Sunday, January 23, 2011

Stephen Rapp's visit to Bangladesh

The recent visit to Bangladesh of Stephen Rapp, US War Crimes Ambassador-at-large may well turn out to be a game changer in terms of the country's International Crimes Tribunal.

Till now the government has simply been burying its head in the sand in terms of the arguments relating to international standards. Its ministers have claimed countless times that the trials will meet these standards, whilst ignoring patent deficiencies in the law and procedure. Rapp's visit may well have forced the government to take the matter of standards seriously, and make the necessary changes

Of course whether the government/Tribunal does so, only time will tell. Rapp has however given wise advice in suggesting that the necessary changes can be made by amending the Rules of Procedure (it is not clear that all the necessary changes can be made by changing just the procedures, but it is a very good idea to try to do so without amending the 1973 Act): the government can continue to claim that the 1973 Act itself was adequate, and it was just the Tribunal's procedures that need changing (important it seems for the government's PR), and also the changes can be made quickly (by the Tribunal members themselves, without any parliamentary or, technically, governmental interference).

The law minister is quoted in the media as saying that the changes proposed are 'minor' - but some quite significant changes are being suggested. Hearings questioning jurisdiction of the tribunal, appeals against interlocutory Tribunal decisions, presence of lawyers during questioning of suspects, disclosure of exculpatory evidence by the prosecutor etc will bring about quite substantial changes to the current process, and also - in some cases - quite a change to the legal culture.

It may not be straightforward to bring these into effect - but it is in the long term interest of the government and those seeking a credible process that it does make them.

Here are some links to articles I have written about the Rapp visit:
- US Ambassador for War Crimes Due in Dhaka, 29 Nov 2010, New Age
- Bangladesh responds to criticism of its plans to try war criminals, 16 Dec 2010, Economist Magazine
- Seeking Justice that Bangladesh can take pride in, 10 Jan 2011, New Age
- US envoy to advise rule changes, 14 Jan 2011, New Age
- Rapp to advise minister about genocide definition, 21 Jan 2011, New Age. The full interview I did with Stephen Rapp was published in New Age's magazine Extra, but it is not accessible on the website. You can however download the interview here.

In addition, here is the transcript, released by the US embassy, of the press conference Rapp gave on 13 January 2011

Tuesday, January 4, 2011

29 Dec 2010: Sayedee bail application

On 2 November 2010, Sayedee was detained by order of the Tribunal, and the prosecution team was asked to produce an investigation report by 23 December for a hearing to discuss whether further detention was necessary on 29 December 2010 (see blog)

The hearing related to (a) application by prosecution team for an order directing the continued detention of Maulana Delwar Sayedee (MDS) whilst the investigation into allegations that he committed war crimes in 1971 continues and (b) an application by the defence for bail.

It started with the Tribunal seeking a correction of the prosecution application which had stated that it was Misc case not 2 when it was Misc Case no. 3

The prosecutor, Syed Haider Ali presented the report on the progress of the investigation. He said that the application set out reasons why the prosecution could not complete the investigation and needed more time. He referred to various parts of his report.

The Tribunal interrupted him at one point saying that the prosuction has not given any indication of how much time needed to complete investigation.

The prosecution replied that they were 'actively invstigating. It is a proper investigation, and objective investigation.' He also referred to the more recent BDR massacre and stated that, unlike that, the offences now being investigated took place many years ago.

Tajul Islam stood up and spoke on behalf of MDS. He said that Sayeedee is a respoected citizen of the country, and MP for Pirajpur and that he has been detained since 29 June 2010.

He said that the prosecution had been directed to complete the investigation by 23 December and submit report on how it has proceeded.

He said that the investigation had not been completed. The Investigation officer is seeking further time. 'Since the IO has not completed invetgation he should not be allowed to extend the investigation time whilst the accused remains in jail.'

He said that there was no prima facie case against the accused. No ground for detention. No charge under section 9. The accused petitioner has been in jail for a long time. There is no specific allegation against him. The allegations against him are 'vague, and hypothetical' There are no reasonable ground for him to be convicted, so he should get bail. Failed to show substantive risk of interference with investigation. Bail is a right. No possibility of absconding as willing to hand over passport, and report to police.

Specifically in respect to the prosecution's argument stated that:
- MDS is not 'operadi', not accused, but defendent.
- all allegations re absolutely vague. They are only 'allegations' He said, 'If these allegations are not vague I dont know what is vague.'
- detention is not at all necessary
- it is clear that this is a political prosecution. Not justice. It is to take down the political opposition. This is not to do with prosecuting people for offence under the 1973 Act but against a political party.

He then want through provisions of the legislation of other Tribunals. He quoted rule 65 of the ICTY and rule 119 of the ICC setting out what kinds of conditions can be imposed by the Tribunal, and showing that there are clear provisions for bail.

He said, 'We agree that there should be trials of war criminals. No one should be spared. We are willing for any conditions to be imposed upon teh accused. He is a political leader, an old man, unwell.'

The prosecutor was then given a chance to respond. The Tribunal chairman said that he needed to respond to (a) how much time invsetigation needed and (b) the conditions which the defendent lawyers had agreed could be imposed upon MDS.

