Thursday, March 22, 2012

23 Feb 2012: Azam bail rejection

The Tribunal read out its order on the bail application relating to Gholam Azam. A summary of the arguments made for and against bail made on 15 February can be found here. A previous bail application had been rejected on 11 January (unfortunately, there is no post on that)
'This is an application filed on behalf of the applicant Professor Golam Azam praying for bail of him in the case. Mr. Abdur Razzak the learned counsel appearing for the applicant submitted that on the Tribunal took cognizance of offences against the applicant and thereafter the applicant's counsel was asked to produce him before the Tribunal on 11.01.2012. Accordingly the applicant was produced on 11. 01.2012 and the Tribunal upon consideration of a petition for bail rejected the prayer and sent him to custody. On that date in the afternoon considering his physical condition he was sent to the prison cell of Bangabandhu Sheikh Mujib Medical University and since then he is being detained there. The applicant is highly educated person and was the general secretary of the Students Union, who presented historic Dhaka University Central memorandum to the Prime Miflistet of Pakistan demanding Bengali to be a state language on 21.11,.1948. He was the ameer of Jamaat Islami Bangladesh and in 1999 he retired from active politics.

It was also submitted that there is no reasonable ground for believing that the applicant has committed offences as alleged and no charge has yet been framed against him. The applicant is aged about 89 years and suffers from a number of old age complications and ailments including hypertension and diabetes mellitus, he also suffers from back pain and pain in neck and knee joints. The applicant also suffers from electro lights imbalance, loss of vision in the right eye, osteoarthritis in both knee joints and cervical and lumbar spondilytis with radiculopathy. He has also an enlarged prostate and experiences pain in his thighs and legs when walking. On 05.11.2011, a medical boatd after examining him advised him absolute bed rest to continue present treatment with continuation of physiotherapy and restrictions of physical activities and to use of lumber corset and walking wlth elbow sticks.

The applicant being 89 years old is incapable of moving around freely and needs the assistance of an attendant in order to move from one place to another. Prior to being taken into custody the applicant's movements were strictly limited to going to the adiacent mosque to perform his daily player and that too with assistance of an attendant.

After being taken to hospital a medical board was onsulted to monitor the medical condition of him. Thereafter the hospital authorities conducted an x-ray which revealed several complications with his bones as a result of his old age. An ultrasonogram revealed that there were numerous stones in the applicant's gallbladder. He requires special care and attention which is not possible to be given in the prison ceil in Bangabandhu Sheikh Mujib Medical university (B.S.M.M.U). He has a special dietary requirement which is required to be followed strictly at all times and any deviation is seriously detrimental to his health condition. The standard of food is unsuitable for him and as such he can not take all the food items supplied to him by Bangabandhu Sheikh Muiib Medical university. He was losing his weight and his health condition is also being aggravated. He is not getting physiotherapy regularly. He also has not been provided hot water in the morning to perform his ablution as such he is compelled to use cold water which is detrimental to his health. On 25.01.2012 while taking bath he fell down on the floor and with the help of security guard he was rescued but his knees had been badly bruised. His application for allowing division facilities has been rejected on 14.01. 2012.
His wife by application to the authority requested to allow home-cooked food to be supplied to the applicant but it has not been made available to him. As such considering all these, it was submitted to release the applicant on bail.

It was further submitted that there is no reasonable suspicion to satisfy, an obiective observer that he has committed the offence and even there is no reasonable ground for believing that he will be convicted in this case. As such he is entitled to be released on bail. There being no chance of tempering with the evidence or with any witness as the investigation has been completed and formal charge have been submitted. There is a presumption in favour of bail in national or international law to prevent individuals from being arbitrarily deprived of liberty and to ensure that the period of detention following arrest stops as soon as possible. It was also submitted that till one man is convicted he is presumed to be innocent and as such the applicant may be enlarged on bail. Last of all the leamed counsel for the applicant prayed for conditional bail on conditions that he will surrender his passport before the competent authority, not apply for any travel documents without the prior permission from the Tribunal, will reside in the address stated above will report to the Tribunal when directed to do so, will not travel to any crime scene without prior permission from the Tribunal', and will not contact any of the Prosecution witnesses.

