Wednesday, November 21, 2012

1 Oct 2012: Sobhan bail application

Before a bail aplication started, the prosecutor Zead Al Malum submitted a copy of a report circulated on before the Tribunal to peruse, which mentioned the statement of Abdur Razzak about the Camera Trial of the witness in the case of Ghulam Azam. This was as follows:
Dhaka, Sept 30 (UNB) - The International Crimes Tribunal-1 on Sunday took the testimony in camera of a prosecution witness, widow of a martyred police official, against former Jamaat-e-Islami ameer Ghulam Azam undergoing trial on charges of crimes against humanity during the Liberation War in 1971.

The three-member tribunal headed by Justice M Nizamul Huq recorded the deposition made by the PW, also the mother of a martyred freedom fighter, in presence of only selected lawyers from both sides who were oath bound not to make the trial proceedings public.

Cross-examination of the PW by the defence counsel will be held on Monday, a defence lawyer told UNB over cell phone, requesting anonymity.

Meanwhile, senior defence counsel Barrister Abdur Razzaq told the reporters that they were taken aback at the instant order of the tribunal on camera trial, leaving them in the dark.
“Usually, application for seeking camera trial will have to be submitted beforehand with the tribunal… decision in this regard will be passed by the tribunal after hearing both sides,” he said.

When contacted over cell phone, prosecutor Syed Haider Ali told UNB that the tribunal did nothing wrong in giving the decision on holding camera trial following a verbal plea moved by the prosecutor.

He said the tribunal is empowered under the International Crimes (Tribunals) Act 1973 and its subsequent rules to regulate its own procedure as and when it deems fit.

The prosecutor termed Barrister Abdur Razzaq’s `media statement’ as misleading and confusing.
The Prosecutor raised an objection to these remarks, but the Tribunal made no comments after looking at it

Abdur Razzaque then made a bail application relating to Abdus Subhan. The written application, most of which was read out in court, is set out below:
1. That the Applicant is a peace loving citizen of Bangladesh. He is the Nayeb-e-Ameer of Bangladesh Jamaat-e-Islami. He holds Title Degree in ‘Mumtajul Muhaddesin’ a discipline in Hadith. In 1962, he was elected a Member of Provincial Assembly and served as the Senior Deputy Leader of the Opposition. He was reelected as the Member of the Provincial Assembly in the year of 1965 and 1969. He was elected as the Member of the Parliament from the Constituency of Pabna-5 in the General Election held in 1991 and 2005. In the 8th Parliament, he was appointed the Chairman of the Parliamentary Committee on ‘Government Promises’ (সরকারী প্রতিশ্রুতি সম্পর্কিত কমিটির সভাপতি) which is equivalent to the status of a State Minister in the Government’s Warrant of Precedence. He was also the Member of another Parliamentary Committee namely বেসরকারী সদস্যদের বিল এবং বেসরকারী সদস্যদের সিদ্ধান্ত প্রস্তাব সম্পর্কিত স্থায়ী কমিটি .
2. He is an educationalist and philanthropist. As a representative of the people of Pabna, he played a key role in the development and progress of the region. He is the founding Chairman of Jalalpur Junior High School (established by him in 1968), Bibekanpondo Bidyapith (established by him in 1968),and key patron of Pabna Residential Model School (currently Pabna Cadet College). He is the founding Chairman of Pabna Darul Aman Trust, Al Amana Foundation, Imam Gazzali Trust. These trusts have established and operating the following institutions: Islamia Orphanage, Islamia Degree College, Vocational Training Centre, Hifz Kana, Al Amana Community Hospital, Non-Government B.Ed College, Information Technology College, Al Amana Polytechnique Institute, Al Amana Medical Technology Institute, Imam Gazzali Kinder Garten Institute, Imam Gazzali Girls’ School and College. He is also the founding chairman of Pabna Women Madrasah, Khadizatul Kubra Women Madrasah, Padma College, Shamsuddin Degree College, Sudhir Kumar College, Pushpo Para Alia Madrasah, MR Academy, Dulai Al Quran Trust, Islamic Law Research Centre and Legal Aid. He has established numerous Mosques and other charitable establishments. He has represented Bangladesh on State events in Germany, Japan, China and South Korea. He represented Bangladesh in the International Conference of Muslim Parliamentarians against the Genocide of Muslims in Bosnia which was held in Brussels, Belgium. He performed the holy Hajj 8 times.