The prosecution did not respond to these points specifically. He repeated many of the same points he had raised earlier and also argued that bail provision was not present in the 1973 Act

Tajul Islam responded. He said that where the law is silent, then international standards should be read in. The Act was written in 1973 and we are now in 2010

In relation to bail there is nothing mentioned in rules and in this situation need to read in international provision. Bangladesh is a signatory of the International Criminal Court.

he said, the main question is whether MDS release would be an obstruction to investigation. We are willing to be subjected to any condition.

Chief Prosecutor then stood up and said that Sayedee can not expect the right to bail as would end the prospect of prosecution. It is crystal clear that if enlarged would effect investgation. There are six general diaries against him.

After only a very short hesitation, the Tribunal chair read out this order. (nb: this is not word for word)
"The accused Maulana Delwar Sayedee (MDS), alias delu has been presented before the Tribunal by the authorities as directed. The prosecution has submitted a report stating progress of investigation. In previous order started that if they could not conclude investigation by 23 December 2010, they should submit a report setting out the progress.

The prayer of the prosecution is for extension of time for investigation by keeping the accused in custody, and there are two applications filed by the accused - one for giving bail to the accused and the other for a direction upon the prosecution to disclose to the accused the report of the investigation agency.

At the outset Tajul Islam, the advocate for MDS, submitted that he has received copy of the report submitted by prosecution and such did not proceed for direction.

The prayer of the prosecution for extension of time for investigation and custody of the accused is taken up by Syed Haider Ali and in support of this he read out last part of report. Investigation of the case against the accused incumbent is going on and by now there has been the collection of many materials against him. It was further submitted that need more time to continue investigation and the collection of evidence inside and outside the country is going on and the investigation of the co-accused is also going on.

Also stated that require the examination of the accused, but no such prayer has been made for that.

Also stated that the they are examining more cases and that it will take some more time. Also submitted that the accused is a political person in country and if freed on bail may influence proper investigation in the case and also may abscond the country. Also said that 6 general diaries had been lodged in different police stations of Pirozpur for giving threat to witnesses and are being investigated, and as a leading politician of country should be directed to remain in custody until after the investigation is over. The prosecution could not state how much time needed to continue investigation.

Tajul Islam for the defence submitted that in the report submitted by the prosecution nothing has been stated about how much investigation has proceeded and how much needed.

On application for bail, Tajul Islam submitted that the accused is a respected person of the country. He is ready to comply with any condition imposed by the Tribunal. Also said that would hand in passport so that chance of leaving the country is negated. By referring to other Tribunals submitted that although there is no detailed rules relating to the bail in either the Act or the Rules, other tribunals state that accused should not be detained for indefinite period.

We have heard from prosecution and defence. Having considered the submissions, it is our view that some more time should be given to the prosecution to continue investigation and that prosecution is to complete investigation within 15 Feb 2011 and submit report. In case that failure to submit formal charges, then Tribunal will sit on 14 Feb and pass necessary orders considering an application for bail by accused. We are not inclined to allow bail to him at this moment. The prayer for bail is therefore rejected."
Yet again the order of the Tribunal was not reasoned. Having summarised the arguments, the order simply stated that, 'we are not inclined to allow bail at this moment.' It did not engage with any of the defence's arguments - and most specifically explain why adequate investigation could not continue if bail was provided on the basis of a series of conditions including relinquishing Sayedee's passport, ordering him not to travel to particular places, or not to take any particular actions. This was offered by the defence - and it has to be said seems pretty reasonable considering he has not been charged and has been detained for six months.

It is notable that although during the hearing the Tribunal chair sometimes does asks pointed questions to the prosecution, the lack of proper responses from the prosecution does not seem to impact upon the Tribunal's order. So the Tribunal asked the prosecution to respond to the defence's offer of bail conditions - but there was no specific response to this from the prosecution.

Also troubling is the speed at which the Tribunal gives its order after the arguments. There is almost no pause at all. There is no time for consultation with the other judges to discuss what has been said at the hearing. There seems little point in having the hearing if in fact the Tribunal has already made up its mind before hearing the arguments.

2 Nov 2010: Sayedee detained by Tribunal

Delwar Hossain Sayedee was brought to the Tribunal on 2 November 2010 in relation to the prosecution application, originally made in late July 2010 for the Tribunal to detain him in relation to war crimes offences. When the prosecution originally made its application seeking Sayedee's arrest under the 1973 Act he was already under arrest for other offences unrelated to war crimes. Hearings took place on 5 August, 10 August and 21 September, 22 September, 12 October and was each time the hearing adjourned - three for reasons of his ill health.

Four days prior to this hearing, the Tribunal had made some amendments to its rules (see blog).

In court Sayedee was wearing a white punjabee, black collar, and a red topi. Before the Tribunal started he was talking to his lawyers, including Tajul Islam.

The prosecutor Haider Ali presented the prosecution case. The prosecutor had previously filed an application seeking a warrant of arrest. This stated:
'Whereas, in the course of the investigation undertaken by the Investigation Agency set up under Section 8 of the 1973 International War Crimes (Tribunal) Act (Act 19 of 1973) into the activities of the offender, testimonies have been obtained to the effect that during the Liberation War in 1971, he colluded with the occupying Pakistani army and razakars (collaborators), Al-Badr, Al-Shams and other anti-Liberation forces to form an Auxiliary Force to the Pakistani Army and carried out offences in different parts of Bangladesh that included arson, looting, rape, torturing women, mass murder and other offences.

Initial investigations show that during the Liberation War in 1971, the offender Delwar Hossain Sayedee aka Delu met with Captain Ejaz of the Pakistani army, and provided to him assurances of full cooperation to assist in protecting the integrity of Pakistan.

