10 Aug 2011: Sayedee charging adjournment

On 14 July 2001, when the tribunal decided that there was prima facie case against the accused, today was set as the date to hear the application for ‘charge framing’ in relation to Delwar Hossain Sayedee. (Nick Kourmjian, an international lawyer sent to Bangladesh on behalf of Stephen Rapp, US War Crimes Ambassador at large was present at the hearing, sitting next to the prosecutors.) See comments at the end.

Application by defence for adjournment, documents and access to client
Just as the chief prosecutor was about to argue why the tribunal should frame charges, the chairman of the tribunal informed the chief prosecutor that he would first like to hear the application of defense counsel. He said that apart from the application for adjournment of charge hearing, there were two other directions being sought.

Mr. Tanvir Ahmed Al-Amin stood up to argue on behalf of Sayedee.

He first, said that according to the order of the tribunal, the prosecution was supposed to serve documents by 19 July. On the 14 July, todays date was given considering 21 days passing. He said that the defence lawyers had gone to the register on the 19th but were told that the prosecution had not filed them. . In fact the documents were only filed on the 27 July. He said that if teh charge hearing goes on the defence would be prejudiced as they have not had enough time to prepare themselves. The tribunal chairman then said, 'next point'. Al-Amin continued by saying that, having looked at the formal charge documents, the defence lawyers found that out of 400 pages, 97 were illegible. "we tried hard to read them, but we couldn't' he said. 'We want you to direct the prosecution to reytpe the inelligible documents' He said that although he had himself read the legible documents, he had not been able to take them to the accused petitioner. ‘He needs to know what are the allegations against him so that he can advise whether or not to plead guilty,’ he said.

Al-Amin said that he had asked the jail authorities to have privileged communication with Sayedee but that permission had not been given. He said that in the application they had cited the relevant provisions of the jail code which refer to privileged communication.

He also said that Sayedee had ‘asked him to review the cognisance order, and that charge framing cannot take place before the hearing of the review order framing. ‘Since there is a process of review, we would like to review,’ he said.

The chairman asked the lawyer, whether or not he would be prejudiced if the “charge frame application” was heard today and the lawyer replied that this would definitely be the case.

There was then an argument between the lawyer and the tribunal chairman. The lawyer wanted to make longer submissions, but the chairman said that this was unnecessary.

Zead-Al-Malum, a prosecutor, then stood up. He was asked by the tribunal chairman about his view on the adjournment, and in relation to the request for other directions. Malum said that it was upto the tribunal whether to adjourn.

In relation to the illegible documents, Malum said that he would try to provide them. The tribunal chairman said that he understood that these are old press cuttings but if the documents are illegible he said that they would not be taken into account by this tribunal. You may try to submit them but there is a very low chance of succeeding.

The prosecution should keep in mind that they ‘cannot take any benefit from any illegible documents.’ About the privileged communication, Malum said that the process should follow what is in the jail code which allows the defence counsel to have meeting with the accused inside jail.

One of the tribunal members then said that according to section 9(5) of the 1973 Act, the defence should be providing a list of witnesses that it was going to rely on to the prosecution. (section 9(5) states: A list of witnesses for the defence, along with the documents or copies thereof, which the defence intends to rely on, shall be furnished to the tribunal and the prosecution at the time of the commencement of the trial.' This resulted in a discussion about when was the 'commencment of the trial' with the defence arguing that they needed adquate time to prepare themselves. This issue was not resolved, and the tribunal passed its order:

‘Application filed for order issuing directions taken up for hearing. Mr. Tanvir Ahmed Al Amin the learned counsel appearing for the accused petitioner submits that they have received documents submitted by the prosecution on 27.07.2011 and they are required to prepare themselves. Further submitted that 21 days may be given for preparation and that 21 days not given so pray for adjournment. In this respect, Mr. Ziad-Al-Malum the learned prosecutor submitted that it is upon the tribunal to allow the adjournment or not. Considering the submissions by both sides, we are inclined to adjourn the hearing for framing charges today. Let 18.08.2011 be fixed for hearing of framing charge.

The learned counsel appearing for the accused petitioner made a second prayer and said that the documents served upon them contained in total 97 pages of illegible documents. This tribunal also while perusing those documents finds that some documents are illegible. The learned prosecutor appearing for the prosecution submits that they will try to submit the proper readable pages, if they are given some time. Considering the submissions of both sides we are inclined to allow some times to the prosecution for submitting the readable documents for the defense and the tribunal, and they are to submit the documents within 14.08.2011. The learned counsel appearing for the accused petitioner will also receive those document on 14.08.2011 from the office of the register.

Regarding 3rd prayer for allowing the counsel to meet the accused petitioner in jail custody for consultation is taken up for hearing. This prayer is also not seriously opposed by the prosecutor. The jail authority where the accused Delwar Hossain Sayedee is now in custody is directed to allow Mr. M Tajul Islam and Mr. Tanbir Ahmed Al Amin, the two counsels, to meet and consult with Delwar hossain sayedee, the accused in this case on 16.08.2011 for two hours.

The defence lawyer Al-Amin then rose and said that ‘two hours is not enough. This person must know what the allegations are against him.’ The lawyer was told to sit down, but he then said, ‘We need to read through the whole charge. One day is not at all sufficient.’ He said that in their application they had sought two weeks adjournment. The tribunal chair said, ‘Whatever you have got just read that. Read whatever is available and legible.’ The lawyer also said that they should put into the order the need for ‘privileged communication’ The tribunal chairman then corrected the order and said that meeting could take place throughout the day and that the communication must be privileged. The chairman then proceeded with the order:

This communication between the learned counsel and accused will be a privileged communication which means that no person will be present for this communication inside jail. The bail petition will be taken up on date of framing of hearing.

Al-Amin then got up and said, ‘In case of framing of charges, this is a very serious matter. We have not been given an opportunity to consult with our client. Now you are only giving us two days between the consultation and the hearing. One week from now is not enough’ he said.

The tribunal chairman told the lawyers they had been given 21 days.

Al-Amin also argued that the application for review of the cognizance order can only be filed on receiving a copy of the order. The chairman said that the lawyers could get copies of the cognizance order that day.

Tajul Islam, another defence prosecutor, also told the Tribunal that he doubted that the allowed time for consultation would be enough.

The tribunal chairman said that they would give another adjournment if necessary.

Defence Press briefing to Bangladeshi media given by Tajul Islam

"You know that today was fixed for Maulana Delwar Hossain Sayedee’s charge hearing. We submitted two applications from defence. One was application for adjournment, we prayed for eight weeks time, because you know we were supposed to be provided the documents by 19th July. They gave the documents to us on 27th July. And 97 pages among the 400 pages documents (out of the original 4,000) that they gave us are unreadable. Then we said we have let our client Maulana Sayedee know about the charges in the documents if we want to defend him. We applied to the Jail Authority for privileged communication, and there is law requiring privileged communication. The Jail Authority has not yet allowed us that. So we could not speak to him. Moreover, we said, we will file a review against the cognisance order, as there is provision for that. But for the review you need certified copies of the order. We have not yet received that. So we told the tribunal if there is a review of the cognizance order there is no question to carry on with charge framing, and the process should be stopped at least until it finishes. We have not yet received all the documents. So, without scrutinising these documents we can not take part in the charge hearing. After hearing our petition, the tribunal only allowed one week for us. But we want to say, you know, during the last one year, prosecution for the sake of scrutinising different type of documents, sought time, and they took one year. And sometimes they could not even finish scrutinising the documents within the timeframe.

Today, when we are at the almost-final stage of charge framing, we sought eight weeks. Our grounds were specific. But the tribunal only gave us one week. They permitted us to go to the Jail on the 16th of August to talk to Maulana Sayedee. So, we are getting only one day (the 17th), and on the 18th we have to come and place our arguments for the case, which is, so to speak, unrealistic and very hard.

You know, charge hearing is a complex hearing where intense preparation is needed for law and facts. Without this sort of preparation, to defend the accused in a case like war crimes is absolutely impossible. That’s why we prayed for sufficient time to the tribunal. The tribunal gave us one week and said they will give us more time if needed. But we believe, the time we got, is not sufficient and it is impossible to defend our client with proper legal arguments.

Q: Is there any limitations regarding the timeframe? Isn’t it three weeks?

A – No, there is no limitation of the timeframe in the act. The three weeks that you are talking about is not applicable in this case. It is applicable after framing the charges, and that is also stated as “at least”, and that can go up to six months or one year, there is no obstacle for that.

But before framing of charge there is no time limitation. And in international tribunals they are allowed years after years in this sort of cases.

Press interview by AFP, BBC and myself with Tanvir Al Amin

AFP: Are you happy with the few hours allows to contact your client

Lawyer – Certainly not. But later on the tribunal said we can use the whole day. It needs a series of meeting. More importantly, after 16 August, we are getting only one day time. On 16th, whole day we will have to discuss the matter with the accused petitioner and then we will have only one day, i.e. the 17th for preparation. It is not at all practical. We have submitted that to the honourable tribunal to extend that. This time is not at all sufficient. Prosecution had months for their preparation, for scrutinising papers and documents, months and months, almost a year.

