Thursday, May 19, 2011

17 Jan 2011: SQ Chowdhury applications

This was the second hearing where Salauddin Quader Chowdhury (SQC) had been brought before the tribunal. See blog relating to the hearing on 20 December 2010 at which the Tribunal had passed an order adjourning the hearing so that his lawyers could gain powers of attorney.

I was not present at this particular hearing. This blog comprises extracts from the applications filed by SQC and from the Tribunal's order, along with press reports of what is said to have taken place at the hearing.

The Tribunal heard four applications filed by SQC: one for permitting him to attend parliamentary session and parliamentary standing committee meetings. Another for recalling the production warrant earlier issued against him; a third one for seeking the certified copies of case proceedings; a fourth one for giving him treatment in a specialised private hospital. There was also an application from the prosecution for his arrest and detention

Legal Representation
It appears that SQC did not instruct any lawyers to represent him in court.

Press reports suggest that at the Tribunal, Chowdhury sought the assistance of 20 lawyers. The Tribunal however is quoted as saying, "As per rules, if you (Chowdhury) file a petition, then you have to move it, nobody can assist you. If your lawyers file a petition, then they have to move. You can choose one of the two."

SQC is said to have responded by asking, "Under which rules, can I not get assistance from the lawyers?" He repeatedly requested the Tribunal to permit him to have lawyers assisting him, without instructing them.

In the Tribunal order it was stated: 'He himself wants to conduct his own case. No vakalatnama (power of attorney] has been filed by accused but wants 20 lawyers to assist him. He is at liberty to conduct his own case or to get his own lawyer .'

Attendance at parliament
In his first application SQC said that he was a sitting member of parliament and also a member of the public accounts committee, and of the parliamentary standing committee of the Ministry of Law, Justice and Public affairs.

He said that parliament has been summoned to sit on 25 January, and that he wants to participate in the session as a duty to his electorate, and that he needs to sign cheques necessary for his constituency. 'That as a member of parliament I have to sign a number of documents such as allocation of test relief projects to various ministers and directorates, sign checques from discretionary funds ...'

The application says that he has not been formally charged with any crime, and adds, 'I have neither been notified nor received any certified copies or any petition for my arrest nor any certified copy of any order from this Tribunal.' He adds that there is precedence for those appealing a conviction to attend parliament.

The Tribunal said that Chowdhury can seek permission from the High Court under the writ jurisdiction to attend parliament session. In its order it ruled:
‘As this matter does not come within the purview of the ICT we are of the view that this application is not entertainable in law for want of jurisdiction for the tribunal. The application is disposed.'
Recalling orders of issuance of Warrant of Arrest and production warrant
This second application states that section 11(5) of the 1973 International Crimes Tribunal Act only allows a warrant of arrest to be issued if that person has been 'charged' and that rule 2(5) of the Rules of Procedure defines 'charge' to mean, 'the accusation of crimes against an accused framed by the Tribunal.' The application goes onto say that since no charges have been framed an arrest warrant cannot be issued against him. It adds that Section 16 of the Act sets out what is required to constitute framing of charges, and that this has not been done.

The application also quotes Rule 30 which states that 'After cognizance of an offence is taken, the Tribunal shall issue process or warrant, as it thinks fit and proper ..'

It also refers to the forms annexed to the rules of procedure which suggest that warrants of arrest can only be issued after an accused person has been charged.

The application also states that 'There is no cogent evidence to show that I ever posed any threat to the prosecution team or any individual whilst the prosecution team was in Chittagong looking for clues against me ...'

He is reported to have said in court that detaining him in this manner would be ultra vires (beyond the power) of the ICT Act, 1973 and that the rules 6 and 9 of the Rules of Procedure under which authority the Prosecution sought custody warrants against him, are contradictory with section 11 of 1973 Act.

[This is the same argument that the defence lawyers for the Jamaat-e-Islami accused had argued but which the court rejected (see point 3 and comments at end) without giving any reasons..