Whereas, after establishing a close relationship with Captain Ejaz, Delwar Hossain Saidi aka Delu established an Auxiliary Force consisting of the local Jamaat-E-Islami members and other anti-Liberation forces including razakars (collaborators), Al-Badr and Al-Shams members to assist the Pakistani army. They took up a firm stance against the liberation forces of Bangladesh, spreading out through Pirojpur and its surrounding areas to commit offenses that included attacking freedom fighters and citizens who supported the Liberation War by murdering people, setting fire to houses, looting, raping women and forcibly handing over women to the Pakistani army in order for them to be raped.

On May 8, 1971 at around 3 p.m., Delwar Hossain Saidi aka Delu and his companions accompanied the Pakistani army to the residences of supporters of the Liberation War, including freedom fighters and freedom fighters’ families: (1) Alamgir Poshari, father – late Shaijuddin, (2) Mahbub Poshari, father - late Mannan Poshari, (3) Chand Miah Poshari, father - late Shaijuddin Poshari, (4) Jahangir Poshari, (5) Kanchon Poshari , sons of - late Shaijuddin Poshari of Chitalia, Thana - Pirojpur, Zila - Pirojpur. The Pakistani army surrounded their houses, and members of the group entered the houses and removed cash, gold jewellery and other valuables. They then set fire to the houses and burnt them down. On the instructions and under the leadership of Delwar Hossain Saidi, the miscreants used the Pakistani army rifles to shoot and kill a number of people. They also handed over a number of people to the Pakistani army, sending them to their deaths.

Whereas, at around 10 a.m. on June 2, 1971 the offender Delwar Hossain Saidi aka Delu committed crimes against humanity by leading a group of collaborators and accompanying the Pakistani Army to the Hindu neighbourhood of Umedpur village on the eastern side of Tengrakhali village. They surrounded the village and forcibly entered every home, collecting cash, gold jewellery and valuables and burning the houses in order to force the people out. The offenders captured some of the villagers and tied them to coconut trees, torturing them and then shooting and killing them.

Whereas, the testimonies and information gathered provide preliminary proof that Delwar Hossain Saidi aka Delu and others committed crimes specified under Section 3 (2) of the International War Crimes Tribunal Act in different parts of Pirojpur Zila in Bangladesh.'
In relation to why Sayedee should be arrested, the application stated:
'it is imperative that this individual be arrested/detained under Section 11(5). There are legitimate concerns that if the offender remains at large then there may be damage to the testimonies, and investigation work may be hindered, and that this individual may go to into hiding or possibly flee the country; therefore in the interests of justice, the honourable Tribunal is requested to pass the necessary order to arrest/detain the aforementioned offender in order that the Investigation Agency can discharge its responsibility effectively, and/or the honourable Tribunal may pass any other order as it deems it fit and proper.'
In a supplementary application - following a request from the Tribunal for further details as to why the his detention was necessary for effective investigation - the prosecution added the following:
"Maulana Delwar Hossain Saidi aka Delu is an extremely influential individual, if he remains at large it will not be possible to undertake an effective and proper investigation into the offences he is accused of under Section 3(2) of the 1973 International War Crimes (Tribunal) Act. Additionally, an effective investigation will be hampered by him and there is a strong possibility that testimonies and evidence will be destroyed, and that a he may may go to into hiding or possibly flee the country. Therefore in the interests of justice, the honourable Tribunal is requested to pass the necessary order to arrest/detain the aforementioned offender in order that the Investigation Agency can discharge its responsibilities effectively, and/or the honourable Tribunal may pass any other order as it deems it fit and proper."
The prosecutor in court stated that an investigation was being undertaken and meeded time. The Tribunal Chairman said that Sayedee had not been formally charged, 'what is going on with this investigation, how long will it go on?'

The prosecution did not respond with a particular time period but said that the investigation was going on.

The Tribunal Chair then said that the court 'minded not to allow detention for indefinite period and expected prosecutor to act accordingly.'

Tajul Islam then stood up and spoke for Sayedee. He said that section 11(5) of the Act in no way authorised the issuing by the Tribunal of a warrant of arrest as can only do so once charged. There is no investigation report 'In absence of investigation report there is no question of framing of charges.'

He said that in reply to the defence application, 'there is a simple denial, In respect to any of the law points the prosecution have not replied.' (This is in fact correct; the prosecution states in its response: - 'Whereas, the Prosecution has no comment to make on clauses 1, 2, 3, 5 and 9 of the application. Whereas, the views expressed in clauses 4, 6, 7, 8, 10, 11, 12, 13 and 14 of the application are incorrect, the Prosecution rejects these.'

In relation to the supplementary application, Tajul Islam made some additional points:
- he was a world islamic scholar,
- he was not a political leader with no political influence of power
- no evidence that he was tampering with witnessses
- the prosecution has a motivated and ulterior motive for his prosecution.
- the prosecution have used an alias, Delu, which Sayedee has never been known by
- the investigation officers allegations are vague
- no evidence that Sayedee is creating any obstacle.
- the amendment of the rules has just been brought in to deal with the lacuna in the law
- in media reports that statements are only being taken from ruling party people

The prosecution responded by saying that the defence lawyer was being 'comtemptuous'. His submissions cannot be sustained. As a spiritual leader Sayedee could have influence. The investigation was free and fair. Noone was influencing it.