We get the document, and we get to consult with the accused on the 16th and we have only one day time, the 17th, and on the 18th we’ll have to submit for charge hearing. We said that is not sufficient and we prayed for eight weeks time. Our client/ the accused also instructed us to seek review of the cognizance order which was passed on the 14th July. We have applied for certified copy of the order. The tribunal told us today that the certified copy is ready and we can get the copy. So today we will get the copy about the cognizance order which was passed on 14th July. Then we will have to do review petition of the cognizance order and after that we need at least three weeks time for preparation of all these things. The accused petitioner must get sufficient time to prepare for the formal charging.

BBC: How often did you get the chance to meet your client in the past year?

Lawyer – For the last one year I could only meet him two times and that was not even privileged communication. We were surrounded by security personnel. That’s why on 4th August we made an application to the jail authority, according to rules of Bengal Jail Court (section 683 and 687), which provides that a counsel should get privileged communication to the accused petitioner. So, we applied to the jail authority that we should get according to that provision we are entitled to get privileged communication. But we haven’t heard back from the jail authority. In the earlier petition they denied our verbal request for privileged communication. And today the honourable tribunal has directed the jail authority to give us privileged communication allowing us to meet the accused on the 16th August.

DB: You said you only got two visits with your client in the previous year, how many times did you apply?

Lawyer – We have applied several times and in most occasions they were not even ready to receive the application. They said, “Sorry, we can not take this type of petition.” We used to provide specific law/sections in those applications.

DB: You said you need eight weeks to prepare for the formal charge hearing. Tell me why you need eight weeks?

Laywer – I said at least eight weeks. Because charge framing and hearing takes complex legal arguments that are made based upon facts and law. So the documents they submitted, we have to go through in full detail of those documents, and find out which are relevant for us and which are not for our case. So this requires time. 500 pages set is not a small document. We will need series of communication with the accused petitioner before that. The accused petitioner must know what the allegations are. And we can only act upon his instruction.

DB: Is it normal before charge framing for the accused’ lawyer to put his arguments?

Lawyer - It is, it is normal. The petitioner may put complex legal argument why the charge should not be framed.

Comments
1. There appears to be a reluctance on the part of the tribunal to give the defence a proper period of time to prepare themselves for the key hearing of the 'framing of the charges' The prosecution were supposed to serve copies of the charge application and supporting evidence.to the defence on 17 July. In fact they only did so on 27 July. Amongst the documents there were a number of illegible documents, and legible copies of these documents will now only be given on the 14 August, and then a meeting with the client on 16 August, with a hearing on the 18th. That seems extremely rushed, to put it mildly, considering there are over 400 pages of documents altogether!

From the point of view of an observer it really does look like the tribunal is trying to rush the defence and not giving them proper opportunity to prepare themselves. It really does not look good.

2. The hearing highlights the limited access the defence lawyers have to Sayedeein jail. It needs to be understood that this is to some extent a reflection on the way in which criminal justice generally operates in Bangladesh, rather than something specific to this tribunal: it is not that common for criminal defence lawyers in Bangladesh to seek access to their clients at all in jail, and it is likely that the tribunal judges are simply responding to their lack of appreciation that good defence lawyering requires proper communication with their client - that it should be a right rather than a privilege, which seems to be the way the tribunal is dealing with the issue.

3. The comment at the end of the hearing by Justice ATM Fazle Kabir concerning the application of section 9(5). Is the tribunal going to argue that the trial has 'commenced' and that at this early stage, before the defence will have been able to have undertaken any proper defence investigation etc, they will have to give the defence a copy of their witnesses. If so, this will be a real travesty! It will be interesting to see how this plays itself out.

1 Aug 2011: 'Exceptional Circumstances'?

Three issues were dealt with by the tribunal at this hearing. First, the submission of a progress report of the investigation into Salauddin Quader Chowdhury. Secondly, the submission of the investigation report into the cases of four Jamaat leaders – a more significant moment, as a year had now gone since the investigation had started during which they had been detained in custody, and new amended rules meant that the investigation should end unless there were ‘exceptional circumstances’. And thirdly, a bail application on behalf of these four accused, which also should, under the newly amended rules of procedure, be successful unless it was found there were ‘exceptional circumstances.’ [See end for comment on this hearing]

Progress report of Salauddin Quader Chowdhury
Salaudduin Quader Chowdhury was not present in court, and no explanation was given as to why he had not been brought to court.

A family member told me that a night before the hearing they were told unofficially that Chowdhury was going to be brought to trial, but then told in the morning that this was not going to happen. No member of the family attended the hearing as far as I could tell.

A progress report was submitted by one of the prosecutors, Zead-al-Malum, to the tribunal along with a copy to be given to the accused. The tribunal then spent some minutes reading it

The tribunal chair asked Malum whether the documents that he had with him were linked to the accused person. The prosecutor responded, ‘Yes, my lord, they are. There are reports by ABC, CBS, NBC news channels, who went to all the corners of Bangladesh starting from 2nd March, 1971. There is also testimony of 35 witnesses. There is so much material. The research team still haven’t finished going through even one DVD. There are 16 DVDs, divided into 376 segments.’

The tribunal chairman again repeated the question. Malum responded, ‘Yes, there are materials related to the accused, plus there are some which are linked to others as well. The investigation is ongoing. We also have received eight out of twelve documents from the Indian embassy which contains evidence that are linked with the accused. The investigation officer Nurul Islam is away for some time, but Shyamol Chowdhury is now conducting the investigation under the supervision of Abdul Hannan.’

The tribunal chairman said, ‘Look, you can not get away by saying that some investigation officer is absent or away.’

The prosecutor responded, ‘No, my lord, what I want to say is, even though Mr Nurul Islam is away, the investigation is going on and we will submit the formal charge after its completion. But we need some more time for that; three months will be good.’

The tribunal said that it, ‘has no problem if more time is sought …. So, you want a three-month extension?

The tribunal then passed an order.

“Seen the progress report submitted by the learned prosecutor praying for further time to complete the investigation. Perused the progress report and considered the prayer for time. The prayer is allowed for the ends of justice until 4/10/2011 for submitting the investigation report or in default to submit the progress report, to the tribunal.”

There was a short interruption, when the absence of the accused in court was noted and the prosecution had stated that the progress report and copies of order had been sent to the accused but he had refused to accept them. The order continued.

“May a copy of this progress report along with the copy of this order be send to accused Salauddin Quader Chowdhury, who is in jail custody, for his information.”

Progress report relating to Nizami, Mujahid, Kamruzzaman, Molla
At the last hearing the prosecution were directed to submit its ‘investigation report’ into the four accused – Nizami, Mujahid, Kamruzzaman, Molla - for a hearing on 1 August.

At the beginning of the hearing the prosecution handed in a progress report.

The chief prosecutor stood up and stated that today’s date was fixed for submission of investigation report. ‘The investigation is not completed, so there is a prayer for a further 90 days. Though I hope 60 days will do.’

The tribunal chairman asked, what exactly they had been doing for such a long time. ‘Do you have any papers, reports or anything?’

The prosecutor said that that all the papers had been submitted. ‘There has been no dirth in the doings of the investigation itself,’ he said

‘The investigation covers a vast area – five districts, namely Dhaka, Mymensingh, Faridpur, Pabna and Jessore. Investigation in two districts is yet to be completed. There are areas like Keraniganj in Dhaka which has not been covered. These five districts are a big area to cover my lord. ‘

The tribunal chair asked, ‘How many days would you require to press the formal charge?’ The chief prosecutor responded that he needed, ‘60 days’.

The tribunal chair asked whether this meant for submission of the formal charge or of the investigation report? ‘We are not concerned about the investigation report. That is your (prosecution) issue. We are concerned about the formal charge.’

‘90 days would be helpful to complete the whole process,’ he replied, adding that he would submit four separate charges.

The tribunal then asked, ‘It seems you have so much evidence, so many reports – why are you asking for more time?’

He responded, ‘My lord, this is a big and important case. Many people are involved in the investigation process, which has to be done thoroughly. Otherwise there will not be a strong case. We don’t want to leave anything out. Our petition also says why further time is needed. We need time because the incidents under consideration happened spanning a large area. More time is needed to complete a detailed investigation. We firmly believe that if we get a 90-days extension we can finish the whole process.’

The tribunal chairman said that believing is not enough. ‘You know that I’m from Shagorpara area where “chor” emerges in the river. But when there are no “chors” people say that there is “bisshash-chor” in the river [believe-chor, meaning there is a make believe chor in the river[, while there are not any. Anyway, so, there will be four formal charges. And you need 90 days to complete the formal charge.

Tajul Islam, representing the accused, then got up to respond. He said that this was a day for the submission of the formal charge – but they have not submitted this. Instead this is an application for more time, but there is not a single new word.

He quoted rules 9(5) and (6) of the rules of procedure which says:

“If an accused is in custody during investigation period, the investigation officer shall conclude the investigation within one year of his arrest under the Rules. In case of failure to complete the investigation as specified above, the accused may be released on bail subject to fulfilment of some conditions as imposed by Tribunal. But, in exceptional circumstances, the Tribunal by showing reasons to be recorded in writing may extend the period of investigation and also the order detaining the accused in custody for a further period of six months.

