Monday, June 20, 2011

1 Jun 2011: Nizami, Mujahid bail request

This blog post deals with the remainder of the hearing that took place on 1 June which relates to two bail applications on behalf of Nizami and Mojahid (Read about earlier part of hearing here). They had previously sought bail on 21 April

Tajul Islam argued first on behalf of Nizami. He first talked about his medical ailments. He then said that there were no reasonable ground to believe that the applicant will be convicted in this case. Also said that there is no allegation that the applicant has tampered with the witnesses or created any obstacle in the process of investigation. Then argued that his client has already been in custody for almost ten months, that the Investigation Authority has made no progress in their investigations during this period of time, and that there are no lawful grounds to continue or extend the detention of the applicant.

He then argued that, ‘the jail authorities have a consistent history of maltreatment of accused persons detained in their custody, and mentioned an incident relating to Delawar Hossain Sayedee that took place on 15th March 2011 where he was kept waiting for five hours and was alleged to have had ‘a sham medical checkup’ (see 20 April Sayedee bail application).

He then stated that, ‘Due to the manner in which the above medical check up was conducted, the Applicant has serious doubts about the possibility of providing proper medical treatment to him in the custody of the jail authorities.’

Then Islam argued that despite an order of this tribunal dated 21 April 2011 to give treatment to the applicant at BIRDEM Hospital, until the date of this hearing he has not received any such treatment. ‘The jail authorities are intentionally delaying much needed medical attention. As such the applicant has been denied prompt medical attention which is an important requirement given his medical conditions,’ he said,

Also said that ‘the Prosecution does not allege that in the event that bail is granted, the applicant may abscond.’ He added that, ‘The applicant is willing to surrender his passport before the competent authorities and to undertake that he will not apply for travel documents without prior permission from the tribunal. He is also willing to comply with a residential condition to reside at his addres where he can be regularly checked and monitored:

Islam said that under international principles he should be given bail

There was a short exchange about Nizami’s medical treatment with Islam saying that the jail authority was simply giving his client pills and medication on their own with the jail authority saying that they had the not received any order. The Tribunal chairman said that ‘treatment should be provided by default. No order is even necessary.’

Islam finished by saying that his client was old, had medical conditions, had been detained for 10 months, he had not been charged, and under these circumstances he should be given bail.

The prosecutor Rezaul Karim then got up. The Tribunal chairman asked the prosecutor why it was that the accused had not been given treatment in Birdem hospital. Karim responded by saying that he didn’t ‘see any reason for the jail authority to be doing this.’

Karim then said that the prosecutors, ‘Objected to the bail petition. The progress of investigation in satisfactory and there is proof of war crimes against Nizami. If he is granted bail, investigation will be hampered.’

‘Evidence has been collected by the investigation agency. They could’ve asked for bail if there was no significant development in investigation. But this is not the case here. There is specific evidence against him on killing, rape and arson. And on these instances bails can not be granted. Our law on bail clearly states that.’

Advocate Munshi Kabir, then stood up and spoke to the application by Mujahid for bail. He said that he wanted to adopt the arguments made by Tajul Islam on behalf of Nizami.

He went onto say, ‘Why is it that my client cant be granted bail. What will be the fate if he is granted bail. The prosecution says that intensive investigation is going on, that he has muscleman and will interfere, that there is no scope for bail.

The tribunal chairman interrupted and said, ‘That the prosecution’s point was that bail should not given as there is a prima facie case against the accused.’

Kabir said that granted the case was serious but there is no evidence that he was influential as a student leader. He went onto say that Mujahid’s father, Maulana Abdur Razzak, himself had been detained after 1971 but released ‘on the orders of Bangabandhu himself. He comes from a respectable family who is also connected and respected by Bangabandhu, our father of the nation.’

He said that his client supported the liberation of Bangladesh, ‘We support it, My client supports it.’ He said that his client was not a big leader at the time.

In relation to whether there was prima facie evidence against his client, he asked the Tribunal, ‘Is there any evidence before your lordships. Nothing.’

He said ‘3 million were killed, but we are not the people who killed. There are a list of people who were Razakers, and on the peace committee who did it.’

He emphasised the good character of his client.

In relation to a question about bail, Karim said, ‘Bail is a right of person who can be brought to court for trial.’

He then said that he himself would be the surety for his client. He promised that his client would not interfere with the trial proceedings or the investigations. ‘You have the power to cancel the bail, if he does,’ he said.

Rezaul Karim for the prosecutor again responded. He said that Mujahid during 1971 was president of ICS and chief of AL-badr. He committed war crimes in Faridpur.

He said that Mujahid had instigated people to commit war crimes. In the report there is specific evidence of war crimes. If he is granted bail investigation would be hampered. No witness will come forward to testify.

Tajul Islam then got up. He said that ‘there is no specific allegation, only for their political affiliation they are held.’ The prosecutor responded by saying that ‘It’s completely untrue that they are being held for their political affiliation.’

The Tribunal chairman then gave the order.
‘Two applications filed by accused Nizami and Mujahid praying for bail, are taken up for hearing. Advocates Tajul Islam and Munshi Ahsan Tauhid appeared for the two petitioners and Syed Rezaur Khan, learned prosecutor, appeared for the prosecution.

It was contended by learned counsel Tajul Islam and Ahsan Kabir, learned counsel for the petitioners that are in custody for a long time and investigation is still going on, and nobody knows when it will be completed and as such they may be enlarged on bail.

They further submit that the prosecutor could not make out a prima facie case against the accused person but it has brought big allegations against them without foundation and as such they should be enlarged on bail considering their long detention. They submit that the jail authority did not comply with the order of the tribunal as to treatment of the accused on the ground that the order did not reach the jail from the office of the tribunal but it is found that the order was sent to the jail authority on time.

Lastly it was submitted that the accused petitioners should be enlarged on bail so that they can get treatment properly outside the jail.

On the other hand Mr Syed Rezaul Rahman and Syed Haider Ali, learned prosecutor, appeared for prosecution, opposed bail prayer. They submit that the investigation is at the fag end and it will be completed within two months and as such considering the above aspects, the petitioners should not be enlarged on bail. They further submit that if no order is passed by the Tribunal the jail authority is duty bound to provide treatment to the petitioners as and when necessary. They further submit that they will take steps in this regard so that the jail authority takes steps for the treatment of the accused. [They submit that allegations are heinous and so clear that people of Bangladesh know offences committed by accused person and so should not be enlarged on bail.] Lastly they submit that on the facts and circumstances of the case, the petitions of the bail should be refused.

We have heard submissions made by both sides and in consideration of the progress report made by the prosecution we find that progress of the investigation has been substantially made by the investigators. At this stage, when investigation is at fag end, and time for 1.5 months has been given to the investigators to complete the investigation we are not inclined to enlarge them on bail.

In consideration of the health conditions of the accused persons we again direct jail authority to arrange proper treatment for the accused persons and special food if required by taking them to Ibrahim Cardiac Hospital and Research Institute as directed earlier. We expect that jail authority will abide by this order. The two applications for bail are thus rejected at this stage.

For any obvious reasons if the accused person are transferred from Dhaka jail to another, Inspector General (jail) is instructed to direct the jail super of the jail to abide by the orders in relation to medical treatment.’
1. The reasons given for refusing bail are 'At this stage, when investigation is at fag end, and time for 1.5 months has been given to the investigators to complete the investigation we are not inclined to enlarge them on bail.' It remains unclear why the Tribunal considers these to be legitimate reasons to refused bail. The substantive issues about absconding, about risk of tampering with evidence are not engaged with by the Tribunal
2. It is notable that one of the defence lawyers talked about '3 million dead' and the responsibility being with other 'razakers' and members of the 'peace committee'. These are interesting admissions.

1 Jun 2011: Interrogation request

This hearing dealt with four issues. First, a progress report on investigations into Nizami, Mujahid, Molla and Kamaruzzaman. Second an application by the prosecution concerning the remand of Molla and Kamaruzzman into the custody of the investigation agency for interrogation. Thirdly an application by a witness requesting that his lawyer be present during his questioning. And fourthly, an application for Bail relating to Nizami and Mujahid.

This blog post deal with the first three issues. The bail application is dealt with in a separate blog.

The Tribunal chair first asked that all applications be submitted before 3pm. ‘If we receive any documents after 3pm we will treat it like we got it a day later,’ he said.

Progress Report of investigation into Nizami, Mujahid, Molla and Kamaruzzaman

The prosecutor, Rezaul Karim told that Tribunal that ‘There has been a very good progress in the investigation. An investigation report was done by investigation officer Abdur Razzak Khan.’ He said that Nizami and Mujahid had been interrogated and Molla and Kamruzzam had not yet been taken into remand for interrogation.

He said that photographs, newspapers, books, video, and other evidence has been collected by the investigation agency. Scrutiny of the information gathered from the investigation/interrogation of Nizami and Mujahid is going on.

‘So, there has been a lot of progress. There was evidence found that atrocities happened under their command. Now, it is necessary to interrogate Molla and Kamruzaman’.

The tribunal chair commented that Nizami was quizzed on 5 May and Mujahid on 8 May, and asked ‘So it has been more than 20 days, what took you so long to submit the progress report?’

The prosecution said that many things that happened in the meantime. Delwar Hossain Sayedee and Salauddin Quader Chowdhury were interrogated and the investigation officer has also been busy.

The Tribunal chairman then said that at different points of the report it says that 'we are “trying to do”, “will try to do”, It’s been so many days and still it says things “under process”, “we are trying” etc.' He asked why they are not doing things more quickly. Karim responded by saying that ‘We’ll do it very quickly. We won’t take much time.’

The Tribunal chairman said, ‘We shall not allow an indefinite period.’ The prosecutor said, ‘The hard reality is that it is not easy. Let’s say there’s a witness. We go to his house to find him; we come to learn that he went to his in-law’s house, or to his village, or somewhere else. We just can’t reach them.’

