We apologize for the delay in publishing this week’s digest.
Hartals again interrupted our coverage of the ICT trials. Sunday, 17 March 2013, was a national holiday, and the Tribunal was in recess. Hartals (strikes) were called by the opposition party coalition on Monday and Tuesday, and due to security concerns our researchers were unable to attend. Therefore, our summaries for those days are drawn from media sources as well as conversations with the Defense and Prosecution. On Thursday, both Tribunal 1 and Tribunal 2 adjourned early, after it was announced that the President of Bangladesh had passed away on Wednesday.
Tribunal 1 In Tribunal 1, the Defense and the Prosecution in the Gholam Azam case presented in-depth arguments regarding the applicability of the Doctrine of Command Responsibility to civilians. In theSalauddin Qader Chowdhury case, the Defense cross-examined Prosecution witness 21, who began providing testimony the previous week. The Defense for Sayedee presented two additional applications: one for bail, and the other or certified copies of documents from two criminal cases in the district court system. The Tribunal also heard the examination of Prosecution witness 3 in the Nizami case. Finally, citing the growing insecurity in Dhaka, Defense counsel for Salauddin Qader Chowdhury applied for police escort to the Tribunal on hartal days.
Tribunal 2 Tribunal 2 also experienced significant delays due to hartals, absence of counsel, and illness of witnesses. The court heard the Defense’s cross-examination of Prosecution witness 13 in the Abdul Alim case and granted an extension for the production of a Defense witness in the Kamaruzzaman case. Additionally, the Tribunal dealt with ongoing contempt proceedings against Jamaat leaders.
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.
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.
Today the Tribunal heard matters in the following cases:
Chief Prosecutor vs. Salauddin Qader Chowdhury: Two Defense Applications
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.
Today the Tribunal heard matters in the following cases:
Chief Prosecutor vs. Delwar Hossain Sayedee – Two Defense Applications (Accused Not Present)
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.