ‘Etekaf’ he has prayed for bail for some days upto the Eid-ul-Fitr. Mr. Zeyad Al Malum the Prosecutor has opposed the prayer for bail by submitting that normally on these sorts of cases the accused is not enlarged on bail and the ICT Act does not allow anyone to enlarge on bail. Roza and Etekaf is not a good ground for enlarge someone on bail. The Prosecutor also contended that- it is admitted- in 1992 when he was in custody, he didn’t performed the roza and Etekaf. So, the accused should not be enlarged on bail.

We have heard both, considering both the submission – it is a fact that in the last year same sorts of application has been moved for Mr. Motiur Rahman Nizami to perform Roza and Etekaf. We consider that the Tribunal has considered these sorts of application previously. On 1-8-2011 the Tribunal has considered and rejected the bail petition for Mr. Nizami on this ground. On that case we have considered the prayer of Mr. Tajul Islam on the effect that- ‘the Ramadan is knocking at the door and Mr. Nizami would like to perform Roza and Etekaf. So he is ought to be enlarged on bail.’ The Tribunal has also considered the contention of Mr. Haidar Ali that- ‘the accused is free to perform roza in the custody’. Considering these two submissions we have found that- this is nor a ground for bail. But if the Jail authority considers he may perform Etekaf at the Jail.

In this case Mr. Gholam Azam is in BSMMU Hospital and is under treatment. We don’t know whether he is allowed to perform roza and Etekaf at this physical condition; but we don’t want to comment on this matter. If he wants to perform roza and Etekaf and the doctors allows there is no bar to perform the same. We have also found that this is not a good ground for bail. If it is possible- under whom he is detained that is the Jail and the Hospital authority may allow him to perform Etekaf. With this the prayer is rejected.

16 Jul 2012: Mobarek Hossain bail application

After dealing with the opening of the case of Nizami, the Tribunal then moved onto the case of Mobarek Hossain's bail application, carrying on from 11 July

Justice Nizamul Huq: Mr. Malum come forward. What would you like to say about the progress of the report and the proceeding? This is a bail application filed on 15-7-2012 and the investigation started on the same day.

Zeyaad Al Malum: As the investigation agency has already started their investigation, so there is no scope for bail. As Mr. Alim can’t move without wheelchair so he has been enlarged on bail. He should not be an example for the usual cases. The investigation agency should be given time to find out the facts. The matter is on the judicial notice. The war criminals are taking various sorts of advantages. Right at this moment we strongly oppose enlarging Mr. Mobarok Hossain in bail.

Justice Nizamul Huq: I would like to say, this is a Police Station Case. Investigation agency can start investigation by any application suo moto or by any other means. He is in custody, so the misc. case has been arose out of that.

Haidar Ali: This sorts of cases has been filed in Police Station then arrived at the Tribunal, there are lots of precedents like that. So, the law is not limited on that point.

Justice Nizamul Huq: He is an accused person and investigation is going on, if we found him culpable under section- 3(2) of the Act, then we will think in a different way.

He then called Advocate Shahjahan, the defence lawyer

Advocate Shajahan [Defence]: I am feeling uncertain as a lawyer of this case. Because from 4-6-2012 to 15-7-2012 already 1 month and 11 days have been passed away. So that I have come to your Lordship for a proper remedy. A man under no trial or proceeding cannot be detained in custody. The Investigation agency may investigate any time. By the custody warrant, the accused was in Brahmonbaria prison. There has not yet been any formal charge been framed. No person can be detained in this manner without any trial process.

Justice AKM Zaheer: Before this time the accused was under bail from the High Court Division.

Justice Nizamul Huq passed the following order (summary below)

This misc. case has been arisen out of an application for bail of accused Md. Mobarak Hossain of village Noyadi, Police Station- Akhaura, Dist.- Brahmonbaria, who is in prison in connection with a case of Brahmonbaria Police Station case no.- 245 of 2009. The case has been transferred to this tribunal and it is pending and records are lying under the investigation agency. It has been submitted by the Prosecution that the Investigation has been started on 15-7-2012.

The facts of the case is in short as following-

One Khodeja Begum of Dist. Brahmonbaria has filed a complaint case under the Chief Judicial Magistrate under the section- 120(B), 364, 302, and 34 of the Penal Code. The complaint petition has been sent to the Police Station to lodge FIR, afterwards Fir was lodged. The petitioner after getting the information has surrendered to the Police Station. Afterwards under misc. case no- 9722 of 2009 he was enlarged on bail for 6 months. On 24-7-2011 the accused has been directed to surrender within 3 months. On 19-12-2011 he has surrendered to the Police Station, since then he is in custody. The records of the case have been transferred to this tribunal when it was pending before the Magistrate’s Court. The whole records have been transferred to the investigation agency. Mr. Shajahan, the counsel for the petitioner has submitted that the petition of the accused is such that he could not go to the concerned magistrate or to the High Court Division; then he has come to the tribunal to get a proper remedy. He has filed a petition for bail.

We have heard Mr. Shajahan. He has submitted that the accused is a law abiding citizen if he has any bad intention in his mind then he would not have surrendered. Mr. Zeaad Al Malum has submitted that when the investigation has started, now at this moment there is no option to enlarge him on bail. And the ICT Act does not allow anyone to enlarge on bail if the Tribunal doesn’t apply its own conscience. According to him the accused is not sick or old that he could claim such types of bail. In case of Mr. Abdul Alim the Tribunal has enlarged him on bail just because for his illness and age. Although the present accused is in custody since 19-10-2011, but he can’t be enlarged on bail.

We have considered both parties. It is a fact that the investigation has started against the accused yesterday and the ICT Act does not allow anyone to enlarge on bail, but we have to see the fact behind the case. The case was filed under complaint registrar case and the Magistrate has sent the case to this Tribunal. Till today the case is pending. The investigation agency should take proper steps for the investigation. And a person should not suffer for another person’s cause.

We are inclined to enlarge him on bail with some conditions. Let the accused be enlarged on an interim bail of being miscellaneous case- 07 of 2012 for a period of 2 months that is up to 16th September, 2012. He is to be present before the Tribunal on the following date. In the meantime the investigation agency ought to submit the report.

24 Jun 2012: Sayedee bail order

After the Sayedee investigation officer cross examination, the tribunal then passed its order relating to the bail application for Sayedee (summary below)

Accused Mr. Delwar Hossain Syedee has not been produced before the Tribunal because of his illness. The recording of the Prosecution Witness has been taken up and remains incomplete. The matter is taken up for bail petition.

This is an application for bail on behalf of the accused. Tajul Islam appearing on behalf of the petitioner has submitted that- under Rule-34 of the ICT Rules of Procedures the Tribunal can enlarge anyone on bail. He has urged that- before this time the bail petition has been rejected on the following grounds; as the accused is an influential person may influence the matter he would be released on bail. And the accused may intimidate Prosecution witness. He submits that- on 29-3-2011 the Tribunal has allowed the Prosecution under section – 19(1) to allow the 15 witnesses. The accused side has taken up serious allegation of fraud about the matter. And he also submits that- there is no evidence that- the accused may commit fraud. He also submits that- the bail is a right of the accused in several International Tribunals. On 13-6-2012 the accused’s Son suffered a serious heart attack and sent to the Ibrahim Cardiac Hospital and afterwards found death. On 14-6-2012 the accused was released on parole and suffered a heart attack. The medical board has been formed on 16-6-2012. On 18-6-2012 his angiogram has been done. And 4 blocks in his heart has been found. He was prescribed to be examined by two tests; which are only possible in National Heart Foundation. Thus, he was sent over there. Mr. Tajul Islam has submitted that- the accused is in need of proper facilitated hospital. He was doing his regular check up and treatments at Royal Brumton Hospital of England, so he is supposed to sent over there for his treatment. He also submits that- for proper medical care the accused also needs family care; which is not possible in the Hospital.

Haidar Ali on behalf of the Prosecution has submitted that- The proper facilities and treatment is being given to the accused, so there is no scope of bail prayer.

We have heard both the sides-

Normally in such case the bail can’t be granted. We have brought Rule- 34(3) of ICT Rules of Procedures. Normally an accused can’t be enlarged on bail, but it may be allowed on the discretion of the Tribunal. The recording of the witness is already been completed almost; so Haidar Ali has submitted that- he can’t be granted on bail at this moment. Before passing the order- the accused has been sent to the National Heart Foundation Hospital for his treatment. Mr. Haidar Ali has informed that- he has informed the proper authority to take all sort of cares.

We are satisfied that- the proper treatment is going on. Upon perusal of the report and position of the accused we are satisfied that- if the proper treatment is being given on, then bail would not be required. The defence counsel has prayed for parole for sending the accused to the Royal Brumton Hospital of England. In London Hospital the family care is not allowed.

