The hearing dealt with frame-charge hearing against the accused Salauddin Quader Chowdhury. The procedure in this trial, is that (a) prosecution submits charges to tribunal (b) tribunal takes cognisance and (c) the tribunal then frames charges on the basis of the documents provided, and after hearing submissions from prosecution and defence. We are at (c) in this process.
Before this, chairman Justice Nassimul Haq asked the chief prosecutor whether he had submitted the formal charge against Kamaruzzaman which was supposed to have been filed by 3 pm the previous Thursday?
The Chief Prosecutor responded that he had submitted the papers this morning. The chairman asked the defence to collect the copy of the documents from the Register’s office.
The chairman then moved onto the frame charging matter.
Chowdhury had appointed a new defence counsel, Ahsanul Haq. who told the tribunal that he has submitted 3 applications to the Tribunal for not taking cognizance against his client
Chairman Justice Nassim said that the tribunal had already taken cognizance against him therefore the charge hearing will be heard first today and then they will hear those applications afterwards.
The accused Mr. Chowdhury was shouting by ‘Mr Chairman, you have to hear the applications first’.
Chairman Justice Nassim said, 'Mr. Chowdhury, you have appointed you counsel. Will you shut your mouth?' Chowdhury kept shouting, saying, 'This is my matter! I have the right to talk.'
Chairman Justice Nassim: No, this a Tribunal and you are shouting here.
Defence: In that case, we are humbly submitting before the Tribunal for adjournment. It is simply because I have not received any papers yet. I have come directly from Chittagong and I cannot just do it without a single paper.
Chairman Justice Nassim: Well, the accused did not accept the papers. We had sent it to the jail authority and they had sent those back putting a note on that ‘The accused did not receive’. We have even appointed a ‘State Defence Lawyer’ for him. The accused did not even co-operate him.
Accused: (shouting again) You have appointed your junior as my counsel.
Chairman Justice Nassim: (to the accused) May I please remind you that this is a Tribunal. It is ridiculous that now and then you are appointing your lawyer but then you changing him then appointing a new one again.
Accused: (kept shouting) I had to sign that ‘vokalatnama’ (power of authority) under duress. You confined me in a cell of this building for 2 hours and then I signed in favour of that counsel appointed by you.
Ignoring Chowdhury's remarks from the back of the court, the Tribunal Chairman started to made the following order in this regard:
The defence counsel again submitted that the Tribunal should hear their applications filed by them first and then hear the charge. (The accused Mr. Chowdhury was also shouting to hear the applications first).
Prosecution submission
The prosecutor Ziad Al-Malum came to the dais and made the following submission:
Justice AKM Zaheer: Why have you made Mr. Chowdhury accused for abduction in this particular incident?
Chairman Justice Nassim: Is it simply because it took place in the Goods Hill? Do want to say, every single incident happened there was done by the accused?
Accused: (said in a teasing voice) They will not find anyone in the Goods Hill except Salauddin Quader Chowdhury.
Prosecution: My Lord, we have got evidence in the formal charge in this regard, however, it may be unclear to you. It has been explain in paragraphs 13 & 14. Further, Good Hill torture camp was fully controlled and operated by the accused that is why he has been accused for abduction of said M. Salimullah.
Chairman Justice Nassim: Well, can you please clarify one thing about the 24th incident where you have explained that the victim was a freedom fighter and he attacked the C. O. rajakar camp on the day before he was abducted and tortured and he lying in the field being shot in that fight until abducted by the accused. Thus, he was not a ‘unarmed civilian’ to be tried under this International Crimes Tribunal Act 1973 as it becomes a war-crime then; not a crime against humanity under s. 3 (2) (f) of the said Act. Please mind it while framing the formal charge that this is the Act’s requirement that the victim needs to be unarmed civilian.
At this stage the accused asked the Tribunal members that “Who is Sa. Qa. Chowdhury?” As the Tribunal members Justice Nassim and Justice Zaheer was referring his name in a well known short from ‘Sa. Qa. Chowdhury’ instead of his full name ‘Salauddin Quader Chowdhury’ or ‘Mr. Chowdhury’. Both of the justices then apologised.
The prosecutor Zaad Al-Malum finished his submission with the following words:
'Among the 77 complaints in 25 incidents, there are 8 complaints for unlawful killing/murder, 9 for abduction, 7 for torture, 1 for rape etc. We have submitted the formal charge before the Tribunal and the Tribunal heard that today. There are offences basically under ss. 3 (2) (a) and 3 (2) (c). Now we are praying to the Tribunal to frame charge against the accused and obliged us thereby. '
The following exchanges then took place between the prosecutor and the tribunal members.
