Monday, June 20, 2011

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.

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