Monday, June 20, 2011

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.

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