The prosecutor, Zead Al-Malum argued that SQC should be kept in custody.

He said, “Chowdhury committed, and led others to commit the crimes mentioned in the section 3(2) of the ICT Act, 1973.”

Malum stated that Chowdhury snatched weapons from the Pakistani soldiers and shot to death Natun Chandra Singh, founder of Kundashwari Oushadhalay in front of a temple in his residence, killed 35 persons in Jagatmallopara and another others 69 in Unashattorpara in the port city.

Led by SQ Chowdhury, Malum stated that under this direction the peace committee, Razakars and Al-Badar were formed and committed genocide against the Hindus and the believers of Bangali nationalism. He said that Chowdhury is the son of Fazlul Quader Chowdhury, the then chief of East Pakistan Muslim League. During the nine-month Liberation War, their Good-Hill residence became a torture cell, Malum said.

A probe into crimes against him is going on, Malum said. Some documents have already been found; if he is arrested and interrogated, more information about him can be found. Moreover, he said, the witnesses are in fear of Chowdhury.

Malum also alleged that Chowdhury could flee abroad if he remains free, and so he should be kept in custody for effective investigation.

SQC refuted the allegations made by the prosecution

He requested the judges to look into how many Hindus were sheltered in Gool-Hill during the nine-month war.

The BNP leader claimed he was not involved in politics before joining Bangladesh Muslim League in September 1979.

“No allegation against me had been reported in the media before I joined Bangladesh Muslim League. People had elected me parliament member six times because I am innocent. I plead not guilty,” he claimed.

The Tribunal rejected the defence application relating to the unlawfulness of the arrest warrant. In relation to this, the order read:
'A similar application was filed in this tribunal by another incumbent, Nizami and others seeking same relief and upon considering legal position, it was rejected. We do not find any new reason to differ with that order.'

In relation to the prosecution application for detention, the order reads:
'An application was made under section 6 and 9 of the 1973 Act. The prosecution presented evidence of SQC's involvement in crime. During the investigation Mr Chowdhury himself in audio has threatened witnesses, as such he is required to be detained for effective investigation

SQC says that he was not present in the country for most of 1971. He says that he was not a member of any political party. He joined the muslim league in 1979. He is accused as he is son of his late father.

We note that that he is alleged to have been involved in the killing of Nuton Chandra Sinha, 35 people and 69 people in 1971 and that he made threatening statements captured in audio and visual. We are not going to decide on the truthfulness of the allegations.

He should be detained for a considerable time in order to complete a fair investigation until 19 April.

Let a copy of the allegation report submitted by investigation agency to the prosecution as annexed with the petition be served upon the accused SQC for his perusal.
Copies of certified orders
In the application, SQC said that an order was passed on 30 December 2010 by the Tribunal but he has not received a copy of it. Nor has he received any copies of applications filed by the prosecution. 'I have not even been informed the content of the application filed by the prosecution ... that without certified copies of records ... I would not be able to defend myself effectively on the present matter which would impede the requirements of a fair trial.' [This is similar to a previous application relating to Nizmai and others (see blog link above, point 4) which was rejected.]

The court told Chowdhury that he would not get a copy of the court's orders - only the final judgment, through which he can appeal to the Appellate Division. Chowdhury would also get all documents of allegations against him after formal charges were framed. The Tribunal order stated that:
'This petition also filed previously by Nizami and others that was earlier rejected as there is no procedure to supply certified copies of interlocutory order of this Tribunal. However when trial comes then he will be supplied with the copies of the document required for the trial in order to prepare his defence.'