In the last order we didn’t pass any points about the bill of the treatment. And now the cost of the treatment is to be borne by the accused petitioner side.

And we have observed that, when he was released on October for his mother’s funeral, he uttered provocative words before the public. And from the newspaper report, Daily Jonokontha on 22nd June 2012 we have got to know that, the prosecution witness no 11’s son has been beaten up by a group who were allegedly the supporters of the accused.

And the bail matter of another accused is totally different from this case, he is moving on wheel chair; so there is no scope of finding similarities between the cases.

So, the prayer should not be allowed and the prayer of the bail petition is rejected.

Tajul Islam: My Lord, neither the defence nor the Prosecution has made any coments about the last part of the order; it was not required to be mentioned without any verification and only by the mere reports of the newspapers. The incident of the witness’s son was all about marijuana and about the local people, there is no chance to mix that up with this case. And about the breaking the norms of the tribunal by the accused by provocative speech I would like to say, without any verification it is not required to say so.

Justice Nizamul Huq: We do also watch television; can you deny, he didn’t say so?

Tajul Islam: When the defence and prosecution are silent about the matter, why did you talk about this without any verification? I highly object and the observation should be expunged from the order.

Justice Nizamul Huq agreed that those parts of the order would be expunged

Tajul Islam: Much Obliged.

21 Jun 2011: Sayedee medical bail application

In the afternoon, following the Chowdhury witness cross examination, one of the defence counsels Tajul Islam came to the dais and submitted a bail petition for Delwar Hossain Saydee – along with two supplementary applications

These applications are set out below. Here is the main application.

1. Rule 34(3) of the Rules of Procedure (as amended on 28 June 2011 and 19 April 2012) (hereinafter: RoP) provides: “At any stage of the proceedings, the Tribunal may release an accused on bail subject to fulfilment of some conditions as imposed by it, and in the interest of justice, may modify any of such conditions on its own motion or on the prayer of either party. In case of violation of any such conditions the accused may be taken into custody cancelling his bail”.

2. It may be recalled that on 23rd August 2011 this Hon’ble Tribunal rejected the Accused-Petitioner’s application for bail for sixth time. The main grounds upon which the prosecution opposed the Bail Applications those were accepted by the Tribunal in rejecting those applications are as follows:
a. The accused is an influential person and may interfere with the investigation process if released on bail;
b. The accused may intimidate prosecution witnesses;
c. There is a risk of absconding if the accused is released on bail.

3. It may be recalled that on 28th March 2012, the Accused-Petitioner filed a Response to the Prosecution’s application under Section 19(2) International Crimes (Tribunal) Act 1973 as amended in 2009 (hereinafter: “ICTA”) respectfully submitting that the Prosecution has failed to establish that securing the attendance of the remaining 46 Prosecution witnesses would be unreasonable (hereinafter referred to as the ‘Reply to the Prosecution’s Section 19(2) Application’). The Accused-Petitioner respectfully asked the Hon’ble Tribunal to recognise the Accused-Petitioner’s right to compel the attendance of the 46 Prosecution witnesses in order to examine them pursuant to Section 10(1) ICTA so as to avoid the irreparable risk of prejudice against the Accused-Petitioner’s right to fair trial.

4. On 9th May 2012 the Accused Petitioner filed an Application for Review of the order dated 29th March 2012 allowing the Prosecution’s Application under section 19(2) ICTA (hereinafter referred to as ‘the Review Application’). The Review Application revealed that the Investigation Agency (hereinafter: “the IA”) perverted the course of justice and wilfully misled the Hon’ble Tribunal when submitting that the remaining 46 Prosecution witnesses were not available when in fact they were in the Prosecution’s custody at the time. It was argued in the review petition that: (1) in the absence of independent evidence verifying the Investigation officer’s reasons; (2) in the absence of consent of Prosecution witnesses to use statements in place of live testimony and (3) in consideration of the Investigation Officer’s vested interest in the Prosecution’s case, consideration must be taken of Prosecution witness accounts taken by independent journalists, as cited at the time of hearing of the Prosecution’s Section 19(2) application. It is respectfully repeated that there was nothing before the Hon’ble Tribunal, other than the unsupported statement of the Investigative Officer, that the statements of the 15 Prosecution Witnesses are authentic. Further, there was nothing before the Hon’ble Tribunal, other than the unsupported statement of the Investigative Officer, to substantiate the claims that the witnesses are unavailable. To admit such statements in the absence of any credible supporting evidence will significantly impact upon the fairness of the proceedings.

5. It is respectfully submitted that fundamental principles for ensuring a fair trial and ensuring equality of arms between the parties extends to disclosure obligations and the presumption of innocence. It must be recalled that an accused person must have, through his counsel, an effective opportunity to challenge the case against him. Any restriction of this right must be exercised in exceptional circumstances and where there are sufficient counterbalancing procedures put in place. If the Prosecution is permitted to serve hearsay statements, without the opportunity to challenge the author of the statement, where there exists grave concerns as to reliability and possible collusion, then the interests of justice will not be served and an accused’s right to receive a fair trial will be irreparably harmed. It is the duty of the Tribunal to safeguard the fundamental rights of the accused and to ensure that there is equality of arms between the parties and that the defence has a fair opportunity to challenge the case brought by the Prosecution.

6. In light of the Investigation Agency’s gross infringement of the Accused-Petitioner’s right to fair trial and as the Prosecution’s case is soon to close, the Accused-Petitioner prays that the Hon’ble Tribunal exercises its discretion in the interests of justice under Rule 34(3) and grants conditional bail to the Accused-Petitioner without further delay.

Perverting the course of justice and the Investigation Agency and Prosecution’s duty to the court
Section 19(2) ICTA Application
7. It is respectfully submitted that the Investigation Agency perverted the course of justice and wilfully misled the Hon’ble Tribunal by failing to give a truthful account as to the whereabouts of the aforementioned 46 remaining Prosecution witnesses. In the Review Application annexed a news report of the Daily Amar Desh dated 12th April 2012 which reveals that the prosecution witnesses were brought to the witness Safe House on different dates and they stayed there for long time. But despite that many of them were not produced before the Tribunal as the witnesses were not ready to give false evidences against the Accused-Petitioner. On 2nd February 2012 thought one of the Prosecutor informed the Tribunal that witnesses Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri left the Safe House on the previous evening and did not turn back. But the Daily Amar Desh reported that according to the Safe House Registrar these witnesses stayed in the Safe House until 16th March 2012 within the custody of the Investigation Agency and the Prosecution.

8. Chapter II and III of Rules of Procedure of the International Crimes Tribunal (hereinafter: “RoP” and “ICT”) regulate the powers and the functions of the Investigation Agency and the Prosecution. Pursuant to Rule 18(2) and 18(3),
“(2) The Investigation Agency shall,
a. work with the Prosecutors in preparing the report under rule 18(1), and after submission of the report, shall assist the Prosecutors in the task of formulating the formal charge including arrangement of documents and materials; and
b. also assist the Prosecutors in tendering evidence at any stage of trial.
‘(3) As and when directed by the Tribunal, the Investigation Agency shall produce witness before the Tribunal as required by the Prosecutors. The law enforcing agency of the concerned area shall provide all necessary assistance to the Investigation Agency in executing the process issued for securing attendance of witness.”

9. In the aforementioned Response by the Accused-Petitioner to the Prosecution Section 19(2) Application, it was respectfully submitted that the Prosecution failed to:
a. produce any proof of fact for the reasons cited as a failure to secure the attendance of witnesses;
b. establish measures taken to secure the attendance of witnesses or proof of expenses incurred or potentially incurred in securing the attendance of such witnesses;
c. offer any alternative despite the Rule 58A(1), (2) and (3) of the Tribunal’s Rules of Procedures allowing for the implementation of protective measures.

10. Pursuant to Rule 18(3), it is respectfully submitted that the IA has failed to produce witness before the Tribunal as required by the Prosecutors, and in the alternative, the Learned Prosecutors have failed to require the production of witnesses from the IA.

11. It is respectfully submitted that this confirms that the Accused-Petitioner’s right to fair trial have been infringed by the Prosecution and the Investigation Agency.

The Prosecution’s case is at a close and the Accused-Petitioner is unlikely to tamper with witnesses or evidence or interfere with trial proceedings
12. The Prosecution is currently examining its last witness, the Investigation Officer.

13. This Hon’ble Tribunal by its orders denied bail to the Accused-Petitioner on the grounds that the Accused-Petitioner was an influential man and member of parliament and he may interfere the investigation process or may the prosecution witnesses if released on bail.