After every three months of detention of the accused in custody the investigation officer through prosecutor shall submit a progress report of investigation before the Tribunal on perusal of which it may make a review of its order relating to the detention of the accused.”

He said, ‘If they can show there is any exceptional case, only then can they continue with detention.

He then went on:

In Page 9, paragraph 6 of the prosecution’s application it says, “As investigation report is at the final stage, the guilty party should be kept in custody ..."

We have to say, the word should be ‘accused’, as nothing has been proven yet. The prosecutor has also pointed out that they are going to abscond if they are released on bail. We have talked about this before. We said they are going to surrender their passport and will not travel without the tribunal’s permission. They are willing to follow any condition imposed by the tribunal. The prosecution also talked about their being a influential political figure. We also talked about this before.

They are also saying they have threatened to kill witnesses. But we want to ask when, where and whom?

We are also this sons of the soil. We also want the justice for the atrocities in 1971. But not like this.

Prosecution also said the accused have cadre gangs in their pocket, which is also not true. They are saying the accused are trying to destroy the evidence, but didn’t say where and how.

Nothing has been substantiated in their allegations. There is also no exceptional case for which they can apply for the extension of the detention of the accused persons. Has there been any earthquake or Tsunami in Bangladesh? We have been hearing the same thing for a year. They have to comply with the ICT rules.

And you [the tribunal] are saying to the prosecution every time that the progress made in the investigation is good. These “Sweet Talks” are just helping the prosecution and extend the time of detention of the accused persons ...

The tribunal quickly intervened and said, ‘You should watch your language!’

(Verbal fight breaks out between defence and prosecution lawyers)

The tribunal chairman said, ‘Any lawyer standing back there, sit down! The defence counsel said something wrong and we objected. This is our matter. Why did you start fighting back there? You all should be careful.’

Tajul Islam said,

‘My lord, I’m extremely sorry for the wording. I didn’t mean anything malicious. It was unintentional.

The prosecution’s 4,000 page report has became 400 pages – this looks like a mountain has given birth to a rat. All the time you are saying we are at the fag end of the investigation. Now they should define what fag end is.

At page 10 para 8, of the prosecution application the prosecution said ... “This is an exceptional trial,” -- without even saying what are the exceptional circumstances under which the accused persons should be kept in detention.

Yes, of course, it is an exceptional trial, because nothing like this ever happened before. This kind of trial is the first of its kind here.

But, the requirement of rule 9(5) and (6) is not fulfilled. The rules are framed by this tribunal, and as long as they are here they must be followed. So, the time-seeking prayer by the prosecution should be rejected.

The tribunal chairman them said, ‘I want to say to all of you that you all should restrain yourselves. The happenings inside the courtroom are being presented distorted outside, in the media and press.’

Tajul Islam said, ‘My lord, we requested that you record the whole proceeding of the courtroom. If every thing is recorded nothing can be distorted. That is the rule everywhere around the world. They record every single thing, every minute detail – even if someone coughs.

The tribunal said, ‘Not yet. We’ll see about that, it’s under consideration. But for god’s sake say exactly what has been said here. Don’t say something that has not been said.’

At one point when Islam switched from English to Bangla, the chief prosecutor commented that Tajul should ‘speak in Urdu’ [the language of Pakistan].

The Tribunal gave its order.

‘Today is fixed for submitting formal charge, or in default, progress report by the prosecution. Accused Ali Ahsan Md Mujahid, Md Kamaruzzaman and Abdul Kader Molla are present in the tribunal. They have been produced by the prison authority. Regarding accused Motiur Rahman Nizami a note has come from Senior Jail Super, Central Jail Dhaka, informing this tribunal, that he has been in Chittagong in connection with special tribunal case no. 150 of 2004 and as such he can’t be produced before the tribunal today. On perusal of this note we accept the absence of Mr Motiur Rahman Nizami in this tribunal. He authorised Mr Tajul Islam, learned counsel, to represent him in this tribunal in this hearing today.

Mr Golam Arif Tipu, learned chief prosecutor appearing for the prosecution has filed a progress report and submits that some more time is required to complete the investigation. He submits further that the investigation is at the fag end stage and pressed before us some volumes of documents, and offered them to us as materials in connection with this case. He submits that in preparing the investigation report and the formal charge those papers are to be perused and scrutinised, and after that only the formal charge can be prepared and submitted in this tribunal.

Further submitted that today the detention of the accused persons is completing one year, and he prayed for extension of the time of investigation and also detention of the accused persons. Lastly he submitted that for ends of justice this tribunal may allow the prosecution some more time to complete the investigation, prepare the investigation report and then the prosecution will submit it before the tribunal. He submits that the documents of this case so voluminous that it may be considered as exceptional circumstances to this case.

Mr Tajul Islam, learned counsel, appearing for the accused persons, submits that from the beginning of the investigation the prosecution is submitting that the investigation is at the fag end stage and soon the formal charge will be submitted. But the formal charge was not submitted. Today one year detention of the accused persons will be completed and the rules show that this must be completed within one year. But the investigation has not been completed and the prosecution are praying for more time. Mr Tajul Islam further submits that no materials have been presented before the tribunal to consider that exceptional circumstance arises for extension of time of the investigation, and as such he prayed for appropriate order in this regard.

We heard learned chief prosecutor and the learned counsel for the accused persons, perused the progress report and also saw the voluminous documents and perused one of the documents. From perusing those things, we are of the view that these documents are scrutinised for submitting the formal charges to the tribunal and for that reason the time of investigation should be extended as prayed for by the prosecution.

On perusal and on consideration of all these facts and consideration of the fact that today one year has passed of the detention of the accused persons, we will allow some time for the investigation agency to complete investigation and prepare investigation report and some more time for preparing the formal charge for submission in this tribunal. However, the investigation report and formal charge being the internal affairs of the prosecution side, we are of the view that three months time will be enough for them to complete all these things and submit the formal charge. We direct the prosecution to submit the formal charge within 1/11/2011, if any.

Bail application
Tajul Islam, who in this application represented Kamarazuman and Nizami, began to argue in favour of bail. He argued that the same arguments employed in relation to the application of rule 9(5) also applied here.

He said that the first submission was regarding this rule. ‘What are the exceptional circumstances that make detention necessary.’ He said that there is nothing in the prosecution application saying what is ‘exceptional’.

The tribunal chairman intervened and said that the tribunal will consider what is exceptional circumstances.

The lawyer however argued that the burden is on the prosecution to put forward what are the exceptional circumstances.

‘Exceptional circumstances are things like a Tsunami. The prosecution should say something about what are the exceptional circumstances and the tribunal will then decide whether there exists exceptional circumstances.’

‘So, my lord can consider the bail option if nothing exceptional happens. The prosecution has not completed the investigation within one year, and there is no exceptional case. So the accused may be released on bail.’

‘The prosecution has been saying the same things again and again about the accused absconding and their influence. We have rebutted all these before. We said that the accused persons will not abscond, they will surrender their passport, they will not apply for travel documents without the tribunal’s prior permission and they are ready to be under monitoring. We have said everything. We have offered everything in front of the tribunal. So we will request the tribunal to grant them bail.

Time and time again, it has been said that they were involved in crimes against humanity, and they were leading mass killing. But at that time one of them was 17 and not a head or commander of any organisation, such as other war criminals like Slobodan Milošević, Ratko Mladić and Radovan Karadžić.

We also have reason to think that there is a political motive behind this trial. If the accused persons were not politicians or MPs, I think no one would have tried to harass them. There is a rift between the party they belong to and the ruling one. So the ruling party is trying to smother them. They are now detained for a year. So, for the sake of justice we are praying for bail for the accused persons.

We also want to ensure fair trial. We will provide any kind of assistance from our side. We also guarantee to abide by any conditions imposed by the tribunal.

The tribunal chairman asked whether Motiur Rahman Nizami and Md Kamaruzzaman were involved in other cases other than this one, and was told that they were.

Next, Munshi Ahsanul Kabir sought bail for Ali Ahsan Muhammad Mujahid. He adopted the arguments made by Tajul Islam, and said Ramadan is on going and for the past 30 years my client has been performing “Itikāf” [an Islamic practice consisting of a period of retreat in a mosque, for a certain number of days in accordance with the believer's own wish. It is most common during the month of Ramadan, especially the last ten days.] He said that his client would not be able to perform this while in detention or in a jail. There’s no mosque inside the jail, he said.

‘The other points that I want to present has been said by Mr Tajul Islam, so I’m not repeating them. But at least on religious grounds, to allow them to perform their prayers and Itikāf the accused persons may be granted bail,’ he said

Another lawyer got up and argued for bail on behalf of Abdul Kader Molla. ‘Abdul Kader Molla was shown arrest on 30/12/2010, and one year of the investigation has passed. Now my client has the right to obtain a bail,’ he said. The tribunal chairman corrected him and said, ‘Not right, they “may” obtain bail.’

The lawyer said that the prosecution did not give any reasons why after one year has passed, what are the circumstances that justify not giving bail. They did not set out what were the special circumstances,’ he said.