Application to be sent to a specialised hospital for treatment
In his application, SQC claims that about 15 Rapid Action Battalion, and Detective Branch police came to his house in the early hours of 16 December, and he was 'tortured' for six hours. A doctor was also present at the time. He claims in the application that the torture included:
- repeated beating to the face and head with boots while being pinning down by people standing on his chest;
- repeatedly hitting the heels of his foot with a bat until the bones in one heel broke;
- slitting the right side of my stomach several times with a blade;
- putting tools on his toenails with tools until they were partly ripped off;
- tying him to a chair and taking turns in kicking his entire body with boots and bearing with bats;
- pouring cold water into his nose while holding his mouth shut inducing vomit
- repeated hitting of elbows with a bat;
- holding his mouth and nose shut until he almost fainted
- electrocuted on the private parts of his body.

During this period, the application says that he had to be revived three times. He was then taken to Bangubandhu Sheikh Mujib Medical University Hospital at 6.30 am, where doctors revived him and recommended that he be moved to ICU. He then says that he was taken to Detective Branch HQ at about 7.30. He says that some reporters had taken some video footage of his bloodstained clothes at the hospital.

The application goes on: "After arriving at the DB headquarters, the officers ordered me to wash all the blood off my body and change my bloodstained clothes I refused to do so. The officers handed over me to the Detective Branch police in the DB HQ and left. At approximately 8 am, some of the same officers came back to the DB HQ with some more officers who introduced themselves as members of RAB. They carried some of my clothes with them. They ordered the Detective Branch policeman that they be left alone with me. At this time, the proceeded to beat me for an hour tying me down and administering punches and kicks all over my body. They ripped off my bloodstained clothes and ordered me to wash my body. Finding me unable to stand, they carried me to the washroom and hosed me down. Two officers assisted me in putting on fresh clothes after which they tied me down again and began punching and kicking me for a second time, this time for one and a half hours. Finding it necessary to change my clothes once again due to the bloodstains on my new clothes, they carried me to the washroom again, hosed me down again, and helped me to put on fresh clothes. After this they made me sit on the ground while they continued their verbal abuse. I asked for water which they gave me after aproximately one hour. While my ears stopped bleeding, the officers had trouble stopping the bleeding from my nose. One officer kept wiping my nose intermittently until the bleeding stopped. Around midday the officers noticed that I started hyperventilating.'

The application goes onto say that the DB asked his family, who were outside, whether he took any medication, but they refused to assist the police as it was their responsibility.

The application says that later that day he was taken to the Chief Metropolitan Magistrate where the police sought ten days remand. His lawyers told the magistrate that he had been tortured. SQC was also allowed to speak at the hearing, and 'I showed the learned court blood stained marks on my trousers and I was unable to stand unassisted.'

The application says that after the hearing, he was tortured four more times by electrocution.

On 22 December, his lawyers filed an application before the magistrate to be sent to BSMMUH for treatment, and he was taken there on 4 January, but did not get proper treatment, the application claims.

At the Tribunal, SQC is reported to have said, "I am a heart patient. Torture in jail has worsened my condition. I had electric shocks for two hours and at the same time they checked level of my blood pressure. They then again I was shocked repeatedly."

"I need to be in a specialised private hospital. I have no confidence in public hospital," he said

In its order, the Tribunal stated:
'On an earlier occasion a writ petition was filed by wife in high court with the same prayer. Order to send him to hospital was stayed by appellate division. The Supreme Court is dealing with this matter and so we are not in a position to deal with this matter. We direct the jail authority to provide necessary treatment to the accused in accordance with the jail code.'
1. Again application setting out arguments why warrant of arrest was 'ultra vires' rejected without providing any reasons.
2. Detailed torture allegations provided by SQC not even referred to in the order, and no comment of any kind made by Tribunal members;
3. Again notable that Tribunal refuses to give certified copies of its own orders even to the accused. Why is this? I have been told by a source in the Tribunal that it is to prevent the accused from going to the High court to challenge the orders. I don't know if this is true. But there can surely be no reason why the Tribunal does not give copies of orders relevant to them, to the accused. Indeed it remains unclear why the orders are not made public.

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