3. That on 20th September 2012, the Applicant was arrested from the Bangabondhu Bridge Toll Plaza in connection with Pabna PS Case No. 6 dated 02.04.2012 filed under section 147/148/149/447/448/323/435/436/379/380/ 427 and 114 of the Penal Code. The applicant was arrested in a manner which manifests the malafide intention of the Government. The events which lead to the arrest of the Applicant is described in paragraphs below.

4. On 02.04.2012, one Mr Md. Abdul Kuddus, former Member of the Chartara Pur Union Parishad (hereinafter referred to as “the informant”) filed an F.I.R (being the said Pabna PS Case No.6 dated 02.04.2012) alleging that on 30.08.2003 the Applicant lead a mob which ransacked their properties. The applicant and 70 others were made accused in the said complaint. A copy of the F.I.R dated 02.04.2012 has been annexed herewith and has been marked at ANNEXURE-A.

5. However, on 07.05.2012, the informant swore an affidavit stating that there has been a mediation lead by the village elders and being satisfied by the settlement, he agrees to withdraw his complaint against the Applicant and other accused. Following his affidavit, he further made an application before the Chief Judicial Magistrate, Pabna to withdraw the criminal case which is pending before the hon’ble court. The Affidavit of the Informant and his application to withdraw the criminal case has been annexed with the application and has been marked as ANNEXURE B & B(1).

6. That on 14.09.2012, the Police submitted charge sheet implicating the Applicant and 27 others by suppressing the fact that he Informant has applied to withdraw the criminal case lodged by him. The Chief Judicial Magistrate, Pabna accepted the report and fixed 20.09.0212 for framing of Charge against the accused. A copy of the Charge Sheet dated 14.09.2012 has been annexed wherewith and marked as ANNEXURE “C”.

7. That on 20.09.2012, the Applicant was travelling from Dhaka to Pabna to appear before the Court of Chief Judicial Magistrate, Pabna and plea not guilty during the framing of the charge. At around 8.10 AM in the morning, while crossing the Toll Plaza at the Bangobandhu Bridge, the Applicant’s car was stopped by some plain cloth personnel who introduced themselves as ‘Detective Branch’ and prevented him from leaving the toll plaza. When asked about the reason why they are being prevented to leave, the Detective Branch personnel informed that they have been instructed from ‘higher authorities’ to stop the Applicant from crossing the bridge. At around 12.30 PM while being forcefully prevented by the Detective Branch personnel from crossing the bridge, the Chief Judicial Magistrate, Pabna issued warrant of arrest against the Applicant for failing to appear before the Hon’ble court during framing of charge. At around 3.30 PM the Police from the Jamuna East Police Station appeared at the Toll Plaza and arrested the Applicant citing the warrant issued by the Chief Judicial Magistrate, Pabna in connection with the said Pabna PS Case No.6 dated 02.04.2012.

8. That on 23.09.2012, upon an application by the Prosecution for warrant of arrest against the Applicant alleging inter alia that the Applicant has been interfering with investigation and shall leave the country to flee trial. The International Crimes Tribunal No.1 passed an order directing the authorities to produce the Applicant before the Tribunal on 30.09.2012.

9. That the Applicant is an aged frail man of 84 years and was bed ridden for last several months. He previously had prostate gland surgery in two previous occasions, gall bladder surgery, and surgery in both the eyes. He suffers from high diabetes, high blood pressure, heart condition and other old age complications. On 18.09.2012, he was admitted in Al Manar Hospital, Dhaka with chronic dysentery. On 20.09.2012, he took discharge from the hospital despite strong disapproval from the concerned physician in order to travel to Pabna to attend the Charge framing in connection with Pabna PS Case No.6 dated 02.04.2012. The original medical certificates, and discharge certificate were in the possession of the applicant at the time of his arrest.

10. That the application of the Prosecution for a warrant of arrest against the Applicant was only to continue to place the applicant in custody. Since, the Executive Government would fail to detain the Applicant for an indefinite period in jail through the regular court system, they are now attempting to achieve the same result through the processes of this Tribunal. What the Government has failed to do directly, it is now attempting to do indirectly through this Hon’ble Tribunal. It is trying to keep the Applicant in jail by by-passing the regular court system through the Tribunal. The Prosecution is therefore attempting to abuse the processes of this Tribunal.

11. That in fact there is no evidence or allegation of tampering with evidence. The Applicant has never tampered with evidence as alleged. There is also no evidence that the applicant ever attempted or even intended to leave the country. The applicant is a leader of a major political party. He was travelling to Pabna on the day of his arrest to appear before the court despite his serious physical ailments. He is prepared to face any allegations in accordance with law. There is no possibility of his absconding.

