Monthly Archives: March 2013

Weekly Digest Issue 6: February 24-28

We apologize that we are slightly behind in our weekly digests of the proceedings. Due to limited staff and unforeseen obstacles, including hartals, we have had some delays in our coverage. Our daily summaries are up to date and we hope to have our weekly digests up to date shortly as well. Thank you for your patience.

Please find below our Weekly Digest Issue 6, covering the week of February 24-28. This week was dominated by the announcement of the verdict in Chief Prosecutor vs. Delwar Hossain Sayedee on 28 February 2013, in which Sayedee was found guilty of 8 charges and sentenced to death. For a detailed report on the Judgment against Sayedee please see our Special Issue Report, available here.

In addition to issuing the Sayedee Judgment, Tribunal 1 also continued to hear the Prosecution’s Closing Arguments in the Gholam Azam case, and the Prosecution submitted Formal Charges against Mubarak Hossain. Tribunal 2 heard proceedings in the Kamaruzzaman, Abdul Alim and Mujahid cases, as well as contempt proceedings.

The Weekly Digest is accessible here: Weekly Digest, Issue 6 – Feb 24-28

 

Special Issue Report: Close Examination of the Sayedee Judgment

We are releasing the first of our Special Issue reports, a series which will cover both the legal and factual conclusions of the Tribunal as expressed in case verdicts, and other topically relevant legal issues.

This report examines the Judgment in Chief Prosecutor vs. Delwar Hossain Sayedee, which was issued on 28 February 2013. Through this report We have attempted to distill the major conclusions expressed by the Tribunal into a digestible format. This report does not contain critical analysis of the legal merits of the judgment. The report simply is meant to facilitate broader access to and understanding of the ICT’s proceedings.

Access the full report here: Special Issue No. 1 – Sayedee Verdict

21 March 2013: ICT-2 Daily Summary – Contempt Proceedings against Jamaat Leaders, Adjournment for Kamaruzzaman

21 March 2013: ICT-2 Daily Summary

Today the Tribunal heard matters in the following cases:

  1. Contempt Proceedings vs. Selim Uddin and Other Jamaat Leaders
  2. Chief Prosecutor vs. Muhammad Kamaruzzaman

Prosecutor Mohammad Ali started the day’s submission expressing his deep sadness at the death of President Zillur Rahman, the Honorable President of Bangladesh. Stating that the country mourns at his departure, the prosecutor proposed that the court observes two minutes of silence in his honor. In response, the judges expressed their sadness and commented that all present in the courtroom mourn with the nation. However, they said that as an independent entity of the judiciary, it is not possible for them to observe the silence without some steps or instruction coming from the Honorable Chief Justice.

The court then called the contempt proceedings against Mr Selim Uddin and other Jamaat party leaders. Defense counsel for the politicians had filed applications Selim Uddin, Hamidur Rahman Azad MP and Rafiqul Islam requesting the court to dispense of the requirement that they appear in person. The counsel submitted that all of them have highest regards for the court and is not being able to comply with the court’s order solely by reason of security issues. The court rejected the applications stating that the two Jamaat leaders who have not yet appeared are now fugitives and such submission will not dispense with the requirement of personal appearance. The Tribunal fixed the next hearing for 10 April 2013. 

Finally, the defense sought time to produce defense witness in Kamaruzzaman’s case claiming that the witness could not appear due to illness. The court fixed Sunday 24 March 2013 as the next date for hearing the witness. The Tribunal stated that if the Defense again fails to produce their witness they will begin hearing closing arguments.

21 March 2013: ICT-1 Daily Summary – Chowdhury and Sayedee Defense Applications

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Salauddin Qader Chowdhury: Two Defense Applications
  2. Chief Prosecutor vs. Sayedee:  Case-in-Chief: Two Defense Applications

On 21 March 2013 the Tribunal passed an order rejecting the petition filed by Salauddin Quader Chowdhury under section 7 of the Members’ Privileges Act of 1965. Salauddin filed this petition when Parliament was in session seeking an adjournment of criminal proceedings at the Tribunal until seven days after the conclusion of the session of Parliament. The Tribunal stated that Section 7 of the Member Privileges Act should be read with section 8 of the same Act. They stated that section 8 of the Member Privileges Act will be applied in the present scenario as Chowdhury was arrested on criminal charges. The Tribunal further stated that Parliament currently is not in session and the petition has no merits and is therefore rejected.

On March 19, 2013 Salauddin Quader Chowdhury filed a petition seeking protection from defamatory harassment while in the custody. Chowdhury has been charged with committing sodomy against another inmate of the Kashimpur-1 jail where Chowdhury is being held. The alleged victim is evidently serving a 31 year sentence and was apparently delegated to serve Chowdhury who has special accommodations in jail. The charges were not brought by the alleged victim himself, but by the victim’s father. Chowdhury contests the charges and has stated that he believes them to be backed by parties with vested interests who seek to destroy him politically. In addition to protection from defamatory statements, Chowdhury requested that the Tribunal order an investigation into the allegations. The Tribunal disposed off the petition, stating that the matter was not related to the case and was a matter for the jail authorities. However, the Tribunal directed the jail authorities to take steps so that Salauddin Quader Chowdhury could assign the power of attorney to a representative for filing a suit in this regard.

