10 October 2013: ICT-2 Special Report – AKM Yusuf, Bail Hearing; Jahir Uddin Jalal alias Bicchu, Contempt Proceedings

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. AKM Yusuf
  2. Chief Prosecutor vs. Jahir Uddin Jalal

On 10 October 2013 heard a bail application from senior Defense counsel Abdur Razzak, on behalf of AKM Yusuf.  Counsel sought release of the Accused on grounds of recent deterioration of his health. The Court directed the jail authorities to submit an updated health report to the Tribunal, reflecting the latest health condition of the Accused. It fixed 23 October 2013 as the next date for passing further orders in regard to his bail.

Also today, the tribunal passed its long awaited order in the contempt proceedings against Jahir Uddin Jalal. These contempt proceeding had received significant attention from the Bangladeshi public, in particular amongst members of the Bar, so we elected to review the charges in detail here, as compiled from previous daily summaries where we covered the matter.

Cause of action and initiation of contempt petition

The matter first came before Tribunal 2 on 27 May 2013 during the closing argument stage of the case against Ali Ahsan Muhammad Mujahid. Senior defense counsel, Abdur Razzak, mentioned the incident where PW-2, Jahir Uddin Jalal, attacked the defense counsel, Munshi Ahsan Kabir, near his chamber in Paltan, Dhaka.

Counsel Razzak expressed utter disappointment regarding the matter, informing the Court that the Defense Counsel was attacked on his way to the chamber to attend a meeting of defense counsels, when the miscreant Jalal intercepted him in the road. The counsel alleged that Jalal at first abused Counsel Munshi Ahsan Kabir, referring to him as a ‘son of Rajakar’, amongst other unmentionable words of abuse. Then the Defense Counsel was allegedly kicked in his lower abdomen by the prosecution witness, causing him to collapse on the ground. After he shouted for help, Jahir Uddin Jalal escaped along with his possible accomplices. Counsel Munshi Ahsan Kabir was then hospitalized by the local residents. The Defense Counsel urged the tribunal to take severe steps against the attacker of the Defense Counsel, hoping that the entire Bar, including the counsel of the accused, will agree on the matter. The tribunal expressed its utmost discontent about the incident and immediately fixed 28-05-2013 for hearing the contempt petition pertaining to the matter. It is noteworthy that Jalal proclaims himself as the “Bicchu,” meaning, “worm” for his role in 1971.

Hearing of the contempt petition

On 28-05-2013, the Tribunal heard the contempt petition against Mr. Jahir Uddin Jalal, PW-2 of Mujahid’s case. Defense Counsel Mr. Abdul Razzak made his submission on the application and expressed his hope that the entire Bar, including the Prosecution Counsel, will be united against such assault on Defense Counsel. The court, upon hearing the application, ordered commencement of the contempt proceedings against the alleged contemnor, allowing the contemnor time to file written explanation until 05-06-2013.

Reply of the contemnor

On 05-06-2013, Tribunal-II refrained Prosecutor Mukhlesur Rahman Badol when he stood to make submissions on behalf of the contemnor Mr. Jahir Uddin Jalal. The Tribunal was very critical about members of the prosecution team defending or representing a contemnor, particularly when it concerns allegation of assaulting Defense Counsel Munshi Ahsan Kabir. The Tribunal strongly stated that although Mr. Jalal is a prosecution witness, he is now appearing before the court as an alleged contemnor in a contempt proceeding. Hence, an independent counsel, not a member of the prosecution of the International Crimes Tribunal, Bangladesh, shall represent him. Subsequently, Mr. Monsur Rashid informed the court on 18-06-2013 that he has been appointed as the counsel for the contemnor Jahur Uddin Jalal. He requested additional time and was given until 30-06-2013.

On 30-06-2013, Mr. Monsur Rashid appeared before the Tribunal on behalf of contemnor Jalal and submitted that the allegations brought against his client pertaining to the assault of the Defense Counsel are nothing but fiction. A written explanation was submitted on his behalf denying the allegation in its entirety. The counsel submitted that the accused-contemnor was not at all in the area where the alleged incident purportedly took place. Thus, he submitted that it is either a case of mistaken identification or merely a strategic stance that may have been adopted by the Defense to harass the prosecution witness or divert focus away from the regular cases pending.

On 11-07-2013, the victim of the alleged attack Mr. Munshi sought for time for making further submissions in reply to Jalal’s written explanation filed before the tribunal. The Tribunal thus fixed 21-07-2013 for further hearing on the matter.

On 21-07-2013, Mr. Tajul Islam submitted on behalf of the petitioner Mr. Munshi Ahsan Kabir that the contemnor Mr Jahir Uddin, Jalal who also refers to himself as Bicchu (worm,) is the most adverse and ill-mannered witness before the Court. He submitted that this was not the first instance when Jalal showed such attitude and conduct to Defense Counsel. Prior to physically assaulting Mr. Munshi, the contemnor had previously verbally attacked another Defense Counsel outside the courtroom. Thus, the Counsel submitted that tolerating the contemnor’s audacity to continuously disrespect and attack officers of the Court would only create bad precedent, therefore he shall be penalized accordingly.