The submission from Md.Bodiuzzaman on behalf Salahuddin Quader Chowdhury on 15/01 2012. He is the government appointed lawyer. Below is a summary of what he said
The next hearing on this case will be on 23rd January.
Before this, chairman Justice Nassimul Haq asked the chief prosecutor whether he had submitted the formal charge against Kamaruzzaman which was supposed to have been filed by 3 pm the previous Thursday?
The Chief Prosecutor responded that he had submitted the papers this morning. The chairman asked the defence to collect the copy of the documents from the Register’s office.
The chairman then moved onto the frame charging matter.
Chowdhury had appointed a new defence counsel, Ahsanul Haq. who told the tribunal that he has submitted 3 applications to the Tribunal for not taking cognizance against his client
Chairman Justice Nassim said that the tribunal had already taken cognizance against him therefore the charge hearing will be heard first today and then they will hear those applications afterwards.
The accused Mr. Chowdhury was shouting by ‘Mr Chairman, you have to hear the applications first’.
Chairman Justice Nassim said, 'Mr. Chowdhury, you have appointed you counsel. Will you shut your mouth?' Chowdhury kept shouting, saying, 'This is my matter! I have the right to talk.'
Chairman Justice Nassim: No, this a Tribunal and you are shouting here.
Defence: In that case, we are humbly submitting before the Tribunal for adjournment. It is simply because I have not received any papers yet. I have come directly from Chittagong and I cannot just do it without a single paper.
Chairman Justice Nassim: Well, the accused did not accept the papers. We had sent it to the jail authority and they had sent those back putting a note on that ‘The accused did not receive’. We have even appointed a ‘State Defence Lawyer’ for him. The accused did not even co-operate him.
Accused: (shouting again) You have appointed your junior as my counsel.
Chairman Justice Nassim: (to the accused) May I please remind you that this is a Tribunal. It is ridiculous that now and then you are appointing your lawyer but then you changing him then appointing a new one again.
Accused: (kept shouting) I had to sign that ‘vokalatnama’ (power of authority) under duress. You confined me in a cell of this building for 2 hours and then I signed in favour of that counsel appointed by you.
Ignoring Chowdhury's remarks from the back of the court, the Tribunal Chairman started to made the following order in this regard:
“Today Ahsanul Haq, the learned counsel for the accused, has submitted that he has just been appointed. He does not have any papers. He is not prepared for the charge hearing. On 14.11.11 formal charge was submitted before the Tribunal against the accused and on 17.12.11 the International Crimes Tribunal took cognizance against the accused petitioner. He has filed several applications during the meantime. He engaged some renowned lawyers of the country and then he said he will face the case for himself. However, as he shouts in the Tribunal, the Tribunal then appointed a ‘State Defence Lawyer’ for him on the condition that he would not talk in the Tribunal unless asked. However, he denied receiving the documents in the jail. By the meantime, the State Defence Lawyer made an application before the Tribunal to discharge the accused. The charge hearing was being delayed for that. The newly appointed counsel filed 3 applications before the Tribunal and 2 of them are identical. Today he asked for adjournment on the ground that neither the accused nor he received any documents in this regard. Further, the accused petitioner Salauddin Quader Chowdhury sitting in the dock kept shouting. We request Mr Chowdhury not to repeat the same. We caution him- we will take action against him.”The following exchange then took place:
Accused: What action we will take against me My Lord? I am already in jail! I apologize if you are hurt anyway by my words. However, I did not shout; it is just my voice is loud.Tribunal Chairman Justice Nassim ignoring this and asked the prosecution to come to the dais to make their submission on charge hearing.
Chairman Justice Nassim: Either you or your lawyer will talk. You have also raised question whether it is a constitutional court or not. I am saying, ‘This is not’. You are a gentleman. So, act like a gentleman.
Accused: I also believe that you are a gentleman Mr. Chairman. If you are so, then show me a single document where I have refused to accept the documents sent by the Tribunal to me.
The defence counsel again submitted that the Tribunal should hear their applications filed by them first and then hear the charge. (The accused Mr. Chowdhury was also shouting to hear the applications first).