He then referred to his bail application and said that his application was 64 years, he was old and sick, with ailments from various diseases. He also said that he was dependent on insulin and the sugar level is very high. The jail authority doesn’t have any facilities to store insulin and there is also no option of checking sugar levels. So, the sugar level is out of control now, which is putting my client’s life into jeopardy.

He said that he also has eye and prostrate gland problems. He want onto argue that he was transferred to Kashimpur jail from Dhaka central jail on 4/6/11, but that it was quite impossible to receive proper treatment facilities there and there is a history of mal-treatment by the jail authority.

He also said that his client had a heart condition and Kashimpur jail has no facilities regarding that. It is almost like throwing my client into the jaws of death.

Finally, he said there were no special circumstances for which they should be kept in detention. ‘Considering his serious ailment I pray for bail for my client Abdul Kader Molla,’ he ended.

Prosecution response: Ali Haider then got up and spoke for the prosecution.

‘At first I want to say that today’s courtroom incident was absolutely unwanted and uncalled for. We should all try to avoid that and we should be careful so that it never happens again. I’m asking for everyone’s cooperation.

I have some new things to say.

Firstly, the investigation is going on and order has been passed to continue further investigation. There is no law inside and outside Bangladesh that we have to substantiate anything we found in the investigation. We have submitted the progress report for your lordship’s consumption and we don’t have to substantiate anything to anyone other that the Tribunal. There is nothing regarding that in international law or domestic law.

They are saying we have to substantiate what we found, but we don’t have to.

Secondly, they are saying 4,000 pages turned into 400 pages. The defence counsel knows very well, what we have to submit and when. We submitted things that are necessary.

About the absconding, I’ll say there was a section who fled the country after the victory on 16th December, 1971. In the investigation report the investigation agency found out that the accused persons fled the country.

About the exceptional circumstances they cited from rule 9 (5). The rule was not in the original rules of procedure. The rules of procedure was amended by the Tribunal. We can say about this amendment, and the creation of the provision of releasing them on bail after 1 year, was an “accused-friendly” amendment. We (prosecution) were affected by the amendment. But, we don’t want to say this. The tribunal did what they thought was necessary.

The onus is not on us to show exceptional circumstances. On perusing the progress report if the Tribunal thinks that there is an exceptional circumstance, if they see there is something exceptional, they are going to take their decision based on it.

My last submission is that the case itself is not a case of single murder or anything. It is a case where lots of civilians were killed. The mass killing was a planned one. This is itself an exceptional circumstance. In this situation there is no question of not saying that there is nothing exceptional.

About the bail prayer, we would like to say that bail does not need any act or any law. We know, the defence knows, that bail may be granted depending on the nature of crime.

But the investigation report shows that the crime that was committed was not a bail-able offence.

There has been detailed talk about the health condition of the accused persons. We are saying again that we will do our best to assist in receiving the best treatment for them. We will also look into the problems regarding insulin and other treatments.

About Ramadan, we will observe if there is any problem regarding saying prayers and performing Itikāf. And, I think there is a provision of performing Itikāf inside the prison.

There is a difference between a religious leader and a political leader. Religion is a personal issue. So many Pir, Aulia and Dervish came to our country and some of us also got converted into Muslims. So many of us were not even Muslims. But in case of religion we are ready to support as far as possible.

Other grounds against the bail were presented earlier to the tribunal, so I won’t respond to them. On the basis of all the above the accused petitioners should not be granted bail.

Tajul Islam then got up to respond to these arguments.

The prosecution has raised a ‘billion dollar question, he said. ‘As per the rules there is a requirement that need to substantiate that there are exceptional circumstances. Now he is saying that not need to substantiate the allegations at all.

What is their intention behind this? What do they actually want? What do they mean by we don’t have to substantiate? So you can keep punishing the accusing persons keeping them detained. So, why is the trial necessary? They can be punished straight away.

This is a country of common law or adversarial system, not a country of inquisition system like France. Court will listen to both sides and scrutinise and pass their orders.

Investigation agency performs the investigation and prosecution provides it to the tribunal. But, tribunal can’t perform any inquisition here.

The tribunal interrupted the defence lawyers and said, ‘what you are saying is at the trial stage, not the investigation stage. At the investigation stage the prosecution is not obligated to present the findings to anyone except the tribunal.’

Islam responded by saying, ‘But my lord, no exceptional circumstances could be presented by the prosecution.’

The tribunal responded, ‘Would you please stick to the point of bail petition? Our order considered something as exceptional and that is enough.’

Islam again said, ‘But, why is the prosecution not substantiating anything?’

The Tribunal chairmn said, ‘Please stick to the point. You are quite a senior lawyer. Don’t you understand are the court norms. Stick to the prayer of bail, you are in reply. You prayed for bail. They opposed it. And you should give your reply.

Islam then referred to the prosecution argument that the accused persons will abscond.

‘None of my clients fled the country during that time [after 16th December, 1971.] There is no question of absconding this time now,’ He said

He finished by saying, ‘Considering the long one year detention, their health condition and the political harassment the accused petitioners should be granted bail.’

The tribunal then passed its order:

"Four applications of bail were filed by the accused Motiur Rahman Nizami, Ali Ahsan Muhammad Mujahid, Md Kamaruzzaman and Abdul Kader Molla are taken up for hearing. Mr Tajul Islam, the learned counsel, appearing for accused Motiur Rahman Nizami and Md Kamaruzzaman submitted that this is a case where one year has elapsed regarding the detention of the accused persons in custody and the prosecution couldn’t submit formal charge as yet. By referring to rule 9(5) of the rules of procedure Mr Tajul Islam submitted that when the investigation agency couldn’t submit formal charge within this period of one year the rule says the accused may be released on bail subject to fulfilment of some conditions imposed by the tribunal, and pressed for bail on this point.

He further submitted although the rules allow the tribunal to extend the period of detention for further six months, reasons of ‘exceptional circumstances could not be pressed before the tribunal by the prosecution and there has been nothing on record to substantiate ‘exceptional circumstances’ and that the accused persons are entitled to be given they do not find any exceptional circumstances, and the tribunal is required to enlarge them on bail.

Tribunal chairman paused and asked the accused lawyer whether this was right. ‘Mr Tajul Islam? I have to be very careful and put down every point because I don’t want to put anything that has not been said (allegedly)!’ [This appears to be a reference to the previous order where the tribunal chairman added into an order an argument that he said was made by the prosecution that was not actually made.]

Mr Tajul Islam then submitted that the accused persons are in custody and they are respected persons of the society. One of the petitioners, Mr Motiur Rahman Nizami, was a minister in the past government. He further submits that the prosecution may continue with the investigation but for ends of justice the accused persons may be granted bail. He also submitted that these petitioners are sick and has been in custody for long time, and Ramadan is coming soon and they want to perform Itikāf, saying that they are all religious-minded people.

Munshi Ahsanul Kabir, learned counsel, appearing for the accused Ali Ahsan Mohammad Mujahid, submitted the same points as have been submitted by Mr Tajul Islam. He further submitted that the accused person is sick and he requires medical treatment regularly but in jail custody he is not getting proper treatment. He further submitted that the accused person wants to perform Itikāf and asks that the tribunal consider this aspect. He was also a minister in the last government.

Mr Moinuddin Khan, learned counsel, appearing for the accused Abdul Kader Molla, has also submitted the points submitted by Mr Tajul Islam and Munshi Ahsanul Kabir. He also submitted that Mr Abdul Kader Molla is old and sick and need insulin regularly, but in Kashimpur jail this is not available so there is a problem in his treatment. He further submitted that the investigators of the accused person can not bring a case of this nature against him and so also prayed for bail for the accused person.

On the other hand, Mr Syed Haider Ali, learned prosecutor, opposing the prayer for bail submits that the bail prayer of these accused persons has been rejected by this tribunal three times each. He further submitted that this is a case where the involvement of the accused person so clear, proved by materials collected by the Investigation Agency, that these people can’t be released on bail at this time when investigation is at the fag-end stage.

He future submitted that rule 9(5) allows to consider the prayer for bail of the accused persons but facts and if the tribunal is satisfied can enlarge them on bail but that facts and circumstances of this case where the time for investigation has been extended by three months today, the accused persons may not be granted bail.

He further submitted that all accused are influential persons of the society and political leaders, two of them were MPs of last government and as such they have got ample influence over society, to influence the investigation and even to go into hiding.

Lastly he submitted that after liberation of Bangladesh, the investigation agency found that, these people went into hiding and as such if entered on bail they can go into hiding considering these aspects he submitted that the accused petitioners may not be granted bail.

On the ground of health he submits that this tribunal has passed orders regarding treatment of the accused persons and there have been no allegations that those orders have not been complied with. So bail prayer on medical ground can not be accepted. Although he submitted that if any problem is faced by the accused persons in getting proper treatment, the prosecution will get involved and they will take proper steps to ensure treatment of the accused.

Regarding Ramadan and Itikāf, he submitted that keeping fast, the scope is available to the accused persons if they are in custody and if they want to perform Itikāf.