14. It is respectfully submitted that the Hon’ble Tribunal should reconsider its decision to refuse bail as the circumstances of the case have changed and there can be no argument that the Accused-Petitioner may intimidate the Prosecution witnesses or may interfere the investigation process as was argued by the Prosecution on different dates when opposing the bail applications.

15. The Prosecution has already admitted that the Accused-Petitioner is not named in the 6 General Diaries filed in Pirojpur Sadar and Zianagar (Indurkani) Police Stations alleging that witness intimidation had occurred. Nevertheless, upon previous applications for bail, the Prosecution objected to bail on the grounds that the Accused-Petitioner is an influential character and would hamper the trial process if released.

16. To date, it is respectfully submitted that there is no evidence of the Accused-Petitioner interfering or attempting to interfere with the proceedings.

17. Notwithstanding, under the newly inserted Chapter VIA of the Rules of Procedure, a number of measures can be ordered by the Hon’ble Tribunal to ensure witness protection and prevent witness intimidation or interference. Rule 58A (1) provides: “The Tribunal on its own initiative, or on the application of either party, may pass necessary order directing the concerned authorities of the government to ensure protection, privacy and well-being of the witnesses and or victims. This process will be confidential and the other side will not be notified”.

18. Further, the Accused-Petitioner’s residence is at 914, Shahidbagh, Dhaka and that the alleged crime bases concern the Pirojpur District nearly 300km away in the south-western region of Bangladesh. That he is a religious scholar and a man of good character.

19. Further, the Accused-Petitioner is willing to surrender his passport before the competent authorities and to undertake that he will not apply for travel documents without prior permission from the Hon’ble Tribunal.

20. Further, the Accused-Petitioner is also willing to comply with a residence condition to reside at his address at 914, Shahidbagh, Dhaka 1217 whereby his presence can be regularly checked and monitored. He is willing to report to this Tribunal on an agreed regular basis.

21. Further, it is submitted that the Accused-Petitioner is willing to undertake that he will not travel to any crime-base areas without prior permission from the Hon’ble Tribunal. He is also willing to undertake not to contact any Prosecution witnesses or to interfere with the trial proceedings.

22. The Accused-Petitioner humbly prays that the Hon’ble Tribunal takes into consideration the lack of evidence connecting the Accused-Petitioner to any claims of witness intimidation as well as the imposition of several factors safeguarding the trial process and witnesses. This includes:
a. The conclusion of the investigation and the prosecution case;
b. The newly inserted witness protections provisions; and
c. The bail conditions volunteered by the Accused-Petitioner as an additional guarantee.

23. It is respectfully submitted that a measure restricting the liberty of a charged person must be necessary and proportionate to the circumstances.

24. It is humbly prayed that the Hon’ble Tribunal determines that as the Prosecution case is close to its conclusion and for the abovementioned reasons, there is no likelihood that the Accused-Petitioner will tamper with witnesses or evidence or interfere with trial proceedings and reasonable to review the Accused-Petitioner’s bail application de novo to grant him conditional bail.

Bail is a right and not a privilege
25. By its order dated 14th July 2011, while rejecting the 5th bail petition of the Accused-Petitioner, this Hon’ble Tribunal stated that it did not consider that there was a right to bail under the provisions of the ICCPR. It is respectfully submitted that this is an erroneous application of the fundamental principles to which the ICCPR guarantees.

26. In addition, the amended Rules of Procedure provide for the right to be presumed innocent under Rule 43(2) RoP.

27. The presumption of innocence is also enshrined in Article 14(2) ICCPR, which provides: “Everyone charged with a criminal offence shall have the right to be presumed innocent until guilty according to law”.

28. The presumption of innocence enshrined under Rule 43(2) RoP and Article 14(2) ICCPR is a fundamental principle and as a result the provision for bail is a right and not a privilege under domestic and international law. That this has been upheld by the Human Rights Committee (hereinafter: HRC), which has held that there is a requirement under the ICCPR, for bail to be reasonably available. (UN Human Rights Committee, "Consideration of Reports Submitted under Article 40 of the Covenant, Comments of the Human Rights Committee, Argentina", CCPR/C/79/Add.46, 1995.)

29. Following Rules 9(5), 33 and 34(3) RoP and Article 9(3) ICCPR, this right arises at any stage of judicial proceedings.

30. It is respectfully submitted that the presumption in favour of bail is a protected right under national and international law. It falls in the first place on the appropriate judicial authorities to ensure that, in a given case, the overall detention of an accused person does not exceed a reasonable time and that any period of detention is necessary and proportionate. To this end the Hon’ble Tribunal must examine all the circumstances arguing for and against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty. The Hon’ble Tribunal must set those reasons out in its decisions on the applications for provisional release. In this regard, it is respectfully submitted that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of continued detention, but, after a certain lapse of time, it no longer suffices. The Hon’ble Tribunal should then establish whether the other grounds cited by the Prosecution to justify the deprivation of liberty (e.g., Eur. Court HR, Kemmache v. France, judgment of 27 November 1991, Series A no. 218, paragraph 45). Where such grounds were ‘relevant’ and ‘sufficient’, the Hon’ble Tribunal must also ascertain whether the competent national authorities have displayed ‘special diligence’ in the conduct of the proceedings.

31. It is respectfully submitted that the Prosecution have failed to established ‘relevant’ and ‘sufficient’ reasons to justify continued detention of the Accused-Petitioner.

32. The Accused-Petitioner humbly prays that the Hon’ble Tribunal recognises the right to bail and upholds the fundamental right to be presumed innocence and grants the Accused-Petitioner to be released on conditional bail.

Bail can be granted to an individual accused of serious crimes
33. The international tribunals including the International Criminal Court, International Criminal Tribunal for the former Yugoslavia (“ICTY”), International Criminal Tribunal for Rwanda (“ICTR”) and the Special Court for Sierra Leone (“SCSL”) all have jurisdiction over crime against humanity and genocide and further all of the tribunals provide for the right to provisional release. (Article 60(2) ICC; Rule 65 of the relevant Rules of Procedure for ICTY, ICTR and SCSL ).

34. In Prosecutor v Hadizihasanovic, the ICTY held that the rule regarding provisional release/bail must be interpreted in light of the ICCPR and that in this regard; no distinction should be made between domestic criminal and international criminal proceedings. (Decision granting provisional release to Enver Hadizihasanovic and others, Case No. IT-01-47-PT, December 19 2001).

35. In Prosecutor v Stanisic, both the Trial Chamber and Appeals Chamber at the ICTY held that: “the gravity of charges cannot by itself serve to justify long periods of detention on remand”. (Prosecutor v Stanisic, Trial Judgement of July 28 2004, Case No. IT-03-69-PT, Decision on Provisional Release, para. 22).

36. The ICTY has on a number of occasions provided provisional release to accused persons formally charged with crimes against humanity and genocide.

37. It is respectfully submitted that decisions refusing bail and extending detention have previously been argued in consideration primarily of the gravity of the offences and their categorization as crimes against humanity and genocide. The Prosecution has repeatedly referred to the scale of the atrocities during the War of Liberation. Whilst the gravity of offence and mode of commission are relevant factors in determining the issue of custody, they are not sufficient alone to justify lengthy periods of detention. Further, as already stated, it is important to note that the Prosecution’s allegations of interfering with the course of the investigation and interfering with prosecution witnesses is made without substance to any reliable facts. It is accepted that this is ordinarily a legitimate ground for detaining individuals and that the risk satisfies the requirement of ‘relevant’ and ‘sufficient’ reasons, if properly made out. It is recognized that there are inherent problems in assessing the necessity of detention, both during the pre-trial stage and during the trial and appellate phases, in cases of war crimes, crimes against humanity and genocide. However, in considering the issue of whether ‘relevant’ and ‘sufficient’ reasons have been made out, this requires more than merely raising the issue as a fanciful possibility; it needs to be established by clear evidence. The Hon’ble Tribunal, in considering the question of bail are required to conduct a proper inquiry into the allegations raised by the prosecution and the arguments put forward the Accused-Petitioner in reply. It is respectfully submitted that a Court cannot merely rubber stamps prosecutorial requests for detention without any real inquiry into the specific facts of the case at hand.

38. It is respectfully submitted that the nature of the charges that have been brought against the Accused-Petitioner does not prevent the Tribunal from granting bail. The Accused-Petitioner humbly prays for the Tribunal to take note of the practice of the international tribunals and grant conditional bail.

Conditions of bail
39. It is respectfully submitted that taking into consideration the arguments made in this application, the Hon’ble Tribunal may grant conditional bail to the Accused-Petitioner on the condition that he:
a. Surrenders his passport before this Hon’ble Tribunal;
b. Does not apply for any travel documents without the prior permission from the Hon’ble Tribunal;
c. Resides at 914, Shahidbagh, Dhaka - 1217;
d. Reports to this Hon’ble Tribunal on an agreed regular basis;
e. Does not travel to any crime-base areas without prior permission from the Hon’ble Tribunal;
f. Does not contact any of the Prosecution witnesses; and
g. Does not interfere with any part of the trial proceedings.