The Tribunal chairman said that there is no specific allegation against Sayedee. The prosecution response that there were specific allegations. The tribunal chairman was also asked whether any obstacles had in fact been placed in the way of the investigation. The prosecution responded by saying that there was a chance this could happen.

The Tribunal chairman then read out his order (not word for word).
"This is an application filed by prosecutor for the issuing of warrant of arrest against the accused person, Delwar Hossain Sayedee, alia Delu, during the investigation of the case. It has been submitted by both sides that that he is in custody in relation to some other cases. Prosecutor Haider Ali appeared for the prosecution. He said that DHS is an influential person of locality, who is a renown orator who can influence people by speeches. According to the prosecution,  DHS has got power to influence people. Moreover it was submitted that investigation agency is investigating the case regarding his involvement in the offences. They have submitted report to the prosecution and this is annexed to the petition. Alleged that DHS was involved in offence under section 3(2) of the International Crimes Tribunal Act 1973, and the Investigation Agency has submitted that he should be detained in custody whilst investigation is complete.

On the other side Tajul Islam appears for the accused with a petition praying that the Tribunal not issue a warrant of arrest against the accused. They also submitted that that DHS was a very influential person and orator and poltical leader of the country.

Tajul Islam submittted that prosecution has not brought any statements to support detention of DHS for investigation. Tajul Islam also submitted that prosecution is acting against him in a male fide manner. Also submitted that under the law, the Tribunal cannot issue a warrant of arrest as the 1973 Act does not authorise it.

We have already ruled that under rule 9(1) of the rules this Tribunal has got the authority to issue a warrant of arrest at any state of proceedings if statified that necessary for effective investgation.

Both sides admitted that accused person is influential person of country. ....

At this stage minded to pass an order directing accused person to be detained in jail for limited period.

Amended rule 9(4) states that if a person is already in custody for offence under the Act and the tribunal is satisfied that detention order is necessary, they may issue a production warrant.'

We are of the view that a production warrant be issued under rule 9 ordering him to be detained until 29 December 2010.

The Investigation Agency is directed to continue investigation against him and submit report by 23 December 2010 about status of investigation or submission of formal charge.

If formal charge not submitted, and if report submitted, we will then consider whether order of detention is extended or not.

The application by the defence not to issue a warrant of arrest is thus disposed of. As regards application by accused to executive a letter of authority, this has not been pressed."

28 Oct 2010: Tribunal Rules Amendment

On 28 October 2010, the Tribunal published an amendment to its rules - the “International Crimes Tribunal Rules of Procedure (Amendment), 2010.”.. You can see the Tribunal's original rules here.

One of the objectives of this amendment appears to be an attempt in part to deal with criticisms, argued by the defence, that the Tribunal did not have the power to issue an arrest warrant against a person who was not charged with an offence. The defence had argued that section 11(5) of the International Crimes (Tribunal) Act 1973 only allowed the Tribunal to issue a warrant for the arrest of a person who had been 'charged' with an offence - and that rule 9(1) of the Tribunal's rules which allowed the Tribunal to order the arrest of a person if it considered that it was "necessary for effective and proper investigation", was ultra vires. (To read more about this issue, see this blog) and also point 3 of this blog)

In support of its argument, the defence had pointed out that the warrant for arrest (set out in form 3 of the schedule to the rules) referred to a person 'charged' with an offence under the Act and the production warrant (form 4) referred to a person being asked 'to answer to a charge'.

The Tribunal had ruled relating on 21 September 2010 in relation to defence arguments relating to the Nizami, Molla,  Kamruzzaman and Mojahid that it did have the power to issue an arrest warrant without a person being charged - but gave no reason for this, and the Tribunal did not in court refer to the problem of the wording in the warrants. (see points 3 of blog referred to above)

The new amendment changed the wording of these warrants so that the Tribunal could  issue a warrant against an 'accused' person - and not just a person charged. The definition of the word 'accused' was also changed. In the original rules it was defined to mean the "person against whom formal charges is submitted before the Tribunal" and in the new rules it was defined to mean a person "whom an investigation of an offence under the Act has been started.”

These changes don't deal with the overall criticism of the use of rule 9 to arrest a person, but it does remove some of the points that supported the defence's position.

The amended rules also dealt with another problem in the original rules (not brought up by the defence) that Tribunal had no clear power to order the production of a person, who was already arrested and detained in relation to another offence, to the Tribunal. Rule 9(1) only refers to issuing a warrant of arrest - not appropriate for a person already detained. A new rule 9(4) has therefore been introduced which states that:
“If a person is already in custody in connection with an offence or any case other than under the Act and the Tribunal is satisfied that a detention order is necessary for effective and proper investigation of any offence under the Act, the Tribunal may issue a production warrant and direct the person to be detained in custody.”
These amendments do raise questions about the legality of the production warrants issued prior to these amendments - in relation to first four Jamaat detainees. Tribunal decisions however cannot be challenged.

12 Oct 2010: Sayedee hearing

On 22 September, 2010 the Tribunal, had adjourned its hearing concerned with the prosecution's application for the arrest and detention of Delwar Hossain Sayedee as he was not present in court. See relevant blog. Sayedee was already in prison relating to non-war crimes related offences.

I was not present in the Tribunal, but a colleague took notes for me.