We heard the learned counsel and learned prosecutor and given our anxious thoughts in the matter. There are two new points asked by the accused persons today. First point is one year of detention has elapsed and under rule 9(5) they are allowed to get bail and the second point is Ramadan and Itikāf. Regarding first point just today we have extended the investigation for further three months. The accused persons are in custody for one year and the rules provide that they can be allowed bail if the court not substantiate thate there are exceptional circumstances. We have considered exceptional circumstances in the order today earlier, and we are of the view that severe exceptional circumstances appear while considering bail for the accused persons.

Regarding the Ramadan and Itikāf we are just informed that by the counsel that there is no provision to perform Itikāf in jail custody.

We have considered there is no bar to continue fast in the jail custody. Regarding Itikāf we are of the view that if it is possible the Jail Authority may allow them to perform Itikāf inside the jail.

Regarding the health condition of the accused persons we again direct the jail authority to arrange proper treatment of them inside jail and taken to hospital, and we direct the learned counsel to take help of the prosecution for the treatment of the accused persons including from the chief prosecutor and take help of them.

With all these observations the prayers of bail of the accused petitioners are therefore rejected. Let a copy of this order be sent to the prison authority.

The accused lawyer asked for a copy of this order and the tribunal chairman asked that they should apply for it stating the purpose and apply for an authenticated copy. ‘We’ll see,’ he said

Comment
1. It is notable that Salauddin Quader Chowdhury was not present at the tribunal. No explanation was given as to why not. It is also notable that the tribunal was willing to give copies of the investigation progress reports to Chowdhury – when they have not been willing to do so for the Jamaat defendents. It is unclear what is the reason for this difference in tribunal conduct. The Jamaat accused could well ask why Chowdhury is being given copies of the investigation report, when their lawyers are not.
2. On the issue of ‘exceptional’ circumstances relevant to both the issue of the extension of the time of investigation and for bail, this has been discussed in an earlier blog written immediately after the hearing. One additional issue should be raised. It is pretty remarkable that the prosecution, in its written or oral application, did not engage with why the circumstances were ‘exceptional’. In court, the prosecution said that it felt that it did not need to as it was for the tribunal to make its own decision, and it could do so without the prosecution decisions. However, any competent lawyer would know that if there was a requirement in the law that something be ‘exceptional’ in order for a particular result that you are seeking takes place, as a lawyer you obviously set out the arguments why this is indeed the case. The failure of the prosecution make those arguments is really very remarkable.

There appear to only be two explanations for this vacuum. The first is total incompetence on the part of the prosecution. Whilst, the competence of the prosecution team is certainly an issue, it is difficult to imagine that it can be quite so incompetent not to recognise that it should make arguments that would allow the tribunal to rule in its favour. The second possible explanation – and the one that, I would argue, seems to be more likely to be closer to the truth - is that the prosecution was simply entirely confident that the court would support its position, and felt it did not need to argue why the situation was ‘exceptional’. Perhaps a bigger question is why the prosecution could feel so confident?
3. On the general issue of the tribunal failing to provide reasons for its decisions - an issue generally well rehearsed in this blog - see this article, I published in New Age newspaper 'The Age of Reasons'

Govt bans entry of British defence lawyer

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

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

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

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

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

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

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

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

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

Lets hope that the government has a change in mind.

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

1 Aug 2011: 'Exceptional Circumstances'

A detailed note of what happened today will be posted shortly, but the orders given today raise some real concerns.

A year ago, on 2 August 2010, four Jamaat leaders - Nizami, Mujahid, Kamruzzaman and Molla were presented before the tribunal and ordered to be detained. According to the amended rules of procedures, drafted by the tribunal members themselves, this meant that the investigation should have been completed, and could only be allowed to continue if the Tribunal considered there were ‘exceptional circumstances’. It also meant that the four men, who have been detained for the last year, should be given bail, again except in ‘exceptional circumstances.’(1)

The investigation agency had however not finished its investigations into the four men and so the prosecutors had to argue for more time to allow the agency to complete them.

(The rule about needing the investigation to be completed within one year should never have been included in the rules. There is no reason why an investigation needs to be concluded after one year, and can only be allowed to continue if there are 'exceptional circumstances'. But having said that, for the sake of its credibility, having made this rule, the tribunal had to apply it, properly and judicially(2))

Did the prosecution try and argue that there were ‘exceptional circumstances’ existing which justified the tribunal giving the agency more time? No it didn't. It just pointed to the fact that the agency had a lot of work still to do – it was investigating in five districts, it had lots of materials that it needed to scrutinse (much of it laid out on the prosecutors bench) etc etc. But it did not argue specifically that there were exceptional circumstances.

Why not? Well it is likely that it realized there was nothing exceptional about these circumstances. In fact on each occasion that the prosecutors have been required in the last year to explain the progress of its investigation to the tribunal, and explain to it why more time was required for the agency to carry out its inquiries, the prosecutors have always told the tribunal that they had a lot of material that needed scrutinizing, and that they needed more time to do it. So what the prosecutors had to say today was just business as usual. Absolutely nothing exceptional!

The defence obviously realized this, and pressed home the point, in its arguments, that the tribunal,if it wanted to give more time to the investigation agency had to identify that there was exceptional circumstances. And the defence lawyer also pointed to the obvious failure by the prosecution to argue either in its written application or in its oral arguments that there was anything exceptional about the situation.

The defence argued in court that the kind of circumstances, that were required in order to meet the test of ‘exceptional circumstances’ was something like a tsunami or some other kind of natural disaster. This may well be too high a threshold, but clearly it is difficult to accept that all that the prosecution has to do to meet the test is to suggest that the investigation agency needs more time to examine its documents - particularly when it has already had one year to investigate.

If needing more time for the investigation agency to continue with its inquiries was to be a sufficient test to determine whether or not the investigation would be allowed to continue, the rules would have simply stated something to this effect: 'Investigation should be complete within one year unless further investigation was required'. But the rules don's say that.

However, the tribunal ruled that there were exceptional circumstances. How? well because the prosecution needed to scrutinize all the documents.

One can of course understand the difficulty that the tribunal found itself in. It had introduced a rule, which if properly interpreted, would result in the investigation into four of the accused bring brought to an end!

This though was not the end of the matter. There was the bail application.

Again as the rules of procedure makes clear the tribunal could only rule that the accused should remain in detention if there were ‘exceptional circumstances.’

The defence argued again that there was no such circumstances that justified the refusal of bail.

The prosecution first argued that it had in fact had no need to explain that the current situation was exceptional; it was simply sufficient, the prosecutor said, for the tribunal to gather the situation from the circumstances which were set out by the prosecution.

The prosecution however did subsequently argue that there was something that was exceptional - and this the fact that these men were closely implicated in very serious crimes.

The problem with this argument is that all the ofences over which the tribunal has jurisdiction are very serious – war crimes, genocide, crimes against humanity. Therefore there is nothing exceptional in the offences, for which the accused are being investigated, to justify refusal for bail. Moreover, this had been one of the arguments used by the prosecution to justify why the men had to be detained over the last year – so again there was nothing new about this.

The tribunal, though refused them bail. And what were these exceptional circumstances? The tribunal did not employ the point used by the prosecution. Instead it argued the exceptional reasons for refusing bail were the same as the ones that it had said existed for allowing the investigation to continue – that is to say, there were a large number of documents and materials that need to be scrutinized.

How can a person be refused bail for the same reason that the tribunal has used to allow an investigation to continue? These are two entirely separate issues obviously requiring different kinds of arguments.

Yet, with the accused having been detained for one year, the tribunal thought that simply on the basis that the investigation agency has a lot of material to scrutinse, it should refuse bail. This though is not a legitimate criteria to justify refusing bail in either Bangladesh law or indeed international law. And of course, in order for the tribunal to lawfully refuse bail at this point, it had to find an exceptional reason.

One has to remember that the Tribunal has past ‘form’ in failing to give ordinary meanings to words.

In earlier hearings, the tribunal had to decide whether or not to allow the investigation agency to question the accused. The rules of procedure stated that in order to allow it to do so, it had to show that the interrogation was ‘indispensable’. Initially the prosecution did not even try to argue that this was the case, and simply gave an order allowing interrogation, just avoiding the requirement entirely. When the tribunal finally did realize that it had to at least mention the word ‘indispensable’, it gave no coherent reason in its orders as to why the questioning was so necessary.
(Slightly revised: 7pm Bangladesh time, 2 August 2011)

-------------
Footnotes
(1) Rules 9(5) states:

‘If an accused is in custody during investigation period, the investigation officer shall conclude the investigation within one year of his arrest under the Rules. In case of failure to complete the investigation as specified above, the accused may be released on bail subject to fulfillment of some conditions as imposed by Tribunal. But, in exceptional circumstances, the Tribunal by showing reasons to be recorded in writing may extend the period of investigation and also the order detaining the accused in custody for a further period of six months.

The meaning of this is pretty clear. First the investigation should be completed within one year. Secondly, if after one years it is not completed, the period of investigation can be extended in ‘exceptional circumstances’. Thirdly, if the accused person is in detention, he or she should be released on bail, again, if there are ‘exceptional circumstances’

(2) The Tribunal should, of course, never have drafted a rule which has the same criteria for determining whether an extension of an investigation should be given on the one hand, and whether detention should continue on the other. They are entirely separate issues.

