The refusal by the members of the International Crimes Tribunal to provide lawyers, representing the people accused of committing international crimes during the 1971 war of independence, written copies of most of the verbal orders which they have made in court over the past year, has been criticised by a broad range of senior lawyers not involved in the tribunal.
Lawyers representing the five leaders of the Jamaat-e-Islami detained by the tribunal have only been provided with copies of nine of the more than 20 tribunal rulings relating to their cases, according to one of their lead advocates Tajul Islam.
Eleven days ago, on July 14, the tribunal passed two
orders, one which ruled that there was sufficient evidence to allow a trial to take place against Delwar Hossain Sayedee, and the other which refused him bail.
After the tribunal chair, Justice Nizamul Huq, had dictated the two orders, he rejected repeated requests by Sayedee's lawyer for copies.
'The application is rejected,' the chairman said.
Senior lawyer Rokanuddin Mahmud told New Age, 'Any tribunal, and more so in the case of a tribunal entrusted with adjudicating the guilt of a person, should give copies of all orders to the accused.'
'Otherwise, questions about the fairness of the trial, about the transparency of the trial and about the accountability of the process will arise,' he added.
'An accused has a right to know the exact terms of an order given by the tribunal, a right to read the order. It is also an obligation of court. These are the trappings to ensure a fair trial. A fair trial requires that the court gives the accused copies of order,' Mahmud said.
Supreme Court lawyer Shahdeen Malik, also the dean of the law faculty in BRAC University, told New Age that there was a 'general presumption that [parties in court] are allowed copies of orders. I find it difficult to understand the reasons an order affecting any defendant is not given.
'Obviously a person affected by an order should have a copy of it,' he said.
Another senior lawyer, M Zahir, also agreed that refusing to provide copies of orders 'is not normal practice.'
Rafique-ul Huq was more forceful in his criticism. 'It is illegal,' he said. 'They cannot do it. If judges read out an order in court, they must give the parties a written copy. This kind of ruling is not expected.'
Mohammad Shahinur Islam, both the tribunal's registrar and its recently appointed spokesperson, told New Age that the reason the tribunal was unwilling to provide copies of the orders to either the defence or the prosecution was that there was no explicit provision in the International Crimes (Tribunals) Act 1973 or the tribunal's rules of the procedure to allow them to do so.
He said that he had only given the lawyers copies of those court's orders where the tribunal has stated explicitly within the order that they should be provided a copy.
However Rokanuddin told New Age that, 'Even if there is no provision in the rules of procedure, it is implied. And if it is not implied, they should make provision for it.'
The tribunal members are themselves responsible for drafting the rules of procedure.
In its recent amendment to the rules, gazetted on June 28, the tribunal added a provision allowing the accused to obtain a copy of the final judgement only.
The tribunal registrar accepted that in making decisions over the last year, the tribunal members have at times incorporated ordinary practices of Bangladesh law into the rules of procedure when there was no explicit provision for them in the Act or rules.
The attorney general, Mahbubey Alam, however, told New Age that the tribunal was right not to provide copies of the orders as there is no right to appeal against any order given by the tribunal other than that of conviction.
'In other cases [in Bangladesh], you can file an appeal against interlocutory orders, but at the International Crimes Tribunal, you can only file an appeal against the final order of conviction,' he said.
'As there is only a provision to file an appeal against the final order, this is the reason I understand the tribunal does not allow copies of orders,' he added.
Rokanuddin, however, told new age that this was a 'misconceived' argument.
'Whether the defendant has a remedy [to appeal] is a different thing. The purpose of giving the order is not only to enable the accused to appeal against an order,' he said.
Shahdeen Malik also said, 'I may not need a copy of an order only to appeal against. I need a copy of an order to know what exactly was stated in the order.'
In the past week, the registrar told New Age that since the July 14 hearing, the tribunal members have now decided to provide the defence lawyers with copies of orders in certain circumstances.
He pointed to a new provision in the recently revised amendments to the rules of procedure, which allows both the prosecution and the defence to apply to the tribunal to review its own orders.
'It they want the tribunal to review one of its own orders, the lawyers can make a written application to the tribunal saying that they want to review the order and for this they need a copy, and the tribunal will then consider giving it,' he said
'Apart from this they will not receive copies of the orders,' the registrar added.
He also said that the copies of the orders given to the defence lawyers would not be certified copies.
Tajul Islam, however, told New Age that he had not yet been informed of this new development.
At the hearing on July 14, Justice Nizamul Huq refused to provide a copy of the order even when Sayedee's lawyer mentioned to the court that without a copy of the order, it was not possible for them to apply for a review.
Earlier this month, the tribunal registrar told the media that with the new rules of procedure the trials would now meet 'universally recognised standards.' Human Rights Watch, though concluded that new amendments continued to 'fail to bring … areas of the law and rules into compliance with international standards'.
Source : New Age