Saturday, April 16, 2011

28 Mar 2010: Alim bail application

On the evening of 27 March, following the warrant of arrest, issued by the Tribunal earlier in the day, (see blog), Abdul Alim was arrested from his house in Joypurhat and brought to Dhaka.

On the 28 March, Alim was brought before the Tribunal (Rule 34(1) of the ICT Rules of Procedure state that the 'police shall produce the arrested accused direct before the Tribunal within 24 (twenty-four) hours of arrest excluding the time needed for the journey'.)

There was a morning and an afternoon session

Morning session
Supported by a policemen either side of him, Alim was 'carried' up the stairs to the court which is situated on the first floor and put into the dock, where he was allowed to sit. His lawyers then came to talk to him.

Advocate Zead Al Malum appeared for the prosecution and gave the Tribunal members various police documents relating to the arrest of Alim.

Malum argued that he should be detained in custody. Mallum again read out from the report prepared by the investigation agency which stated that Alim was the chairman of the peace committee in Joypurhat, and in that position 'with the assistance of Razakars and Pakistani occupation forces Alim was involved in the killing of 10,000 people in Joypurhat during the 1971 War' and the murder of the local Awami League leader Dr Abul Kashem on July 26, 1971. (see previous (blog)

The same arguments made the previous day, in relation to seeking a warrant for Alim's arrest, were made.

Tajul Islam for the defence then stated that he would like to make an application for bail. He read out rule 34 of the ICT Rules of Procedure, which states:
(1) The Police shall produce the arrested accused direct before the Tribunal within 24 (twenty-four) hours of arrest excluding the time needed for the journey.
(2) When the accused is produced before the Tribunal under sub-rule (1), he shall be sent to the prison if he is not enlarged on bail by the Tribunal.(emphasis added).

Malum then stood up and said that the prosecution had only just obtained a copy of the bail application.

There was discussion between the Tribunal members and Tajul Islam whether or not it was necessary for the defence to actually file a bail application, and the Tribunal decided that he should just give his arguments as though there was no written bail application.

Islam said that the defence lawyers have still not seen the application, nor have they seen a copy of the investigation report.

He said that although the previous day's order had required that the copy of the investigation report should be given to the accused person along with the warrant of arrest, this had not been done.

The Tribunal told him that he would get a copy of the application, and gave some reason (not audible) why there might have been a delay.

Islam then said that since rule 34(2) says that the Tribunal can send an accused person to custody if he is not enlarged on bail, this means that the Tribunal can issue an order for bail.

He said that there was 'no substantive material' in the investigation report that justified the warrant of arrest to be issued.'

'Alim was a 81 year old man. He cannot walk. He has had a prostate operation twice. An eye operation twice. The doctor said that he cant walk due to arthritis.'

The Tribunal members then had a short discussion between them and said that the defence should file a fresh bail application and the Tribunal should sit again at 2pm. The Tribunal chair also said that the investigation report will be given in the interval.

However the Tribunal rejected the defence application to be given a copy of the actual 'application' for a warrant of arrest. The Tribunal said that the Investigation report itself would give information on the substantive submissions by the prosecution, and a copy of the application was not necessary

The defence argued that they should have a copy of the application since it is on the basis of that application that they are seeking bail.

The Tribunal asked under what provision in the Rules of Procedure is the defence relying on

The prosecution said that there was no provision in the rules to allow the defence a copy of the application.

The defence said that the 'Rules do not contain everything.' The Tribunal, however, kept to its position that the defence should not have a copy of the application.

Afternoon session
By the afternoon, the court had provided Alim a wheelchair.

Advocate Malum for the prosecution was the first to speak and said that they had only received a copy of the application at 1.45pm, and had not had a chance to read the documents. He prayed for more time to consider the application.