Prosecution submission
The prosecutor Ziad Al-Malum came to the dais and made the following submission:
“My Lord, on 14.11.11 we submitted formal charge against the accused before the Tribunal and on 17.12.11 your lordship was pleased to take cognizance against the accused. And today is date for hearing those charges. Among the numerous charges against the accused, we have included 25 incidents at this stage and we have backed those incidents by witness statements and other evidences.Justice AKM Zaheer asked the prosecution whether the 3 persons the prosecution mentioned in the charge are still alive or not. Prosecutor Jiad Al-Malum, replied in an uncertain manner, “Yes, my Lord.”
Incident No. 1
My Lord, on page 16 of the formal charge, you will find the incident of killing Orabinda Sarkers and other numerous people. The incident took place on 13.04.1971 at the house of the victims. The victims of that incident are- Orabinda Sarkers, Motilal Sarkar and other numerous people including Jogesh Chandra De. 4 kinds of crime constituted under the ITC Act 1973 were committed by this incident. Those are as under-
i. Abduction, torture, genocide by killing Orabinda Sarker;
ii. Abduction, torture and attempting to murder Orabinda Sarker’s cook Motilal Chowdhury;
iii. Killing the member of a religious group and persecution; and
iv. Threatening the local people and forcing them to leave
The witness statements in this regard can be found at pages 107 to 110 of the charge.
Incident No. 2
My Lord, on page 19 of the formal charge, you will find the incident of Pancha Babu Sharma and Dr. Mukesh Sharma. The incident took place between 07:30-08:00 on 13.04.71. The victims of that incident are- Pancha Babu Sharma and Dr. Mukesh Sharma and others. 2 of them were grievous bodily harmed. 3 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(i) Genocide as killing members of a religious minority group;
(ii) Genocide as bodily harm;
(iii) Genocide as threatening them not to leave their house which led them live in a inhuman life and finally made them bound for deportation.
The witness statements in this regard can be found in pages 34 to 37 of the charge.
Incident No. 3
My Lord, the incident took place at Biswas Para on 13.04.71 from 08:30 to 09:00 am. The accused killed 7/8 people of Hindu community. To save the time of the Tribunal I am not going to read out description of the incident in details. 3 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(i) killing of people of a religious group under s. 3 (2) (b) (i),
(ii) persecution under s. 3 (2) (a), and
(ii) Deportation by threatening a religious group under s. 3 (2) (a).
The witness statements in this regard will be found at pages 34-42 of the formal charge.
Incident No. 4
My Lord, this incident was one of the most notorious killings of that time. The incident took place at Kundeswari Bhaban on 13.04.1971 from around 9 am – 10 am. The victim of that incident is Nokul Chandra Sing s/o Akhil Chandra Sing. The crime of genocide by killing constituted under s. 3 (2) (c) (i) the ITC Act 1973 has been committed by this incident.
Justcie Kabir: Mr. Prosecutor, the law is in English then why did you choose the sequence of Bengali consonants Ka, Kha, Ga, Gha etc. to refer the sub-sections instead of the English one? If you were a practicing lawyer from any other district courts of outside of Dhaka, then we would ignore it but in fact you are not. Who gave you the authority to do that? There is direction from the High Court Division of Supreme Court of Bangladesh 13/14 years back that the sections of a law in English are not 'translatable'
Prosecution: My Lord, please allow the formal charge with this.
Justice Kabir: We shall never allow that.
Prosecution: Well, in that case, we shall make a correction in the formal charge.
Chairman Justice Nassim: Can you please explain us why this is a case of genocide under s. 3 (2) (c) (i) of the ICT Act 1973? Is that any way possible to say that it was an attempt to destroy the whole group just killing one person?
Prosecution: My Lord, this incident happened as a part of the chain of incidents on 13.04.1971. Further, Nokul Chandra Sing was the hope and aspiration of the Hindu community. He was a leader of the community. And he was killed as part of the plan of destroying the Hindu community of that area. That iss why it is a genocide as per our opinion.
Incident No. 5
The next incident is the mass murder of 32 persons starting with the name of Jagat Mallo - all of them are the members of Hindu religious community. Another 3 persons were the victim of grievous bodily harm in the same incident. Following kinds of crime constituted under the ITC Act 1973 by this incident as mentioned in page 24 of the formal charge-
(i) crimes under s. 3 (2) (c) (i),
(ii) crimes under s. 3 (2) (c) (ii),
(iii) crimes of persecution, and
(iv) crimes of force deportation.