Sayedee was again on 12 October 2010 not brought before Tribunal on the grounds of illness and the Tribunal Chair, Justice Nizamul Huq again adjourned the hearing with the following order:
"The suspected person, Delwar Hossain Sayedee, has not been produced before this tribunal today. The production warrant says that this suspected person is sick and unable to move and, as such, could not be produced. As this tribunal earlier expressed its desire to express the order on the application by the prosecution in the presence of the suspected accused, we are not inclined to produce this matter today. The defence has submitted a supplementary statement, a submission form, not to issue a warrant of arrest against this suspected accused. Let it be kept on record that the next date will be 2 November, 2010. The prison authority is directed to produce this suspected accused on that date previously. If, on that date, the suspected accused remains sick, he must be produced before this tribunal on that date in an ambulance, if required. "[The tribunal] issues a production warrant accordingly. That a copy of this order is sent to the prison authority along with this production warrant for further action."

Sunday, January 2, 2011

30 Dec 2010: Salauddin Quader Chowdhury at Tribunal

Salauddin Quader Chowdhury (SQC) was presented before the Tribunal on Thursday 30 December following a previous order of the Tribunal made on Sunday December 19 2010 (see blog).

On arrival at the Tribunal in the morning, I was stopped by Hasina Quader Sinha, the sister of SQC who said that she and her brother Saifuddin Quader Chowdhury, had not been allowed entry into the court. She also said that her lawyers had also not been allowed in - and in front of the court there was a group of lawyers, including Tajul Islam (the lawyer for six Jamaati defendents) and Nitai Raoy Chowdhury whom the lawyers said was their 'head lawyer'.

It turned out that four family passes had been given to the family (two daughters, a sister in law and a brother in law) but not to any others, which explains why they were not allowed into the Tribunal. It also was clear when I arrived in court that many of SQC's lawyers were in fact present in numbers - including Fakrul Islam who had represented him at the first hearing on December 19th, and who was clearly his main lawyer.

Initially, the guards at the door to the building also tried to stop me entering, but I was noticed by some officials inside and allowed to enter. Unlike normal, there was no table in the entrance to the Tribunal building to allow people to get their passes, but I found the relevant person in one of the inside rooms who gave me a pass to the court.

When I went upstairs and entered the court room, I realised the reason for the difficulties. The court was totally full with standing room only. However, the balcony area that overlooked onto the court was completely empty.

I was surprised to see the Attorney General present - along with a number of lawyers from his office. The Attorney General had never attended any previous hearing.

SQC was in the dock, standing up.

As I entered, and found a place to stand on the side, the Tribunal Chairman was in full flow. I had missed the very beginning of the Tribunal so was unclear what had happened earlier but it appeared that they had been some kind of trouble with more defence lawyers trying to enter the court than there was space.

It should be noted that although only one or two defence lawyers actually speak there are always very large numbers of them - perhaps as many as twenty or thirty. [When I spoke later to the lawyer Daniah Kader Chowdhury (a daughter-in-law of SQC) she said that there had to be a lot of defence lawyers as a 'show of force. The prosecutors come out in force, so we need to do the same.' She asked why it was necessary for the AG and his lawyers to be present when there was already a prosecutor's team, and that if defence lawyers were to be limited in number then so should the prosecutor.]

The Chairman was speaking in a pretty loud voice, in part Bangla and part English. "We have come here to do a certain duty which is upon our shoulder. What has happened today was unthinkable. We are all lawyers and we must work together. We are all new at this. The Tribunal is new the prosecutors are new the defence lawyers are new. Let us help each other to do justice,' he said

The AG at one point said, 'Can I suggest that the Judge should fix the maximum number of defence lawyers. The defendent should be asked to name who he wants to be his lawyers. The lawyers chosen should then be given an ID card with a photograph so that they can enter the court. This is what happened to me. I had to get a photograph and was given an ID card.'

He also apologised on behalf of all lawyers for what happened and also raised issues about the security in the court building and in the area around the court.

The Tribunal Chairman (TC) then brought that discussion to an end, and the defence lawyer started to stand up.

There then following a disorganised exchange between SQC himself and the Tribunal Chairman.

SQC said that 'I have not had access to any lawyer since I was detained.'

The TC said 'that maybe. You will have your time to speak later.'

SQC went on; 'I have not been able to instruct any lawyer. I have rights to a lawyer under the constitution to a lawyer'. He referred to a number of sections inthe constitution including Article 107.

The TC said 'We can assure you that you will be able to take instructions from a lawyer.'

SQC said, 'You are a judge of the supreme court. You have taken oath to protect the constitution. I have not even been able to instruct a lawyer.'

The TC said, 'You will be able to'

The TC then asked Fakrul Islam, SQC's lawyer, to explain the situation.

Islam said that no lawyer had access to the jail, but that on the 15th December, before he was detained he had signed a power of attorney (known as a wakalat-namah). Since then he had not signed one

The TC then said that if there is no legal wakalat-namah, the tribunal should be adjourned

Islam said that two lawyers had tried to go to the Jail to get a wakalat namah, but they were denied entry and the documents were not allowed to be signed.

The Tribunal chairman said that, 'You are a lawyer, you can take relevant action to deal with this'

Islam said this was exactly the reason why he had registered a petition this morning with the Tribunal. He said that both lawyers and family has been denied access to the jail.

The TC said that the court can't continue as the defendent had not given any instructions to the lawyer. 'He said in open court that he has not instructed a lawyer,' the TC said.