The time needed to investigate ofences as complicated as war crimes, particularly when they are alleged to have taken place 40 years ago, can be long. There is no reason at all to rush an investigation into an ofence like this. So why should there a year limitation at all. It makes no sense.

And whether or not a person should be allowed on bail should be decided on entirely separate criteria.

14 Jul 2011: 'Prima facie' case against Sayedee

Three matters were before this hearing.

First, the tribunal members had to make a decision on whether to take ‘cognisance’ of the charges against Delwar Hossain Sayedee. At the previous hearing three days earlier,'formal charges’ against him were submitted by the prosecution to the tribunal.

Second, the defence had an application seeking copies of formal charge.

Thirdly, there was an application for Sayedee’s bail.

Cognisance of Charge
Prior to the tribunal reading out its order, there was first of all a short interchange between the Tribunal and the Chief Prosecutor relating to the provision of hard copies of all the documents which the tribunal had not yet been given.

The Tribunal chair then read out an order.

‘Today is fixed for taking cognizance of offence against the accused Sayedee, alias Delu, stated in the formal charge. Along with the formal charge the prosecution has also filed three CD cassettes, containing formal charge, investigation reports, papers, documents and the evidence in support of the prosecution case for our perusal. After perusing those materials, we are of the view that evidence of the case are prima facie available, regarding the offence stated under section 3(2) of the ICT Act 1973 against the accused Delwar Hossain Sayedee alias Delu alias Deliya. So cognizance under section 3(2) of the International Crimes Tribunal Act 1973 is allowed against the accused Delwar Hossain Sayedee alias Delu alias Deliya.

We also have found that they disclosed a prima facie case for trial of the accused. As the accused is already in custody no process is required to be issued. The prosecution is directed to submit the copies of formal charge and other documents in this tribunal by 17.07.2011 in compliance with the section 9 of the ICT Act 1973 and rule 18(4) of the rules of procedure and 10.08.11 is fixed for framing of charge if any. The defence is directed to receive the copies of documents, which they are entitled to get according to 18 (4) of the rules of procedure, from the registrar by 19.07.2011.'

Application for documents
The tribunal said that ‘both the defence’s petition for the disclosure of documents and Prosecution’s reply are frivolous.’

The defence lawyer, Tanvir responded by saying, ‘But, my lord, it would have been helpful if we could get the copies of the formal charge and other related documents.’ The tribunal chair said, ‘Even we didn’t get any papers; we got DVD, and based on that we took cognizance.’

The tribunal chair went onto say that, ‘the rules state that we will provide you copies and look what you did – you came up with a petition. You have to follow what is stated in the rules. If you don’t get the copies after that, then tell us, we will listen and do whatever we can.’

The defence lawyer again explained that they wanted the formal charge and other copies before cognizance, but the tribunal chairman said, ‘How would you get copies before cognizance? What if we didn’t take the case into cognizance?’ he then said, ‘We hope that you maintain the dignity of the tribunal. Everything has a limit, you cross your limits sometime.’

The defence lawyer withdrew the application.

Bail application
Mr Tanvir Ahmed Al Amin, the lawyer for Sayedee put forward his application for bail.

He said that, previously, the prosecution had argued three points about why bail should be rejected.

First, the accused petitioner is an influential character and likely to interfere with the proceedings of the trial. Secondly, a prima facie case is established against the accused petitioner. And thirdly, the accused petitioner should not be granted bail on medical grounds as medical attention is already provided. The prosecution also argued, he said, that there is also no ground to grant the accused petitioner bail, considering the brutality of crime that took place in 1971.

He then went onto argue that the court had refused the accused petitioner of bail mainly on two grounds: he might tamper evidence, and as he is already receiving medical treatment he is not entitled to be released on bail to get medical attention.

Tanvir then pointed out the newly inserted rule 34(3) in the newly amended rules of procedure, which says that “At any stage of the proceedings, the Tribunal may release an accused on bail subject to fulfillment of some conditions as imposed by it, and in the interest of justice, may modify any of such conditions on its own motion or on the prayer of either party. In case of violation of any of such conditions the accused may be taken into custody cancelling his bail.”

He said that under this rule the accused should be given bail.He gave five main reason:

He first argued that the accused was unlikely to tamper with witnesses. In relation to this he made the following points:
- on 31 May 2011 the Prosecution had admitted that the accused was not named in the 6 General Diaries filed in Pirojpur Sadar and Zianagar (Indurkani) Police Stations which had alleged that witness intimidation had occurred
- the investigation agency had also completed its investigation into the case
- in the new amendments to the rules of procedure, a new Rule 58A has been inserted that states that “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”.
= Sayedee’s house is in Shahidbagh, Dhaka and that the alleged crime bases concern the Pirojpur District which are nearly 500km away in the south-western region of Bangladesh
- that he is a religious scholar and a man of good character.
- that the accused is willing to surrender his passport before the competent authorities and to undertake that he will not apply for travel documents without prior permission from the Tribunal
- that the accused is also willing to comply with a residence condition to reside at his Dhaka address where his presence can be regularly checked and monitored, and is also willing to report to this Tribunal on an agreed regular basis.
- that the accused was willing to undertake not to travel to any crime-base areas without prior permission from the Tribunal
- he is willing to undertake not to contact any Prosecution witnesses or to interfere with the trial proceedings.
- the tribunal should take into consideration the lack of evidence connecting the accused to any claims of witness intimidation, the fact that the investigation report is completed; there are newly inserted witness protections provisions; and the bail conditions volunteered by the accused.

Secondly, Amin argued that bail can be granted even if there are allegations of genocide. On this he made the following points:
- that all the crimes under the jurisdiction of the tribunal solely concerns crimes of a serious and grave nature including crimes against humanity, genocide and war crimes and therefore the Tribunal envisages that bail can be granted regardless of the nature of allegations formed. - that all the UN sponsored tribunal have jurisdiction over genocide and they all provide the right to provisional release. (At this point the tribunal said, ‘We know that’ and the lawyer responded by saying, ‘We have come up with some international decision of the same manner.’)
- that there are two cases in support of their argument. First, Prosecutor v Hadizihasanovic where the Yugoslav tribunal held that the rule regarding provisional release/bail must be interpreted in light of the International Covenant on Civil and Political Rights and that in this regard, no distinction should be made between domestic criminal and international criminal proceedings. And the second is the case of Prosecutor v Stanisic, where 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”.
- that that the ICTY has on a number of occasions provided provisional release to accused persons formally charged with genocide. (The tribunal chair said, ‘It’s nothing new…’ and the lawyer responded by saying, ‘We provided international decisions to convince your lordship. There were number of occasions where bails were granted even after taking charges.’)

Thirdly, the defence lawyer argued that bail was a right, not a privilege. On this point, he said:
- on 31 May 2011 the Prosecution had stated that bail should be refused on the basis that: “we have to remember the brutality of 1971…we cannot ignore the pain of the countrymen during 1971”.
- that the amended Rules of Procedure however provide for the right to be presumed innocent under Rule 43 (2) and that the presumption of innocence is also enshrined in Article 14 (2) of the International Covenant on Civil and Political Rights which states that “Everyone charged with a criminal offence shall have the right to be presumed innocent until guilty according to law”.
- that article 9(2) of the ICCPR states that, “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.”
- that the ‘presumption of innocence enshrined in Article 14 (2) ICCPR is a fundamental principle and as a result the provision for bail is a right and not a privilege under international law’ and that following Article 9 (3) ICCPR this right arises at any stage of judicial proceedings and in particular the right to bail is fundamentally upheld during pre-trial proceedings.
- that in its General Comment No. 8, the Human Rights Committee which specified that “pre-trial detention should be an exception and as short as possible.”
- that Article 9 (1) of the ICCPR states that “No one shall be subjected to arbitrary arrest or detention,’ and that the jurisprudence of the Human Rights committee has defined the notion of “arbitrariness” as being broadly interpreted “to include elements of inappropriateness, injustice, lack of predictability and due process of law. This means that remand in custody must not only be lawful but reasonable and necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime.”
- that as a result of the above the Prosecution ‘erred in its opposition to bail on the grounds that victims suffered atrocities in 1971. This illustrates that bail is being refused as a point of retribution and not because it is both reasonable and necessary as required under the ICCPR. An attempt to punish the Accused-Petitioner for events suffered in 1971 before any finding of guilt is contrary to the Accused-Petitioner right to be presumed innocence.’

The tribunal chair said, ‘So, you are saying we can’t keep any accused in jail...’

The defence lawyer responded by saying, ‘Yes, of course. But my lord, only if the accused can temper with evidence, and influence the witness. So, bail can be denied on three grounds: the probability of influencing the trial, if he may try to abscond; and If he could commit more crime.

‘There are no criminal charges against accused and there is no way that he will be involved in crimes. Furthermore, investigation is completed and witness protection is provided by the tribunal. So, there is also no grounds to say that he will interfere with the investigation. There’s only one point to argue that he will abscond, but we said he is willing to surrender his passport, will not apply for any travel documents and will reside in his house. Now that no interference is realistic, the accused petitioner should be granted bail.’