Advocate Tajul Islam for the defence made his submission for bail, reading out from his application. He said the following things:
- Alim was a member of parliament and also a cabinet minister (textiles) between 1978/79 and then then a minister of communication between 1979-82.
- that he suffers from arthritis and cant move without a wheelchair.
- his passport gives his date of birth as 01 Nov 1930 and he is 81 years of age.
- the prosecution filed an application on 27 March and the Tribunal issued a warrant of arrest.
- the police arrested him at 9pm from his residence in Joypurhat town and took him on a 7 hour journey.
- he is very sick and physically unable to walk and was brought up to the court by resting on the shoulders of the police.
- that rule 9 of the ICT rules of Procedure say that the Tribunal may issue a warrant for the 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.
- that 'in the present case the prosecution miserably failed to produce any materials to show that the petitioner has been creating any obstacle in holding effective and proper investigation or tampering with the evidences in any way. That since the prosecution failed to substantiate the rerquirement of Rule 9 for issuance of warrant of arrest of the petitioner cannot be put under detention in connection with the case rather he may be enlarged on bail for securing end of justice'.
- that 'the investigating authority failed to produce a single piece of evidence regarding interference with the investigation by the petitioner rather they have mere made a statement that due to not arresting the petitioner many of the witnesses are scared but there is no specification when, how and to whom the petitioner made threats. That this statement has been made just to make an excuse to arret the petitioner according to their sweet wish.'
- that as there is no supporting evidence he cant be detained.
- that the 'report of the investigating agency is full of some vague and indefinite allegations made against the petitioner. That the gist of the allegation made against the petitioner is that he has passed Order upon the military officers to kill the people and freedom fighters but a man of general prudence can understand that the military forces act under their superior command not under the command of a civilian and as such the petitioner can no way be responsible for any activities committed by the military.'
- the accused never committed any offences alleged against him, 'rather he has saved lives of thousands of people of his locality during 9 months of the war of liberation'
- that he is an 81 years old man, with various diseases, including diabetes, prostate problems, eye problems. he has two operations on his prostate and two on his eyes, that the petitioner has been suffering Rumotology and he has been suffering from pain in Neck in both sholder and Nerve Pain in Lower limb and that he needs to pass urine after 30 minutes
- that 'in the above conditions the petitioner needs specialized treatment and close observations and nursing which is not possible in jail custody.'
- that 'the petitioner cannot even stand without help of others and cannot move without wheel chair and in such situation if the petitioner is not released on bail his life will be unbearable in the jail custody and considering this humanitarian aspects the petitioner may be enlarged on bail.'
- that he has been under house arrest for the last 1.5 years and 'and the police kept him under 24 hours observations in his house for the last one and half year and in such situation it is not humanly possible to abscond or to tamper with the evidence and process of investigation in any manner'.
- that the 'petitioner participated in the historic language movement and was sent to jail hajat and he is in no way involved with the alleged criminal activities committed in the year 1971 rather as a popular public leader he has saved lives of thousand of peoples including freedom fighters and the members of the Hindu community. That the people of the locality remember this event with due respect till today. That the allegation of killing of ten thousand people in Joypurhat by the petitioner is a cock and bull story which will prove false in investigation in future.'
- that he is ready to hand over this passport and given any secruity necessary, and report to the police weekly and can be directed to stay in a specified residence.
- that internationally a significant number of people has been given bail who were in pre-trial detention, and taking this into consideration he should be enlarged on bail.

He then discussed various provisions of statutes relating to other International Tribunals which allowed bail. He read out Article 58 of the Rome State of the International Criminal Court. This states:
'At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that:
(a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and
(b) The arrest of the person appears necessary:
(i) To ensure the person's appearance at trial;
(ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or
(iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.'

He said that the bail conditions proposed by the accused satisfy all these requirements, so detention is not necesasry. In relation to (i) the petitioner is always ready to appear before the tribunal at any date. In relation to (ii) he said that the prosecution has 'miserably failed to substantiate allegations' that investigation is being obstructed. In relation to (iii), he said there is no question that the accused could repeat the offences alleged.

He said that he should not be detained unless there was 'substantive evidence of interference'

He referred to Rule 9 of the ICT rules of Procedure that says that the Tribunal be 'satisfied' that 'arrest is necessary for effective and proper investigation'. He said, 'you have seen the condition of the accused. How can this person abscond.'

'Considering his age, health, physical condition, that he will surrender his passport, that he will confine himself to his residence, that any amount of surety will be given.

'It is 40 years since 1971. He could have absconded in that time. It is impossible for him now to tamper with evidence, to interfere with investigation.'

'He is ready to face trial. If he is taken into custody, what would be the benefit?'

'In relation to Article 58 of the ICC statute, I will appear, I will not obstruct, there is no possibility of repeating the same crime.'

At this point, Islam finished, and the Tribunal had a conversation with Islam about needing more information from him, in relation to page numbers in his petition referring to his medical records and also where his client would reside in Dhaka if he was given bail.'

Prosecutor Malum then brought to the attention of the court an article from the Daily Newspaper Kalor Konto - but it was not clear what this article was about (this will be clarified, and this blog updated)

The Tribunal then passed the following order:
'Accused Alim has been presented in this Tribunal in compliance with order passed yesterday. He is present in the dock.

Mr Zia Malum, learned prosecutor appearing in this Tribunal submitted that prosecutor had made out a case of an order in favour of detention of the accused in custody. On the other hand Mr Tajul Islam, learned counsel appearing for the accused person, by filing a petition for bail submitted that that this is a case where no order shall be passed directing the detention of the accused because he is an old man, above 80 years of age, he is a patient, he cannot walk and needs use of a wheelchair. No case has been made again under section 3(2) of the Act and he is ready to agree to all provisions imposed by the Tribunal in this respect.

Upon perusal of the application for bail, we find some mistakes in the the petition.

Mr Tajul Islam prayed for permission to correct the mistakes. The learned prosecutor also submitted that he had only just read a copy of application for bail and needed some time for consideration and will file a petition opposing bail.

We have heard both sides and are of the view that both sides have substance.

The hearing of the bail petition application will be adjourned under 31 March.

In meantime, the accused Mr Abdul Alim will be returned to Dhaka Central Jail and the the jail authority is directed to look after his health conditions and provide him medical treatment on the advice of the doctors as and when requested.
After the hearing I spoke to the accused's eldest son on the phone. He said that the allegations against his father was 'baseless'. '

'It was not possible to kill 10,000 people as Joypurhat which only had 30,000 people. It is a personal vendetta against him by some people.'

I attended the prosecutors media briefing and asked the Chief Prosecutor, why he was not satisfied with the conditions that the accused promised to abide by. He said 'Conditional bail is illegal.' When I asked him to clarify whether he meant that in Bangladesh it was not lawful for the courts to impose conditional bail, he said, 'It is not done.'

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