Islam then said , 'In that case allow the defendent to speak for himself'

SQC then said, 'I am pleading for myself. Let me speak.'

The TC refused to hear anymore from SQC and then started dictating an order. (nb: this is not a word for word record of the order.)
"At the beginning of the proceeding today, SQC, the accused, said that he could not execute the legal wakalat-numah to engage counsel to represent him in the Tribunal. He also said that he could not give instructions to anyone. On inquiry by the Tribunal, the lawyer Fakrul Islam said that the wakalat-numah that he received was given to him when SQC was a free man. Upon hearing this we feel that Mr Faqrul Islam or any other advocate should be allowed to properly exchange wakalat-numahs with SQC and we are also of the view that that proceedings should not process further today so that proper steps could be taken by SQC in this respect and the matter should appear on the list on 17 January. In the meantime the jail authority is directed to assist SQC to execute a wakalat-namah if he wishes to do so. .... Let a copy of the order be sent to the jail authority, and that SQC be sent to jail.'

SQC then interjected. 'I have not seen my family. I have had no food for 15 days. I need to have access to my lawyer.'

The TC then added the following to the order:
'Mr SQC has informed the Tribunal that he wants access to advocates so he can give proper instruction to them. the Jail authority is directed to do the needful according to the jail code.'
SQC then said, 'What about my family. Let me meet my family.'

The TC said that this issue, 'should be dealt with by the jail authority,' not including any direction in the order.

The Tribunal members then rose and left the court.

Following the exit of the members, I asked the Attorney General what was his view about the jail authorities not allowing the defendent access to lawyers. He said, 'We only know what the accused has said. It has to be ascertained by the jail authority whether what was said was correct or not.'

SQC then remained in the dock for sometime. He spoke to his lawyers and talked intermittently to journalists, holding forth at times. In this period he made the following points: 'I have been beaten black and blue. I have had no access to legal books. My papers were taken away from me before I came to the Tribunal. This is supposed to be a constitutional court, but it is a Karzai court. I am being denied my rights under the constitution. I have been a member of parliament of 32 years. I was beaten both in police custody and jail.'

I spoke briefly to Fakrul Islam, his lawyer, who said that he had gone to Narayanganj jail on the 23rd December, then on the 25th and then on three consecutive days after that, and that each time he was denied access to the jail. 'I said that I was the lawyer of his choice, but I was refused entry to the jail.'

His daughter in law, the advocate Dania Kader Chowdhury said that SQC was taken to Narayanganj jail on 23rd December, and that he met SQC as a member of the family on that day. 'After than no one has been allowed to see him, although in the jail code it says that a person should be allowed to see his lawyer every day.' I said to him that despite the allegations of torture he seemed quite well, and she said that he had seen his foot, and that the 'nails had been taken by pliers.' Of course it is not possible for me to verify these allegations which have been well publicised in the media.

This was the Tribunal very far from its best. It heard allegations that the jail authorities had not allowed the accused to see a lawyer, and that they had refused to even allow the accused to sign a power of attorney. These claims were made both by the accused and by his lawyers. On hearing this - quite serious possible breaches of due process - the Tribunal neither sought details of these claims (i.e by finding out details of when the lawyers are supposed to have tried to access the jail etc etc) nor asked for any explanation from the jail authorities, nor take any other steps to determine the truth or otherwise of the claims.

Instead, the Tribunal used this apparent breach of the defendent's rights, to further adjourn proceedings for a period of 18 days.

Furthermore although the Tribunal heard that the family had been refused access to the accused, the Tribunal neither made any enquiries nor passed any order to the jail authorities to ensure that in the future the family could access the defendent.

A key role of the Tribunal is to protect the rights of the defendents - and when it hears claims that these rights are being breached, one would expect that some action be taken to enquire into their accuracy, and take appropriate action. In the Tribunal today, it seemed not to appreciate at all that it had this role.

Moreover the further long adjournment of the Tribunal, again delaying the defendent's application for bail, is very difficult to justify. It remains unclear why an adjournment of just one or two days could not have been given. The tribunal did not ask the defence lawyers how long an adjournment they would need to obtain instructions from the accused.

Also notable was that SQC did not raise with the Tribunal any claim that he had been 'tortured' or abused whilst in prison - though he did mention that he had not been provided proper food.

19 Dec 2010: Hearing over application to arrest Salauddin Quader Chowdhury

This hearing related to an application filed with the International Crimes Tribunal (ICT) on 15 December (see relevant blog) for the issuance of a warrant of arrest against Salauddin Quader Chowdhury. Since then, on 16 December, he was arrested on an unrelated charge (see relevant blog) and had been remanded in custody for five days.

When I entered the court room, I introduced myself to SQC's lead lawyer, Fakrul Islam, who told me that he had filed two applications with the court - one stating that the prosecution application to issue a warrant of arrest was now no longer valid since he was already in detention and another one challenging the presence of two of the judges on the Tribunal.

The hearing started with the Chief Prosecutor stating that an additional application had been filed. He said that this was necessary since SQC had already been detained in custody, and therefore the prosecution was no longer seeking a warrant for his arrest, but instead a warrant for his production in court.

