Tuesday, September 28, 2010

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

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

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

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

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

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

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

The defendant lawyers then agreed not to press the application

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On 2 August 2010, the Tribunal issued a warrant of arrest on being satisfied that it should be issued to ensure an effective and proper investigation. Investigation is going on. No new facts have come to us. All the men are influential people. We are of the view that if released the investigation may be hampered. We are therefore inclined to reject the petition."
4. Application for certified copies of documents
Tajul Islam said that in the interests of a fair trial, as required by section 4(2A) of the 1973 Act, his client should be given copies of the papers.

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

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

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

In consideration of both the sections and the rules, the defence has no right to get certified copies of records in Tribunal at this stage. So we are not inclined to accept this peitition and it is rejected."
5. Application of stay
The defence lawyer Advocate Fakrul argued for the defence. The Tribunal Chair asked the defence, "Is there any proceedings to stay?" He said that in order for the proceedings to start, section 9 of the 1973 Act states there must be a formal charge, and this has not happened. Fakrul did not initially respond to this question but argued a number of points including that the transfer of cases from the magistrate court to the Tribunal was illegal. The Tribunal members, in response to that point, said, "We did not receive any records."

The Tribunal then passed an order in the following terms.
"An application was made to stay the proceedings in relation to Misc case 2/2010. Mr Fakrul Islam argued that the proceedings have been illegal and as such there should be a stay or proceedings. It was opposed by the prosecution. The proceedings of any case in this Tribunal will start with the submission of the formal charge. There are no proceedings in thie Tribunal. Miscellaneous case is a just that a miscellaneous case which arrises out of some applications filed by the prosecutor and the defence. There has been no formal charge. Proceedings have not started and therefore there cannot be a stay of proceedings. Application rejected."
6. Application for transfer of cases back to magistrate court
The court gave an order in the following terms:
"We received an application to send the cases relating to one that was filed at Police Station Palabi in 2008, and the other filed in Police Station Keraniganj in 2007 back to the Magistrates court. Mr Tajul Islam argued for the petitioners. He states that these cases were pending in the magistrates court and then transferred to the Tribunal. He submits that these cases do not come within the purview of this Act and as such should be sent back.

The two cases were not brought to this Tribunal and were not received by this Tribunal. They were sent to the Investigation Agency. Investigation officers can investigate any information that is brought to them, and take appropriate action. There is no scope to send the cases back to the Magistrates court. Application rejected."
1. It is notable that the ruling of the Tribunal relating to the defence application seeking recall of the detention order (no. 3 above) neither summarises the defence arguments properly nor sets out any kind of detailed reasoning in response to them. So for example, the order does not mention:
  • the relationship between section 11(5) of the Act and Rules 9 and 6 of the Rules of Procedure. (As is set out above, in the course of proceedings, the Tribunal members did make some points on this issue, but their final view on it, and the reasons for rejecting the defence lawyer's interpretation was not mentioned in the order.
  • the argument made in the defence's written application (though not argued in court) that its view that the men must be charged with an offence before an arrest warrant can be issued is supported by the text of both the warrant of arrest and the production warrant which that the men have been 'charged' with an offence. (see point 5 in this post
  • the defence argument that if the application filed by the prosecution about Sayedee's arrest was inadequate (see comment made by the Tribunal earlier in the morning of the 21 Sept, see previous post), then so was the one filed in relation to these four defendents.
The failure by courts to provide proper reasoning for their decisions is not something unique to the Tribunal - it does happen in other courts in Bangladesh. However, this does not excuse the Tribunal since it was supposed to be working to 'international standards.'

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

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

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

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

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

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

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

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

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

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

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

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

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

Relevant Legal Extracts
Section 11(5) of the 1973 Act: "
Any member of a Tribunal shall have power to direct or issue a warrant for, the arrest of, and to commit to custody and to authorise the continued detention in custody of any person charged with any crime specified in section 3."
Rule 6 of the Rules of Procedure:
"If the investigation officer has reason to believe that any offence has been committed, he shall proceed in person to the spot, investigate the facts and circumstances of the case, and if necessary, take steps for the discovery and arrest of the accused."
Rule 9(1) of the Rules of Procedure:
"An investigation officer, through the prosecution may obtain a warrant of arrest from the Tribunal for arrest of a person at any stage of the investigation, if he can satisfy the Tribunal that such arrest is necessary for effective and proper investigation."
Section 24 of the Act states:
"Bar of Jurisdiction.- No order, judgement or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any court of other authority in any legal proceeding whatsoever, except in the manner provided in section 21."
Section 21 states:
"Right of appeal.- (1) A person convicted of any crime specified in section 3 and sentenced by a Tribunal shall have the right of appeal to the Appellate Division of the Supreme court of Bangladesh against such conviction and sentence.
(2) The Government shall have the right of appeal to the Appellate Division of the Supreme Court of Bangladesh against an order of acquittal.
(3) An appeal under sub-section (1) or (2) shall be preferred within sixty day’s of the date of order of conviction and sentence or acquittal.”

No comments:

Post a Comment