The witness statements in this regard can be found from pages 70 to 83.
Incident No. 6
The incident took place at Sultanpur Banik para on 13.04.1971 from 01:00 pm to 01:30 pm. 3 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(i) crimes under s. 3 (2) (a) (i),
(ii) crimes under s. 3 (2) (c) (ii), and
(iii) crimes of force deportation.
Incident No. 7
My Lord, on page 26 of the formal charge, you will find the incident of mass killing of 69 people. The place is now known as ’69 Para’ due to this unfortunate incident. The incident took place at 4 pm to 5 pm on 13.04.1971. The victims of that incident are total 69 people starting with the name of Chandra Kumar Pal and Bablu Banik. 3 kinds of crime constituted under the ITC Act 1973 by this incident as we mentioned in page 29 of the formal charge. Those are as under-
(i) crimes under s. 3 (c) (i),
(ii) crimes under s. 3 (c) (ii), and
(iii) crimes under s. 3 (2) (b).
The witness statements in this regard can be found at the pages 87-106.
Incident No. 8
My Lord, the next incident is the killing of Shatish Chandra Palit. The incident took place at 01:00 pm on 14.04.1971. The victims of that incident are- Satish Chandra Palit and others. 2 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(i) crimes of genocide for killing members of a religious group u/s 3 (2) (a) (i), and
(ii) crimes of force depoprtation/migration u/s 3 (2) (a).
The witness statements in this regard can be found at pages 153-154 of the formal charge.
Incident No. 9
My Lord, on page 30 of the formal charge, you will find the incident of killing Sheikh Mojaffar Ahamed and Sheikh Alamgir. It is to be worth mention here that the said Mojaffar Ahmed was the founder of Awami League in Chittagong. The incident took place at 11 am on 17.04.1971. The victims were abducted by the people of the accused. They family members made a request to the father of the accused late Fazlul Quader Chowdhury and he said, ‘Its in the hand of Salauddin Quader Chowdhury (the accused)’. The victims never came back until today. Thats why it has been presumed that they have been killed by the accused. The offence of killing members of a political group had been constituted under s. 3 (2) (c) (i) of the ITC Act 1973 by this incident. The witness statements in this regard can be found in pages 156-164 of the formal charge.
Incident No. 10
My Lord, on page 31 of the formal charge, you will find the incident of Shanti Deb’ killing. It took place at Boalkhali. The offence constituted under s. 3 (2) (c) (i) of the ITC Act 1973 by this incident.
Incident No. 11
In a day in April 1971, the house of Manik Dhar was looted and set on fire by the accused. The offence under s. 3 (2) (a) was committed by this.
Incident No. 12
My Lord, the next incident is a very unfortunate genocide of killing 76 persons starting with Foiz Ahmed. They were killed just because they were Bengalis. As you can see at page 35, 3 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(a) Section 3 (2) (c) (i),
(b) Section 3 (2) (c) for killing a particular group of people, and
(c) crimes of force deportation/migration, section 3 (2) (a).
Incident No. 13
My Lord, on page 36 of the formal charge, you will find the incident of Bijay Krishna Rakhal’s killing. The incident took place at Jagat Mallo para on 05.05.1971. It was one of the 3 attacks at Jagat Mallo area. The charge has been brought against the accused under section 3 (2) (c) (i) of the ICT Act 1973. We have submitted the witness statements and other documents supporting the charge in this regard to Tribunal separately.
Incident No. 14
My Lord, on page 37 of the formal charge, you will find the incident of a rape and genocide. The incident took place at Khashimanirpur, ward No. 37 of Bandar P.S. on 09.05.1971. The rape victim is unwilling to disclose her name/identity. The following 2 kinds of crime constituted under the ITC Act 1973 by this incident-
(a) crimes under section 3 (2) (c) (i), and
(b) crimes under section 3 (2) (c) (ii).
Justice AKM Zaheer: You have mentioned the name of Oli Ahmed here. Is he dead or alive?
Prosecution: He is dead.
Justice AKM Zaheer: Then why did not you use the word ‘late’ before his name?
Prosecution: It is a mistake, My Lord.
Incident No. 15
My Lord, on page 38 of the formal charge, your Lordship will find charges of abduction, confinement and torture against the accused. The incident took place at 03:00 - 3:30 pm between 10-20 May 1971. The victim of that incident is- Sheikh Mainul Ali Chowdhury. 3 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(i) abduction under section 3 (2) (a),
(ii) confinement under section 3 (2) (a), and
(iii) Torture under section 3 (2) (a).