The tribunal said ‘Don’t use ‘should be’, we’ve told you before. You must use ‘maybe’. You try to dictate the court. We’ve already said this one day. ‘Must’, ‘Should’, should be avoided. This is not right.’ The defence lawyer said, ‘We are not trying to dictate the court my lord’ but the tribunal responded by saying, ‘But your approach doesn’t show that.’

Fourthly, the lawyer argued that the medical treatment can continue whilst the accused was on bail

Fifthly Tanvir set out various conditions of bail that the accused was willing to be subject to. These were:
- he surrender of his passport to the Tribunal;
- he does not apply for any travel documents without the prior permission of the Tribunal;
- he resides at 914, Shahidbagh, Dhaka - 1217;
- he reports to the Tribunal on an agreed regular basis;
- he does not travel to any crime-base areas without prior permission;
- he does not contact any of the Prosecution witnesses;
- he does not interfere with any part of the trial proceedings; and
- he continues to receive specialised medical treatment at ICHRI hospital.

The lawyer finally submitted that Mr. A. K. M. Mustafizur Rahman, a family friend of the accused was willing to provide surety of an agreed amount as a condition for bail.

He finished by saying, ‘Considering the petitioner’s age, good character and willingness to comply with the conditions imposed by the tribunal, we pray for granting him bail.

'That is our petition. Your lordship has already inserted amendment to protect the witness, bail may be considered at any stage of the procedure. There is no scope of interference, and there is also no serious evidence. War crimes happened 40 years ago, in 1971, but the prosecution has very recently brought the charges. Today you got prima facie evidence and the accused has already passed 10 months in jail without establishing any prima facie case. Considering all the points the accused may be granted bail. And he will obviously not abscond; he is ready not to travel without prior permission of the court. Considering these submissions the accused petitioner prays for the bail.’

The tribunal chair said he had one question. You say, “No one shall be deprived of liberty unless he is in accordance with law, but the accused is in custody in accordance with law. Are you saying he in custody against law?’

The defence lawyer said, ‘No, of course, it was your order. No problem about that. We were just saying without formal charge he was detained, and there was no necessary ground for his detention.’ The tribunal chair then asked, ‘For what purpose you put it there for?’ The lawyer responded by saying. ‘We made it clear in the application that the detention must be reasonable and necessary and the Prosecution must show necessary ground for detention.’

The tribunal chair against said, ‘Is he detained against law? Why are you saying this?’ the lawyer again said, ‘We are just saying to keep the accused detained the prosecution has to establish ground, and they have to establish that the detention is necessary and reasonable.’ The tribunal chair again said, ‘Yes, you could’ve said that, but why did you state it like this?’

The prosecutor, Haider Ali then stood up to make his presentation. The tribunal chair said, ‘In changing circumstances, the defence wants bail, as the investigation is over and now there is witness protection act, so influencing the witness is not possible. What do you say to this?

Haider Ali said, ‘Well, we thought they were not going to ask for bail after the investigation stage, because before the investigation they said there’s no case as there was no evidence. And now that there’s a case, they are saying there’s no problem if you let the accused go.’

‘Before anything, I would like to talk about something that is stated in the law.

‘At first, let’s look at section 9(1) of the Act – it talks about the commencement of proceedings, it shows how to proceed with all the steps. On behalf of the prosecution we only want to say that we will never say or do anything outside the law. We will not take one single step out of the law.

‘We want a fair trial and we haven’t done anything against law. None of our statements anywhere were against the law, and none of the procedures that we did were outside law. To ensure a fair and free trial we will provide any help from the prosecution’s part.

‘During 1971, there were many incidents that happened in Pirojpur, in the greater Barisal division, during the armed conflict. There are details in the investigation report about what he did as a member of the Razakar, and he was present at the time the crimes took place.

'The investigation was fair and done within the scope of law. The report is true, it has substantial materials. The chief prosecutor scrutinized it and he was satisfied. There is proof that there was evidence of involvement of the accused in war crimes.

'We have seen the formal charge, and you have seen it too. You took cognizance today and set the date to create charge. Then the trial will start.

'They are saying we took more time. We didn’t take even one more minute. You provided us the time, and we completed the process in due time.’

He then quoted a series of rules.

‘Rule 18 says that upon receipt of report of investigation of offence(s), the Chief Prosecutor or any other Prosecutor authorized by him shall prepare a formal charge in the form of a petition on the basis of the papers and documents and the evidences collected and submitted by the Investigation Officer and shall submit the same before the Tribunal.

Rule 20 says that, at the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence.

Rule 22 says that, after taking cognizance of an offence the Tribunal shall fix a date for appearance of the accused and issue summons or warrant for appearance as it thinks proper.

Rule 29 says the Tribunal shall take cognizance of an offence against any accused upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence submitted by a Prosecutor in support thereof, if they disclose a prima facie case for trial of the accused.’

The tribunal chair then interrupted and said, ‘without even reading those rules some are just giving lectures… ‘ (He was referring I think to the defence lawyers). The lawyer then continued reading out the rules.

‘Rule 32 says, that if the accused, despite publication of notice in daily news papers, fails to appear before the Tribunal on the date and time so specified therein, and the Tribunal has reason to believe that the accused has absconded or concealing himself so that he cannot be arrested and produced for trial and there is no immediate prospect for arresting him, the trial of such accused shall commence and be held in absentia. ‘

‘So, we want to say that whatever has happened till now happened according to law. No party should have anything to say against the procedure as everything was done according to ICT rules. ‘

'I now want to talk about the bail I have to say, you don’t need legislation for bail, bail can be granted, but when? To grant bail, you have to consider long detention, there is also consideration about arbitrary detention. But the accused was detained based on specific allegations and he is on a trial, so he was not detained arbitrarily. Now, we have definite charges against him.

'What are the charges: the defence said the accused resides in Shahidbag, Dhaka, and the crime scene is 300 km away. But, the investigation report says that at the time of committing the crime, he was personally present and he took active part in the offence. We have all the details in the report and we have witnesses and evidence.

‘Again, only in case of long detention without trial can he be considered for bail. But, can this detention be called a long detention?

‘Every step is inside the time frame we were provided according to law. By the prosecution, by the tribunal, there was no time-wasting. And, if the trial is fast there would be no case of long detention in the future too.

‘During armed conflict, not only one or two people, but more than 50 people were killed. Villages were set on fire, towns were set on fire, people had to leave there home, their country. Everything has come up in the investigation report. We have to keep them in mind, listen to their prayers, and their cries. We saw how people were killed, how mass-graves were made. We have to take all these into consideration. We can not forget what happened.’

‘Now there is prima facie case established, judicial notice has been served and cognizance of the offence is taken.

‘The accused is so influential that he took his name out from the four general diaries that were filed against him. He could influence police even when he was in jail. If he is set free the trial would be hampered greatly, there would be no fair trial. But, if nothing is proven he can go free, there is no problem.

‘Now the charges are established, and the trial is on. So, we are praying to reject the bail petition.’

The defence lawyer then responded:

‘My lord: that was a long reply to the bail petition, so many things were said. But we have seen serious allegations against the Investigation Agency that they did not do the investigation properly. Now, if this case goes to trial stage, these matters also have to be taken into consideration.

'My humble submission is that I got only one valid point from the prosecutors reply, and that is trial would be interfered if the accused is granted bail. There is no question of interfering in the investigation process or intimidating any witness now.

'So, the only valid point from the prosecution now is that if the accused petitioner is released on bail he will interfere in the trial process, but they said it without substantiating how.'

The tribunal chair then said, ‘There was also another point, the occurrences in 1971, gravity of the offence...’

The defence lawyer then said that he had dealt with that issue in his previous submission ‘[In the 1973 Act] is not defined what is the meaning of war crimes, we don’t know. We don’t know what was meant by genocide. What are the elements of crime? What does prosecution have to prove, what to the defence has to prepare their rebuttal on, nothing has been defined. The offences should have been defined from the onset even before taking cognizance, because if the offences and the elements of it are not stated, on which basis the crimes would be taken into cognizance.

'The ICT act and rules only state the words “war crimes”, but there is no definition of the crimes.

'I don’t know what the offences are stated in the formal charges; the accused doesn’t know what are the offences. But as long as the crimes are not proven he shall be presumed as an innocent person, and he has the right to get bail, it is not a privilege. Clearly, guilt has not been proven and there are no specific allegations. And on assumption of being innocent bail right is accrued.'

The tribunal then said, ‘So, you think bail right is accrued on the ground of assumption of being innocent?’

The defence lawyer responded, ‘Yes my lord, if he is innocent, he has the right to get bail. My humble submission is, yes my lord. But, you can bar it, if you think that the accused will interfere with the trial process if he is released.’

The tribunal chair said, ‘Bail is a right only when offence is bailable.’

Tanvir responded: ‘My lord, rather than considering the gravity of the offence, it should be considered if he will interfere with the trial, whether he will appear for trial. Considering all that the prosecution has only one valid point that he will interfere the trial, but without substantiating how. ‘

‘They have to say how he’ll interfere, they have to say these are the ways we are anticipating how he’ll interfere with the trial. So, they are raising very vague allegations that the accused will interfere with the trial. But that can not be taken into account.

