Tuesday, May 24, 2011

21 Apr 2011: Nizami bail application

This is the second part of the hearing that took place on 21 April. To see the earlier morning session that dealt with an interrogation application, see here. This hearing deals with a bail application on behalf of four accused, all leaders of the Jamaat-e-islami.

Tajul Islam, for the four petitioners, Motiur Rahman Nizami, Ali Ahsan Mohammad Mujahid, Md. Kamaruzzaman and Abdul Quader Mollah, said that the applicants had been produced before this Tribunal on 2 August 2010 which then had passed an order directing the prison authority to keep the men in custody until receiving another order, and as a result they have now been in jail custody for over 8 months.

Islam said that previously the prosecutors had alleged that the applicants should be detained in jail custody because they have committed offences under the International Crimes (Tribunal) Act; that “intensive” investigation was going on and to allow this investigation to continue they need to be detained.

He said that ‘following Bangladeshi principles on bail, the Tribunal should exercise its judicial discretion to grant conditional bail to the applicants. ‘

He first argued that there were no reasonable grounds for believing that the applicants had committed offences and said that no investigation or progress report had been submitted to the Tribunal.

He said that on 15th March 2011 the Tribunal had directed the prosecution to provide information as to the progress of investigation against the applicants (Nb: not clear from blog that this was the case!), but that ‘It is respectfully submitted that there has been no progress in the investigation and the Investigation Authority has failed to exercise due diligence in the investigation. Even after nine months, the Prosecution has failed to establish a prima facie case against the applicants. Without a formal charge, there can be no reasonable grounds to believe the applicants committed crimes under the Act and should be detained without bail. ‘

He said that the allegations against the accused were 'vague'.

He then said that the applicants were unlikely to abscond. He explained different ailments he claimed were suffered by each of the petitioners.
- He said that Nizami was 69 years old and suffers from a number of ailments including cardiac diseases, high blood pressure, an enlarged left ventricle of heart and a block in the ‘right bundle branch’. ‘He has also been suffering from diabetes for the last 10 years, which has been kept under control by a strict regulation of his diet. He also suffers from severe back pain (prolapse lumbar inter-vertebral disc) which tends to cause serious pain in the waist and legs when sitting or standing for extended periods of time. He also suffers from ailments such as stiff neck and ‘tennis elbow’, requiring administration of injections and physiotherapy on a regular basis and has recently undergone surgery of his gall bladder and prostrate. He has limited central vision in one eye as a result of complications during a cataract operation.’

He went onto say that ‘as a result of the prolonged detention in custody without proper medical treatment, Nizami continuously suffers from high blood pressure. He has contracted the herpes viral disease as a result of immunodeficiency caused by increased stress and anxiety arising out of the prolonged detention. His health has deteriorated so much so that he has passed blood while defecating. Due to his poor health, the Jail authorities have been compelled to call in the doctors. However, these doctors prescribe medicine without carrying out any medical assessment. Such medication without proper assessment is aggravating his health. ‘

Islam referred to a High Court order on 15th July 2010 directing that physiotherapy facilities be provided to Nizami, which was upheld by the appellate division. However, despite such orders, he said no physiotherapy facilities are being provided by the jail authorities.

- Islam then said that Mujahid, was 63 years old and suffers from high diabetes which necessitates regular intake of medication and adherence to a strictly controlled diet. He said that he also suffers from severe back pain and knee pain and needs physiotherapy five days a week. Same High court order relating to physiotherapy also applies to him. Also said that suffers from eczema which has been worsened by sleeping on dirty blankets during remand.

- He said that Kamruzzam suffers from high diabetes and that due to irregularities in his diet and lack of medical treatment in jail custody, the applicant’s condition has aggravated. He also has severe prostate problems that have worsened since his detention, he said

- Mollah, his lawyer said, was insulin dependent for the last 35 years and requires 'regular medical assessments to keep his sugar level under control but lack of treatment has meant that his diabetes is completely out of control creating further complications in relation to his prostate gland, eyes and feet.'

Islam said that all four of the applicants were willing to surrender their passports before the competent authorities and to undertake that they will not apply for travel documents without prior permission from the Tribunal. They are also were willing, he said, to comply with a residential condition to reside at their respective addresses which were set out in the petition and to report to the Tribunal on an agreed regular basis.

‘Taking into consideration the applicants’ health and age as well as their willingness to comply with the aforementioned bail conditions, it is respectfully submitted that the applicants are unlikely to abscond and may be granted conditional bail.’ Islam told the court.