40. It is further submitted that Mr. A. K. M. Mustafizur Rahman, Son of Late Moulvi Khalilur Rahman of 180/6/11 East Rampura, Dhaka – 1219, who is a family friend of the Accused-Petitioner, is willing to provide surety of an agreed amount as a further condition for bail.

41. Taking into consideration the Accused-Petitioner’s health, age and good character as well as his willingness to comply with the aforementioned bail conditions, it is respectfully submitted that the Accused-Petitioner should be granted conditional bail

The first supplementary application stated:

1. That further to the statements made in the application for bail, it is stated that on 13th June 2012, the Petitioner’s son Mr. Rafiq Bin Sayedee, whilst observing the trial proceedings in the Tribunal- 1, suffered from a serious heart attack, whereupon he was immediately rushed to Ibrahim Cardiac Hospital. At about 3.30PM on 13th June 2012, the doctors at Ibrahim Cardiac Hospital declared the Petitioner’s son dead.

2. That on 14th June 2012, after Asr prayers, the Petitioner was informed of the death of his son. Thereafter, the Petitioner was released on parole to lead the Janajah prayers of his son in the grounds of Motijheel Government Boys High School.

3. It is stated that the order of the parole only allowed the Petitioner to attend the Janajah prayers of his son. As such, the Petitioner was unable to visit members of his family at his residence.

4. That upon completion of the Janajah prayers, the Petitioner was immediately taken to Dhaka Central Jail. On the way to Dhaka Central Jail, the Petitioner experienced pain in his heart. Upon reaching the Jail, the doctors on duty examined the Petitioner and immediately directed the Petitioner to be taken to a Hospital. On the same day (i.e., 14th June 2012), the Petitioner was taken to Ibrahim Cardiac Hospital, where the doctors carried out an ECG. Thereafter, on 16th June 2012, a Medical Board was constituted which, after evaluation of the Petitioner’s condition, recommended for early CAG (Coronary Angiogram). A copy of the medical certificate dated 16th June 2012 issued by Professor Lt. Col. (Retd.) Md. Rezaul Karim of Ibrahim Cardiac Hospital and Research Institute has been annexed herewith and marked as Annexure- 1.

5. That on 18th June 2012, a CAG (Coronary Angiogram) was carried out, which revealed that the Petitioner had as many as 4 blocks in his heart. On 19th June 2012, a Medical Board comprising of 8 medical experts examined the medical reports and upon evaluation of the Petitioner’s condition recommended ‘further evaluation to assess the severity by Fractional Flow Reserve and Intravascular Ultrasound before revisualisation and that it should be done as early as possible.’ A copy of the report of the Medical Board dated 19th June 2012 is annexed herewith and marked as Annexure- 2.

6. That by a letter dated 19th June 2012, Professor Dr. M A Rashid, Chief Executive Officer and Senior Consultant, Cardiology, Ibrahim Cardiac Hospital and Research Institute informed the Senior Jail Superintendent, Dhaka Central Jail of the aforesaid findings of the Medical Board. By the said letter, Professor Dr. M A Rashid also informed the Jail authorities that Ibrahim Cardiac Hospital did not have the requisite facilities for evaluation of the Petitioner’s condition and accordingly recommended that appropriate measures be taken for treatment of the Petitioner in accordance with the Report of the Medical Board. A copy of the said memo dated 19th June 2012 has also been sent to the Registrar, International Crimes Tribunal, Dhaka.

7. Thereafter, the Petitioner’s son, Masud Bin Sayedee immediately made enquiries with National Cardiac Hospital, Square Hospital and United Hospital. However, the hospital authorities informed the Petitioner’s son that they did not have the facilities for conducting Fractional Flow Reserve (FFR) and Intravascular Ultrasound (IVUS).

8. That it is stated that the Petitioner’s heart condition is extremely serious, which requires urgent medical treatment. It is specifically stated that given the acute nature of the Petitioner’s heart condition, he is required to be provided medical treatment at a Hospital, which has the requisite facilities for carrying out such treatment. In this regard, it is stated, that on previous occasions, the Petitioner was treated at Royal Brompton Hospital, London for his heart condition.

9. That on 19th June 2012, the Petitioner’s son Mr. Masud Bin Sayedee made an application to the Secretary, Ministry of Home Affairs for release of the Petitioner on parole so that he may be allowed to travel abroad for proper medical treatment of his heart condition.

10. That furthermore, although merit of the case is not to be taken into consideration at the time of disposal of bail application, the Petitioner would like to state that one of the allegations against him is that he had raped one Vanu Shaha, but PW2 Ruhul Amin Nobin in his Examination in Chief stated as follows: [see here]

11. In such extenuating and compelling circumstances, the Petitioner prays to be released on bail by this Hon’ble Tribunal on humanitarian grounds so that he may travel abroad for proper medical treatment.

Further supplementary application is also set out below

1. That further to the statements made in the application for bail, it is stated that on 20th June 2012, the Petitioner was taken to National Heart Foundation in Mirpur, where the doctors conducted heart surgery (Angioplasty) of the Petitioner. During the operation, the doctors had to insert 3 rings in the Petitioner’s heart. The Petitioner is now being kept under a 24 hour surveillance of the doctors in order to monitor his health condition.

2. That it is stated that the Petitioner is extremely weak after having undergone a complicated heart operation. The Petitioner needs the constant care and support of his family members in order to recover from his present condition. It is stated that given the acute nature of the Petitioner’s medical condition, the Petitioner can only fully recover from his health condition if his family members are allowed to take care of him for an extended period of time. The Petitioner apprehends that following such a major heart operation, he may be prevented from making a complete recovery if he is sent to jail custody immediately upon being released from the Hospital. As such, the Petitioner prays for bail on humanitarian considerations so that he may be able to recover from his illness with the care and support of his family members in the comfort of his home.

3. It is submitted that in the above circumstances, the Petitioner may be granted bail by this Hon’ble Tribunal on any condition it deems fit and proper.

Tajul Islam in his oral argument went through the written application. He mentioned that this was the seventh application for bail

He said that he was going to submit two grounds for this bail petition. Below is his submission, paraphrased:

‘One is humanitarian grounds. That is, elder son of the Delwar Hossain Saydee died on 13th June 2012, and then on the following day he attended his son’s funeral prayer after getting release in parole. After that he had the first heart attack while on his way back from the son’s funeral. Then he was admitted to the Ibrahim Cardiac Hospital and it was found, after conducting an angiogram, that there are four blocks in his heart. Two of them are almost 90% and others are 60% blocked. After that he has been transferred to the Heart Foundation. Then a cardiac surgery as conducted in which a stend was put in. Three stents have been put in his heart, adding to the two which were already in his heart.

A second reason is that his life is at risk and he will not get any chance to spend time with his family. It is very urgent for him to get such an opportunity as he is literally tottering between life and death.

So, he should be released on parole and sent abroad for taking better treatment. Another accused Abdul alim has been enlarged on bail after considering his health condition since he moved in wheel chair. Considering this, Sayedee should be enlarged on bail as his condition is very much worse and there is a far greater risk of injury then Mr. Abdul Alim. My lord, he should be sent abroad for taking better treatment since it is very much risky.

My lord, before his operation he wanted to meet with his sons but he was not permitted.

My lord, he should be enlarged on bail because there is no chance of intimidating the witness as the depositions of all witnesses has been completed. We will provide all security that he will not flee away. We should fulfil all conditions in this regard.

Prosecution said that the title “Saydee” was not with his name during the liberation war, later the title Sayedee was included with his name. But the fact is that his and his father name has also the title “Saydee”. They fraudulently produced beggars and theives as witness of this case by giving freedom fighters certificate to them. There is nothing but the Tsunami of the fraud by the prosecution. We have shown in our 19 (2) review petition that the prosecution has committed fraud on Court. Even yesterday it appears during cross examination of the investigation officer that he has taken pictures before his appointment and after the submission of Investigation Report. This is another fraud.The quality of the witness is so law in this case. 

Then Haider ali came to the dais for his reply. His submission is paraphrased below:

‘Physical condition of the Delwar Hossain Saydee was the basic reason of the bail application. Defence said that there is tsunami of fraud by the prosecution.

Justice Nizam: We have not delivered the Order of the 19(2) Application yet. So, it should be kept in mind while arguing.

Haider Ali: My lord, he has been given best treatment in our country. He has been transferred to the heart foundation and his operation has been completed successfully. We know Mawlana Delwar Hossain Saydee was very respectful person and treatment has been given sincerely without any negligence.