The Tribunal chairman said, ‘Considering all this, we are saying again, indefinite time won’t be allowed. The first order was passed on 10 August, 2010.’

The Tribunal then asked Abdur razzak, the investigation officer to come forward.
One of the tribunal members asked him how long he thought it would take to finish the investigation, and Razzak answered that he needed 60 more days.

Tajul Islam, for the defendents then said a few words. He said the defence had only seen the application, not the investigation report. ‘The application does not say any of these things. It just sets out the elements of the crime committed.’ He said that he did not think that there had been any significant development. He added that, ‘In a case like this, time is needed to investigate. In some cases, internationally, it can take five years. It is not appropriate for the court to fix a time frame for the investigation.’ He argued that compelling the Investigation agency to speed up their investigation might prejudice both the parties. ‘It might take a long time to be fair,’ he said.

The court then made a ruling:
‘Today’s is fixed for filing investigation report or its progress report. The prosecutor has filed a progress report showing progress in investigation of case. In the progress report it is stated that the investigation is at the verge of completion and they need some more time to make it complete. It has also been stated that to complete the investigation they require time to interrogate the remaining two persons Mohammed Quamaruzzaman and Abdul Kader Molla by the investigation officer and after completion of that expect that will be able to submit the report.

We heard Syed Rezaur Karim learned prosecutor in this regard and also Tajul Islam who appeared for the two petitioners.

Having considered the submissions made by them, we are of the view that some more time is required by the prosecution for completion of investigation and as such prayer is allowed. Let the matter appear on the list on 12 July, 2011 for the submission of report. In case they fail to submit a report, they have to submit progress report on that date. The detention of the accused is extended till that date.’
Application seeking remand for interrogation of Molla and Kamaruzzaman
Mr Mokhlesur Rahman Badal for the prosecution spoke. He said that he was requesting a 3 day remand to interrogate Molla and Kamruzaman for the sake of proper investigation.

The Tribunal said that he should first argue in relation to Kamaruzzman, and then separately for Molla.

The prosecutor said: ‘The accused are now in front of the court for the brutality committed in 1971. Molla was an Islami Chaatra Shangha (ICS) leader in 1971. Nizmai and Mujahid were also ICS leaders. They were involved in war crimes, killing, rape, arson, etc. The people of Bangladesh know about their involvement in the atrocities during 1971. Evidence have been collected and our investigation officers have interrogated them. To scrutinise all the collected information and to finish and submit our progress report we now need to interrogate Molla and Kamruzzaman.’

‘This is very urgent and important. Defence might say they are feeling insecure. But the accused were taken to a safe home, given safe custody which maintained an international standard. All the investigation has been done conforming to the international standard. So, we urge you to allow us to take Molla and Kamruzzaman in 3 day remand to interrogate them keep the investigation process going successfully. The judges will decide if it is indispensable or not.’

Tajul Islam for the accused then spoke. He said that for a short time he forgot if he was in ‘Paltan ground or in a courtroom’. What he said was ‘not a legal petition. They have to substantiate how, where, when crimes were committed. He is just saying that these people committed these crimes. It was a vague political application. For a committal into custody, this cannot be allowed.’

He then read out Rule 16.
“The investigation Officer if thinks it necessary, may apply through the Prosecutor to the Tribunal to commit the arrested person(s) in his custody for the purpose of interrogation, the Tribunal can pass order for such custody of the person(s) arrested, for a maximum period of three (3) days if it upon consideration of facts and circumstances of the case is of the opinion that for proper investigation such order is indispensable.'
‘The word ‘indispensable’ is a significant word,’ he said. ‘The prosecution must show that remand is indispensable. Nothing has been shown that unless interrogation takes place, cannot complete investigation. The requirements of law are not yet fulfilled. The application is full of emotive language. There is no specific allegation.’

In the application filed by Islam, the following was stated, though this was not read out in court:
‘As such the Tribunal is required to be satisfied that – (i) for the purpose of proper investigation, interrogation of the Applicants is “indispensable” and (ii) that such interrogation in the custody of the Investigating Officer is also “indispensable”. However, in the facts and circumstances of the case there were no materials or records before the Tribunal on the basis of which it could be so satisfied. The Orders of the Tribunal dated 5th and 13th April 2011 also do not refer to any materials or evidence.

The Prosecution has not referred to any material that indicates that the interrogation of the Accused Petitioner is necessary for proper investigation. The Investigating Officer has not referred to any documents, materials or evidence on the basis of which he has applied for custody of the Applicants. Only general allegations were made against the Accused Petitioner. Such allegations were not supported by materials or evidence. There was no reference to any document or witness in such general allegations. It is clear that the interrogation in the custody of the investigating officers is merely a fishing expedition.

That moreover the Prosecution failed to disclose why interrogation of the Accused Petitioner is necessary in the custody of the Investigating Officer. The Accused Petitioner may be interrogated in the custody of the jail authority - either within his cell or at the jail gate. There is no statement or explanation as to why interrogation of the accused in his cell or at the jail gate will not be equally efficacious and appropriate. Neither the Investigating Officer nor the Prosecution has made out a case as to why interrogation in the custody of the Investigating Officer is indispensable.

Furthermore, although the Accused Petitioner has been in custody for almost 10 months, no report has been filed by the Investigation Agency as to the status of the investigation. The Prosecution has made general allegations of commission of offences against the Accused Petitioner under the Act which have not been substantiated by any evidence. As such, there are no grounds for committal of the Accused Petitioner to the custody of the Investigation Agency for interrogation
Islam then said that the prosecution call it a ‘safe house’ of ‘international standard’. In fact, he said, ‘it is not of any standard’. He then referred back to a 2002 High Court decision (referred to in previous hearings, see blog) which required that there should be a piece of glass between the accused and the interrogators and that the questioning should take place in sight of the accused lawyer. ‘There is a mandatory duty on the prosecution to produce such a room like this. The Tribunal can pass an order like this. Since this is a decision of the appellate division, it is binding on all of us.’

He then said that he was making some additional submissions relating to Kamruzzamn. Reading from his written application, Islam said that the presence of a lawyer during the interrogation is indispensible so that no verbal or physical abuse happens. He said that on 5 May ‘Motiur Rahman Nizami was taken into remand by the Investigation Agency in the so-called ‘safe house’ in Dhanmondi, Dhaka and was verbally abused by the Investigator, Mr. Abdul Hannan in a most humiliating and degrading manner. The Investigator failed to take into consideration the high social status of the accused petitioner and his position as a former Minister while conducting the interrogation. It is also stated that Mr. Salahuddin Quader Chowdhury, who has also been detained in connection with war crimes, has also been verbally abused at the ‘safe home’ in Dhanmondi by the Investigating Officer, Mr. Abdur Rahim.

The Tribunal chairman then asked why he was talking about Chowdhury. ‘You can’t talk about him here. He is not related to this tribunal.’ he said. Islam responded by saying, ‘I’m not representing him. We are just trying to say this has a relation with our case.’

Islam then continued and said that, ‘On 13th July 2010, the Petitioner was arrested by the Police and taken on remand in connection with a number of criminal cases. During remand, the Petitioner was taken to the CID Office at Malibagh, where he was severely tortured by the Investigating Officers. It is specifically stated that a sandal was forced into the mouth of the accused petitioner during interrogation and thereafter the investigating officer slapped him twice on each side of his head. Such humiliating and degrading physical torture was inflicted upon the accused petitioner solely with a view to unlawfully extracting information from him.

He added that, ‘in view of the past conduct of the Police during remand at CID Office and in view of the persistent misbehaviour of the Investigation Agency during the interrogation of Mr. Motiur Rahman Nizami and Mr. Salahuddin Quader Chowdhury at the so-called ‘safe house’, the petitioner seriously and justifiably apprehends that he may be subjected to similar torture at the ‘safe house’. As such, the petitioner prays that the Tribunal passes an order directing that a lawyer be present within the sight and hearing of the Accused Petitioner during the course of interrogation. This is to ensure that he is not abused and tortured as the police and investigators have already shown themselves capable of both. In the alternative, the Petitioner prays that the interrogation be conducted in a room with a glass window in the sight of the Petitioner’s counsel.’

The Tribunal chairman said that the incident referred took place before the accused was in the jurisdiction of the Tribunal. He said that if a person under our custody is touched, ‘we’ll take it very seriously.’

The tribunal chairman continued, ‘This is the first time, any tribunal in Bangladesh passed the order for presence of lawyer (in adjacent room). You should talk about things, present facts under jurisdiction of the tribunal.’

Ali Haider for the prosecution then got up. He said that the safe home is a creation of law. No specific method actually exists and every arrangement was done according to the tribunal’s guidance. So it is not compulsory to have a glass wall, he argued.

He said that every person who is acquainted with the facts and circumstances of these incidents (atrocities in 1971) has ‘to be asked about them. This is an indispensable part of the trial. That’s why we have to question Kamruzzman and Molla.’

Islam then got up and said that that he understand that the prosecution had allegations, but said that they had to substantiate their allegations.

The prosecutor then submitted his application arguing that Mollah should be interrogated, which was very similar to his application relating to Kamruzzaman

The lawyer for Mollah, Advocate Mr Ahsan Kabir then stood up and cited rule 16 (1) again and the need for the tribunal to find that detention for questioning for ‘indispensible’.

‘There’s no description of any specific crime. It is only said that they committed atrocities in many places in the country, this place, that place etc. But nothing specific is being said,’ he said. ‘The rule is not applicable for Mollah,’ he said.

The lawyer, reading out from the application stated that, ‘On 13th July 2010, the Petitioner was arrested by the Police and thereafter taken on remand in connection with a number of criminal cases. During remand, the Petitioner was taken to the CID Office at Malibagh, where he was subjected to verbal abuse by the investigating officers.’