Islam went onto say that it was unlikely that the petitioners would commit any new offences. He said that there is no reasonable ground to believe that the applicants will be convicted in this case and alleged that the ruling party has brought false allegation of war crimes, crimes against humanity and genocide just to harass them politically and malign their party. ‘The prosecution has miserably failed to produce any evidence against the applicants during the 8 months of their detention. They are trying to victimize the applicants by keeping them in custody for an indefinite period without any formal charge,’ he said

Islam also argued that there was no allegation that the applicants had tampered with the witnesses or created any obstacle in the process of investigation and he added that the applicants are willing to undertake that they will not travel to any alleged crime-scene without prior permission from the Tribunal and willing to undertake not to contact any prosecution witnesses or to interfere with the investigation process.

Islam again repeated that there was no prima facie case against the accused, just broad allegations; there had been no progress in the investigation for the last 8 months; they have been in custody for this time and suffering ill health; no possibility of them committing a crime again; there was no evidence suggesting that they would interfere with the investigation.

He said that there was a right to bail. One of the Tribunal members then said these are 'non-bailable offences. There is no right to bail.' Islam responded by saying that the Tribunal has inherent power to give bail.

Islam then submitted that there was ‘an international obligation to grant bail to the applicants’. The arguments here were identical to those in the bail application relating to Sayedee which was heard the previous day (see blog) and are similiar to ones argued in a previous bail application (see blog)

Islam then stated that ‘applicants should be granted bail to seek urgent medical attention.' Referring to his earlier comments, he said that the applicants were elderly persons and suffeedr from a number of ailments including cardiac diseases, high diabetes, high blood pressure and severe back pain.

Islam added that on 11th April 2011, a doctor of the Dhaka Central Jail hospital prescribed as many as 8 types of medicine to Nizami without any prior medical examination and that it was 'evident that no proper treatment is possible for the applicants in Jail custody.'

The lawyer then related what had happened to Sayedee when he was taken to PG hospital. ‘Due to the manner in which the above medical checkup was conducted, the Applicants have serious doubts about the possibility of providing proper medical treatment to them in the custody of the jail authorities.' he said.

Islam concluded by asking the tribunal to grant conditional bail to the applicants on the condition that they:
- surrender their passports
- do not apply for any travel documents without the prior permission from the Tribunal;
- reside at the addresses given to the court;
- report to the Tribunal on an agreed regular basis;
- do not travel to any crime scene without prior permission from the Hon’ble Tribunal;
- do not contact any of the Prosecution witnesses;
- do not interfere with any part of the investigation process.

Finally he gave a list of names of people willing to provide surety of an agreed amount as a condition for bail.

Haider Ali for the prosecution then rose. (This next section is brief, as I could not follow all his arguments).

He argued that the medical papers annexed to the bail application did not suggest that these men were seriously ill, all the conditions could be dealt with in jail or by allowing them to go to private hospitals.

He said that there was nothing new in these applications - and that they raised the same points that has been dealt with in earlier bail applications. The 'matter has already been decided' he said.

He argued that the rights in the 1973 Act and the constitution were consistent with the ICC and the ICCPR in giving appropriate rights to the defendents. He pointed to Article 27 of the constitution which stated that all 'citizens are equal before law and are entitled to equal protection of law' to suggest that these accused should not be given additional right.

He pointed to the new article 6(2)(A) of the 1973 Act which states that, 'The tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial,' to indicate that the Tribunal will organise fair trials.

He then went through different provisions of the 1973 Act which he said indicated that the accused have all the rights necessary for a fair trial.

He said that unlike the situation with the ICC, the Tribunal was not a pre-trial chamber.

Following this, the Tribunal made the following order:
'Application for bail submitted by four accused, (1) Motiur Rahman Nizami; (2) Ali Ahsan Mohammad Mujahid; (3) Md. Kamaruzzaman and (4) Abdul Quader Mollah taken for hearing

Mr Tajul Islam, the lead counsel appeared for petitioners, and Mr Sayed Haider Ali appeared for the prosecution.

Mr Tajul Islam took us to the application for bail and submitted that the petitioners are in custody from 2 August 2010 and till now no investigation report has been submitted. Further submitted that vague allegation made against these petitioners and as such no prima facie case against them they may be enlarged on bail.

Further submitted that under different articles of the ICCPR and the ICC, the accused petitioners are entitled to be informed about charges against them but until now nothing has been given to them and as such their detention in jail custody is illegal, and considering this the accused should be given bail.