Mr. Golam Arif Tipu, the learned chief prosecutor opposed the prayer for bail and submitted that the formal charge has been submitted against the applicant and the Tribunal has taken cognizance of the offences finding prima-facie case against him under section 3(2) 4(1) and 4(2) of the International Crimes (Tribunals) Act, 1973, being satisfied upon the materials submitted by the prosecution which prima facie brings allegations against him that he was the mastermind of the atrocities committed by the shanti committee, Al Badr, A1 Shams, Razakars duting the liberation war of 1971. He has become the symbol of war criminals. For his heath condition, he is now being treated in Bangabandhu Sheikh Muiib Medical university B.S.M.M.U keeping in prison cell and being given highest level of treatment available in this country. There is no allegation that the accused petitioner is not getting proper treatment. All the benefits as available in the jail code are being given to him. His physical condition is not so bad as has been stated in the petition for bail and submitted by the learned counsel for the applicant. He has been found meeting with the press and giving statements. There was constant claim from the public at large to arrest him since the Tribunal was formed but the authority did not do so rather kept mum and completed the investigation and submitted the formal charge and only after cognisance was taken by the Tribunal he appeared as directed by the Tribunal and after that considering all these aspects, he has been sent to custody after rejecting the prayer for bail just on 11 January, 2012. There is no new ground urged by the applicant to enlarge him on bail and as such the instant petition is liable to be rejected.

We have heard the learned counsels for the petitioner and for the prosecution and perused the materials on record. Mr. Abdur Razzak the learned counsel appearing for the applicant has placed before us the case of Khalid Saigol vs the State reported in 14 DLR (SC) page 321, and submitted that "mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition to this there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence." He also placed before us the case of State vs Mrs. Jobaida Rashid reported in 1997 v BLT (AD) page 131. And submitted that. "It will be sufficient to observe at this stage that there is nothing on the record except that alleged statement of a co-accused that the real planning for the occurrence was done by the respondent. Even the' alleged confession belies the allege statement. Without saying anything more, the materials on record so far in our opinion are plainly insufficient to think that there are reasonable grounds for believing that the respondent has been guilty of the alleged offence of criminal conspiracy." Relying on these two decisions, Mr. Razzak submitted that in a case where reasonable grounds to believe that the applicant was involved in the offence committed are absent, the accused should not be continued in detention and should be enlarged on bail and in this case there being no reasonable grounds to believe that the applicant was involved in the atrocities committed in 1971 and regarding his involvement no materials having been submitted before the Tribunal, the accused petitioner is entitled to be enlarged on bail.

He also placed before us some decisions of the European Court of Human Rights. First he referred to the case of Neumeister Vs Austria, application no. 1936/63 judgment on 27.6.1968 known as Neumeister case and submitted that in dealing with a petition for bail the court is to consider the length of detention of remand, length of proceedings against him, whether there was any failure to observe the principle of equality of arms. The reasonableness of the time spent by an accused person in detention up to the beginning of the trial must be assessed in relation to the very fact of the detention. The judicial authorities are to choose between either bringing accused to trial within a reasonable time to granting him provisional release even subject to guarantees. Until conviction he must be presumed innocent and the purpose of the law is essentially to require his provisional release once his continuing detention ceases to be reasonable. In referring the case of Wemhoff vs Germany passed by the same Court known as Wemhoff case he submitted that "it is for the national authorities to mention the circumstances which led them in the general interest to consider it necessary to detain a person suspected of an offence but not convicted. Likewise such a person must, when exercising his remedies, have invoked the reasons which tend to refute the conclusions drawn by the authorities from the facts established by them, as well as other circumstances which told in favour of his release. It is in the Iight of these pointers that the court must judge whether rhe reasons given by the national authorities to justify continued detention are relevant and sufficient to show the detention was not unreasonably prolonged and contrary to the convention". He also placed before us the celebrated case of Liversidge vs Andemon judgment of which was passed by the House of Lords wherein it was observed. "ln a case in which the liberty of the subject is concerned, we can not go beyond the natural construct of the statute. In this country amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace." He submitted that even with this finding the appeal of Liversidge was dismissed but the dissenting judgment by Lord Atkin was accepted ultimately by our Courts which is now continuing on the point of objective satisfaction.

