Thursday, December 8, 2011

5 Dec 2011: SQ Chowdhury stay rejected

The date had been fixed for (a) the prosecution to file formal charges against four Jamaat-e-Islami leaders accused - Nizami, Mujahid, Kamruzzaman and Molla: (b) order to be given by the tribunal on Salauddin Quader Chowdhury's applications.

In relation to the first issue, the chief prosecutor told the court that they were not completely read to file the charges and needed a bit more time 'until 3pm today'.

The Tribunal passed the following order in the presence of the accused:
'Today is fixed for submitting formal charge. Mr Tipu, the learned chief prosecution submitted orally that formal charge is almost ready and some work is still going on to ready it for filing in afternoon session. Having heard the submission of the learned chief prosecutor, we are of the view that that the formal charge should be submitted on 11 December 2011. On that date the accused must be present'
The four leaders were then removed from the jail, and Salauddin Quader Chowdhury entered the dock

The chairman of the tribunal read out the following order (parts of this need to be clarified).
'Today is fixed for passing order on application, one, for recalling the order of congisance made in absence of petitions and (2) application for stay of further proceedings.

As regards the recall payer, it is submitted that cognisance of this case was taken on 17 Nov 2011 on finding that' upon perusal of these material that is the formal charge, the investigation report, the statements of witness and supporting documents including CD and DVD we are of the view that allegation of crimes against humanity and genocide are prima facie available so that cognisance of offences under section 3 is taken against Salauddin Quader Chowdhury.'

It is submitted that the accused was not present in court and it was taken in his absence and that this was illegal and should be recalled.

We have heard the accused and perused the application.

Rule 29(1) of the rules of procedure state that: 'The Tribunal shall take cognizance of an offence against any accused upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence submitted by a Prosecutor in support thereof, if they disclose a prima facie case for trial of the accused.'

Looking at the order shows that this tribunal in its order, perused the documents including the formal charge, the investigation report, statements, CDs and DVD and found there to be a prima face case so such section 29(1) has been complied with.

Moreover rules 37 and 38(1) also support this.

Rule 37 states:'When the accused appears or is brought before the Tribunal, and if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused and record its reasons for so doing.'

Rule 38(1) If, after consideration and hearing under rule 37, the Tribunal is of opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offences of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.

That when in framing charge the rules recognise that the prosecution and the accused are to be heard. Bur rule 29(1) does not show that there is any requirement for this.

So when court takes cognisance of case not necessary to be done with accused in case. No illegality is done by the tribunal nor rules violated by tribunal.

In relation to the second petition. This is application for stay of proceedings of case.

The accused submits that rules have been created without any law making power which only lies with the supreme court.

This tribunal was constituted under the International Crimes (Tribunal) Act 1973 which a special law. The Act clearly states that the tribunal may regulate its own procedure. .... the Tribunal by power given by section 22 of teh Act has formed its own rules. We are of the view that the tribunal has authority to create its own rules for the tribunal and there is no illegality and so that aspect of the application stands rejected.

The accused person also point out that two high court judges are sitting. Under article 93 and 94 of the constitution, he said that High Court judges can only sit in the supreme court and so it is illegal.

This is a constitutional point which have been considered by the High Court. We have been set up under the 1973 Act and we can not go beyond it. So we are of the view that this point is not maintainable in this tribunal. So this point is also rejected.

Next issues concern Article 47 A of the Act. As previously stated ... we have no jurisdiction to deal with this matter so also stands rejected.

Another point concerned rule 9(4) of the rules and section 11(5) of the Act concerning arrest of accused person.

This tribunal formed rules for procedure of tribunal pursuant to powers under 1973 Act.

Section 11(5) deals with issue of warrant of arrest after framing of charge. Rule 9 deal with warrnt when no framing of charge has taken place.

This is clear when look at whole act and also looking at section 14(1) which allows the recording of a statement of a person before a magistrate court during investigation - as it is clear that no statement could be recorded unless accused person has been arrested. ..... Application has no merit and stands rejected.

It appears that prosecution documents for accused person has been submitted to him but not received. In order stated on 24 Nov 2011 the accused was told to receive the official reports. They have not been received by accused as yet. The accused is directed to receive it today, otherwise it will be assumed that he does not need these documents for the preperation of his defence.

It also appears that some more application have been filed. They will be hear on 12 December.

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