12. That it is further stated that the allegations made against the Applicant under section 3(2) of the said Act are false and as such denied.

13. That the Applicant is an aged frail man of 84 years old and was bed ridden for last several months. He previously had prostate gland surgery two previous occasions, gall bladder surgery, and surgery in both the eyes. He suffers from high diabetes, high blood pressure, heart condition and other old age complications. As such taking into consideration the Applicant’s age and ill-health, it is respectfully submitted that the Applicant is unlikely to abscond and as such, may be granted bail by this Hon’ble Tribunal.

14. That it is submitted that there are no reasonable grounds for believing that the Applicant will be convicted in this case. The Applicant is a leader of a major political party. The present ruling party has a bitter relationship with the Applicant and as such, false allegations of war crimes, crimes against humanity and genocide have been made against him to harass him politically. The prosecution has failed to produce any evidence against the Applicant. Moreover, the application for arrest of the applicant is an abuse of processes of the Tribunal. It is an attempt to secure the custody of the Applicant, which the Executive Government has failed to do through the regular court system. In the premises, the Applicant may be granted bail by this Hon’ble Tribunal.

15. That the Applicant has no previous convictions and due to his age and ill-health, is unlikely to commit any crime.

16. That it is respectfully submitted that the Hon’ble Tribunal takes into consideration the Applicant’s character when exercising its judicial discretion to grant bail.

17. That it is stated that there is no allegation that the Applicant has ever tampered with any witness or created any obstacle in the process of investigation.

18. That it is respectfully submitted that bail is a right and not a privilege. Despite ruling in previous applications that this Hon’ble Tribunal does not consider that the International Crimes (Tribunals) Act, 1973 (“the Act”) permits the granting of bail except as to health grounds and that it did not consider that there was a right to bail under the provisions of the ICCPR, it is respectfully submitted that this is an erroneous application of the fundamental principles to which the ICCPR guarantees and that each case is required be considered on its merits without any predetermined assessment.

19. That it is respectfully submitted that there is a right to bail, and further, the amended Rules of Procedure provide for the right to be presumed innocent under Rule 43(2) of the Tribunal’s Rules of Procedure (hereinafter: RoP) and the right to bail is an essential component of the presumption of innocence as enshrined in Article 14(2) ICCPR. The presumption of innocence enshrined under Rule 43(2) RoP and Article 14(2) ICCPR is a fundamental principle and as a result the provision for bail is a right and not a privilege under domestic and international law. That this has been upheld by the Human Rights Committee (hereinafter: HRC), which has held that there is a requirement under the ICCPR, for bail to be reasonably available. (UN Human Rights Committee, "Consideration of Reports Submitted under Article 40 of the Covenant, Comments of the Human Rights Committee, Argentina", CCPR/C/79/Add.46, 1995.)

20. That following Rules 9(5), 33 and 34(3) RoP and Article 9(3) ICCPR, this right arises at any stage of judicial proceedings.

21. That it is respectfully submitted that the presumption in favour of bail is a protected right. The Hon’ble Tribunal is required examine all the circumstances arguing for and against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty. The Hon’ble Tribunal is required set those reasons out in its decisions on the applications for provisional release. In this regard, it is respectfully submitted that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of detention, but it is not sufficient alone to justify detention. The Hon’ble Tribunal is required to establish whether the grounds cited by the Prosecution justify the deprivation of liberty (see, e.g., Eur. Court HR, Kemmache v. France, judgment of 27 November 1991, Series A no. 218, paragraph 45). The Hon’ble Tribunal is required establish whether such grounds are ‘relevant’ and ‘sufficient’.

22. That it is respectfully submitted that the Prosecution have failed to established ‘relevant’ and ‘sufficient’ reasons to justify detention of the Applicant.

23. That the Applicant humbly prays that the Hon’ble Tribunal recognises the right to bail and upholds the fundamental right to be presumed innocence and grants the Applicant to be released on conditional bail.

24. That as regards the seriousness of the allegations it is respectfully submitted that the international tribunals including the International Criminal Court, International Criminal Tribunal for the former Yugoslavia (“ICTY”), International Criminal Tribunal for Rwanda (“ICTR”) and the Special Court for Sierra Leone (“SCSL”) all have jurisdiction over crime against humanity and genocide and further all of the Tribunals provide for the right to provisional release. (Article 60(2) ICC; Rule 65 of the relevant Rules of Procedure for ICTY, ICTR and SCSL.)