He lastly placed before us the case of Professor Golam Azam in his nationality cancellation case involving Bangladesh citizenship order. This case was first heard by Division Bench of the High Court Division which has been reported in 45 DLR page 423. Placing this decision, the learned counsel for the applicant submitted that in paragraph 14 of that judgment Mr. Justice Md' Ismail Uddin Sarkar observed that. "Except some news items and one photograph showing that the petitioner met general Tikka Khan or general Yahya Khan there is nothing to directly implicate the petitioner in any of the atrocities alleged to have been perpetrated by the Pakistani Army or their associates the Razakars, Al Badr, or the Al Shams. Except that the petitioner was hobnobbing with the military junta during the war of liberation. We do not find anything that the petitioner was in any way directly involved in perpetrating the alleged atrocities during the war of independence. In my view none of this report is of any help for solving the legal question raised before us in this matter and as such I will refraim from mentioning any such reports of events in course of my discussion of the points raised in this matter". In the said judgment the judges of the Division Bench differed on the result and it went to the 3rd iudge and ultimately Professor Golam Azam got his nationality returned by the iudgment of the 3rd judge. The manner went to the Appellate Division and that judgment was upheld. In the Appellate Division judgment, reported tn 46 DLR (AD) page 192, Mr. justice M.H Rahman observed that ''the government placed before the High Court Division a number of books, written long after the date of notification, in support of its contention that the respondent collaborated with Pakistan and indulged in anti Bangladesh propaganda and appealed to some Muslim countries not to recognize Bangladesh. The truth or otherwise of the authors views or statements cannot be verified this summary proceedings. Advisedly the learned Attorney General did not place those books before this Court. Instead, reliance was placed on numerous reports, published in the Dainik Sangram the mouth piece of the respondent's political party, Jammat-e-Islami. Even from a casual read over of the reports, it will be clear that during the war of liberation, the respondent's allegiance and sympathies were with Pakistan and that he actively collaborated with the Pakistani authorities. He organized peace committees, led mass prayers for Pakistan and gave a clarion call to all patriotic citizens to comb every quarter, search out the enemies of Pakistan and liquidate them. The Dainik Sangram reported on 16 August 1971 that the respondent said "but God forbid, if Pakistan does not exist the Bengali Muslims will have to face the death of dishonor". The respondent said in the mid October, 1971 that for the existence of the Bengali Muslims the solidarity of Pakisan must be preserved. He termed the pro-liberation forces as enemies of Pakistan and as miscreants. He travelled to the then West Pakistan and met the policy makers. He also addressed the training camps of the Razakars, the auxiliary force of the Pakistan Army. This matters would have been straight away relevant and admissible had there been a case under Article 2B” of P.O 149 of 1972.

Regarding the observation noted by the High Court Division Mr. Justice ATM Afsal observed those to be "rightly and fairly". He also observed that those are irrelevant in this case. The learned counsel for the petitioner submitted that even the Supreme Court of Bangladesh had found.that there is no material available against this petitioner in support of the offences by him during the liberation war and as such there has been no prima facie case against the petitioner, he is entitled to be enlarged on bail.

We have heard the learned counsel and given our anxious thought over the matter. The reported decision placed before us by the learned counsel for the petitioner gives us the following views: Gravity of the offence charged is not by itself sufficient to refuse bail, a reasonable grounds for believing that the person seeking bail is guilty of such offence must exist. The foreign decision have been placed before us in support of the view that until conviction an accused must be treated innocent and the accused should not be detained in custody more than the reasonable time and for detaining person the authority is to give reasons in support of the detention and that the said reasons must be tested by objective test. 

In the Neumister case and Wemhoff case, only question of bail in pending trial was considered and the remaining case i.e. Leversidge case the question of detention by administrative authority is there. It differs with the facts of the present case. The custody time of the first two cases were much more than the present case which is only about one and a half months.

In the nationality cancellation case, the issue was quite different. His nationality was cancelled by article 3 of the P.O 149 of 1972 and it was challenged. Both the Divisions of the Supreme Court held that his activities during liberation war, is irrelevant in that case. Moreover as to the observation of Mr. Justice Md. Ismailuddin Sarkar that he does not find anything regarding the involvement of the applicant in the atrocities committed in 1971 does not favour the applicant because it was stated that photographs and news clippings were available but according to him, those does not bring direct involvement of the applicant but in a case under this Act, those materials do bring prima facie case of involvement of the applicant. The Judges got photographs and news items of his association with Pakistan government and Razakars, Al Badrr, and Al Shams. As because the observation that evidence and materials were found, do not correspond to the facts and laws of the citizenship case, those had got no bearing in the case. Even then we find that things reported and noted are very much relevant in the facts and circumstances of the present case and these brings case under the instant Act. Moreover without taking any evidence as was in the writ petition, the finding cannot be sustained.