He argued that because of this – and the experience of interrogations by the Tribunal investigation officers into the other accused - lawyers needed to be present at the interrogation.

He also said that if interrogation does take place a glass wall should be placed between the investigator and accused, and that more time should be given to the accused to finish his prayers and lunch. He also said that he would also like to have the right to consult his client during the recess to check if there was any duress or coercion.

The Tribunal chairman asked whether the accused previously during interrogations had been able to eat and say their prayers, and the lawyer said yes they had.

The Tribunal chair read out section 16(2) again and said, ‘There is no provision for a doctor, glass door etc. But we have provided doctor and we also allowed presence of the counsel.’

One of the Tribunal members said, ‘This is a domestic tribunal dealing with international crime. You are talking about international standards and other things, but it depends on us, how we give the orders. We have been very generous, but if you try to put pressure on us and try to get everything, it’s not appropriate.’

The Tribunal chair then read out the order:
‘Two applications have been filed by the prosecution relating to two accused persons namely Kamruzzaman and Molla for for placing them in custody of the investigation officer under rule 16(1) in order to interrogate them are taken up for hearing.

Mr Mokhlesur Rahman, learned prosecutor submits that for proper investigation of this case the two accused persons should be committed to the custody of the investigation agency for the purpose of interrogation in the safe home as mentioned earlier. He further submits that the evidence collected by the investigators are required to be examined by interrogation of the two accused persons. He further submitted that some reports, newspapers, photographs, magazines, tape recording have been collected by the investigators which will connect the two accused persons with the offences in question and for testing them they are required to be interrogated for effective investigation. He further submits that if interrogation is not allowed, the investigation authority be prejudiced and the whole investigation will be defective and incomplete and as such he prayed for committing the accused persons to the custody to the investigation agency for proper investigation.

On the other hand Tajul Islam and Mr Ahsan Kabir, appearing for the two accused stated that the accused persons are in custody by order of the Tribunal for a long time and at the fag end of the investigations it is not at all necessary for the investigation officers to take them to custody for interrogations. Further submitted that if prayer is allowed they will be highly prejudiced as there is a chance of ill treatment by interrogation of them and the alleged safe home is not at all safe for them and accordingly the prayer should be rejected.

We have heard learned prosecutor and learned counsel for the accused person. We have allowed earlier prayer under rule 16(1) under certain conditions. We do not find any reason to take a different view in the matter for these two accused. As such we are inclined to allow interrogation on same conditions, mentioned herein.

The investigation officer is directed to arrange a special room for interrogation in the safe home informing the engaged counsel at least 48 hours before interrogation and the learned counsel are allowed to be present on the adjacent room where the interrogation will take place.

The investigation officer is also directed to inform the jail superintendent Dhaka in writing requesting him to depute one doctor of central jail hospital to be present with the counsel in the adjacent room where the interrogation is being held. They will be allowed to see the accused person at the interval time of such interrogation and the doctor is also permitted to examine the health condition of the accused person.

Two separate dates must be fixed for interrogating the accused person.

The Investigation officer shall not put any pressure or threat upon the accused person at the time of interrogation and maintain privacy in the safe home. The accused must be interrogated in his language, i.e. Bangla, so that he can understand the questioning and give a reply and that at the conclusion of the interrogation or questioning, the accused person must be offered the opportunity to clarify anything he has said before the investigation officer must follow and abide by the rule 16(2) of the rules

The prayer of the investigation officer is allowed for one day interrogation from 10 am to 5pm with a gap of 1 hr between 1pm – 2 pm for saying prayer and lunch. The petitions are allowed.

Application by witness to have lawyer present during questioning

Advocate MK Muraduzzaman then rose and said that he was appearing on behalf of Dewan Sirajul Islam who was asked on 23 May to appear for questioning. He said that his client requested that he, as his lawyer, be allowed to be present during my questioning. He said that his client feared that he would be tortured and had been issued notice without having a reason.

The Tribunal chairman asked the lawyer how does his client, ‘Apprehend that he will be tortured? [Your client] is not an accused, [he is] a witness. You are thinking even before the interrogation that your client will be tortured.’

The lawyer responded by saying that, ‘Qhat was said in the media and the newspapers about the other interrogations is making my client feel that way.’

One of the tribunal members read out section 8(3) of the 1973 Act which states: ‘Any Investigation Officer making an investigation under this Act may, by order in writing, require the attendance before himself of any person who appears to be acquainted with the circumstances of the case; and such person shall attend as so required.’

A prosecutor also stood up and mentioned rule 16(2) of the rules of procedure which states, ‘No person during investigation under the Act shall be subjected to any form of coercion, duress or threat of any kind.’

The tribunal chairman then said, ‘He is not even an accused. He is a witness. We are assuring you no one will touch him. You don’t have to worry.’

He then said that the application was summarily rejected, and the following order was passed.
‘An application filed by Dewan Sirajul Islam Matlib for allowing his counsel to be present at the time of examination by the investigating agency is taken up for hearing.

Learned counsel MK Muraduzzaman said that he had been notified by the investigation agency to appear before them for the purpose of examination. He has got no objection to be present, but he wants that during the time of questioning his lawyer should be present.

Admittedly, the applicant is not accused. He may be required to be examined by the investigation agency for the purpose of examination. We do not find any reason to direct the investigation agency to allow counsel to be present, as so such, application stands rejected.’
It is interesting to note that the accused lawyers were encouraging the tribunal not to lock the prosecution into a particular time frame for completing the investigation. Whilst they point to fact that these kinds of investigations take a long time to do well, it would also suggest that the defence lawyers are quite happy for the process to be delayed.

31 May 2011: Sayedee bail application

This hearing dealt with first the submission by the prosecutors of an investigation report put together by the investigation agency into alleged offences committed by Delwar Hossain Sayedee and secondly a bail application by Sayedee’s lawyer.

Submission of investigation report

Haider Ali, prosecutor, stood up and said that ‘The chief prosecutor has received the investigation report half an hour ago from the investigation agency. I have the report and it has 14 volumes and 4,074 pages. We have placed it in front of the tribunal.’

The Tribunal chairman said that he thought that the prosecution had received it last night. Ali replied saying that, ‘We received the full and final report only half an hour ago. I have the report in my hand now. But we have not had sufficient time to peruse it. The progress report will take time some time. We are formally saying that we have received the investigation report.’

The chairman asked how much time it would take the prosecutor to submit the formal charge. Ali answered that ‘we will submit everything as soon as possible. … Mentioning any specific time won’t be appropriate now.’

Sayedee’s lawyer, Tanvir Ahmad Al Amin, got up and said that the Prosecutor was supposed to have submited the progress report yesterday, but hadn’t. ‘This is a procedural lapse.’

He went onto say that, having received the investigation report from the investigation agency, according to rule 18 and 19 of the rules of procedures, there are 3 options for the prosecutor: preparation of formal charge in the form of petition; the Chief Prosecutor may initiate further investigation, or he may stop the investigation.

Bail application
Tanvir then said that he would start his bail application. He said that his client Maulana Deloar Hossain Sayedee came here today but he started feeling unwell that he had to go back to hospital.

The lawyer said that, ‘The prosecution says that the bail application doesn’t have any new grounds and that if released on bail he might interfere with investigation. If investigation is concluded, at this stage that ground cannot be reason to refuse bail.’

He said that the prosecutions have seven points arguing against bail
1. he will abscond the country
2. may interfere with the evidence, there were six general diaries (GD) filed against him.
3. he may destroy relevant evidence
4. Interfere with the judicial process of the tribunal
5. Terrorism in Bangladesh will increase if he is released
6. Investigation in last stage
7. Allegations are serious, and they have much evidence against him.

Tanvir then responded to these points

The accused is a Bangladeshi citizen and has no place to live outside Bangladesh. . He is willing to surrender his passport and he promises not to apply for any other sort of travel documents without tribunal’s permission. Also willing to stay at a permanent address in Dhaka. ‘There is no chance of him absconding,’ the lawyer said.

He went to say that there is no evidence of his connection with armed cadre. In relation to the 6 GDs claiming witness intimidation, his client is not directly named in any of them.

The tribunal chair said that the prosecutor claims that people supporting Sayedee are going to threaten and influence the procedure, not the accused.

Al-Amin responded by asking why that should effect his client. ‘If there is no evidence that I am interfering with witness, then there is no grounds.’ He said that his client was willing to commit himself not to make contact with any witnesses.

He went on, the investigation agency has finished their investigation work. They have submitted the report too. The investigation is closed now. So there could be no tampering of evidence. ‘Furthermore, my client is willing to guarantee that he will not go near any crime based area. So ground no longer can be relied on,’ he said

The lawyer said that the learned prosecutor argued that if granted bail he will use his influence against the tribunal. ‘But he cannot give any evidence to materialise this allegation. My client has been very co-operative with the investigation agency and tribunal. He has no desire to interfere with the tribunal. No intention to interfere.

He said that there is no possibility of increased terrorism in Bangladesh, and his client had publicly criticised terrorism in his public speeches. ‘This ground should not be taken into consideration.

He said that continuing investigation can no longer be a ground, as it has been completed.

In relation to the ground that the allegation is serious, Al-Amin said that the nature of the allegation cannot be a ground for refusing bail.

He then said that bail was a right rather than a privilege

He then referred to his client’s medical situation. He said that his client had gone to Ibrahim Cardiac Hospital (ICH) last 26th May for check up. Hospital authority, upon examining his health condition, advised to get him admitted to the hospital immediately.

‘He has several health problems including diabetes and prostate complications. He has rings in two veins in his heart and another two is almost 75-80 per cent blocked. He is very sick. He is 71 years old and he needs care of his family. We know the doctors and nurses are performing their duties but what would happen in case of emergencies. Someone from his family should be by his side. The reason is purely humanitarian.

There was another similar case where the accused was granted bail.