Incident No. 16
On page 39 of the formal charge, you will find the incident of killing. The incident took place on 20.05.1971. The victim of that incident is- Md. Hanif. 4 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(i) abduction under section 3 (2) (a),
(ii) confinement under section 3 (2) (a),
(iii) Torture under section 3 (2) (a), and
(iv) Murder under section 3 (2) (c) (i).
Incident No. 17
On page 40 of the formal charge, you will find the incident of Omar Faruk’s killing. The charges are same as the immediate former charge.
Incident No. 18
My Lord, on page 41 of the formal charge, you will find 3 kinds of charges against the accused. The incident took place at 07:00-07:30 on 05.07.1971. The victims of that incident are- Nazimuddin Ahmed and 3 persons. 4 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(i) abduction under section 3 (2) (a),
(ii) confinement under section 3 (2) (a), and
(iii) torture under section 3 (2) (a).
Justice AKM Zaheer: Can you please tell us whether rajakar Maksud is alive or dead? (the prosecutor kept silent then Justice Zaheer further advised) If he is alive then he should be either an accused or witness of this case.
Prosecutor: We shall take appropriate action in accordance with law.
Incident No. 19
My Lord, on page 42 of the formal charge, you will find the incident of 3 charges against the accused. The incident took place at 5:00-5:30 pm during 3 weeks of July 1971 i.e. any day from 1st July to 21st July 1971. The victim of that incident is Md. Salah Uddin. He was abducted by the accused Mr. Chowdhury’s people and tortured in Goods Hill torture camp of the accused. 3 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(i) abduction under section 3 (2) (a),
(ii) confinement under section 3 (2) (a), and
(iii) Torture under section 3 (2) (a).
Incident No. 20
On page 44 of the formal charge, you will find the incident of killing of Mahabubul Alam. The incident took place on 27.07.1971. 4 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(i) abduction under section 3 (2) (a),
(ii) confinement under section 3 (2) (a),
(iii) Torture under section 3 (2) (a), and
(iv) Murder under section 3 (2) (c) (i).
Incident No. 21
My Lord, on page 45 of the formal charge, you will find the charges of abduction, confinement, torture and murder as crimes against humanity. The incident took place on 27 or 28 July 1971. The victim of that incident is- Ekhlas Mia. kinds of crime constituted under the ITC act 1973 by this incident. Those are as under-
(i) abduction under section 3 (2) (a),
(ii) confinement under section 3 (2) (a),
(iii) Torture under section 3 (2) (a), and
(iv) Murder under section 3 (2) (c) (i).
The witness statements in this regard can be found at pages 213-214.
Incident No. 22
The next incident took place anytime from 01.08.1971 to 07.08.1971 at Mr. Chowdhury’s Good Hills Torture center. The victim of that incident is- Fazlul Haq Chowdhury. He became disabled and then died in 1987. 3 kinds of crime constituted under the ITC Act 1973 by this incident. Those are as under-
(i) abduction under section 3 (2) (a),
(ii) confinement under section 3 (2) (a), and
(iii) Torture under section 3 (2) (a).
The witness statements in this regard can be found at pages 223-226.
Incident No. 23
My Lord, the next incident is a charge of torture under section 3 (2) (a) against the accused. The incident took place on 28.08.1971. The victim of that incident is- Abdul Wayez. He was a freedom fighter. On the day before the incident he attacked the rajakar camp and was shot. He was unable to move as was lying in a field nearby. The accused found him next day and the victim asked water from him. The victim urinated on the face of the victim. Then he took him at his torture camp situated in Goods Hill and tortured him thereof. The witness statements in this regard will be found
Justice Zaheer: You have mentioned the name of Nurul Ahmed here. Is he still alive?
Prosecution: Yes, My Lord.
Incident No. 24
My Lord, on page 49 of the formal charge, you will find the incident of M. Salimullah. The incident took place at Goods Hills torture camp on 02.09.1971 at 6:15 to 6:45 pm. The victim of that incident is the said M. Salimullah and was taken to Good Hill torture camp by some rakajars. Thus, 3 kinds of crime constituted under the ITC act 1973 by this incident. Those are as under-
(i) abduction,
(ii) confinement, and
(iii) torture.