The observation of Mr. Justice M.H. Rahman in that case in the Appellate Division Judgment finds those materials relevant for a case under Article 2B of P.O 149 of 1972. Moreover in the present case those materials are relevant. As such the observation of Mr. Justice Md. Ismail Uddin Sarker does not glven any benefit to the applicant in the case. The petitioner was taken to custody on last 1,7.01.2012and only one and half month is going to elapse that he is in custody and this custody time can in no way be considered as long custody and cannot be considered for bail.

Regarding his medical condition we have at the last time while rejected his prayer for bail considered it and the material documents which have been submitted with this petition were also placed at that time. We do not find any new materials in support of the seriousness of his illness, the prayer for bail was rejected earlier upon consideration of them. We have already observed that his age is not a factor or consideration of bail in this type of cases. The matter of President Hosne Mobarok a cancer patient and aged more than Professor Golam Azam was considered by us who is now facing trial being in custody. The case of John Demanyuk may also be stated who was also tried for committing international crimes at the age of 89 keeping in custody and ultimately he was convicted and sentenced. We do not find that old age of 89 years is a ground for release Professor Golam Azarn on bail in a case of this nature.

We have taken cognisance of the offence on last 9.07.2012 finding prima facie case against the accused petitioner and the charge hearing is going on. Formal charge has been submitted against him with the allegations that he gave statements in favour of atrocities committed by the Pakistan Army during the period of liberation war, he was the mastermind of creation of peace committee and Razakar bahini, he engaged members of jamaat-e- Islami in those groups; Al Badrs and Al Shams bahini were created by him from Islami chatra Sangha, a student wing of Jamaat-e-Islami, members of Jamaat and Chatra Sangha were engaged by him in crimes against humanity and genocide, he wanted arms from the govt. for strengthening Razakars. Al badars etc, he is personally involved in killing Seru Mia and 38 others in Brahmanbaria and he incited pak army to commit atrocities. If it is found that the material do not support the framing of charge, he will be discharged and released but when the charge hearing is going on after taking cognizance when allegations stated above are alleged against him, we do not find any matter to release him on bail at this stage.

As regards the medical condition for bail it is admitted that he is now in prison cell of Bangabandhu Sheikh Mufib Medical Univetsity (B.S.M.M.L) the highest grade hospital available in Bangladesh for the citizen of this country. There is no other place where a person can be given a better treatment than that. There is no statements that Professor Golam Azam is not getting proper treatment in the Bangabandhu Sheikh Mujib Medical University. He requires better food and other things are matters to be decided following jail code but that can not be a ground to release him on bail. We have considered all the submissions made by the learned counsel for the applicant. We do not find anything more to consider the prayer for bail at this stage. The prayer is thus rejected.
Then Abdur Razzak came to the dais and submitted that Article 31 of the Prisoners Act 1894 refers to the maintenance of certain prisoners from private sources, and that Gholam Azam was not getting proper food and that the supply of home-cooked food is not also allowed by jail authority. He said that ‘We have no other place to go as this is ICT matter. Only the Tribunal is open for us.’

Justice Nizamul Huq asked Razzak whether he was saying that the jail code was being violated?

Abdur Razzak, said 'Yes, my lord and as this is the Interantional Crimes Tribunal matter we can not go to any other criminal or civil court. Only this court is open for us. '

Justice Nizamul Huq responded by saying, 'Yes, Mr. Razzak, you are right. If it is ICT matter then you are not allowed to go anywhere but your matter is notan ICT matter, it is basically food matter of jail authority. In that case you can file a writ petition before the High court division. '

Abdur Razzak replied by saying 'My lord, then it will be violation of article 47 of our constitution if the ICT matter is not disposed of by this Tribunal.'

Justice Nizamul Huq then said, 'In case of ICT matter, there is no writ jurisdiction, it is true but when your right is violated under the jail code then you have to file a writ petition before the High court division.

At one point Razzak said excitedly there is no chance of the trial being prejudiced if applicant get permission from the Tribunal for taking home-cocked food.

Justice Nizamul Huq told Mr. Abdur Razzak to please keep his head cool. 'You know it very well that cooking material must be tested before giving it to the prisoners, there are 50 thousands under trial prisoners if everyone gets such type of permission then most of the time will be spent on testing food for the prisoners. Mr. Razzak you can apply for permission to the IG (inspector general of Police),' he said.

Abdur Razzak: My lord, Professor Ghulam Azam is Ghulam Azam. He should not be compared with other 50 thousands prisoners. The IG has no power to give permission.'

Justice Zaheer: Please at first go to IG then we will decide.

The court was then adjourned.

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