The tribunal chairman then said, ‘Don’t refer to another case here, it’s not relevant. In this connection, I want to say, I read in some report that “What kind of tribunal is this? They are granting bail to someone and not granting bail for another with the same case?”

The lawyer said, considering his age, his medical condition, obviously he will not abscond.

One of the tribunal members said that the care that he is getting in hospital, can’t be provided to him while he is in home. And the Tribunal chairman added that ‘you didn’t object to the treatment of the doctors and nurses in the hospital so that means you are happy.’

Al-amin responded by saying that he had no objection to the performance of the doctors or the nurses.

He then went on to cite provisions from the ICC and the ICCPR, the same ones that had been cited in previous bail application.

He ended by saying that, due to his clients health care and humanitarian point of view he would like to request bail for Sayedee and that his client was ready to accept:
- surrendering of passport
- not applying for travel documents
- residing at 914, Shahidbag, Dhaka
- reporting to tribunal on agreed basis
- not travelling to crime based areas
- not contacting witnesses
- not interfering with any part of the investigation process.
He added that surety can be given

Syed Haider Ali then rose for the prosecution. The Tribunal chair said that there were two questions he needed to respond to. First as investigation finished, no chance of accused interfering with investigation, and secondly, he is ailing and very sick.

The prosecutor said that the investigation was completed, and that it is submitted that there is a prima facie case establishing allegations relating to genocide. He has no right to bail. He said that the tribunal should remember that war crimes and genocide took place in 1971, and that both parties would agree that the petitioner is very influential.

He accepted that none of the six GDs mention sayedee’s name, but said ‘you know its Bangladesh, and so many things happen here, using ones influence and taking out your name from the GD.’

He said that the prosecution’s case was that Sayedee’s influence will increase if he is released.

Ali said that the petitioner is stating his ailment as a reason for bail, ‘but we have to remember the brutality of 1971.’

‘Moreover, they chose the best hospital which is specialised in these treatments. The tribunal will go on. His treatment is also going on. We want good medical treatment for the accused too. We can’t ignore that he is 71. but we can’t also ignore the pain of the countrymen during 1971,’ he said.

In relation to Alim’s bail he said that ‘An accused was granted bail by this tribunal but this is not the same case. We would like to keep him detained so that the trial process is not hampered.’

The defence counsel then got up to respond. He first said that he had ‘drafted the petition myself. No one drafted that for me.’ (the tribunal chairman had claimed earlier that the defence applications, ‘had come from outside’ since it contained language of ‘must’ and ‘should’ which he considered in appropriate.)

The Tribunal chair said then ‘you should be held responsible for using those words “must” “should”’ Islam said that they dis the drafts themselves and their is no other help involved.

Al-Amin then continued. He said that investigation is finished now. There will be prosecution if charges are pressed. ‘This is a voluminous report, I don’t know how, within half an hour of having the report, the learned prosecutor can decide there is a prima facie case and make a decision to press charges. He said, “We will proceed with charges,” the prosecution said. How does he know?’ he said.

The Tribunal chair pointed to section 8(2) of the Act and suggested that this prosecutor may have acted as investigator and as such he may be in a position to say that there is a prima facie case. Al-Amin replied that there is no evidence that this particular prosecutor had been working as an investigator, and that in any case he is presenting his response today as a prosecutor not as an investigator.

The lawyer completed his submission by saying that on humanitarian grounds. He would like to request the tribunal grant bail.

Court order
Justice A T M Fazle Kabir, one of the tribunal members read out the order.
‘Today the prosecutor has submitted investigation report before the tribunal against the accused person. In the meantime an application for bail have been submitted by the accused petitioner Delwar Hossain Sayedee praying for enlarging him on bail on the ground of illness

At the very outset Mr Syed Haider Ali submitted that they have already received investigation report of the accused person Sayedee today and they did yet receive an opportunity to go through such report. The learned prosecutor that they require some reasonable time for perusing documents and to prepare formal charge if necessary.

Mr. Tanvir Ahmad Al Amin, the learned advocate, appears on behalf of the accused petitioner Delwar Hossain Sayedee, submitted that accused is an ex member of the parliament (MP) and Islamic scholar who had been detained in custody for about 11 months without trial.

Learned advocate also submitted that MDHS was taken to the tribunal today. But his health has deteriorated and he was taken back to the hospital for some treatment.

The learned advocate further added that the jail authority has provided medical treatment to the accused in BIRDEM and ICH. Since his health condition has deteriorated, on medical ground he should be released on bail.

The learned advocated further submitted that since the investigation report has already been submitted to the chief prosecutor under such circumstances there is no chance of influencing the witnesses in the case or influence in investigation matters.

Learned advocate then submitted that considering serious ailment of the accused petitioner and since there is no chance of influencing the investigation he should be enlarged on bail for ends of justice.

Mr. Syed Ali Haider opposed bail by submitting that accused petitioner is a politically influential person, and though the investigation report is submitted they didn’t have chance to go through the report, there is every chance of interfering in the matter and influencing the witnesses to this case.

The learned prosecutor further submitted that the jail authority provided specialised treatment to the accused in one of the best hospitals in Bangladesh and the defence have no objection in regards to treatment, as directed by the tribunal.
The learned prosecutor lastly submits that if the accused person is enlarged on bail the trial process will be hampered as influential person.

We have heard the learned advocates and the learned prosecutor and perused the application for bail and objections of the prosecutor to bail.

It is an admitted fact that Sayedee is a cardiac patient and diabetic patient. In previous occasions tribunal has directed the jail authority to provide necessary treatment to the accused petitioner and the accused petitioner was brought to the tribunal but due to illness, he was sent back to hospital for treatment.

Since the accused petitioner is a patient and admitted in a specialised hospital, for treatment under such circumstances, we are of the view that since Sayedee provided specialised treatment, under such circumstances there should not be any interference in the manner of treatment and accordingly accused person is not entitled to give order for release for bail because of his health condition.

In view of the above facts and circumstances, we are not inclined to grant bail at this stage, accordingly prayer for bail is rejected.

Since the investigation report against Sayedee has been submitted to the learned prosecutor today, we are of the view that prosecutor should be given reasonable time to go through the report. 11 July is fixed as the date to submit the formal charges.’

After the hearing, the accused lawyer got up and asked whether the tribunal would allow at least one family member to attend his client. Apparently (though I did not see this) showed a letter from the Hospital to the tribunal in which the hospital authority had asked the jail authority to allow a family member to attend. The tribunal chairman rejected this. ‘No’, he said.

The order said that because he was getting proper treatment in hospital, Sayedee did not need to get bail due his health condition, and then stated that and added that he should not get bail because of the ‘above facts and circumstances’ without stating what these were.

The fact that Sayedee is getting good treatment in a hospital is not sufficient reason for him to be detained, there has to be other reasons, and simply saying that these reasons are the ‘above facts and circumstances’ when it is not clear what is being referred to is simply not enough. The Tribunal has to learn to give properly reasoned orders if it wants to gain credibility for its decision taking – particularly when none of its decisions to deny bail can be appealed.

24 May 2011: Contempt of court claim

Two interconnected applications were heard at this hearing. No accused were present.

The first application related to an alleged contempt of court by a senior member of the investigation agency, Sanaul Haq, who the lawyers on behalf of Motiur Rahman Nizami argued has made prejudicial comments against their client to the media during and after his interrogation and who had breached the order of the Tribunal. The application asked the Tribunal to take action against Haq for contempt of court.

The second application, sought a direction: to exclude all evidence obtained during Nizami's interrogation that was obtained contrary to the Tribunal's orders about how the interrogation took place; to suppress all evidence from trial proceedings which was prejudicially communicated to the media; upon the Investigation Agency and Prosecution to abstain from such prejudicial conduct in the future; upon the Investigation Agency to allow counsel to assist the Applicant during the period of interrogation and to be permitted to hold privileged communications before, during and after the interrogation; upon the Investigation Agency to audio and video record the entire interrogation and for transcripts to be available to the Applicant’s counsel within three days of the interrogation; to suspend all further interrogations pending the resolution of the above matters.

First application: Contempt of court
Tajul Islam, Nizami's counsel, told the Tribunal that the interrogation of Mr. Nizami took place on 5 May 2011 and that ‘during the interrogation period, the Investigator Mr. M Sanaul Haq made a number of prejudicial comments against Mr. Nizami to the media waiting outside. Further, once the interrogation was completed, he publicly stated to the media that Mr. Nizami had allegedly confessed to his involvement in the atrocities committed during 1971.’

Islam then passed a video to the tribunal that he said was a copy of the press briefing given by Haq at the end of the interrogation. Islam then read out a bangla transcript of the media briefing by Haq. (SH=Haq: J=journalist)
SH: I spoke with you during the interval. We interrogated him further when he came back. He answered to the questions of the Investigation Officerss. He confessed about all the international crimes that took place at that time, but he dodged issues regarding his involvement and didn’t want to talk about it that much. Anyway, he is old and we couldn’t interrogate him well enough. Moreover, he answered very slowly, so it took us a lot of time. We will apply for more extensive interrogation of him to the International Crime Tribunal (ICT). We will verify all the answers that he had given, and will also ask further questions that we have left.
Journalist: What do you mean by – “he confessed”? What are exact things that he confessed?
SH: He confessed that, at that time, there was mass-killing, rape and torture on women. Al-badr and some other organisations like it carried out all the atrocities. But he cleverly avoided the role that he played there.
J: Did he confess his involvement with the Al-badr?
SH: He wanted to avoid those issues.
J: You have shown him some documents and photographs… what did he say about those?
SH: Yes, he related to some of those. In some cases he said that it was misrepresented in the newspaper. We also showed him a book published in Pakistan. There is a publication in Pakistan named “Al-badr”, we also showed some books published by that publication, where his roles in Al-badr was stated. In those cases he also said that those things were done to disgrace him. Anyway, our interrogation is unfinished and we want to interrogate him further.
J: Did you show him the reports published in the Daily Sangram, “spokesperson of The Jamaat”.
SH: Yes, everything was showed to him, everything.
J: Sir, those reports said he was the president of Al-badr. Did you ask him about that?
SH: Yes, he was asked about that.
J: What did he say then? Did he confess or deny?
SH: He said that he would have been killed if he didn’t do those.
J: Sir, what are the things he was forced to do, what are the things?
SH: He formed Al-badr, Razakaar and Peace committee provided them help.
J: So, what did he say about it?
SH: He didn’t answer the question directly.
J: Did he confess about murdering the intellectuals?
SH: Yes, he said that it happened. He claimed that they observe the day every year and pray for them.
J: Did he confess about being involved in formation of Razakar and Al-badr?
SH: Yes, he confessed.
J: Sir, will there be any more interrogation?
SH: We will not apply to interrogate those who we think gave complete statement. In this case, we thought it was incomplete, so we will apply to get the chance to interrogate him again.
Islam then told the Tribunal that on the following day, 6 May, a number of press reports were released publishing Haq’s ‘prejudicial communications and citing confidential information concerning the case against the Petitioner.’