'So, I request considering the condition placed before your lordship the accused petitioner may be granted bail by following any or all of the conditions.'

There was then a delay of 30 seconds, and the Tribunal chair read out his order

‘This is an application for bail of the accused petitioner Maulana Delwar Hossain Sayedee alias Delu alias Deliya. Mr Tanvir Ahmed Al Amin, learned counsel, appearing for the petitioner placed before us. He submitted that just today the tribunal has taken cognizance of the offence in this case against the accused petitioner. As such a new phenomenon has arisen. All the petitions for bail before submission of formal charge were rejected on the ground that the accused petitioner is an influential person and he can influence the prosecution of the case. But when formal charge is submitted and cognizance has been taken there is no chance of influencing the investigation anymore. Also the accused is ready to abide by any conditions imposed by this tribunal if enlarged on bail. He further submitted that the law regarding bail, both national and international, empowers the tribunal to grant the petitioner the bail. He further submitted that the gravity of offence, however big it may be, can’t be ground for rejecting the bail. Considering all these points, he submitted that the accused petitioner who is an old man and who is also sick may be enlarged on bail, so that he can face trial as a free man.

Mr Syed Hyder Ali, the learned prosecutor, appearing for the prosecution, submitted that this is a case where bail application submitted after finding prima facie case by the investigating agency and today tribunal took cognizance of the offence, and by taking cognizance this tribunal also found prima facie evidence. He further submitted that this is a case where the gravity of the offence is so high, killing more than 50 people, looting, arson, and deportation, torture etc are available in the formal charge which have been found prima facie by the investigation agency and in case of this nature, where cognisance taken, there should be no granting of bail. Mr Syed Hyder Ali further submitted that the age and health condition of the petitioner has always been considered by the tribunal in its early orders which rejected bail, but that the tribunal allowed special facilities which as directed by the tribunal have been provided.

At this point the defence counsel interrupted and said, ‘There was no such things in the prosecutor’s submission.’ The tribunal chair ignored him and said, ‘Please sit down.’

Again the defence lawyer said, ‘These things were not even said ….’, and the tribunal chair said, ‘Would you please sit down? Let me pass the order, please. Sit down.’ The tribunal chair continued with giving his order:

‘Last of all, the learned counsel said considering all these he is in custody for a long time. The learned prosecutor submits that the petitioner was in custody in eight or nine months and this term of detention can’t be termed as a long detention in any way.

Lastly he submitted, considering all these aspects this accused petitioner may not be granted a bail. We heard learned counsel and the learned prosecution given our anxious thought. This is a case where allegations of section 3(2) of the ICT act has been prima facie established and the investigation authority; prosecution has submitted the formal charge and considering the formal charge this tribunal took cognizance of the offence and a date for framing charges has been fixed that means the proceedings of this case has already started.

The allegations are grave in nature. The accused petitioner is an aged man, and an influential person, and also a member of the parliament. His health condition as has been submitted earlier has not been good and the tribunal directed the prison authority to arrange suitable health friendly vehicle and food. This is a case where detention of 8–9 months can be in no way termed as a long detention either in national or international law. The examples stated by the counsel regarding ICCPR were also considered by us. We are of the view the provisions do not give the accused right to get bail. In consideration of all the aspects pressed before us and perusing the documents we are of the view that at this stage the bail prayer can’t be allowed. The bail prayer is thus rejected.

Another petition filed by the counsel for immediate disclosure of documents was not pressed. As such, that petition is also rejected. The next date has been fixed on 10.8.11 for framing charges. On that day the jail authority should produce the petitioner in the court.

The defence lawyer then got up and asked whether they could get a get a copy of both of the orders, but the tribunal chair said, ‘No copy will be provided.’

The defence lawyer then said,’ My lord we want to review the order, so we need a copy. If we don’t get copy how can we file a petition?’ the tribunal chair again said, ‘You will not be given any copy.’

The lawyer then said, ‘My lord, we don’t understand. How are we going to go through all the order and all the arguments if we want to review the order?’ The tribunal chair said ‘I don’t care how you are going to do it.’

The defence said, ‘My lord, justice has to be served, it is a mere copy.’

Statement made by defence lawyers:
This is a translation of what Tajul Islam, the main defence lawyer said out side the tribunal:

‘You all know that today was fixed for taking the charges into account against the accused (to initiate the process of creating charges) and there was a bail petition from us. The tribunal has taken the charges into account i.e. taking cognizance of the offence. And you all know that it is said that the tribunal will deal with international crimes. But nowhere in our acts or rules, are the elements of offences/crimes defined. That’s why we always said that these elements are available in international rules. While taking cognizance of the offence, if your law doesn’t even have the elements of offences defined, how cognizance of the offences can be taken? We tried to argue about it before, but the court took cognizance anyway without even listening to our arguments. But we will review this issue. Where the elements of the crimes are not defined, how the tribunal can take cognizance without any definite decision? Anyway, they took cognizance, and 10.08.2011 was fixed for creating charge.

We have raised many definite issues in our bail petition. There were issues like hampering investigation, absconding etc. We argued on every point and placed our rebuttal that there is no question of interfering investigation or absconding. But he didn’t consider our arguments; what he did is that he put in some arguments in the order that were not even submitted by the prosecution. I said that they were not in the submission of the prosecution, and why is he putting this in the order. He told me to sit down, and said that he is giving his order after looking at the application. We don’t know why he said that because the application of the prosecution also doesn’t contain any such arguments. Then we wanted a copy of today’s order because we want to review today’s order. You know that we can not appeal against any order, but we can ask for a review from the tribunal, against the tribunal’s own order. If I want to review his order, I have to read every line, understand every point and then decide on which point I am going to put my arguments. We were surprised that he refused to give us a copy. We tried to convince him saying that this is a trial to ensure justice, and the intention of ensuring justice has to be visible. We said that at least to ensure justice the order copy has to be provided to us so that we can read this, understand this and bring a review petition. We are very sorry to say that they refused our prayer without listening to the arguments.

Journo: Are you raising questions the neutrality and the fairness of the tribunal?

At this point we are not raising any questions and we don’t want to say anything. You can interpret it any way you want to. You all understand that it does no harm to anyone – the tribunal or the prosecution – to give a copy of the order to us. It is a special and complex trial. We have to understand every word, we have read every word. In all other international and even national courts, everyone’s given a copy of the order. In this case, in this new and complex tribunal, the copy is needed more than ever. If we can’t find any definite charges, if we can’t get the order how can I defend the accused? I don’t understand this, and I guess no one in this world would understand this. I don’t know how you would interpret this.”

Comments
1. No reasons were given as to why, in the view of the tribunal there was a prima facie case against the accused, and the defence were not given an opportunity, prior to its decision, to make arguments as to why there was no prima facie case.

2. In the order rejecting bail, the tribunal chairman, whilst summarising the prosecution’s argument introduced an argument that the prosecution had not made in either its oral or written submissions – relating to adequacy of medical care in detention. It is perfectly appropriate for the tribunal to use an argument not made by either sides to support its own decision, but here the tribunal did not do that, but put into the summary of the prosecution an argument that the prosecution had not even used. This clearly is an inappropriate thing to do and suggests that the tribunal is trying to bolster up the arguments of the prosecution. The tribunal was informed right at that moment about the mistake, and could easily have corrected, but failed to do so.

3. At the same time, the summary of the defence argument were incomplete – and did not even mention their arguments about interfering with the witnesses.

4.The reasons given by the tribunal as to why bail was not given were as follows:

‘The allegations are grave in nature. The accused petitioner is an aged man, and an influential person, and also a member of the parliament. His health condition as has been submitted earlier has not been good and the tribunal directed the prison authority to arrange suitable health friendly vehicle and food. This is a case where detention of 8–9 months can be in no way termed as a long detention either in national or international law. The examples stated by the counsel regarding ICCPR were also considered by us. We are of the view the provisions do not give the accused right to get bail. In consideration of all the aspects pressed before us and perusing the documents we are of the view that at this stage the bail prayer can’t be allowed.’

First, this does not engage at all with most of the arguments made by the defence. Second, it states: ‘This is a case where detention of 8–9 months can be in no way termed as a long detention either in national or international law,’ – but it is not clear how it comes to this conclusion, since it 8/9 months pre charge detention is clearly a pretty long time. Secondly, the order states that ‘The examples stated by the counsel regarding ICCPR were also considered by us. We are of the view the provisions do not give the accused right to get bail,’ – however it does in no way explain why the tribunal is of this view.

In effect, this is an unreasoned order.

5. It remains a mystery why the tribunal are not willing to provide the defence copies of its orders. They have been given permission by the tribunal to receive copies of less than half the total orders made orally in court.
See: ICT's refusal to provide copies of orders criticised

6. Also, appears that Tribunal fail to understand one particular argument made by the defence, which is that even though the detention of the accused follows the law as set down in the tribunal, it must, according to decisions of the Human Rights Committee interpreting Article 14 of the ICPPR (which Bangladesh government is a signatory), also be 'reasonable and necessary'. Note how the tribunal keep on arguing (as set out above) that the detention followed legal procedure, despite the lawyer continually referring to fact that there is an additional requirement of detention being 'necessary and reasonable'.