In the Sayedee case the Tribunal heard arguments for the two Defense applications filed on 20 March 2013. The first requested bail for two cases filed in the Pirojpur Sadar Police Station Case No 9(8)09 and Zianagar Police Station Case No 4(9)09; the second requested certified or authenticated copies of the FIR, Charge Sheet, Statement of witnesses and other relevant documents related to these cases filed in Pirojpur Sadar Police Station and Zianogor Police Station. Mizanul Islam submitted that the two cases were transferred to the Investigation Agency of the ICT and the cases are still under investigation. He further submitted that there is no forum in which Sayedee can seek a legal remedy other than ICT. Therefore the Defense requested bail before this Tribunal. Prosecutor Haider Ali submitted that none of the documents related to these cases were exhibited in the ICT case against Sayedee. He further submitted that there is no connection between the ICT case and the cases filed in the Pirojpur Sadar Police Station (Case No 9(8)09) and Zianagar Police Station (Case No 4(9)09). Thereafter, Tribunal rejected both the Defense applications, stating that Tribunal has no authority to supply documents regarding these two cases.

The Tribunal then adjourned the proceedings at about 11:35 due to the government’s declaration of a public holiday to mourn the death of the President of Bangladesh.

20 March 2013: ICT-2 Daily Summary – Adjournement in Kamaruzzaman and Mujahid, Alim Cross-Examination of PW 13

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Kamaruzzaman – Extension of Time for Production of DW
  2. Chief Prosecuor vs. Mujahid: Adjournment
  3. Chief Prosecutor vs Abdul Alim: Cross-Examination of PW 13

The case against Mujahid was listed for the hearing of the Defense review application and for the examination of the prosecution witness. However, the Defense counsel requested adjournment of court due to the death of one attorney’s mother. The Prosecution did not object to the same and the court adjourned the matter till Sunday, 24 March 2013.

In the Kamaruzzman case the Defense also sought additional time as the Defense witness could not be presented before the court. The Defense counsel said that they could not produce the witness because travel into Dhaka from Sherpur was not possible due to the hartals. The Tribunal adjourned the matter for one day and ordered that the witness be produced on 21 March 2013. At this point, the Tribunal expressed its dissatisfaction for the repeated requests for additional time from the D, particularly with regard to the timely production of Defense witnesses. The Defense argued often granted the Prosecution similar adjournments, and had even given 24 days of additional time for the production of PW-12. Thus they argued that there is an imbalance between the court’s attitudes toward the two parties and that the Defense were being prejudiced. The Tribunal rejected this argument and stated that because the onus to establish an independent case lies with the Prosecution and not the Defense, the Tribunal granted the Prosecution additional time. They said the Defense cannot be allowed to delay the proceeding by referring to such examples.

Finally, in the case Abdul Alim, the defense cross-examined PW-13. Prosecution witness 13 is the nephew of PW 2 Laily Begum and is the grand child of martyr Doctor Abul Kashem, who according to the Prosecution’s case was killed on 25July 1971 in Kuthibari at the instruction of Abdul Alim. The witness was examined by the prosecution on Sunday, 17 March 2013.

Continue reading

20 March 2013: ICT-1 Daily Summary – Defense Closing Arguments, Civilian Command Responsibility

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Delwar Hossain Sayedee – Two Defense Applications (Accused Not Present)
  2. Chief Prosecutor vs. Gholam Azam – Defense Closing Arguments on Civilian Superior Command Responsibility (Accused not Present)

On March 20, 2013 Defense counsel for Delwar Hossain Sayedee submitted two applications. The first was a request for bail in regard to two cases filed against Sayedee in the Pirojpur Sadar Police Station Case No 9(8)09 and Zianagar Police Station Case No 4(9)09. The second application requested certified or authenticated copies of the FIR, Charge Sheet, Statement of witnesses and other relevant documents related to these cases in Pirojpur Sadar Police Station and Zianogor Police Station. The Tribunal fixed 21 March 2013 to hear the applications.

In the Gholam Azam case the Tribunal heard Defense counsel Imran Siddiq’s response to the Prosecution’s submissions on the issue of whether a civilian can have superior command responsibility. Prosecutor Turin Afroz submitted arguments for the Prosecution on 18 March 2013.

Chief Prosecutor vs. Gholam Azam:
The Defense argued that the doctrine of command responsibility as described under Section 4(2) of the ICT Act 1973 is not applicable to civilians.

Interpretation of Law and Intent of Legislation
In support of the Defense’s position, Imran Siddiq argued that the legislative intent behind the passage of the ICT Act 1973 and its subsequent amendments showed that command responsibility was only applicable to military or auxiliary forces. He submitted that when the section 3(1) of the ICT Act 1973 was amended in 2009 to add “individual or a group of individuals” to the court’s jurisdiction, Parliament omitted to amend section 4(2) which codifies the doctrine of superior responsibility or command responsibility. Therefore the Defense argued the Prosecution cannot rely on section 4(2) to claim that an “individual or group of individuals” are liable due to command responsibility. Imran Siddiq argued that the text of Section 4(2) clearly limits the doctrine’s application to commanders and superior officers of military and auxiliary forces, showing that it is not applicable to civilians. He emphasized that the use of the terms ‘commander or superior officer’ and ‘persons under his command or his subordinates’ in Section 4(2) support the Defense’s position. Additionally, the Defense cited to Section 134 and 135 of the Penal Code, the Army Act of 1952, Air Force Act of 1953, Navy Ordinance of 1961, Bangladesh Rifles Order of 1972, Battalion Ansar Act of 1995 and Armed Battalions Ordinance of 1976. Imran Siddiq noted that none of these Acts have used the term of “superior officer” or “commander” to describe the authority of a political party leader or a civilian.

Continue reading