He then argued that for the reasons to be given later, the Petitioner prays for the Tribunal ‘to exercise its judicial discretion in drawing up proceedings for contempt of this Tribunal against Haq and further penalising the investigation agency for its prejudicial conduct and preventing re-occurrence of such grave breaches.’

Islam then described the circumstances of Mr. Nizami’s interrogation. He said that prior to the commencement of Mr. Nizami’s interrogation, Haq informed Mr. Nizami’s counsel that he was ‘prohibited from advising his client’.

He also added that ‘both during Mr. Nizami’s lunch break and after the interrogation Mr. Nizami was prevented from privately consulting his lawyer as members of the Investigation Agency were present throughout.’

He also said that ‘during the interrogation period, counsel for Mr. Nizami was not allowed to observe the interrogation. Counsel was not ‘even able to see the four investigators’ though he was later informed that they comprised Mr. Razzaq Khan; Mr. Motiur Rahman; Mr.Helal Uddin; and Mr. Nural Islam.

Islam said that, during the interrogation interval Haq had said that Nizami was “confessing too many things” and that subsequent to the interrogation Haq had told the media that Nizami had “confessed and admitted his involvement with the atrocities committed during 1971”.

The article then quoted the Daily Star newspaper as quoting Haq as saying, “when we showed him a video clip of brutal killings during the Liberation War and enquired about it, he [Nizami] said it was genocide and mass killing”.

Islam apologized to the court that they had forgotten to annex the article and one was not available in court.

The Tribunal chair said, ‘You said ‘annexed’, but you didn’t annex it with the documents. You are so busy!’

Islam stated that the Daily Star article revealed a significant amount of information allegedly obtained during Mr. Nizami’s interrogation, including, inter alia, that Mr. Nizami: “admitted that mass rape and killing of the country’s intellectuals took place during the Liberation War…[and when shown] different documents of Pakistan that mentioned his involvement with Al-Badr and Al-Shams he admitted his involvement with the two auxiliary forces”.

The Tribunal chair said, that ‘it was “reported to have revealed”, so it’s not sure if it was “revealed”?’ Islam responded by saying that ‘We just wanted to quote what was said in the newspaper.’

The Daily Star article also quoted Haq as saying that Nizami had told interrogators that: “But my speech to Al-Badr activists and other activities and assistance during 1971 were related to inspiring people that I was bound to do due to death threats by the Pakistani Army.”

Islam then argued that this conduct was in breach of section 11(4) ICTA and Rules 14 and 45 of the Tribunal’s Rules of Procedure. Rule 14 of the Tribunal’s Rules of Procedure provides:
“The Prosecution and the Investigation Agency shall take necessary measures to ensure the confidentiality of any information, the protection of any witness or victim and the preservation of all the evidence collected
Section 11 (4) of the International Crimes (Tribunal) Act 1973 as amended in 2009 states:
“A Tribunal may punish any person who obstructs or abuses its process or disobeys any of its orders or direction, or does anything which tends to prejudice the case of a party before it, or tends or brings it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with a fine which may extend to Taka five thousands, or with both”.
Rule 45 of the Tribunal’s Rules of Procedure states:
‘… The Tribunal may draw any proceeding against any person who obstructs or abuses the process of the Tribunal or disobeys any order or direction of the Tribunal or who does anything which tends to prejudice the case of a party before the Tribunal, or tends or bring the Tribunal or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal.’
Islam referred to para 52 of the ICC case of Prosecutor v. Thomas Lubanga Dyilo where it was stated that,
“The Chamber is wholly uninfluenced by these misleading and inaccurate remarks, but it deprecates the prosecution's use of a public interview, first, to misrepresent the evidence and to comment on its merits and weight, and including by way of remarks on the credibility of its own witnesses in the context of a trial where much of the evidence has been heard in closed session with the public excluded; second, to express views on matters that are awaiting resolution by the Chamber, thereby intruding on the latter's role; third, to criticise the accused without foundation; and, finally, to purport to announce how the Chamber will resolve the submissions on the abuse of process application, and, moreover, that the accused will be convicted in due course and sentenced to lengthy imprisonment at the end of the case.”
Islam then stated that ‘given the early stage of the criminal proceedings and the fact that the Petitioner has not been charged with any crime .. the information released by the Investigation Agency to the media is intrinsically confidential and thereby in breach of Rule 14 of the Tribunal’s Rules of Procedure.’

Islam also alleged that the comments made by Haq were ‘highly prejudicial in the cases against the Petitioner especially when taking into account that the Petitioner was being questioned on matters concerning serious war crimes and were prohibited from seeking legal consultation and assistance. Furthermore, it is submitted that the comments attributed to the Petitioner by Huq are entirely fabricated. Mr. Nizami did not confess to his involvement in atrocities committed in 1971 and did not make any reference that he was forced to do so by Pakistani authorities. It is submitted that under the Tribunal’s Act and Rules of Procedure, such prejudicial conduct is deemed serious enough to invoke a term of imprisonment for one year together with a fine of five thousand Taka.’

He also argued that ‘the prejudicial communications made by the Investigation Agency concerned matters to be determined by the Tribunal and therefore intrude on the Tribunal’s inherent judicial power and discretion. It is submitted that the conduct of the Investigation Agency is damaging both to the process and reputation of the Tribunal. The Petitioner prays that the Tribunal issues a warning upon the Haq and the Investigation Agency to abstain from such prejudicial conduct in the future and further, exercises its judicial discretion … to draw up [contempt] proceedings.’

Islam then went on to argue that there had been a breach of the order of the court in relation to the way the interrogation takes place.

He quoted page 26 of the 2003 High Court decision of BLAST which held that “the Investigating Officer shall interrogate the accused, if necessary for the purpose of investigation in a room specially made for the purpose with glass wall and grill in one side within the view but not within hearing of a close relation or lawyer of the accused.”

He also quoted Article 14 (3) (d) International Covenant on Civil and Political Rights (“ICCPR”) and Article 67 (d) Rome Statute of the International Criminal
Court (“ICC”) which stated that “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:…To defend himself in person or through legal assistance of his own choosing ….”.

Islam then referred to Article 55 (2) (c) of the ICC which provides for the right: “To have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her…”.

And Article 55 (2) (d) ICC provides for the right: “To be questioned in the presence of counsel unless the person has voluntarily waived his or her right

The Tribunal chairman asked Islam whether he was emphasising the phrase “through legal assistance”? Islam said yes. The chairman then said, ‘You should know in our rules, this (interrogation by police) is not admissible evidence. So it doesn’t matter.’

Islam responded by saying, that if he doesn’t take legal assistance he becomes vulnerable to others. 'For the protection of the witness, a lawyer should be present'

The Tribunal then added that ‘there are some outsiders who always talk about us violating rules. The statement of police may be admissible evidence outside [Bangladesh], but not in our country.’

The Tribunal chairman said, ‘We said clearly [in the past] that this is not admissible as evidence. So, there’s no need to worry. And, why did you say a lawyer should be present? We only allowed the lawyer just for the protection of the accused during interrogation.’

He went onto say, ‘This is a domestic tribunal dealing with international crimes. It seems like your head is focused on different things. That’s why you keep repeating and repeating yourself..’

‘No judge of this country would deem police interrogation admissible as evidence. We know what goes on there. We have to follow our own rules. And, you are saying it over and over again.’

Islam then finished arguing his petition. He argued that the right of the Applicant to consult his lawyers during the course of his interrogation has been recognised in the judgment of the High Court Division in the case of BLAST vs. Bangladesh, which has been upheld by the Appellate Division in Civil Petition for Leave to Appeal No. 498 of 2003.

Islam went onto argue that during the interrogation period the petitioner was unable to observe the interrogations in breach of the Tribunal’s 5 April Order and the judgment of the High Court Division in the case of BLAST vs Bangladesh.

He also said that the accused was given to the custody of the investigation officer before 10:00AM and during this period was prevented by the Investigation Agency from seeking legal assistance and consulting counsel contrary to international standards and obligations.

The placing of the petition was completed, and then a discussion between Islam and the Tribunal members took place

Tajul explained that their concern was that ‘the lawyer couldn’t even speak to the petitioner.’

The Tribunal chair responded by saying that. ‘we don’t think it should be allowed.’

Another tribunal member said that, ‘All the cited judgements are correct and well known. But, according to our law we don’t see any necessity. Although, we allowed you as a legal assistance, but in our order we did not say you should consult during-interrogation. Our order read, “........will be allowed to see at the interval time.” So you can give legal advice outside not during interrogation.’

Islam then responded, by saying, ‘How would I know if he was being tortured or intimidated or not, if I’m not allowed to talk to him? We feel we were being prejudiced.’