He said that the application was being made under Rule 9(4) of the amended Rules of Procedure. This new amendment allows the Tribunal to (a) issue a production warrant for the person to be brought to court and (b) direct the person to be detained. (see relevant blog). It states:
'If a person is already in custody in connection with an offence or any case other than under the Act and the Tribunal is satisfied that a detention order is necessary for effective and proper investigation of any offence under the Act, the Tribunal may issue a production warrant and direct the person to be detained in custody.”
The prosecution argued that SQC was a 'delinquent' and that he had been uttering 'lavish mischievous statements' against the Tribunal, and that being so, an application was filed on 15 December for an arrest warrant to be issued against him, but that since then he had been arrested, and that therefore a secondary application was filed, asking him to be produced in court under rule 9(4).

The prosecution asked the court that the accused be kept in confinement in custody, short of which the applicant is so powerful and influential, that it would be very difficult to for the investigation agency to proceed effectively and properly and that is why 'we are praying for action under rule 9(4)'.

The judge asked why it was necessary for 'effective and proper investigation' that he be detained.

The prosecution read out part of their written application and cited comments that SQC is alleged to have said about the Tribunal.

There was then a discussion between the Tribunal and the prosecution about how it was possible to issue a production warrant when the accused was in police custody and not in jail custody.

When the prosecutor sat down, Fakrul Islam them stood up to argue in response. The Tribunal however did not allow him to speak saying that there was a system to first file a petition with the registrar, and then a date would be set. It was not entirely clear if the applications had been filed or whether the defence lawyers had tried to file the applications but were not able to do so. The lawyer said that he had had gone to file the applications that morning, just as the prosecution had that morning filed their supplementary application. The Tribunal chair said that there would be another time for him to put his arguments in court.

Without any further hesitation, the Tribunal Chairman then read out his ruling (this is not a word for word transcript):
'The Chief Prosecutor has submitted an additional application praying for the issuing of a production warrant for the arrest of SQC accused under section 3(2) of the International Crimes (Tribunal) Act 1973). The Chief Prosecutor submitted that subsequent to filing of original application, the accused had been arrested in connection with Ramna PS case no, 55(06)/2010 dated 16 October 2010 under sections 143/147, 148, 149, 435, 326, 307, 427, 428, 429 of the Penal code. As such the prosecution has now applied for a prodcution warrant on the accused. Further submitted that accused had taken part in atrocities committed by Razakers and Al Badr and pro-pakistan forces formed during the liberation war in 1971. It was further submitted that investigation agency are investigating offences committed by the accused. This accused is a member of parliament of the country. He further submitted that the evidence was coming from insde and outside the country and the investigation agency are collecting documents and materials that would be used against the accused at the Tribunal. For effective investigation, he should be arrested as without detention the investigation would be prejudiced. Further submitted on behalf of investigation agency a report which was placed before the Chief Prosecutor. On perusal of the same, we are satisfied that materials have been collected against the accused and are being collected. Also satisfied by giving interviews in the press and electronic media an atmosphere has been created in minds of witnesses. Along with a production warrant let a production warrant be issued the accused SQC against whom there is an investigation of a case under the ICT as recorded in case 4/2010, and that he be produced in the Tribunal on 30 Dec 2010. Let copy of the report by the Investigation Agency to the Chief Prosecutor be sent to the accused along with production warrant.'

The Tribunal seems to be treating prosecution and defence applications differently. So whilst the prosecution's application filed that morning was accepted by the Tribunal, the ones by the defence was not. I asked the registrar to explain this, but he simply said it is for the Tribunal to set its own procedure.

Putting to one side the issue of filing application, it also remains unclear why the Tribunal does not consider it appropriate to hear what the defence has to say in relation to the application before the court that day relating to the issuing of a production warrant.

Yet again, the Tribunal issued its ruling immediately after the arguments had been made, without any break or discussion.

16 Dec 2010: Arrest of Salauddin Quader Chowdhury

In the early hours of 16 December 2010, Salaudddin Quader Chowdury (SQC) was arrested from his home in relation to an incident that took place on 26 June 2010 where a car at Moghbazar in Dhaka was set on fire resulting in the death of Faruk Hossain. The detective branch alleged that SQC had instigated and planned the arson as well as financing the attack.

This arrest was not directly connected with the previous application, made the previous day, to the International Criminal Tribunal seeking a warrant for his arrest in relation to war crimes allegation. (see blog)

In the afternoon SQC was produced before the Court of Metropolitan Magistrate Mohammad Nazrul Islam

Metropolitan Public Prosecutor Abdullah Abu and District Public Prosecutor Khondaker Abdul Mannan asked that he be remanded in police custody.

According to a Daily Star article, it was stated in the report to the court written by DB Inspector Fazlur Rahman seeking SQC's remand, that the investigation officer into the June incident had mentioned that Salauddin was directly involved in setting fire to the car. It also stated that over 35 criminal cases or general diaries has been filed against SQC many of which were pending with different courts across the country and that he had been arrested during the caretaker government's rule in 2007 on corruption charges.

Defence lawyers Fakhrul Islam, Sanaullah Miah and Mohsin Miah submitted three petitions - one for bail, one seeking medical treatment and the third asking that note be taken of his injuries.

Defence lawyers argued that their client's name was not in the first information report and that other accused in the case, including BNP leaders Mirza Abbas and Shamsher Mubin Chowdhury had been granted bail.

During the hearing he also told the court that members of Directorate General of Forces Intelligence (DGFI) and Rab had 'tortured' him at the DB office after his arrest. He said that was why his bloodstained string vest had been taken off.