Justice AKM Zaheer: Why have you made Mr. Chowdhury accused for abduction in this particular incident?
Chairman Justice Nassim: Is it simply because it took place in the Goods Hill? Do want to say, every single incident happened there was done by the accused?
Accused: (said in a teasing voice) They will not find anyone in the Goods Hill except Salauddin Quader Chowdhury.
Prosecution: My Lord, we have got evidence in the formal charge in this regard, however, it may be unclear to you. It has been explain in paragraphs 13 & 14. Further, Good Hill torture camp was fully controlled and operated by the accused that is why he has been accused for abduction of said M. Salimullah.
Chairman Justice Nassim: Well, can you please clarify one thing about the 24th incident where you have explained that the victim was a freedom fighter and he attacked the C. O. rajakar camp on the day before he was abducted and tortured and he lying in the field being shot in that fight until abducted by the accused. Thus, he was not a ‘unarmed civilian’ to be tried under this International Crimes Tribunal Act 1973 as it becomes a war-crime then; not a crime against humanity under s. 3 (2) (f) of the said Act. Please mind it while framing the formal charge that this is the Act’s requirement that the victim needs to be unarmed civilian.
At this stage the accused asked the Tribunal members that “Who is Sa. Qa. Chowdhury?” As the Tribunal members Justice Nassim and Justice Zaheer was referring his name in a well known short from ‘Sa. Qa. Chowdhury’ instead of his full name ‘Salauddin Quader Chowdhury’ or ‘Mr. Chowdhury’. Both of the justices then apologised.
The prosecutor Zaad Al-Malum finished his submission with the following words:
'Among the 77 complaints in 25 incidents, there are 8 complaints for unlawful killing/murder, 9 for abduction, 7 for torture, 1 for rape etc. We have submitted the formal charge before the Tribunal and the Tribunal heard that today. There are offences basically under ss. 3 (2) (a) and 3 (2) (c). Now we are praying to the Tribunal to frame charge against the accused and obliged us thereby. '
The following exchanges then took place between the prosecutor and the tribunal members.
Chairman Justice Nassim: Learned prosecutor, now we ask you some follow up questions so to remove our confusion in some regards. Is rajakar Musa alive?Defence response
Prosecution: No, my Lord.
Justice Zaheer: Why did not you put the word ‘Late’ before his name. If you mention someone’s name in the formal charge, then he will be either accused or witness. Now, can you please explain, why have you made Mr. Chowdhury accused for the incident no. 3? You have not even claimed in the charge that he had committed the offence. It is very clear that the person either ‘commits or has committed’ the alleged act to made him liable under that section.
Prosecution: My Lord, all the incidents mentioned in the formal charge happened in a particular area, on 2 particular groups of people (Hindu by religion and Awami Leaguer by political believe) and one after another from dawn to dusk. Thus, all incidents are interrelated even if in a particular matter the accused might had not physically committed alleged crime under this Act. We believe, after the examinations of witness you shall also understand that.
Justice ATM Fazle Kabir: Instead of making 5 charges against the accused if you had made one charge it would have given better position as the incidents from 1 to7 happened in the same day.
Justice Zaheer: We will consider every incident in particular while adjudicating the matter.
Prosecution: The events from that one day i.e. 13.04.71 followed a pattern and it was clear that his actions continued through the day. All the complaints are backed by witness statements. It is the sacred duty to provide justice to the victims and their families and that those millions who had lost their near and dear ones. Justice must not be denied due to the fault of prosecution.
Justice AKM Zaheer: You should also remember that unless proven guilty, the accused is innocent. Furthermore, in the formal charge, you have made Mr. Chowdhury accused of giving directions in some incidents. Now, can you please explain why have you accused him for giving directions in some incidents? We do not understand how does it fall under the s. 3 (c) (i) of the ICT Act 1973 as the requirements of the section is- the accused ‘commits/has committed’ the crime. Thus, merely giving instructions/orders does not constitute an offence under this Act.
Prosecution: we shall prove through the statement of the witness that the extent of instruction given by the accused was no less than committing the crimes himself.