Moving back to the key part of the application, Islam then said, ‘[Sanaul Huq] can not say whatever he wishes in front of the media. This is wrong. First of all, we are saying the statement is incorrect. And, even it was correct the interrogator should not be allowed to talk about it to the media. This is confidential. When the investigator says something like yes [the accused] confessed about rape and massacre, he becomes prejudiced’

‘Only the law should decide what to say to the media or to anyone. So, he is obstructing court’s order.' Islam said.

He then said. ‘Moreover, the public perception also starts to build against [the accused] after such comments. This creates a psychological pressure on the tribunal which might influence the judgment. So, this is contempt of court.’

Islam, then quoted the relevant section of the Act and rules again (see above) He said, ‘First, there is an attempt to scandalise the petitioner. And there is also an attempt to obstruct the court’s trial by speaking to the media and influencing the public opinion. The client feels prejudiced. All of these are violation of the rules.’

‘We know the tribunal is independent and there would be no pressure. But all these act actually tend to create a public opinion and that could be a mental barrier,’ the lawyer added

The Tribunal chair said, ‘We are not pressured by anyone or any means.’

The prosecutor, Syed Haider Ali, then got up and spoke. He said that, ‘If someone read the rules of procedure’s chapter on evidence there wouldn’t be any need for this application.’

He then criticized the defence counsel for taking bits and pieces of the Act and Rules. ‘We have to take the complete section 45 into account. If you divide the act and quote from some convenient discrete pieces it’s not right. You can’t take bits and pieces of the section and quote that for your advantage.’

Ali said, ‘There was no question of breach of confidentiality and there was no obstruction to the tribunal. If we look at the full 11(4) act it’s clear.’

‘Once people committed murder and left the body in one piece. Now-a-days it is chopped and different pieces are taken to different places. This is exactly what has happened here. It was a very shrewd thing to do from the learned counselor’s part.’

He added, ‘Furthermore, there was no question of disobedience of the court’s order. The doctor was there. Every one was present. Mr. Tajul even had rice with [the accused].’

‘We have to remember we are doing this under domestic law. And this was not a confidential interrogation. It is not a confidential place. It is a safe home. This same person is going to different interrogations, not everything relates to this tribunal.’

In response to a question from the Tribunal, he said, ‘I just want to say there was no prejudice. What the interrogator said to the press is immaterial.’

‘The accused was interrogated and he answered. Is it evidence? No it is not evidence’ he said.

The Tribunal chair then read out section 11(4) again, and said, 'Is it 'obstruction'? No. Is is 'abuse' No. Has the order been 'disobeyed'. No. Has anything been done that 'tends to prejudice the case of a party before the Tribunal'? This is the case of the other party.'

Ali replied, ‘No, there was absolutely nothing. Even if Mr Sanaul is saying all the truth, there is no question of prejudice. ‘

The Tribunal chair said, ‘the counsel was saying that it is going to create a bad impression as it was said in the media and television.’

Ali responded, ‘But there was nothing confidential and it is not even evidence. All the books and videos were provided by the interrogator but nothing was obtained from the accused. So 11(4) fails.’

‘The application says, “He confessed that there was mass-killing and genocide.” There’s no evidence needed for that. Can anybody deny that there was no genocide? Can Mr Tajul or anyone deny the mass-killing?’

Ali argued that there are three issues in relation to contempt. ‘One, We have to define what is contempt. Two, and somebody has to perform some or any of those contemptuous acts. Three, we also have to see who is in contempt.’

He then said, ‘But, there is nothing that indicates contempt. And, if somebody asks, “Do you confess that there was mass-killing?” and he answers ‘yes’, what’s the evidence in that? He was shown some books and asked what is his position regarding those. Is this evidence? Or prejudice? This is neither.’

The Tribunal chair asked, ‘It says “he confessed”, Doesn't it prejudice his case?’ Ali denied it. He said, ‘There is nothing in Sanaul’s statement that discloses confidential things. I don’t find anything substantial here.’

Islam then responded. He criticized the prosecutor for saying that he did some “clever” things. The Tribunal then said, ‘No, he meant you cleverly presented your case. Lets not fight and proceed.’

Islam said, 'I actually quoted the whole section. I think, breach of any of the terms in the section should be considered as contempt.'

He focused on the part of the section that reads, 'or does anything which tends to prejudice the case of a party before it.'

Islam again said, that there was breach of confidentiality, and then quoted part of the media briefing: “Did he confess?” ‘Yes”, “Al Badr?” “Yes”. Everything goes against him. Is this not prejudice.’

The Tribunal responded at one point by saying, 'But this is not evidence'

‘I’m not saying you will judge based on public opinion but it is true that people are being affected by all these reports and statements,’ Islam said. ‘People might say, “If everyone knows who did what, what’s the point of all this trial?’

Islam said, ‘This is becoming a kind of “media trial”. He said that on the basis of these comments by Haq, his client was seriously prejudiced. He added that there has also been a breach of confidentiality and that 'this is also a violation'.

The Tribunal chair then said, ‘Yes, the press and the media has not been very responsible about the whole trial. People are even giving statements about what didn’t even take place here. But, we are not influenced by any of those.'

Islam finished by saying, ‘But, no one should say such things in the media. The way he said everything so easily is not appropriate. ‘

Second Application
This application was not argued by the defence lawyer, as it appears that the Tribunal considered them to deal with the same subject matter as the first application.

However, Tajul Islam did argue that the Tribunal should make it clear in an order that all material obtained in the course of the interrogation should not be used as evidence in the Tribunal.

A discussion then took place between the prosecutor and the Tribunal, with the prosecution, Haider Ali, telling the defence counsel not to worry as many things are being said about the accused but they are not evidence. The Tribunal chair at one point said, 'Advice is coming in from outside (Bangladesh), that’s why their heads are spinning. There is nothing to worry.'

'It doesn’t affect this trial what others say. There will be reports, symposiums, negative and positive comments. But we are not taking other people’s statements into account. We are not also considering what was said in other cases relating the accused.' he added.

At one point the prosecutor pointed to a part of their application which stated, “the Tribunal must allow ....”. The Tribunal told the defence lawyers that they must not use language like 'must allow'

He then said, 'You are petitioning in front of an international tribunal', quickly correcting himself by saying, 'a tribunal that deals with international matters.'

The Tribunal then said that investigation officers should be careful of what they say in public. 'Each and every eye is on you,' the chair said.

One Tribunal member said that the 'Prosecutors and investigators should be conscious of the importance and weight of each word they use.'

'There was a report from Toby Cadman [UK lawyer assisting the defence] which used the same language as Mr. Tajul today. This is unfortunate. This is a domestic case. This is a domestic trial. Why the outsiders are so involved in this? What is their headache?' one of the Tribunal members said.
The Tribunal chair said that there was some news report on 9 May which questioned the qualification of the the Tribunal members to be judges of the Tribunal.

He said, that foreigners 'also criticised the quality of our judges. They are saying we are not qualified. They are questioning us? How far they have gone?! This is contemptuous. We know the profile/ qualification of the international judges. They are not any better than us.'

'This is simply unfortunate,' he said.

Tribunal Order
After about a two minute pause and discussion amongst the judges, the Tribunal chair then read out the order:
Two applications are taken up for hearing today. First, we considered an application filed under 11(4) of the ICT 1973 and Rule 45 of the ICT rules of procedure 2010 for drawing up contempt proceedings against Sanaul Huq from the investigation agency of this Tribunal.

Mr Tajul Islam pressed his petition before the Tribunal and submitted that during the interval period of the interrogation, Sanaul Huq made a number of prejudicial comments against Mr Nizami to the media waiting outside.

After conclusion of the interrogation, the petition stated that Sanaul Huq stated that Nizami confessed that there were atrocities committed in 1971, but dodged the issue of his own involvement.

The learned counsel submitted a video of the press briefing by the said Investigation officer and the video has been placed by the Tribunal for the perusal of the Tribunal. The statement made in the video have been quoted in the petition which Mr Tajul Islam showed us.

[Sections of the Sanaul Huq’s interview was then read out by the Tribunal Chair, see above]

Mr Tajul Islam further submitted that when the interrogation process took place the order of the court was not followed by the said investigator and that Mr Nizami’s counsel was not permitted to advise his client and was not allowed to observe the interrogation.

Also it was alleged that Sanaul Haq told the media that Mr Nizami was confessing to many things and confessed that there were atrocities committed during 1971 and that the same investigator was reported to having revealed a lot information allegedly during the investigation.

Then by reference to section 11(4) of the 1973 Act and rule 45 of the Rules of Procedure, Mr Tajul Islam submitted that these have been violated, and that prosecution and investigation agencies are to take measures to keep confidentiality of information and that he did something which tends to prejudice a case of a party before the tribunal, and that considering all these things, Mr Tajul Islam said that a warrant upon the said investigators should be issued to stop such prohibitions taking place in the future and also to take action under the Act and Rules.

By reference to section 11(4) of the Rules he submitted that the statement made by the investigation tend to prejudice the case of accused person, and as such under law the allegation has been substantiated.

On the other hand Syed Haider Ali, the learned prosecutor submitted that what has been stated in the petition does not prejudice case of any party. Also submitted that the statements are not evidence at all, so section 11(4) and rule 45 do not apply.

We have heard the submissions and perused them and the Act and Rules. Allegation brought by Tajul Islam that Nizmai was not allowed to consult accused person as directed by Tribunal is not a fact. Probably Mr Tajul Islam has misconstrued the order of 13 April. In the order it was stated that ‘The investigation agency is directed to arrange a specific room for interrogation in safe house, and counsel for the accused is permitted to be present at adjacent room when interrogation will be held. Investigation Agency is also directed to arrange one doctor to be present with one counsel during the interrogation time. The learned counsel and the doctor will be allowed to see the accused person at the interval time of such interrogation and doctor will examine the accused if necessary.’