25. That in Prosecutor v Hadizihasanovic, the ICTY held that the rule regarding provisional release/bail is required to be interpreted in light of the ICCPR and that in this regard; no distinction may be made between domestic criminal and international criminal proceedings. (Decision granting provisional release to Enver Hadizihasanovic and others, Case No. IT-01-47-PT, December 19 2001).

26. That the ICTY has on a number of occasions provided provisional release to accused persons formally charged with crimes against humanity and genocide.

27. That it is respectfully submitted that decisions refusing bail and extending detention have previously been argued in consideration primarily of the gravity of the offences and their categorization as crimes against humanity and genocide. The Prosecution has repeatedly referred to the scale of the atrocities during the War of Liberation. Whilst the gravity of offence and mode of commission are relevant factors in determining the issue of custody, they are not sufficient alone to justify detention. Further, as already stated, it is important to note that the Prosecution’s allegations of interfering with the course of the investigation and interfering with prosecution witnesses is made without substance to any reliable facts. It is accepted that this is ordinarily a legitimate ground for detaining individuals and that the risk satisfies the requirement of ‘relevant’ and ‘sufficient’ reasons, if properly made out. However, in considering the issue of whether ‘relevant’ and ‘sufficient’ reasons have been made out, this requires more than merely raising the issue as a fanciful possibility; it needs to be established by clear and reliable evidence. The Hon’ble Tribunal, in considering the question of bail are required to conduct a proper inquiry into the allegations raised by the prosecution and the arguments put forward the applicant in reply. The Hon’ble Tribunal may therefore not automatically accede to prosecutorial requests for detention without any real inquiry into the specific facts of the case at hand. This is a hallmark of arbitrariness.

28. That it is respectfully submitted that the nature of the charges that have been brought against the Applicant does not prevent the Tribunal from granting bail. The Applicant humbly prays for the Tribunal to take note of the practice of the international tribunals and grant conditional bail.

29. That it is respectfully submitted to the Hon’ble Tribunal that unsupported allegations and unsubstantiated claims of the Prosecution are insufficient to reach the high threshold for establishing that relevant and sufficient reasons exist for detention. The burden for establishing the necessity for detention is on the Prosecution and it is respectfully submitted that it has failed miserably to do so.

30. That it is respectfully submitted that taking into consideration the arguments made in this application, the Hon’ble Tribunal grants conditional bail to the Applicant on the condition that he:
i. Surrenders his passports before the competent authorities;
ii. does not apply for any travel documents without the prior permission from the Hon’ble Tribunal;
iii. resides at the address stated above;
iv. reports to the Hon’ble Tribunal as and when directed to do so;
v. does not travel to any crime scene without prior permission from the Hon’ble Tribunal;
vi. does not contact any of the Prosecution witnesses;

35. That it is further submitted that Family of Maolana Md Abdus Subhan is willing to provide surety of an agreed amount as a condition for bail.
Hrishikesh Shaha [Prosecutor]: My Lord, I hereby strongly oppose. There are several allegations against the accused petitioner. He was the secretary in the first committee of the Peace Committee and was the Vice Chairman in the second committee. The Pakistan Army has killed several people in 1971 by the direct assistance of Abdus Sobhan at the Pabna area. There are several graveyards which are the marks of the atrocities of 1971.

Chairman: Everyone has admitted that there were several killing in several areas and the graveyards are the marks of those atrocities. But how could you tag the petitioner with the existence of these graveyards.

Prosecutor: Several incidents have been found regarding the atrocities committed by him.

Chairman: If these atrocities have been committed by Razakar/ Al-Badar/ Abdus Sobhan himself?

Prosecution: These have been done by the leadership of Abdus Sobhan. He was an expert in Urdu language so he was greatly appreciated by the Pakistan Army. The investigation is going on against him. And several allegations have been found against him under section- 3(2) of the ICT ACT-1973.

He is a powerful person and we the Prosecution team strongly oppose granting the prayer of his bail.

Chairman: Do you admit he is 84 years old?

Prosecutor: May be.

Chairman: Do you admit he is an influential person?

Prosecutor: Yes.

Abdur Razzak: He has been elected as the member of the Parliament for 5 times. He is a popular figure. To make obstacles in his participation in the next election, the case has been filed against him and thus he has been arrested. So he would not be taken into custody. He is the 9th member of Jamate Islami who has been arrested under in the ICT case.

Chairman: Okay. Order will be passed tomorrow.

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