Mr Tajul then took us to the health conditions of the accused. Petitioner 1 is about 69 years old, Petitioner 2 is about 63 years old, no age is given in relation to petitioner 3, and petitioner 4 is 63 years old and submitted that all four petitioners are sick from different ailments including heart, diabetes, high pressure, prostate gland and other problems.

He further submits that in jail custody, the petitioners are deprived of getting proper medical treatment. They also require physiotherapy, but no such treatment is available in jail custody. It is lastly submitted that health conditions of accused for want of proper treatment, their long detention in custody, and failure of submission of investigation report before this Tribunal, are reasonable grounds to enlarge them on bail.

On the other hand, Mr Syed Haider Ali argued these mean are very influential in society, and amongst them are two former cabinet ministers and as such high influential persons in society. They can influence the investigation if they are enlarged on bail. Mr Haider Ali further submitted that the medical documents annexed with the petitions do not show that they are seriously ill. He further submits that the investigation is at the fag end stage and taking two persons in custody in the custody of the investigation officer has been allowed for one day and at this stage the petitioners cannot be enlarged on bail, He further submits that the petitioners may be allowed to take better treatment in a specialised hospital if advised by the doctor of the jail hospital. Last of all the learned prosecutor submits that the charge of crime against humanity has been brought against these petitioners and as such the prayer for bail should be rejected.

We have heard the learned counsel for the petitioner and learned prosecutor and perused the record. This is a case initiated against the petitioners for crimes against humanity, and normally in such cases accused persons are not enlarged on bail. The submission by the learned counsel for the petitioners that enabling them to obtain medical treatment outside the jail is reasonable and justified.

Regarding provisions of the ICC and ICCPR, we are of the view that those two versions of law do not make a case that the accused are entitled to be enlarged on bail in a case like this. However considering above aspects that at this stage, we are not inclined to enlarge them on bail. However considering the documents grounds as submitted by Tajul Islam, we arrange their treatment inside the jail or outside the jail if advised by the doctor. WE have been advised that all four patients are diabetic patients. We want to pass a similar order as passed in case of Delwar Hossaim Sayedee yesterday. It is directed that if necessary they should be given treatment in Birdem hospital at the cost of the petitioners. Therefore the prayer for bail is rejected. The prosecution is directed to complete the investigation of the case as early as possible or in the alternative submit progress report by 1 June 2011. The jail authorities is also directed to provide food to the petitioners including 'green vegetables' (which is necessary for diabetic patients). Let a copy of the order be sent to teh jail authority for its compliance and if the doctor suggests then the jail authority will produce the petitioners to Birdem hospital for better treatment at teh cost of petitioners. A copy of the order be served upon the accused petitioners.
1. Following the decision made the previous day, it was pretty predictable that the Tribunal would not provide bail to these accused.
2. It is rather surprising that the Tribunal basically dealt with all four individuals in a kind of 'job lot'. There appears to have been no consideration by the Tribunal of dealing with these applications for bail individually. By not doing so, it gives an impression that the Tribunal has a policy of not giving bail to the accused. This is an impression that the Tribunal should not want to give. It should consider each accused in turn, and look, in relation to each individual defendent, whether bail is appropriate or not.
2. Again, the Tribunal does not deal with the defendents arguments in any substantive way. The Tribunal does finally mention the defendents arguments about international standards, but simply says: 'Regarding provisions of the ICC and ICCPR, we are of the view that those two versions of law do not make a case that the accused are entitled to be enlarged on bail in a case like this.' If that is the view of the Tribunal - a perfectly legitimate one - then it needs to explain why it considers this to be the case. The sentence gives the impression that the Tribunal considers that these standards apply to the Tribunal but thinks that in this case, they do not help the accused. This is not good enough. It needs to clarify whether these international standards do apply to the tribunal or not, and if they do, they need to explain why the defendents arguments do not engage on the issue at hand. This is basic judicial reasoning that is completely absent in this order.
3. The order says at one point, 'This is a case initiated against the petitioners for crimes against humanity, and normally in such cases accused persons are not enlarged on bail.' On what basis is it saying that? I assume on the basis of experience in other tribunals. If so, it should say this. However, it is likely that the difference in other tribunals is that the men accused of crimes against humanity are genuine flight risks, who had been escaping capture when they were brought to these international tribunals. This is a very important distinction between others accused of these crimes and these particular accused that the Tribunal seems not to have considered, or at least this is not at all apparent in the order.

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