And when a person will die or not, it fully depends on God. No one can predict it. Here the basic question is whether the treatment is proper or not?

The quality of the witnesses should be considered at a different time. And a beggar is also a human being so he has right to speak. And to whom you are calling a thief? He is accused only of theft but you are accused of killing, torture, arson, loot and so on.

So, there is no chance of enlarging him on bail. And there is no chance of granting bail in this situation since the trial is at the last stage.

My lord, his family and relatives could also visit him regularly depending on doctors' advice, But there is no scope of enlarging him on bail.

And it is not true that a sick persons does have not influential power. I have seen many persons who lead normal life after this cardiac surgery. The prosecution is nearly finished with its case, and there are no new grounds for bail.

Justice Zaheer: Defence Counsels did not say that his treatment has not been done properly but they asked for humanitarian grounds as his son died and physical condition is too vulnerable that he needs to stay in a family atmosphere. That is the reason they want release in parole or conditional bail.

Haider Ali: My lord, we will arrange all possible initiatives for his treatment.

Justice Zaheer: His sons were not permited to meet with him before operation. Why?

Haider Ali: My lord may be it was the advice of the concerned doctor.

Justice Zaheer: One of submission is, since formal deposition is complete so there is no chance of intimidation.

Haider ali: Influence can be done at any stage.

Justice Zaheer: Then I will say influence can also be done from inside the jail custody.

Tajul Isalm: My lord, he said that trial is in the last stage but it is not correct because only the prosecution witnesses is completed, defence witness has not been started yet. And my lord, we want bail for a limited period not permanently. Alim was enlarged on more basic grounds.

My lord, 5 GD’s amongst the 7 GD’s which were filed by the witnesses who were intimidated it appears that they were not relevant, and in the other 2 he is not a suspect. And my lord, kind of care which is necessary for him at this situation could not be provided by the hospital.

Justice Nizam: Order will be given on Sunday.

19 Jun 2012: Mobarek bail application

After the cross examination of the Chowdhury witness, the tribunal considered a case transferred from the Magistrate court to the tribunal. The acccused name is Mobarekk Hossain, and his advocate Md. Shahjahan came before the Tribunal to submit a bail petition of his client.

Then Zead-al-malum came to the dais and said that my lord, ‘many case has been started to be filed in different police station throughout our country. Till 14. 06.2012 there are nearly 600 cases that have been filed.

Justice Nizam: Can you tell me please among these cases how many case fulfilled the criteria of section 3(2) of the Act. We know it very well that there is no jail in the world from where accused cannot get any remedy.

There are no rules in the ICT Act that allow a case can be transferred from magistrate court to this Tribunal and even this Tribunal has no jurisdiction to transfer the case to the magistrate court.

Justice Anwarul Haque: Every accused has a right to seek for bail if he is in custody but in this case where will he will go now? He should be given a right to seek remedy.

Zead-al-malum: Yes, My lord he has no access of Justice.

Justice Anwraul Haque: Among these 600 hundred cases how many accused are in jail now.

Zead-al-malum: My lords, 16 persons from the 600 cases are in jail otherwise everyone has bail.

Justice Nizam: Please next Tuesday submit before us those cases along with the report explaining why the accused is in jail custody.

Justice Zaheer: We have no right to direct the investigation agency to start investigation even we have no jurisdiction to transfer the case to the Magistrate court. Then where this person will go?

Justice Nizam: We should observe the position of the case first, so please submit before us all those things within 7 days. For ends of justice we can pass any order.

19 Jun 2012: Quasem Ali bail order

The day started with Justice Nizamul Huq passing the order on bail following the previous day's application. Order summary below.

Accused Mir Quasem Ali has been produced before the Tribunal with the permission of the Jail authority. It is a case which involves the crimes against humanity. Mr. Abdur Razzak on behalf of the accused petitioner has submitted that the accused petitioner is a successful and respected businessman. He has obtained his M.A. degree from the University of Dhaka. He has been arrested by the order of this tribunal. He has been sent to the Central Jail. Previously he was admitted in the orthopedic department of the Apollo Hospital. He needs constant medication and physiotherapy for his betterment. He has also submitted that there is no reasonable ground that he will be convicted because the grounds are vague and the other reason for harass him is that the political party he belongs to is the opposition party at this moment. According to the accused he has been arrested on the false ground.

In reply Mr. Zead Al Malum submitted tha there are allegation against the accused for involving with serious crimes at 1971. The petitioner was the leader of the Islamic student organization which was involved with the atrocities at 1971. He has also submitted that the ICT Act does not allow bail, but the tribunal may by its own discretion be able to allow such bail; thus Mr. Zead Al Malum has opposed the prayer for bail.
We have heard both the sides.

It is a case which is involved with the crimes against humanity, war crimes, genocide. In the submission Mr. Razzak has opined that as this Tribunal has allowed one petitioner to get bail, so this petitioner ought to be allowed on bail. But the case of the previous petitioner and this one is not the same one, as the previous one is a very old man, who could not walk; the physical condition of the man is so weak. Although it has been urged by the defence that the physical condition of the present accused is not so good and he need treatment. The physical condition of the accused on bail and this one is not the similar.

We don’t find any reason to allow him on bail. So the prayer for bail is rejected.

The Investigation authority is directed to send the progress of the Investigation Report to Chief Prosecutor within 5th July, 2012 and the accused is to be produced on the same day.

18 Jun 2012: Mir Quasem bail application

Following the request about Sayedee, Abdur Razaq then placed a bail application before the court

Details of this application will be posted on this page shortly

TEXT TO COME

The prosecutor Zead Al Malum: then responded to these arguments.

Malum: My Lord, the bail petition for Mir Kashem Ali has been presented. They have mentioned his identity here. It has been said that he is 62 years old. The figure of the age is not true here. Mir Kashem Ali was born on Horirampur of Manikgonj. He has studied on Chittagong College. The Al-Badar committee was being formed in the Chittagong area at 1971. He was an Islamic Chatro Sangha Leader. The then he was the 3rd in command of Al Badar team. He has returned in the country after the killing of Sheikh Mujibur Rahman. At the same time he was known as the top leader of Jamaat-e-Islami and treasurer of the same organization.

Justice Nizamul Huq: Is there any contradiction with what they said except the age matter?

Zead Al Malum: In criminal matters bail is not the right of the accused. It is the discretion of the Court. There is no matter of bail in the ICT Act-1973. The scope of rule 33(3) is only the discretion of the Court. [He read out the rule.] Bail is not a right in any way in the criminal matter. On 26-7-2010 the investigation has formally started against Mir Kashem Ali. The Investigation Officers have worked in risk of their life. As a treasurer of the organization he is going abroad frequently towards USA, Middle East etc.  Now if the accused is detained and given  bail, it would be risky.

So we are applying hereby under rule- 9(1) of the ICT Rules of Procedures. If he is not detained, in that case many witnesses will be threatened or be kidnapped or become missing.

There is a broad allegation against the accused that various famous persons have been tortured and been killed in the torturing cell, when the accused was the Chief of Chittagong division. At that time where the humanity lies? We hereby object the bail petition till the end of the Investigation. And we hereby apply for rejecting the bail petition.

Abdur Razzak: First of all the allegation about the age is not correct.

Justice Nizamul Huq: We are not saying anything about the age.

The second point is about the gravity of the offence. There is not yet any strong evidence.

The question of his bail petition comes here. Why his bail petition would have to be rejected.

As a treasurer he is going abroad frequently is totally vague.

He is creating obstacles to the investigation process is also an untrue statement.

On this point my humble submission is to allow bail. I am not saying bail is a right, but you might apply the discretionary power.

There has not been any case filed that the witnesses are being threatened by the accused.

We are praying for bail under any condition.

Justice Nizamul Huq: The order is on tomorrow. He then passed a short order (summary below)

Accused Mir Kashem Ali has been produced before the Tribunal by the Jail authority. At the outset Mr. Abdur Razzak sought our permission to sign the Okalotnama in the court room. Then the Okalotnama has been executed. Then Mr. Abdur Razzak has submitted that- he would like to submit a bail petition. Then we have directed him to submit that before the office of the Registrar to observe the formalities. Then Abdur Razzak argued for bail and Mr. Zead Al Malum has contradicted the points.

4 June 2012: Mobarek bail application

At first, Advocate SM Shajahan appeared before the court on behalf of Mr. Mobarak Hossain who has applied for a bail petition, who is right now in Jail Custody.