Mr. Mansur Rashid, who appeared on behalf of the contemnor, submitted that it is indeed sad that a lawyer who is an officer of the court has been attacked outside the court premises. He stated that he has all the sympathy for the assaulted member of the Bar and reiterated that the Counsel is not disputing the incident of attack, but is merely denying the involvement of his client Jalal. The Counsel stated that the contemnor submitted a sworn statement on affidavit, thus the court shall take into consideration such statement filed as an explanation to the allegation. Given the fact that it is going to be difficult for the Tribunal to adjudicate the disputed fact as to whether it was Jalal who attacked the counsel or someone else, the contemnor’s counsel proposed that the Tribunal disposes of the matter with its observation cautioning the alleged contemnor about his conduct with Defense Counsels. The Counsel submitted that this would be the most appropriate approach and would not be arbitrary on either of the two parties. In conclusion, Mr. Mansur Rashid once again expressed his deepest sympathy for Mr. Munshi.

The Tribunal asked the attacked counsel Mr. Munshi Ahsan Kabir about his opinion regarding Mr. Mansur Rashid’s submission that the matter shall be disposed of with warning to the contemnor. Mr. Munshi responded that Mr. Mansur is a respectable lawyer of the bar and he did not propose anything unusual. It is entirely up to the Court to decide what is best.

Upon hearing the parties and consulting with the victim of the alleged attack, the Tribunal reached a consensus and disposed of the contempt proceedings with observation that attacks on the Counsels shall not be tolerated in future; thus warning the contemnor for his conduct, cautioning him regarding any similar instances in the future. The Tribunal observed that prolonging the instant contempt proceedings would only complicate matters to the detriment of all concerned.

Application on behalf of the cautioned contemnor to recall Tribunal-II’s order dated 21 July, 2013

On 23-07-2013, alleged contemnor Jahir Uddin Jalal filed an application to recall the order passed by Tribunal-II on 21-07-2013 disposing of the contempt matter with caution to him. Jalal alleged that he did not instruct his lawyer, Mr. Monsur Rashid, to propose that the court to dispose of the issue in such a fashion, claiming his lawyer acted without instruction. Jalal’s newly appointed counsel submitted that the order is recalled. The Tribunal accepted the application and recalled the aforementioned order, fixing 29-07-2013 as the next date for hearing.

Hearing on recalled order of Tribunal-II

On 29-07-2013, the Tribunal once again revisited the matter of contempt proceedings against Mr. Jahir Uddin Jalal. Mr Kamrul Islam Siddiqui appeared on behalf of Mr. Jahir Uddin Jalal, who is faced with contempt proceedings for obstruction of justice.  The Counsel submitted that the stance taken by the contemnor is that of total denial. Since he completely denied his presence at the site of the alleged incident, there was no instruction to his previous lawyer Mr. Monsur Rashid to request the tribunal to dispose of the matter with caution. Thus, the contemnor filed the instant application requesting a recall. The next question is whether this Tribunal has the jurisdiction and authority to run a parallel trial to resolve the dispute of fact in a contempt proceeding. The counsel stated that if similar incidents keep happening, the Tribunal will conduct trials on such matters, as it has been formed to deal with cases of a very particular nature, those involving international crimes. Thus, these sorts of periphery matters shall instead be heard general criminal courts under domestic law.

Mr. Razzak submitted on behalf of the complainant that the dispute may be, and should be resolved in this Tribunal and not in any other Bangladeshi court. This is because the contempt proceeding involves an attack of Munshi Ahsan Kabir, an officer of this very court. Regarding the resolution of the question of fact, as to whether it was at all Jalal who attacked the Defense Counsel, Mr Razzak submitted the Tribunal acquires documentary evidence before it examines the attack on the Counsel. In resolving the dispute, Mr. Razzak said that it is word against word.  Explaining the Tribunal must decide whether to believe Mr. Munshi Ahsan Kabir, a member of the Supreme Court Bar and an officer of this Honorable Court, or believe Jahir Uddin Jalal, a prosecution witness. The senior Counsel thus stressed that the tribunal should adjudicate the credibility of these two and come to a decision as to whose word is to be believed given the fact that there is no other evidence available before the court. Police enquiry is not an option here because the petitioner has no confidence on police reports and findings of investigation agencies, which will inevitably give their report favoring the contemnor Jalal, who is a prosecution witness. Mr. Razzak finally concluded by stating that the ruling of the court should be upheld, a disposal after warning Mr. Jahir Uddin Jalal. He argued the contemnor has become so powerful, that he showed no hesitation to recall the order of disposal to overturn the court’s order. He further requested that the request not be entertained, as this would mark a bad example in the judicial system and set new trend of attacking counsels of opposite parties.

The honorable judges of Tribunal-II very strongly observed that it has ample jurisdiction to solve question of fact even in contempt proceedings, especially when the impugned matter involves an attack on its own officer of Court. The inherent power granted to the Tribunal by the Legislature is wide, and it is within such power that the Tribunal initiates contempt proceedings and resolves them. Regarding the question on how to resolve a dispute of fact, the tribunal stated that it couldn’t give its decision without any investigation or enquiry. Accordingly, the Tribunal rejected Mr. Razzak’s submission opposing enquiry and ordered the Chief Metropolitan Magistrate to conduct an enquiry on the involvement of Jalal with the alleged attack and submit a report by 05-09-2013.

Order of the Tribunal following report

The Tribunal on 10-10-2013 exonerated Mr. Jahir Uddin Jalal from allegations against him pertaining to the attack on Defense Counsel Munshi Ahsan Kabir. The Tribunal based its decision on the enquiry report submitted before the Tribunal that states no such incident of attack on the Defense Counsel had occurred at the alleged time and place.  Accordingly, involvement of the accused contemnor Jalal in such attack, as alleged, was dismissed.

The order marked an end of to the contempt proceedings against Jahir Uddin Jalal, alias “Bicchu.”