31 May 2011: Sayedee bail application

This hearing dealt with first the submission by the prosecutors of an investigation report put together by the investigation agency into alleged offences committed by Delwar Hossain Sayedee and secondly a bail application by Sayedee’s lawyer.

Submission of investigation report
Haider Ali, prosecutor, stood up and said that ‘The chief prosecutor has received the investigation report half an hour ago from the investigation agency. I have the report and it has 14 volumes and 4,074 pages. We have placed it in front of the tribunal.’

The Tribunal chairman said that he thought that the prosecution had received it last night. Ali replied saying that, ‘We received the full and final report only half an hour ago. I have the report in my hand now. But we have not had sufficient time to peruse it. The progress report will take time some time. We are formally saying that we have received the investigation report.’

The chairman asked how much time it would take the prosecutor to submit the formal charge. Ali answered that ‘we will submit everything as soon as possible. … Mentioning any specific time won’t be appropriate now.’

Sayedee’s lawyer, Tanvir Ahmad Al Amin, got up and said that the Prosecutor was supposed to have submited the progress report yesterday, but hadn’t. ‘This is a procedural lapse.’

He went onto say that, having received the investigation report from the investigation agency, according to rule 18 and 19 of the rules of procedures, there are 3 options for the prosecutor: preparation of formal charge in the form of petition; the Chief Prosecutor may initiate further investigation, or he may stop the investigation.

Bail application
Tanvir then said that he would start his bail application. He said that his client Maulana Deloar Hossain Sayedee came here today but he started feeling unwell that he had to go back to hospital.

The lawyer said that, ‘The prosecution says that the bail application doesn’t have any new grounds and that if released on bail he might interfere with investigation. If investigation is concluded, at this stage that ground cannot be reason to refuse bail.’

He said that the prosecutions have seven points arguing against bail
1. he will abscond the country
2. may interfere with the evidence, there were six general diaries (GD) filed against him.
3. he may destroy relevant evidence
4. Interfere with the judicial process of the tribunal
5. Terrorism in Bangladesh will increase if he is released
6. Investigation in last stage
7. Allegations are serious, and they have much evidence against him.

Tanvir then responded to these points

The accused is a Bangladeshi citizen and has no place to live outside Bangladesh. . He is willing to surrender his passport and he promises not to apply for any other sort of travel documents without tribunal’s permission. Also willing to stay at a permanent address in Dhaka. ‘There is no chance of him absconding,’ the lawyer said.

He went to say that there is no evidence of his connection with armed cadre. In relation to the 6 GDs claiming witness intimidation, his client is not directly named in any of them.

The tribunal chair said that the prosecutor claims that people supporting Sayedee are going to threaten and influence the procedure, not the accused.

Al-Amin responded by asking why that should effect his client. ‘If there is no evidence that I am interfering with witness, then there is no grounds.’ He said that his client was willing to commit himself not to make contact with any witnesses.

He went on, the investigation agency has finished their investigation work. They have submitted the report too. The investigation is closed now. So there could be no tampering of evidence. ‘Furthermore, my client is willing to guarantee that he will not go near any crime based area. So ground no longer can be relied on,’ he said

The lawyer said that the learned prosecutor argued that if granted bail he will use his influence against the tribunal. ‘But he cannot give any evidence to materialise this allegation. My client has been very co-operative with the investigation agency and tribunal. He has no desire to interfere with the tribunal. No intention to interfere.

He said that there is no possibility of increased terrorism in Bangladesh, and his client had publicly criticised terrorism in his public speeches. ‘This ground should not be taken into consideration.

He said that continuing investigation can no longer be a ground, as it has been completed.

In relation to the ground that the allegation is serious, Al-Amin said that the nature of the allegation cannot be a ground for refusing bail.

He then said that bail was a right rather than a privilege

He then referred to his client’s medical situation. He said that his client had gone to Ibrahim Cardiac Hospital (ICH) last 26th May for check up. Hospital authority, upon examining his health condition, advised to get him admitted to the hospital immediately.