Justice Nizamul Huq passed the following order (summary)

Mr. SM Shajahan appearing for Mr. Mobarak Hossain has filed this application for the matter of bail petition. It appears that a case has been filed against the petitioner at Brahmonbaria- holding GR case No- 345 of 2005. The same Mobarak Hossain is in now jail custody. It further appears that before he surrenders the GR Case has been transferred to the Magistrate Court. It further appears that- the case has been transferred to this tribunal afterwards by an order dated- 19-10-2011 by cancelling his bail petition. Mr. Zead Al Malum has submitted that- many cases have been transferred by the Magistrates as they mentioned it involves International Crimes, which are right now pending.

In the first instance we can call for the records from the investigation agency. As such the Chief Prosecutor is directed to collect the reports and records from the Investigation Agency to submit that before the tribunal. This report and record are to be submitted to be within 12-6-2012. On perusal of the report we will pass an order. And this is recorded to be a misc. case.

30 May 2012: Chowdhury trial bail application

After the Sayedee hearing was completed, one of the defence counsel for Salauddin Quader Chowdhury, Mr Fakhrul Islam came to the dais and argued a bail petition of the Sallah Uddin Quder Chowdhury.

Fakhrul Islam: My lord, Presidential summons has been served upon the accused for attending the session of Parliament. My lord, since parliament is the centre of sovereignty in the country and 300 hundred people representing the whole nation. Therefore who is the Member of Parliament is also a little part of the sovereignty. My lord, 5 BNP leaders have been enlarged on bail from the High court Division for attending the session of Parliament. We are subservient to the law and law is made by the parliament. This Act is also the creation of the Parliament. Therefore my humble submission is that Tribunal must obey the order of the president since it is the presidential summon to attend the parliamentarian session.

The written application stated:

That the petitioner has been served at 6 PM. on 25th, May, 2012 by Jailer of Gazipur Jail with a summons from the the Hon’ble President of Bangladesh as per Article 72(1) of the Constitution to attend the Session of Parliament beginning at 5.30 PM today on the 27th, May, 2012.  

That the petitioner is currently being detained on the authority of International Crimes Tribunal’s in the custody of Gazipur Jail.  

That the petitioner is placing on record that the petitioner wishes to respond to the presidential summons and attend the Session of Parliament starting 5.30 PM today.  

That the petitioner does not seek any adjournment of the on going trial of the petitioner in International Crimes Tribunal.  

That it is up to the Judicial wisdom of the International Crimes Tribunal to determine:
(a) Whether it will restrain the petitioner from responding to a summons issued by the Hon’ble President of the Republic.
(b) Whether it will restrain the petitioner from discharging his duties and obligation as a member of Parliament.
(c) Whether it will penalize the electorate of parliamentary constituency number 279 Chittagong-2 from being represented in Parliament.
(d) Whether it will penalize the petitioner from being convicted on any allegations by restraining him from representing his electorate in parliament.
(e) Whether it will “preserve protect and defend the constitution”.
(f) Whether it will honour due process of law where the constitution is the supreme law.
That as the petitioner is being detained by this Tribunal, it is the singular responsibility of the Tribunal to either respect the Presidential summon or to abide by it.  

That the petitioner seeks an order from this tribunal to respond to the summons of the Hon’ble President of Bangladesh. 

The corresponding Bail application stated:

That the Petitioner is a peace loving and law abiding citizen of this country. The Petitioner hails from a respectable Muslim family of Bangladesh. His father was a great political leader of this country. The Petitioner is a well known parliamentarian and at present a member of the Standing Committee of the Bangladesh Nationalist Party (B.N.P). He was elected as Member of Parliament in the last six consecutive parliamentary election of Bangladesh. He was Minister for several portfolios over the years and lastly he was the Advisor for Parliamentary Affairs of the former Prime Minister Begum Khaleda Zia. He is at present a Member of Parliament being elected from the Constituency No 279, Chittagong-2.

That the Petitioner was not arrested by any order of this Tribunal.

That the Petitioner was detained on 19.12.2010 by an order of detention which was issue ostensibly under Rule 9(4) of the International Crimes Tribunals Rules of Procedures.

That the Petitioner is in carceration on the authority of the International Crimes Tribunals in the custody of Gazipur Jail.

That the Petitioner is a Member of the current Parliament constituted under Article 65(1) and Article 65(3) of the Constitution of the People’s Republic of Bangladesh.

That the Petitioner’s Constituency No.279, Chittagong-2 which consists of over half a million people and about three hundred thousand eligible and registered voters.

That the Petitioner is a sitting member of the Parliament Standing Committee for the Ministry of Law, Justice and Parliamentary Affairs and the only member of the opposition-constituted as per Article 76(1)(c) of the Constitution of the People’s Republic of Bangladesh.

That the Petitioner is also a sitting member of the Public Accounts Committee of the Parliament constituted as per Article 76(1)(a) of the Constitution of the People’s Republic of Bangladesh.

That the Petitioner intends to oblige to the summons of the Hon’ble President and the Petitioner intends to participate in all parliamentary proceedings as a duty and obligation to the electorate that elected him to office subject to any other Constitutional deterrent.

That the Petitioner is entitled to all privileges as per Article 68 of the People’s Republic of Bangladesh and also the privileges as per East Pakistan(Now Bangladesh) Assembly Members’ Privileges Act 1965.

That section 7 of the East Pakistan(Now Bangladesh) Assembly Members’ Privileges Act 1965 reads as follows:-

- “No member shall be required to appear in person in any civil, criminal or revenue court or any election tribunal during a session and a period of seven days before and seven days after the session”

- “Notwithstanding anything to the contrary contained in any law for the time being in force, no civil ,criminal or revenue court and no election tribunal shall proceed during a sessions and for a period of seven days before and seven days after the session, with any matter before it in which a member is a contesting party or is charged, as the case may be, unless the privilege offered by sub-section (1) is waived by application made in writing to the court or tribunal, by the member concerned with the matter, and, where more members than one are so concerned, by all of them.”

- “The provisions of sub-section (2) shall apply to all matters pending immediately before the commencement of this Act in any civil, criminal or revenue court or before any election tribunal, in which a member is a party and no such court or tribunal shall proceed further with any matter unless the privilege referred to theirin is waived in accordance with the provisions thereof or the period specified therein has elapsed”.

That according to section 7 of the East Pakistan (Now Bangladesh) Assembly Members’ Privileges Act 1965 the petitioner may kindly be admitted to bail.

That there are precedents of members of the 7th Parliament, where conviction on appeal was permitted to attend the session of Parliament and specifically Mr.Hossain Md Ershad was given leave to take oath and to attend session of Parliament on 23 June 1996.

That the Petitioner humbly seeks an order from this Tribunal to respond and oblige to the summons of the Hon,ble President of Bangladesh through attending the session of parliament.

That the Petitioner may be permitted by this Tribunal in his constitutional position as a Member of Parliament to attend sittings of Parliament and two committees of which the Petitioner is a member, to sign documents and cheques related to his constituency.

That since sessions of Parliament was summoned by the Hon’ble President of Bangladesh for which five Members of Parliament who were sent to jail under non-bailable sections were granted bail by the Hon’ble High Court Division on 27.05.2012 facilitating them to honour and respond to the summons of the Hon’ble President so the Members of the Parliament are able to discharge their duties and obligations for which they were elected by their respective Constituencies hence the petitioner may kindly be enlarged on bail. 

Ahsanul-Haq-Hena: My lord, this is very simple matter, enlarging him on bail will not hamper the regular proceedings of the Tribunal. We will not misuse any privileges.

Zead-al-malum: There is no rules that an under trial prisoners for the War Crime Tribunal can be enlarged on bail. It is true that five BNP leaders have been enlarged on bail but that they were enlarged on bail for attending Parliamentarian Session and is not mentioned in the order sheet. Whether he is M.P or president it does not matter if he is accused of War Crime Tribunal. General Ershad was not the accused of War Crime Tribunal, so his matter is totally different.

And without enlarging him on bail, to provide special arrangement is totally absent in our Act and Rules. My lord, most importantly Bangladesh National Party is not attending Parliamentarian session. So it is very unclear that he will attend the session. Therefore enlarging him on bail is nothing but killing time. Bail is a right. It is discretion of the court but if he enlarged on bail trial proceedings will be hampered as cross examination of prosecution witness is ongoing.

Ahsanul-Haq-Hena came to the dais and gave his reply: My lord, I assured that he will attend the session. And though it is not mentioned in the bail Order sheet of the 5 BNP leaders that for attending parliamentarian session they were enlarged on bail but it is clear because these 5 persons are members of Parliament. Therefore, my lord we seek judicial discretion of the Tribunal. So, considering all aspects, my humble submission is, he could be allowed to go to the Parliament.

Then the court is adjourned. 

27 Mar 2012: Alim cognisance, bail

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

The matter was fixed on 4th April, 2012.