The magistrate rejected the bail and placed him on a five-day remand.

15 Dec 2010: Application to Arrest Salauddin Quader Chowdhury

On 15 December, the prosecution submitted an application to the International Criminal Tribunal for the the arrest of Salaudduin Quader Chowdhury, a senior BNP leader. The Tribunal set 19 December as the date on which the application was to be heard.

According to an article in the Daily Star, the application sought the court's permission to detain SQC:
'for his alleged involvement in the killings of Nutan Chandra Kundu, founder of herbal medicine factory Kundeshwari Oushadhalaya at Raozan in Chittagong, on April 13, 1971, and 107 others during the Liberation War.'
After the application was filed, the Chief prosecutor told journalists (as reported in the Daily Star) that SQC was:
'Involved in the killings of Nutan Kundu, 38 people at Jagatmallo Para and 69 othera at Unasattar Para in Chittagong during the Liberation War. Those people were tortured and killed in places close to Chowdhury's Good Hill residence. Primary investigation shows that SQ Chowdhury with the help of Pakistan occupation forces led the killings.
In October, the Daily Star had reported that the investigation team had gone to Chittagong following which it was confident that there was then sufficient evidence to arrest him. The article reported that it had found evidence that:
Prafulla Chandra Singha, son of Nutan Chandra Singha, a philanthropist and former owner of the herbal medicine factory, 'Kundeshwari', alleged that SQ Chowdhury on instructions of his father Fazlul Quader Chowdhury brought Pakistani army personnel to their residence on April 13 in 1971. They killed Nutan Chandra
In a seperate article on SQC's background (written on 17 Dec) the Daily Star stated that in 1972 a case had been lodged against SQC over the killing of Nutan Chandra Singha, which was mentioned in the Liberation War Documents, a government publication in the 80s:
After the Liberation War, a case was filed against him, his father and their associates under the Collaborators Act 1972 on charge of collaborating with the Pakistan occupation forces in Chittagong. He was also charged with the killing of Nutan Chandra.

Based on the deposition of the witnesses, investigators submitted a charge sheet against all accused in Nutan Chandra murder case filed in 1972.

The trial of the case began on January 29, 1972. Of the accused, Salauddin's father and five others were put behind bars while the rest five including Salauddin had been on the run.'
The article also quotes from the report of the People's Inquiry Commission, headed by Begum Sufia Kamal, which published a report in the 90s on "The Activities of the War Criminals and Collaborators during the Liberation War of 1971."
'The report stated that Salauddin from Gahira village of Raozan in Chittagong with his father Fazlul Quader and brother Giasuddin Kader Chowdhury mobilised a number of collaborators against freedom fighters and pro-liberation people during the independence movement in 1971.

Bangla daily "Dainik Bangla" published a report on January 8, 1972 featuring the activities of Salauddin and his family.

The commission cited the Dainik Bangla report that says, "Salauddin Quader Chowdhury and his father Fazlul Quader Chowdhury brought a good number of young freedom fighters to their Goods Hill residence in Chittagong and unleashed repression on them. Salauddin in association with Pakistan army killed Omar Faruk, a student leader, at his residence on July 17, 1971."

The report mentions, “A platoon of Pakistan army was deployed in front of Salauddin's residence throughout the war.

“The common people caught his [Salauddin's] father when he was trying to flee to Myanmar with a maund of gold on December 18, 1971, two days after the Pakistan army surrendered to the joint forces."

The report also cited from a book, Torture Cells and Killing Grounds in Chittagong during the Liberation War.

In the book its author Shakhawat Hossain Manju writes about the Goods Hill residence of Salauddin's family.

The house became a centre for torturing freedom fighters and pro-liberation forces caught from different parts of the city. Salauddin was directly involved in those activities.

"The torture centre was being led by extremists of Muslim League.”

Another book titled Bangalir Muktijudhher Itibritto written by Mahbubul Alam describes the torture. On page 69, the author writes about freedom fighter Nizamuddin, who was caught by collaborators on July 5 and taken to Fazlul Quader.

The author quotes Nizamuddin saying, “I was tied and beaten for five hours at a stretch by Fazlul Quader's son Salauddin and associates Khoka, Khalil and Yousuf. I became unconscious. I was sent to the stadium on July 6. Until then, I was given neither food nor water. Once I wanted water, they said you had become a Hindu, we will not give you even water.”

In the book, the writer also writes, "Principal Nutan Chandra Singha was murdered in the Kundeshwari Bhaban on April 13.

“Two jeeps followed by four tanks had driven to Kundeshwari Bhaban. Salauddin was accompanying the Pakistani soldiers.”

On page 254-255, the author mentions, “The principal made the soldiers understand what he had done for the people of that area and what his future plan was. The military went back. But Salauddin again brought them back saying this Malaun (infidel) should be killed as per his father's orders.

“They fired three gunshots, the principal fell to the ground near the temple and died praying. Both the Muslims and Hindus were shocked at the killing, but Salauddin asked the Muslims not to deplore the death of a Malaun. Then Salauddin gang killed two more people, including one college student Dayal Hari Biswas in Gahira."

Sheikh Muhammad Jahangir of Chittagong told the commission that Salauddin in association with Pakistan army killed his father Sheikh Muzaffar Ahmed, a freedom fighter, and brother Sheikh Alamgir near Hathazari military camp on April 17, 1971.

After the independence, Jahangir filed a case against Salauddin and his gang.'