‘He has several health problems including diabetes and prostate complications. He has rings in two veins in his heart and another two is almost 75-80 per cent blocked. He is very sick. He is 71 years old and he needs care of his family. We know the doctors and nurses are performing their duties but what would happen in case of emergencies. Someone from his family should be by his side. The reason is purely humanitarian.

There was another similar case where the accused was granted bail.

The tribunal chairman then said, ‘Don’t refer to another case here, it’s not relevant. In this connection, I want to say, I read in some report that “What kind of tribunal is this? They are granting bail to someone and not granting bail for another with the same case?”

The lawyer said, considering his age, his medical condition, obviously he will not abscond.

One of the tribunal members said that the care that he is getting in hospital, can’t be provided to him while he is in home. And the Tribunal chairman added that ‘you didn’t object to the treatment of the doctors and nurses in the hospital so that means you are happy.’

Al-amin responded by saying that he had no objection to the performance of the doctors or the nurses.

He then went on to cite provisions from the ICC and the ICCPR, the same ones that had been cited in previous bail application.

He ended by saying that, due to his clients health care and humanitarian point of view he would like to request bail for Sayedee and that his client was ready to accept:
- surrendering of passport
- not applying for travel documents
- residing at 914, Shahidbag, Dhaka
- reporting to tribunal on agreed basis
- not travelling to crime based areas
- not contacting witnesses
- not interfering with any part of the investigation process.
He added that surety can be given

Syed Haider Ali then rose for the prosecution. The Tribunal chair said that there were two questions he needed to respond to. First as investigation finished, no chance of accused interfering with investigation, and secondly, he is ailing and very sick.

The prosecutor said that the investigation was completed, and that it is submitted that there is a prima facie case establishing allegations relating to genocide. He has no right to bail. He said that the tribunal should remember that war crimes and genocide took place in 1971, and that both parties would agree that the petitioner is very influential.

He accepted that none of the six GDs mention sayedee’s name, but said ‘you know its Bangladesh, and so many things happen here, using ones influence and taking out your name from the GD.’

He said that the prosecution’s case was that Sayedee’s influence will increase if he is released.

Ali said that the petitioner is stating his ailment as a reason for bail, ‘but we have to remember the brutality of 1971.’

‘Moreover, they chose the best hospital which is specialised in these treatments. The tribunal will go on. His treatment is also going on. We want good medical treatment for the accused too. We can’t ignore that he is 71. but we can’t also ignore the pain of the countrymen during 1971,’ he said.

In relation to Alim’s bail he said that ‘An accused was granted bail by this tribunal but this is not the same case. We would like to keep him detained so that the trial process is not hampered.’

The defence counsel then got up to respond. He first said that he had ‘drafted the petition myself. No one drafted that for me.’ (the tribunal chairman had claimed earlier that the defence applications, ‘had come from outside’ since it contained language of ‘must’ and ‘should’ which he considered in appropriate.)

The Tribunal chair said then ‘you should be held responsible for using those words “must” “should”’ Islam said that they dis the drafts themselves and their is no other help involved.

Al-Amin then continued. He said that investigation is finished now. There will be prosecution if charges are pressed. ‘This is a voluminous report, I don’t know how, within half an hour of having the report, the learned prosecutor can decide there is a prima facie case and make a decision to press charges. He said, “We will proceed with charges,” the prosecution said. How does he know?’ he said.

The Tribunal chair pointed to section 8(2) of the Act and suggested that this prosecutor may have acted as investigator and as such he may be in a position to say that there is a prima facie case. Al-Amin replied that there is no evidence that this particular prosecutor had been working as an investigator, and that in any case he is presenting his response today as a prosecutor not as an investigator.

The lawyer completed his submission by saying that on humanitarian grounds. He would like to request the tribunal grant bail.

Court order
Justice A T M Fazle Kabir, one of the tribunal members read out the order.