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

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

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

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

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

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

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

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

Justice Nassim then passed the order (summary)

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

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

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

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

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

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

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

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

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

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

Defence Counsel then produced the papers

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

Justice Nizamul Haq then passed the following order:

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

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

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

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

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

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

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

15 Mar 2012: Alim bail application

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

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

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

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

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

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

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

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

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

28 Feb 2012: Chowdhury charge framing, bail

Justice Fazle Kabir was absent. Chowdhury's lawyer, Advocate Fakhrul Islam came to the dais and told the court that they were not getting any cooperation from the Jail Authority to collect papers from the Jail. 'We’re not getting the authorized papers,' he said.

Justice Nizamul Huq: This is not under the jurisdiction of the tribunal. And the Tribunal can do nothing outside the ambit of the jurisdiction.

S.Q. Chowdhury shouted that this is the matter for the D.C. [Deputy Commissioner]

Justice Nizamul Huq: Yes, it is nothing to be dealt under the jurisdiction of this Tribunal.

Advocate Zaed Al Malum continued with the prosecution response to the bail/disposal application - a continuation of the previous days hearing.

After the atrocities of the war of 1971, while Bangladesh was a newborn State, where the atrocities of the war were evident everywhere, the then Government formed some tribunals under the Collaborators Order-1972 for the trial and prosecution of those perpetrators. It was felt that- there must be a particular law to try those particular perpetrators. After that- following the Universal Declaration of Human Rights- 1948, Genocide Convention, Geneva Convention, Nuremburg Principles, other International Laws, the Constitution of Bangladesh, the International Crimes Tribunal Act-1973 was passed by parliament. As a citizen of Bangladesh I am proud to say that- these were really a great initiative towards the progress of the trial.

He then referred to Article 47(3) of the constitution – introduced by the 1st Amendment of the Constitution: “Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces [ or any individual, group of individuals or organisation] or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to, any of the provisions of this Constitution.”

And the Article- 47A (1) says as follows: The rights guaranteed under article 31, clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.

And Article 47A (2) says: Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.

Justice Nizamul Huq: Could you please submit a Constitution to the Court that you are citing.

Advocate Zaed Al Malum: My Lord please let me send someone to come with the Constitution from the downstairs.

S.Q. Chowdhury: You could take my copy.

Justice Nizamul Huq: We’re not taking your copy; it is the duty of the prosecution, not yours.

[Then Advocate Zaed Al Malum submitted the Constitution before the Court.]

Advocate Zaed Al Malum:

My Lord, Article-47(3) of the Constitution refers to the sanction, extent, and jurisdiction. Now, it is my humble submission that- the ICT Act has been passed after the first amendment of Constitution. Section- 3 of the Act determines the jurisdiction of the tribunal. Section-3(2) of the Act mentioned the crimes which are under the jurisdiction of the tribunal. Namely- Crimes against Humanity; Crimes against Peace; Genocide; War Crimes; violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949; any other crimes under international law; attempt, abetment or conspiracy to commit any such crimes and complicity in or failure to prevent commission of any such crimes.

The Defence Counsel has challenged the ambit and scopes of the tribunal; even they have contended that it is improper to proceed further with any other matters until there is the trial of 195 people.

Tribunal is not here to deal the Constitutional matters. Till date almost 35 tribunals has been formed over the world for the trial of the perpetrators of various kinds of crimes committed in the period of War. I am proud to say that I was lucky enough to observe a few of the proceedings among those Hybrid Tribunals. The Judges are qualified enough to preside the tribunal. Following the tribunals, the International Crimes Tribunal of Bangladesh has also been formed by the qualified Judges. But the defence have raised questions several times about the qualifications.

I would like to read out the page- 60 and Page-63 of Annexure –E of the defence. Before reading that out before the Court- Lets see the section-26 of the ICT Act. This says as follows—

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Collaborators Ordinance has been revived by the 15th amendment of the constitution. But here, what has happened under the Collaborators Ordinance it has not been presented before the Court. They are just providing some captions in favor of them like --the Documents of Genocide, the demonstration of the rape victim, etc.

Justice Nizamul Huq: They are trying to show by these captions that those 6 cases do exist. Can you deny their contention?

Advocate Zaed Al Malum: No, I’m not denying. But the allegations under section-3 of the ICT Act are not same allegation which has been brought before under Collaborators Ordinance and they are not under the same law. Section- 5(1) of the ICT Act says as follows “The official position, at any time, of an accused shall not be considered freeing him from responsibility or mitigating punishment.”

Now hereby I would like to draw your kind attention on another matter- that is—there are several Medias who are using the term “Government Party” to denote us. We are again telling everyone that we are not the government Party; we’re the prosecution team, running in an independent manner. Chief Prosecutor does not represent the Government. So they must be careful about using the term Government party.

The citizens of this Country are looking for the trial of those perpetrators of 1971. Article- 7(1) of the Constitution says as follows: “All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution.”

By showing proper condolence and respect towards their comitment, the International Crimes Tribunal has been officially formed on 25 March, 2010. We’ve been appointed, and then the Investigation agency has been formed. It is totally running though the proposed way.

Now, coming to the point, Section-5 of the ICT Act is involved with the Collaborators Ordinance. Those are outside the ambit of the Jurisdiction of this Tribunal, so that the cases are that Ordinance should not get life under this Act. Section- 23 of the ICT Act also discusses about the scope of CRPC and Evidence Act under this tribunal. As, the Collaborators Ordinance has been revived; so the cases under that Ordinance should be done under the ambit of that particular Ordinance. The cases have not been transferred to this tribunal to be settled down. Under Section-6 of the ICT Act, the Government may form one or more tribunals for the trial of the matters. Now what would happen to those 36,000 people, it is not the headache of the tribunal.

Now, the defence have made an argument that the ICT Act amendments was made only to allow for his prosecution.

Justice Nizamul Huq: The contention of the defence is that at the time of creating the act the intention was to try the Army and the auxiliary forces. Whereas the Collaborators Ordinance is applicable to the civilians.

Advocate Zaed Al Malum: Some cases has been initiated under the Collaborators Ordinance. But here the matters under the ICT Act are totally different from the ordinance. It is not our duty to know the intention behind passing any law.

Justice Nizamul Huq: We might not know the intention behind a particular law.

Advocate Zaed Al Malum: It has been stated at the beginnin of the Act, for whom and for what reason this Act has been provided, this is as follows: ‘An Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law.’ And 47(3) of the Constitution says about…[ Justice Nizamul Huq interrupted. ]

Justice Nizamul Huq: Article- 47A and 47(3) of the constitution are the safeguards of the ICT Act. The opposition has articulated that- the Act was not intended for the civilians, after the amendment of 2011, the word “individual person” has been inserted. Now the Question is whether the Court can see the malafide matter, and the second question is- whether the amendment may extend to the matter of 1973.

Advocate Zaed Al Malum: If their submission is to argue that the amendment was illegal, then we must ask, whether there is scope under the tribunal to deal with this question.

Justice Nizamul Huq: It is the argument of the defence that the amendment was made only to harass some particular people, the word “individual person” has been inserted here.

Advocate Zaed Al Malum: 

They are contending on 2 points. First one is whether the amendment was against the spirit of the Constitution and was brought to harass their client. And another one is whether the matter of amendment would be settled down under the jurisdiction of this tribunal.

Till date, the amendment of the ICT Act is prevailing and it has not been annulled by any Court of Bangladesh. As the amendment was done by following proper manner, so that will be effective. So, there was not any amendment or act to harass anyone. This Act has been promulgated to redress thousands of victims of 1971. And the word “individual” has not been used to humiliate anyone. So there is no legal standing and footing on the favor of their claim about harassing any particular someone.

Now, I’m going to discuss about another important point- that is the principle of Double Jeopardy. At first, let me discuss about the principle. Article- 35(2) of the Constitution says as follows—“No person shall be prosecuted and punished for the same offence more than once.”

Now the matter is about the term “Prosecuted and Punished”

Their contention is that there are 6 cases prevailing under the Collaborators Ordinance and the Penal Code. Their contention does not involve the matter whether he has been acquitted or punished. It is apparent that the cases have been filed in Chittagong at 1972. Now we’ve to concentrate on the applicability of the principle of Double Jeopardy on those cases.

My Lord, please look at Page-211, Para- 2.140 of 2nd edition of the book- Constitutional Law of Bangladesh written by Mahmudul Islam. It says about the principle of double jeopardy- It says as follows- “To determine the application of art.35(2) three things are to be considered- (i) whether the accused was prosecuted and punished in a prior proceeding, (ii) whether the subsequent proceeding is a fresh proceeding or a continuation of a prior proceeding and (iii) whether the previous charge was substantially the same as the present one.”

