Monday, September 27, 2010

Sept 21/22, 2010: Application relating to arrest of Sayedee

Delwar Hossain Sayedee is in prison on charges unrelated to alleged 1971 crimes. On 21 July, however, the prosecution filed an application with the Tribunal for it to issue a warrant for his arrest on charges relating to war crimes, crimes against humanity etc. On 5 August (see post), the Tribunal heard the prosecution's application and, because he was already in prison custody on other charges, issued a "production warrant". First because of his health and then because of renovations being undertaken in the Tribunal court room, hearings related to the application were adjourned on two occasions. (see post about delays).

On 21 September, Sayedee was produced before the Tribunal for the first time. Here is a summary of what took place in court in relation to this application on 21 and then 22 September Following the summary, I make some comments on the proceedings.

[It may be helpful to read this post along with a previous post (setting out the defence arguments against arrest/detention of the four other defendents) and the post immediately following this one (setting out what happened to these applications

Syed Haider Ali stood up and argued for the prosecution. He first read out from the hard copy of the prosecution's original application that had been argued before the court on 5 August which set out allegations against Sayedee.

The Tribunal chair then told the prosecutor that he needed to answer the key question; how was section 11(5) of the 1973 Act compatible with Rules 6 and 9 of the rules of procedure. (Sections are set out at end of post)

The prosecutor read section 11(5) of the Act and agreed that it stated that an arrest warrant could be issued against someone who had been charged. The Tribunal chair then asked the prosecution, to "please satisy us whether this person has been charged under the Act."

The prosecutor then read out a number of sections from the Act and argued that it set out provisions relating to a number of different stages in the Tribunal process - investigation, prosecution and punishment. He then said that section 11(5) needed to be read in the context of the whole Act, and it only related to one aspect of the Act. It is "not an independent section" he said.

He then quoted rules 6 and 9 of the Rules of Procedure which he said clearly stated that a warrant of arrest could be issued during the process of investigation and before charges have been laid.

He then said, "there is no other alternative but for the Tribunal to issue an arrest warrant during investigation."

He said, during the investigation so far, evidence has been found and there was a risk that some evidence could be destroyed. If Sayedee is not detained, "he can destroy the evidence".

The Tribunal chair then asked the prosecutor why it was that in the section of the application dealing with "grounds", there was nothing saying that an arrest was "necessary for effective and proper investigation". The prosecutor said that this was contained in the prayers, but the Tribunal members responded by saying that it must be in the 'grounds' of the application. It was not enough to simply say these things orally in court, it must be part of the application, the Tribunal said.

The Tribunal agreed with the prosecutor that the application dealt with the gravity of the alleged offence, but said that it did not explain the why his detention was necessary. "why should we issue a warrant?" the Tribunal chair asked.

The Tribunal chair said, "what is the purpose of keeping him in custody. Can you atisfy the Tribunal?"

The Chief Prosecutor then offered to file a supplementary application. The Tribunal chair said, "We want to be satisfied, that is all. Still now we are not satisfied."

He told the prosecutor, there will be "no more adjournments. This must be produced tomorrow."

The case was then adjourned to the following day, Wednesday, 22 September with the Tribunal requesting that Sayedee be produced in court.

On Wednesday, the prosecution submitted a supplementary affidavit. Before he was able to start his application, the Tribunal Chair pointed out that Sayedee was not present in court and that it has received a note from the jail saying that he was sick. The Chair said that as he had already passed an order saying that the application should be heard in Sayedee's presence, the application would not be heard today without him, and that the matter would be adjourned.

Tajul Islam for the defence then got up and said that the court cannot simply delay proceedings so that the prosecution has time to fill in "the lacuna". "Yesterday you said that there was not enough evidence to allow the application".

The Tribunal chair told Islam that he could raise all these issues at the next hearing.

Another defence lawyer then got upto speak. He said that he wanted to raise a question about the "production warrant." He said that the warrant was unlawful. He tried to read out the wording on the warrant and was shouted down by the Tribunal Chair. "Take you seat", he said. (It appears that the lawyer wanted to state that the production warrant assumes that the accused person has been charged, since the word "charge" is used in the warrant - see point 5 in this post).

The Tribunal then read out the following order (this is not word perfect).
"The suspect Sayedee has not been produced before this Tribunal today by the prison authorities following the prodcution warrant being issued. The suspect is said to be sick and unable to move. As such he could not be produced. The Tribunal in its earlier order expressed its desire to pass the order in the presence of Sayedee, and he is not in court today. The prosecution submitted its application today for which prayer for time is included. Supplementary petition will be heard on 12 October 2010. Issue a production warrant accordingly."

1. Further Adjournment: It is unclear why on Wednesday 22nd, the Tribunal insisted on a further adjournment. On the previous day, along with this application relating to Sayedee, the court had heard six applications relating to the other four defendants currently detained in custody who were not present in court at the time (see next post discussing these applications). If applications and orders can be given against four defendents when they were not present in court, why did the Tribunal require an adjournment the following day when Sayedee was absent? The order justifies the delay by reference to a previous ruling it had issued requesting that Sayedee be present in court - but since the Tribunal Chair, at the end of the first day, had specially told the prosecution that no more adjournments would be allowed, it seems rather odd that the court then gave nearly a three week adjournment.

The Tribunal registrar explained to me that there was a difference between a hearing relating to an arrest warrant (where the person to be arrested should be present) and the other applications following an arrest warrant (where the defendents did not need to be present). When this was put to Tajul Islam, the defence lawyer for all five accused, he said that he did not think this was a legitimate distinction being made.

When I asked Islam why he simply did not tell the court that, as his representative, he did not mind that his client was absent, Islam told me that he also preferred Sayedee to be present in court when the order was given! So, perhaps no harm has been done by yet a further adjournment!

2. Tajul Islam did though make a further allegation which is rather difficult to believe. He says that Sayedee's family had told him that Sayedee was in fact well enough to be brought to the court on the 22nd. Islam alleges that the government had manipulated the jail authorities to get them to say that he was unwell so that the court could give yet another adjournment allowing the prosecution to strengthen its warrant application.

It is a bit difficult to believe that the government would go to these lengths - particularly because, if the allegation was true, when Sayedee next came to court, the truth would easily become known. Moreover, I would argue that an adjournment does not really help the prosecution. Although the court is putting the prosecution through its paces (i,e asking for a supplementary application) it is pretty clear, going by the previous Tribunal decisions of the Tribunal, that the court will pass an arrest or detention order against Sayedee. So what would be the purpose of the government buying time?

However, it will be interesting to see what happens when Sayedee is next brought to court - and whether the defence try to substantiate its allegation.

Relevant law
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."

Links - Sayedee Back to Jail, 22 Sept 2010

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