On perusal of the order we find that allegation by Tajul Islam that not allowed to talk to accused person does not stand as order does not say that counsel should be allowed to consult with accused person. He was allowed to the interrogation and be present in the adjacent room, and to see the accused at the interval time. There was no allegation that he was not allowed at the interval time.

The first allegation of Tajul Islam falls through.

The application regards the media statements by Sanaul Huq was considered by us. The tribunal has not seen the video yet, as statements from that video has been put into the petition and on consideration of those statements in the petition submitted by Tajul Islam we do not find that those statements bring the case, ‘which tends to prejudice the case of the party i.e. the accused before the trial,’ because of following reasons.

First of all the statements are not admitted in evidence. We do not want to pass any comments on these statements as these are not evidence at all, but we are of the view that even if true it does not bring allegation that will prejudice the case of a party to have been established. As such we are of the view that section 11(4) of the Act and rule 45 of the Rules of Procedure does not apply.

Before ending, we want to make some observations. Frequently we see on TV, both sides saying different things before the electronic media which are not only unwarranted and we want to disapprove of this. They should not say anything and they can’t comment on anything. Nothing should be said to the media about results of investigation or the court order. The investigators and the prosecutors can only say that the trial process are going on. The accused should also refrain from making comments about the trial process.

The second application was filed for suppression of evidence obtained by interrogation on 5 May 2011, and for review of all interrogation also taken up for hearing.

We heard the learned prosecutor on both sides. The stage of considering certain statements as evidence has not come yet, so question of suppression of evidence not come at all.

Investigation process is something to be done by the investigation agency alone. But if interrogation is allowed, the investigation officer can interrogate any accused person.

So this submission also does not stand.

We have along observed and also the law says that statement made during interrogation to any prosecutor or investigator is not admissible, as what is evidence is already stated in the rules.

This application is also rejected.'
1. The lawyers for Nizami argued that Haq had claimed that Nizami had admitted involvement in atrocities. However, my reading of the translation of the media briefing does not suggest that Haq said this. Though Haq does say that Nizami admitted to being involved in the formation of the Al Badr etc. These are however two different things, though perhaps the suggestion is that in the context of what is commonly understood in Bangladesh, involvement in Al Badr is akin to involvement in atrocities. However, it seems to me, nonetheless, that the defence lawyers were exaggerating somewhat what Haq actually said to the media briefing.

2. The decision by the court seems to have hung on the fact that what was said during the interrogations could not be used as evidence, so therefore what was said by Haq could not have been prejudicial. However, I am not quite sure why the issue of whether the interrogation is admissible is relevant one way or the other to the question of whether the comments made by the investigation officer were 'prejudicial' or not to Nizami's case.

It would seem that the comments were intended to amplify the investigation's case against Nizami, and, in my view, it is difficult really to see how they were not prejudicial - though whether or not the investigation officer should have been prosecuted is a different matter. Whilst the Tribunal claims that it is not effected by such tittle-tattle, public opinion inevitably plays a significant part in this Tribunal, and the Tribunal members must be aware of this. For an investigation officer to say that Nizami admitted involvement in forming the Al Badr, is surely trying to play to public opinion.

The Tribunal did not explain why the issue of admissibility of the evidence was significant to whether or not the comments were prejudicial. In fact, arguably, it is is even more prejudicial if the comments were not part of the evidence that was going to be put before the Tribunal.

3. A small point - but since the Tribunal was given a video copy of the press-briefing, one might have imagined that the Tribunal members should have watched it before making a decision on the issue of contempt. Perhaps the transcript given by Islam was not correct. And even if it was correct, what actually took place at the press briefing could perhaps best be understood if it was seen.

4. In its order, the Tribunal did not deal with the issue of confidentiality of the interrogation. (Extraordinarily, the prosecution argued that what was said during the interrogation was not confidential!) Again this is an example of the Tribunal failing to deal with all the arguments put forward by the defence. This was a key part of the application, and the Tribunal just ignored it.

5. It is unclear why the defence tried to argue that the Tribunal's order had been breached by the investigation agency. There was clearly no instruction in the Tribunal order for the lawyer to be present in the same room as the accused during the interrogation or to allow the lawyer to speak to accused during the interrogation. The defence may have wished that they were there, but they certainly were not.

6. It is notable that the Tribunal members are getting increasingly annoyed by criticisms being made by people, particularly it seems by foreigners, and they are making an increasing number of negative comments about them. It would be a real mistake for the Tribunal to put its head in the sand, and completely ignore what is being said about it and how it operates. This is different issue from the Tribunal making independent decisions on applications.

16 May 2011: Criticism of British lawyer

Two applications were dealt with at this hearing; an application seeking improved transportation for five of the accused from the prison to the tribunal premises, and another application seeking revision to a previous order to ensure that doctors at Ibrahim Cardiac Hospital provide Dewar Sayedee Hossain treatment.

Prior to dealing with these issues the Tribunal raised two initial points - one relating to an article in the Daily Sangram, and another relating to criticism of a press statement given by Toby Cadman, a British barrister who is part of a team of lawyers representing the Jamaat-e-islami accused.

Report of Daily Sangram
Right at the beginning of the hearing, the Tribunal chair said that he has some issues he wanted to address.

He asked whether Mr Shahidul Islam, reporter of The Daily Sangram, was present and asked him to come forward. (Daily Sangram is known as a jamaat-e-islami paper)

The Tribunal then mentioned a report was published in the Daily Sangram which claimed that the Tribunal members held a two-hour ‘closed-door meeting’ with some people. (It was not clear exactly with whom it was alleged that the meeting was supposed to have taken place, but the journalist subsequently said that the article had alleged that the meeting had taken place with: AK Khondker (an AL leader); M. Hamid, a TV Producer, and members of the sector commander forum, General A Harun and General Shafiullah), The Tribunal chair said, ‘Where did you get that information? Who instructed you to write this report?’

The journalist initially did not say anything, but after being asked again by the Tribunal chair said, ‘Earlier, there was this similar kind of report published in another newspaper. I saw the report and did mine.’

The Tribunal chair then said, ‘We have good relationship with lawyers -- counsels and prosecutors. I know Mr Tajul Islam, sometimes we have tea together in my room and we chat -- is this also some kind of closed-door meeting? You think you can write whatever you want? Is there any basis to your reporting?’

‘You have to apologise to the lawyers and the judges in The Daily Sangram saying that what you published was wrong and baseless.’

Criticism of Toby Cadman (British barrister instructed by Jamaat defence lawyers)
The tribunal chair then asked Tajul Islam, the defence counsel, to come forward.

The Tribunal chair then said, ‘This is the age of internet, isn’t it? We are connected to the whole world through internet. What we say, what we do, every piece of information is available online. There was a foreigner who came to this court in the hearing as an observer. We gave him the permission to appear here. Although he is a foreigner we gave him the chance after special consideration. Before leaving the country he did a report on the hearing. It was mentioned that if any Bangla translation was needed one could contact Mr Tajul Islam. That means Mr Tajul has a professional connection with him, and later Cadman admitted that he was not an observer, he was an adviser to the defence.'

Islam replied, ‘Yes, he was’.

The Tribunal chairman then read from a statement that Cadman had issued on 6 May 2011. 'Persons arrested on the basis of reasonable suspicion of having committed a criminal offence are also entitled, under international law, to a number of additional safeguards. For example being brought promptly before a judge, being provided with information detailing the nature of the allegations, being entitled to challenge the lawfulness of custody and independently of this being entitled to make a reasoned bail application. None of these rights have been made available.’

Then the following exchange took place between the Tribunal chairman and Islam.

Tribunal: Was [the accused] not brought in front of this court as early as possible after issuance of warrant? Answer me.’
Islam: yes.
Tribunal: ‘….being provided with information detailing the nature of the allegations – was he not provided with this?
Islamd: Yes.
Tribunal: ‘lastly, being entitled to challenge the lawfulness of custody and independently of this being entitled to make a reasoned bail application, didn’t you do it?
Islam: Yes.

The Chairman then said ‘If all those four cases were taken care of, how could he say, “None of these rights have been made available.”?

‘And, he said if anyone prefers Bangla translation Tajul Islam could be requested. Who is this Tajul Islam? ‘ ‘It’s me’ said Islam..

He then asked the lawyer why he did not do anything about this. One of the other Tribunal members then said, 'Mr Tajul, as a Bangladeshi citizen, do you think such comments from a foreigner are acceptable? A person who is not a part of this prosecution and tribunal shouldn't write anything like this, and as a part of [the Tribunal] you should have replied.'

Another tribunal member said: ‘Can we comment like this on a British citizen or against any other country? Are we allowed to say anything against a foreigner? We have sovereignty. We can talk about ourselves, but not a foreigner -- just like we can’t comment on a foreigner or other country.’

Islam said, ‘It was his opinion. It was his responsibility. I don't take any responsibility.

The Tribunal chair then said, ‘Didn’t it strike you? At least as a citizen, law abiding person of this country, you should have defended the tribunal. You have to defend the law; you have to defend the tribunal.’

Islam said, 'It is his responsibility. I don't take any responsibility … I have nothing to comment on this.’ The Tribunal then said, ‘But you should have defended the tribunal.’

The Chair then asked Islam to continue with the hearing.
(See comment at end of blog),

Application for improve transportation
The first application related to seeking improved transport to and from the prisons to the court. He said that the four accused - Mr Motiur Rahman Nizami, Ali Ahsan Md Mujahid, Md Kamruzzaman and Abdul Kader Molla - all had different ailments which had been discussed in an earlier hearing. Islam then summarised what these ailments were. (see hearing on 21 May)

He said that on a number of occasions the accused travel in vehicles which are ‘unfit to be driven’ He said that there were no windows, just a gap at the top of the vehicle. He said that rain and dust come into the vehicles. He said that the vehicles were very cramped with accused having to sit sideways, and that the seat were sometimes broken.