‘Today the prosecutor has submitted investigation report before the tribunal against the accused person. In the meantime an application for bail have been submitted by the accused petitioner Delwar Hossain Sayedee praying for enlarging him on bail on the ground of illness

At the very outset Mr Syed Haider Ali submitted that they have already received investigation report of the accused person Sayedee today and they did yet receive an opportunity to go through such report. The learned prosecutor that they require some reasonable time for perusing documents and to prepare formal charge if necessary.

Mr. Tanvir Ahmad Al Amin, the learned advocate, appears on behalf of the accused petitioner Delwar Hossain Sayedee, submitted that accused is an ex member of the parliament (MP) and Islamic scholar who had been detained in custody for about 11 months without trial.

Learned advocate also submitted that MDHS was taken to the tribunal today. But his health has deteriorated and he was taken back to the hospital for some treatment.

The learned advocate further added that the jail authority has provided medical treatment to the accused in BIRDEM and ICH. Since his health condition has deteriorated, on medical ground he should be released on bail.

The learned advocated further submitted that since the investigation report has already been submitted to the chief prosecutor under such circumstances there is no chance of influencing the witnesses in the case or influence in investigation matters.

Learned advocate then submitted that considering serious ailment of the accused petitioner and since there is no chance of influencing the investigation he should be enlarged on bail for ends of justice.

Mr. Syed Ali Haider opposed bail by submitting that accused petitioner is a politically influential person, and though the investigation report is submitted they didn’t have chance to go through the report, there is every chance of interfering in the matter and influencing the witnesses to this case.

The learned prosecutor further submitted that the jail authority provided specialised treatment to the accused in one of the best hospitals in Bangladesh and the defence have no objection in regards to treatment, as directed by the tribunal.
The learned prosecutor lastly submits that if the accused person is enlarged on bail the trial process will be hampered as influential person.

We have heard the learned advocates and the learned prosecutor and perused the application for bail and objections of the prosecutor to bail.

It is an admitted fact that Sayedee is a cardiac patient and diabetic patient. In previous occasions tribunal has directed the jail authority to provide necessary treatment to the accused petitioner and the accused petitioner was brought to the tribunal but due to illness, he was sent back to hospital for treatment.

Since the accused petitioner is a patient and admitted in a specialised hospital, for treatment under such circumstances, we are of the view that since Sayedee provided specialised treatment, under such circumstances there should not be any interference in the manner of treatment and accordingly accused person is not entitled to give order for release for bail because of his health condition.

In view of the above facts and circumstances, we are not inclined to grant bail at this stage, accordingly prayer for bail is rejected.

Since the investigation report against Sayedee has been submitted to the learned prosecutor today, we are of the view that prosecutor should be given reasonable time to go through the report. 11 July is fixed as the date to submit the formal charges.’

After the hearing, the accused lawyer got up and asked whether the tribunal would allow at least one family member to attend his client. Apparently (though I did not see this) showed a letter from the Hospital to the tribunal in which the hospital authority had asked the jail authority to allow a family member to attend. The tribunal chairman rejected this. ‘No’, he said.

Comment
The order said that because he was getting proper treatment in hospital, Sayedee did not need to get bail due his health condition, and then stated that and added that he should not get bail because of the ‘above facts and circumstances’ without stating what these were.

The fact that Sayedee is getting good treatment in a hospital is not sufficient reason for him to be detained, there has to be other reasons, and simply saying that these reasons are the ‘above facts and circumstances’ when it is not clear what is being referred to is simply not enough. The Tribunal has to learn to give properly reasoned orders if it wants to gain credibility for its decision taking – particularly when none of its decisions to deny bail can be appealed.

16 May 2011: Criticism of British lawyer

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

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

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

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

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

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

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

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

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

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

Islam replied, ‘Yes, he was’.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Tribunal then passed the following order:

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

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

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

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

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

With this direction, the application is allowed.’

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

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

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

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

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

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

The Tribunal passed the following order:

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

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

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

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

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

British barrister ‘stands by’ ICT criticisms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 Jan 2011: SQ Chowdhury applications

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SQC refuted the allegations made by the prosecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In its order, the Tribunal stated:

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

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