Justice Nizamul Huq: According to the defence, a charge sheet means the initiations of the prosecution.

Advocate Zaed Al Malum: Here the term Prosecuted and Punished denotes one individual expression. Whether the accused was prosecuted and punished it is the question. So it has been elaborated in Page-211 of the book- Constitutional Law of Bangladesh written by Mahmudul Islam- whether the subsequent proceeding is a fresh or prior proceeding. There is no way to try anyone before 20 July, 1973 under the ICT Act. As the previous cases has been filed before the following date, so the present one is a fresh proceeding.

Whether the proceeding is a fresh one or whether the charge was the substantial matter before it; these are the cardinal matters of Double Jeopardy. The same principle has been uttered by H.M. Sirvai on his book of Constitutional law of India. The same principle has been dealt under the Article-20 of the Indian Constitution.

We are not doing a second proceeding on the same matter. The ICT Act-1973 has got its life on 20th July, 1973. So, before that till 19th July, 1973, there was no scope for filing a petition under section-3(2) of the ICT Act-1973.

Justice AKM Zaheer: So you are trying to specially mention the case of Notun Chandra Singh. That killing happened on 1971 His son filed a case on 1972. So it is not a fresh case. So far my memory says, the case has been withdrawn. We’ve to know, whether the case is pending before the High Court Division.

Advocate Zaed Al Malum: No My Lord. The prosecution has brought a fresh case.

Justice Nizamul Huq: In that case it was a murder and now under the ICT Act, it is to be settled whether it is a crime against humanity.

Advocate Zaed Al Malum: Now I would like to say the atrocities which has been occurred on that area and on Notun Chandra Singh was to destroy a religious minority.

Justice AKM Zaheer: So, now, I would like to ask why didn’t you frame those jointly rather than individually.

Advocate Zaed Al Malum: My Lord, may I say, whether it is under the ambit of the principle of double jeopardy.

Justice AKM Zaheer: Before the promulgation of the ICT Act-1973, it has already been confirmed in the constitution of 1972 that the same person should not be prosecuted and punished for the same offence. So, it is apparent that already the son of Notunchandra has filed a murder case. You’ve not made the matters clear on the formal charge. Framing the charge is dependent upon you providing materials. If you had not mentioned anything about the case of Notunchandra, or the writ before the High Court Division, we would not think about the matter. But under being a prima facie case under Section 3(2) (a) we’ve took the cognizance.

Advocate Zaed Al Malum: Please look through the Rule-38 of ICT Rules of Procedure, which says as follows— “If, after consideration and hearing under rule 37, the Tribunal is of opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offences of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.”

Justice AKM Zaheer: No. I’ve not seen anything contained in the FIR or Charge sheet. I am just saying you have not provided information about what is the actual status/ result of the writ before the High Court Division [against the earlier prosecution]. All the matters has to be fixed before charge hearing.

Advocate Zaed Al Malum: I would like to say, S.Q. Chowdhury has not been acquitted or punished for the cases which are pending against him.

Justice AKM Zaheer: Murder under the Penal Code and the ICT Act are not the same thing.

Advocate Zaed Al Malum: Yes ny Lord. The police cases against S.Q. Chowdhury and the case of ICT- BD 02 of 2011 are not the same case. So, the question of double jeopardy does not arise at all.

Now, come to another point, they are contending that before the trial and punishment of those 195 people, the tribunal is dealing with cases of the following accused to politically harass them.

Adjourned for lunch

Prosecution Zead-al-malum continued to submit his arguments against discharge petition as well as bail petition.

I want to submit the writ petition (M Hamidullah Khan vs. Bangladesh 63 DLR(2011) which the defence said supported their submission that their client will not be prosecuted unless the 195 prisoners should be brought first for trial and punishment.

One wing commander M Hamidullah khan, Bir Protic, has filed an application under Article 102 of the constitution of the people’s republic of Bangladesh with a prayer to issue Rule Nisi calling upon the respondents, Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs and Government of People’s Republic of Bangladehs, Ministry of law, Justice and Parliamentary Affairs to show cause as to why the New Delhi Tripartite Agreement signed by the then Foreign Minister, Dr. Kamal Hossain. Respondent No. 4 on 9th April, 1974 releasing 195 Prisoners of War, identified as crimes against Humanity, shall not be declared to have been made without unlawful authority and as of no legal effect and also with a further prayers as to why the respondents shall not be directed to produce a list of three millions martyrs who sacrificed their lives in the war of 1971 and also shall not be directed to produce the list of the auxiliary forces of Pakistan who worked under the then Pakistan.

Mr. AKM Fakhrul Islam appearing on behalf of the petitioner submits that the very release of 195 prisoners of war under “Tripartite agreement” signed on 9th April 1974, popularly known as the Delhi Agreement on the plea of clemency is absolutely illegal and stands against the provision laid down in Article 47(3) of the constitution read with the provision laid down in International Crimes (Tribunal) Act 1973 since the first amendment of our Constitution on 15th July 1973 provides for trial of prisoners of War who committed crimes against humanity. Mr. Islam further submits that the terms of the agreement to release the 195 War Prisoners in the name of clemency is also without jurisdiction because Article 49 of the Constitution does not allow to release any one without their trail by competent Courts/ Tribunal.

On perusal of the recital of the application it is clear that 195 prisoners of war, the alleged perpetrators of the crime against humanity were not under the custody of Bangladesh at the time of agreement, rather they were under the custody of India and they were handed over to Pakistan to protect the better interest of the country under a peace agreement and after lapse of 36 years that cannot be declared illegal by invoking writ jurisdiction, which is unrealistic and absurd, rather it is clearly a product of ulterior motive.

Justice Imman Ali rejected instant writ petition summarily, the instant petition is frivolous and vexatious and learned Advocate for the petitioner must take care that this type of conduct should never recur in future.

Therefore they cannot refer this case as the case was summarily rejected.

Justice Zaheer: Is this the case they referred? Whether the name of the writ petition was mentioned in their discharge petition?

Ziad-al-malum: No, they did not refer to the writ petition but ground of the writ petition was mentioned in discharge petition. So my lord they cannot say that petitioner cannot be prosecuted without bringing 195 offenders to this country.

Justice Zaheer: Did the (defence) say this? So I far as I understand they said how can an abettor be prosecuted where principle offender is absent.

Ziad-al-malum: My lord, rule 37 of International Crimes (Tribunal) Rules of Procedure, will not be applied for discharge petition. And there is provision of abetment in many national and international law. In a nut shell, bringing of 195 offenders is not related to Sallahuddin Qader choudhury’s matter as well as rule 37 is not a ground for his discharge. He should be punished as abettor as we know section 3(2) (g) of International Crimes Tribunal Act-1973 deals with abetment.

Justice Nizamul Huq: Learned prosecution you cannot say he is charged with only abatement.

Ziad-al-malum: Defence counsel said formal charge is not proper and complete. But we have followed all the rules and section as so required. According to rule 38 of the of International Crimes (Tribunal) rules of procedure, 2010. “If, after consideration and hearing under rule 37, the Tribunal is of opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offences of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.”

And according to sec 16(1) of ICT Act 1973, we have maintained all those things which should be included to the formal charge. Every charge against an accused person shall state:
(1) The name and particulars of accused person.
(2) The crime of which the accused person is charged.
(3) Such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged.

Zead-al-malum: My lord, defence raised a question, why the case had not been filed earlier? In response to their question I just want to say that there is no time limitation in case of criminal matter.

My lord, If I stay anywhere temporarily or permanently where the crime has been committed then it will be presumed I am involved in this offence also.

Justice Zaheer: Do you want to say, mere presence constitutes an offence? In Sec 3(2) of ICT 1973, it is clearly specified “committed” that means you should have ‘committed’ the offence not only ‘presence’.

In another charge also, the petitioner was charged for abduction. He directed musa and others for abduction. In that point defence also raised question why musa and others were not included in the charge? If crime was committed by all of them then why only one is prosecuted? For that reason Mr. Hena said, why pick and choose process is applied here? Why Mr. Sallahuddin Qader Choudhury is only liable?

Justice Zaheer said to the Prosecution, learned prosecutor do not take it otherwise, these all are my queries only. I am not here on behalf of you or the defence, I am fully a neutral body to hear from and ask question both of you.

Ziad-al-malum: If 10 persons commit crime then each and every person will be liable individually. A person is also liable if he is not trying to prevent crime which is occurred before him. Accused is liable under section 3(2)(a),(g),(f),(h).

And according to section 51 of International Crimes (Tribunal) rules of procedure, the onus of proof as to the plea of ‘alibi’ or to any particular fact or information which is in the possession or knowledge of the defence shall be upon the defence.