He said that taking into account their health and old age, they were seeking an ambulance or other vehicle to be provided, which the accused will pay for.

There was then an exchange between the Tribunal members and Islam.

A tribunal member said, ‘The tribunal can’t decide if some one is sick or not. It’s the doctors’ duty. Now, you are saying [the accused] are sick, and you need ambulances as their transport, as moving them from place to places with prison vans has been detrimental for their health. I have to say noone can avoid jerking and traffic in the road.’

Islam said. ‘We need an ambulance because the sitting arrangement is really bad in the prison vans.

The chairman then said, ‘We can’t pass an order on which type of vehicle should be used because there are security issues. Using an ambulance could prove to be unsafe for the accused. Who will take the responsibility? Prison vans are at least secure, but ambulances are not.’

Islam said, ‘But the prison van’s condition is absolutely terrible.’

The Tribunal chairman then said that, ‘Unfortunately, we can not compromise with the security issues that are concerned. We will strongly ask the concerned authority and issue a caution, so that the accused are taken care of properly. The authorities have to consider the condition of the accused, and upon considering their health, they can choose the type of vehicle to be used.’

The Tribunal then passed the following order:
‘This is an application filed by Mr Motiur Rahman Nizami, Ali Ahsan Md Mujahid, Md Kamruzzaman and Abdul Kader Molla, praying for transportation of them by an ambulance or any other similar motor vehicle. We have heard the learned counsel and perused the application.

It appears that considering the health condition of the accused persons earlier different orders were passed authorising specialised food and treatment in BIRDEM hospital.

Mr Tajul Islam submitted that the prison vans by which the accused persons are transported from one place to another being not “health-friendly”, and as such the accused persons, being patients of different diseases and feeling uncomfortable while they are being transported, and as such for their comfortableness, an ambulance or different vehicle which is more comfortable for aged person than that of prison vans may be allowed and prison authorities ought to be directed to arrange such things even at the cost of the accused person.

Mr Haider Ali, learned prosecution appearing for the prosecution submitted that prison authority is authorised under law to arrange vehicles if at all required and for that prisoners need not pay cost. Further submitted that order from the Tribunal would put the prison authority in embarrasment, and it is the responsibility of the prison authority to decide what kind of vehicles to be provided for comfortable transport of accused person.

We already passed an earlier order that the accused persons are aged and some signs of ailments are available, also ordered specialised food and transfer to hospital as and when required. We are of the view that it’s the prison authority’s duty to provide the accused proper vehicles, which are required for their comfortableness whilst they are transported. As such we direct prison authority to look after the health conditions of the accused person and provide them vehicles which are health friendly when they are transported from one place to another.

With this direction, the application is allowed.’

Mr Tanvir Ahmed Al-Amin, the lawyer acting for Sayedee then stood up and the court said that they would pass a similar order for him.
Medical treatment application
Sayedee’s lawyer then sought a revision of an order relating to his medical treatment. He told the Tribunal that the accused was taken to BIRDEM the previous day. 'He was first taken to the Arthritis department and tested, and then he was taken to the diabetic department and that was fine too. But, when he was taken to Ibrahim Cardiac Hospital for heart condition, the doctor said, “We are not in a position to treat him. Because the court order says BIRDEM but we are Ibrahim Cardiac. If the court doesn’t directly order us, we can’t treat him.”'

Al-Amin said that the Diabetic Organisation Bangladesh is the mother organisation of BIRDEM and ICH. And for clarification, he asked that the order be change so that it includes Ibrahim Cardiac Hospital.

The Tribunal chair said, ‘This is outrageous. A doctor is bound to treat his patients. What if the accused breaks his leg and he is taken to Mitford Hospital – would they say, we don’t have our name in the order so we won’t treat him?’

He added, that the prison authority can decide where to take the accused, whether its BIRDEM or Mitford, but a doctor can’t decide which patient to cure and which not to. ‘How can a doctor says this? This is unbelievable,’ he said.

Al-Amin said that he was not going to disclose the doctor’s name, as the patient has to go to the hospital, and his life depends upon his treatment.

The Tribunal passed the following order:
‘This is an application to direct the direct jail authority to comply with the direction dated 20.04.2011 regarding medical treatment of the accused petitioner. Mr Tanvir Ahmed Al-Amin learned counsel appeared for the petitioner submitted that the application was filed on 8 May 2011 but after filing on 15 May 2011, accused petitioner was taken to BIRDEM hospital and given treatment and further submitted that as also had cardiac problem he went to cardicac hospital for treatment, but that the doctor denied giving treatment as the court order only stated BIRDEM hospital and not cardiac hospital and these are separate entities.

Mr Syed Rezaur Rahman, learned prosecutor, said this is a technical error of doctors. According to him, when name of BIRDEM is mentioned, the doctor of cardiac hospital could have given the accused treatment. In matter of giving treatment the prosecutor did not raise objections.

Having heard submission, we direct, the words, Ibrahim Cardiac Hospital and Research Institution, be inserted after the words BIRDEM hospital in the order dated 20.04.11 so the accused petitioner may get treatment at the cardiac hospital if necessary. The prison authorities are directed to arrange treatment to the accused petitioner as and when required. The petition as such is allowed. May a copy of this order be served on prison authorities for compliance.’
The tribunal chair finished the hearing by saying that he has something to say to the reporters. ‘You should be careful while speaking in the TV. We observed that you say some incorrect things there. This is not right.’

After this hearing, I contacted Toby Cadman and Tajul Islam. Cadman stood by his comments, whilst Islam said that that he did in fact agree with at least three of the four comments made by Cadman but felt intimidated by the Tribunal. Below is an article I wrote at the time on this, but was not published:
British barrister ‘stands by’ ICT criticisms

The British barrister representing five Jamaat-e-islami leaders accused of war crimes during the 1971 war has defended the criticisms he made of the International Crimes Tribunal which on Monday the ICT chairman Justice Nizamal Huq described as inaccurate.

In an e-mail sent to New Age, Tony Cadman, one of three senior barristers from the London based chambers Nine Bedford Row who have been instructed by the political party, said that, ‘I fully stand by what I previously stated.’

He however said that since he had not been ‘present in court and [did] not hear precisely what was said by the Judges,’ he would not at this time respond in public to the Tribunal chair’s comments.

‘I fully intend to write to the Tribunal, through the Registrar, and explain my position and respond to any concerns or criticisms they have about what was set out in my statement,’ he told New Age.

On 6 May, at the end of what he said was his fifth visit to Bangladesh, Cadman issued a press release that strongly criticized the ICT and in particular the lack of rights he said was available to the detained accused.

In the five page statement, one paragraph read, 'Persons arrested on the basis of reasonable suspicion of having committed a criminal offence are also entitled, under international law, to a number of additional safeguards. For example being brought promptly before a judge, being provided with information detailing the nature of the allegations, being entitled to challenge the lawfulness of custody and independently
of this being entitled to make a reasoned bail application.’

In bold type, the statement added, ‘None of these rights have been made available.’

At the beginning of Monday’s Tribunal hearing, the Tribunal chair read out the paragraph and asked Tajul Islam, the accused’s main Bangladeshi counsel to answer questions about the accuracy of this claim.

‘Was [the accused] not brought in front of this court as early as possible after issuance of warrant?’ Islam said, ‘yes’

‘Being provided with information detailing the nature of the allegations, was he not provided with this?’ the tribunal chairman further asked. ‘Yes,’ said Islam.

‘Lastly, being entitled to challenge the lawfulness of custody and independently of this being entitled to make a reasoned bail application, didn’t you do it?’ Islam again responded, ‘Yes’.

The Tribunal chairman then criticized Islam for failing to inform Cadman that his views were wrong, ‘Why didn’t you do anything against this?’ he asked.

Judge AKM Zahir Ahmed added, ‘Mr Tajul, as a Bangladeshi citizen, do you think such comments from a foreigner are acceptable?’

Islam responded by saying, ‘It is his responsibility. I don't take any responsibility … I have nothing to comment on this.’

However, after the hearing, Islam told New Age that he had no option but to agree with what the Tribunal asked him. ‘I had no option to say, yes. They were leading questions.’

He told New Age that he in fact agreed with Cadman on three of the four criticims that he had made. ‘The accused have not been given copies of the allegations against them. They have only been given copies of the application filed for warrant of arrest and subsequently for interrogation,’ he said. ‘This is not the same as the copy of the allegation against them.’

In relation to being able to challenge the lawfulness of the accused’ custody, Islam said that in the defence lawyers; view ‘the law did not allow detention prior to the framing of the charges, and there had been no way of appealing the Tribunal’s decisions involving detention.’

On the issue of the bail application, he said, ‘We have made a bail application, but the order given by the Tribunal was not reasoned. The reasons that were given in our application were not reflected in the order of the Tribunal.’

He however said that Cadman was wrong to suggest that the accused were not brought promptly before the tribunal after a warrant for their arrest was issued.

Following the Tribunal’s rebuke of the British lawyer, the Tribunal passed two orders on Monday - one directing the jail authorities to provide improved transport to the accused when they travelled from jail to the Tribunal, and the other to allow Delwar Hossain Sayedee to be able to visit the Cardiac Hospital and Research Institute when necessary.

In a previous order the Tribunal had allowed them to visit Birdem heart hospital

In the five page press statement made a week ago, Cadman – who has acted as both a prosecutor and defence counsel in international war crimes tribunals – said that ‘Bangladesh has the opportunity to show the world that it is a model of the judicial process, but as it currently stands, there is a danger that this court could be seen as nothing more than a tool of political retribution.’
He says the accused men ‘are being held pending trial without fair representation … They have been interrogated under circumstances that breach the most basic fundamental rights. They have been denied access to the medical treatment requested. Unless something is done, they will be tried by a Tribunal which has powers not only to prevent them from defending themselves but also to issue the death penalty. This would be a travesty of justice.’