It is interesting that the lawyers have not applied for 'bail'. Tajul Islam, the main lawyer acting for the accused, explained that this was because they believed the detentions were "void ab initio." He said that, "The question of bail only arises when formal proceedings have started."
The lawyers have filed four applications on this issue, seeking:
- the return of the records of two criminal cases back to the court of the Chief Metropolitan Magistrate;
- recall of the order of issuance of warrants dated 26th July 2010;
- recall of the order of detention dated 2nd August 2010 and to release the petitioners from custody;
- stay of all further proceedings pending before the International Crimes Tribunal.
The arguments set out in the applications are as follows:
1. There is no provision in either the International Crimes (Tribunals) Act 1973 or the Rules of Procedure that allows the transfer of cases pending before the Chief Metropolitan Magistrate between it and the Tribunal - and therefore the transfer was "without jurisdication, illegal and void."
The lawyers are referring to two cases - one filed on 25 January 2008 relating to alleged crimes committed in Pallabi and the other filed on 17 December 2007 relating to alleged crimes in Keraniganj. The first four defendants have been arrested on the basis of allegations in these cases.
2. The arrest warrants dated 26 July 2010 were issued in violation of section 11(5) of the 1973 Act - as this only allows the Tribunal to issue a wrrant of arrest against a person who has been "charged" with a crime.
The section states: "Any member of a Tribunal shall have power to direct or issue a warrant for, the arrest of, and to commit to custody and to authorise the continued detention in custody of any person charged with any crime specified in section 3."
The word 'Charge' is defined in rule 2(5) of the Rules to mean "the accusation of crimes against an accused framed by the Tribunal"
The application states, "Since no charge has yet been framed by the Tribunal against the accused petitioners, the issuance of a warrant of arrest against the accused petitioners is in violation of section 11(5) of the 1973 Act read with Rule 2(5) of the Rules."
3. Section 16 of the 1973 Act sets out the particulars to be included in the charge and the manner of framing charges against an accused person. It states that:
"Every charge against an accused person shall state:No charge in the manner contemplated under section 16 has yet been framed against the accused petitioners.
(a) the name and particulars of the accused person;
(b) the crime of which the accused person is charged;
(c) such particular of the alleged crime as are reasonably sufficient to give the accused notice of the matter with which he is charged."
3. There are no proceedings pending before the Trbiunal under section 9 of the Act and as such the Tribunal has no authority to issue warrants of arrest against the accused petitioners.
Section 9(1) states that the "Proceedings before a Tribunal shall commence upon the submission by the Chief Prosecutor ... of formal charges of crimes alleged to have been committed by each of the accused persons."
'Formal charge' has been defined in Rule 2(1) of the Rules to mean, "Accusation of crimes against the accused in the form of a petition lodged by the prosecutor with the Tribunal on receipt of the Investigation report."
The application states that no formal charge has yet been drawn up or framed against any of the accused. No investigation report has been submitted by the Investgation agency. "In the absence of an Investigation Report, no question arises of the prosecution submitting formal charge of crimes agsint the accused petitioners in the manner contemplated under section 9(1) of the 1973 Act read with Rule 2(11) of the Rules. As such no proceedings can be said to have commenced against the accused petitioners under section 9(1) of the 1973 Act. Accordingly the order of issuance of Warrant of Arrest dated 26 July 2010 is patently illegal and liable to be recalled for ends of justice."
4. Rule 29 of the Rules provides that the "Tribunal shall take cognisance of an offence against any accused upon examination of the formal charge, the investigation report, the papers, documents and the evidence submitted by the prosecutor, in support thereof if they disclose a prima face case for trial of the accused person."
Rule 30 of the Rules goes onto state that, "after cognisance of an offence is taken, the Tribunal shall issue process of warrant as it thinks fit and proper, in accordance with rule 22."
5. ICT-BD form No 03 (warrant of arrest of accused), and ICT-BD form No 04 (order requiring production in court of accused in prison) clearly indicate that the Tribunal may issue warrants of arrest against an accused person only after he has been charged with an offence under section 3 of the Act. "Since the accused petitioners have not yet been charged with an offence under section 3 of the 1973 Act, the order of issuance of Warrant of Arrest is patently illegal and liable to be recalled for ends of justice."
Background
1. A senior independent and highly respected Bangladesh lawyer had previously expressed his concerns about the legality of the warrant of arrest along the lines set out in para 2 above. See: Questions raised about arrest warrants.
The prosecution is relying on rule 9(1) which states that the:
"investigation officer, through the prosecution may obtain a warrant of arrest from the Tribunal for arrest of a person at any stage of the investigation, if he can satisfy the Tribunal that such arrest is necessary for effective and proper investigation."The argument made by Advocate Anisul Huq is that this rule appears to be inconsistent with Section 11(5) of the Act which states that a person can only be arrested once that person has been charged. He goes onto say that the Act trumps the rules when there are any inconsistencies.
2. The forms referred to in para 5 above, are appended to the Rules of Procedure. They are both set out below
ICT-BD Form No 03
Warrant of Arrest of Accused
To ----------- Metropolitical Police Commissioner ------------/Police Super, District --------/ the officer in Charge, Police Stattion ............., District
Whereas
--------------- (name of the accused) of ---------------- Police Station -----------------District ------------- stands charged with the offence punishable under section 3 of the Interatnional Crimes (Tribunals) Act 1973 you are hereby directed to arrest the said accused and prodcue him before the Tribunal
Given under my hand and the seal of the Tribunal as directed, this the --------- day of ------- (month) of ------------ (year)
By order of the Tribunal
Registrar
ICT-BD Form No 04
Order Requiring production in court of accused in prison
International Crimes Tribunal, dhaka
ICT BD Case No
To The Officer in Charge of the Jail at ----------. Wheras the attendance of ------------ at present confined/detained in the above mentioned prison, is required in this tribunal to answer to a charge of the offence punishable under section 3 of the International Crimes (Tribunal) Act 1972 of for the purpose of the proceeding of the cases as mentioned herein.
You are hearby required to prodcue the said accused under safe and sure conduct before this Tribunal on --------------------- day of -------------- 20------------ by 10.00 AM for the purpose of the said proceedings, and after this Tribunal has dispensed with his further attendance cause him to be conveyed under safe and sure conduct back to the said prison.
Given under my hand and the seal of the Tribunal as directed, this the ------ day of ------ (month) of ---------- (year).
By Order of the Tribunal
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