The submission from Md.Bodiuzzaman on behalf Salahuddin Quader Chowdhury on 15/01 2012. He is the government appointed lawyer. Below is a summary of what he said
The people of East Pakistan were ethnically Bengalis and Bangla was their language, whereas the people of West Pakistan spoke several languages. The rulers of Pakistan, who were mainly from the West Pakistan, decided that Urdu was going to be the state language of Pakistan. In 1958, the majority of Pakistan who spoke bangla started a movement for their language. In 1952, on the 21st February Rafiquddin, Abdus Salam and Abul Barkat become martyrs of the movement. In 1954, the united alliances of political parties were to form the new elected government in East Pakistan. By dismissing the elected government on the 30th may, the Pak Junta declared martial-law in the province.Adv. Hayder from the prosecution objected on this point. Justice Zahir gave the ruling of continuation on the ground that the lawyer is only presenting the statement of the accused.
The dissatisfaction among the Bengalis was not only political but also economical too. On those days, the whole budget of Pakistan was spend in the West and the Bengalis in the East were deprived.
In 1962, the previous Chief Martial Law Administrator and then president Ayub Khan coined the idea of basic democracy.
Shaikh Mujibur Rahman as the leader of Awami League declared the Six Point Programme in Lahore on 6 february 1966. Sheikh Mujibur Rahman was to be accused as a conspirator in the infamous Agartala Conspiracy Case on 7th June, 1967. On 25 March 1969 Ayub Khan stepped down on the duress of the mass-uprising and was replaced by his army chief, General Aga Mohammad Yahya Khan. In 1970 the martial law administrator was forced to promulgate a legal framework order on 31st march to hold elections. The national parliamentary election was held in December 1970. Awami League swept the polls winning 167 seats in a National Assembly of 313, and 288 seats in the Provincial Assembly of 300 members. The people of East –Pakistan gave AL the mandate for ruling the country because they hoped for full autonomy and the dream that they won’t be suppressed again by the Punjabis. Pakistan government officially accepted the results and Yahya Khan flew into Dhaka on 11 January 1971 to hold discussions with Sheikh Mujibur Rahman. By this time Yahya khan announced that the newly elected National Assembly would be convened in Dhaka on 3 March 1971. On 1 March 1971, Yahya indefinitely postponed the convening of the National Assembly. Yahya again announced the convening date for the National Assembly on 25th March and again cancelled it on 22nd March of 1971. On the first hour of 26th March the Bengali people including EPR, students and police initiated the war against the Pakistani forces with whatever they had to fight. Sheikh Mujibur Rahman declared the independence of Bangladesh. The fight for autonomy thus becomes the war of independence. The Pakistani forces answered the uprising with their all facilities. They took their emergency plan of military solution termed “Operation Searchlight” immediately afterwards. Bangabandhu Sheikh Mujibur Rahman was arrested on charges of high treason; the Awami League was declared unlawful on the ground of plotting armed rebellion.
On 10 April, a government of the People’s Republic Of Bangladesh in exile was formed. An oath taking ceremony and first public appearance were made by the government in exile on 17th April in Mujibnagar. On the other hand, the Pakistan forces were backed by Jamat e Islami, Muslim League, Civil Pioneer Forces, Al Badr , Al Shams and Razakar who were trying to help the army to remain in a united pakistan.
My lord, according to the 13th page of formal charges, my client SKC is related with the main planning of Operation Searchlight. Related with the killing of 30 lakhs of and over 4 lakhs of rapes as a conspirator. The charge sheet indicates that crimes against humanity were done in between the period of war on a certain religious and ethnic group but didn’t mention the name of the victim ethnic group.
The accused Salahuddin Quader Chowdhury MP is a member of the parliament from the Chittagong -2 constituency. Chowdhury is from a political family of Raujan, Chittagong, Bangladesh. His father late Fazlul Quader Chowdhury was the 5th speaker of the National Assembly of Pakistan. He started his political career as a member of Muslim Student Federation. He was an active member of Pakistan Movement. He became a minister for the first time in 1962. He belonged to Convention Muslim League .He was also the acting President of Pakistan for numerous times.
In 1971, Mr. Fazlul Quader Chowdhry was associated with The Peace Committee, Al-Badr and Razakar. He issued press releases to keep the solidarity of Pakistan during the Liberation war. He even went on a demand of a by-election in occupied Bangla .He was associated with the infamous Al-Shams Commander of Chittagong region Al-Hamidur Chowdhury Khoka.
The accused: Mr. Salahuddin Quader Chowdhury was born in his father’s house on 13th March,…. Mr.Chowdhury was first elected as a member of the Parliament from Rngunia in 1979. In 1984, He was appointed as a minister for Disaster and Relief Affairs. However, he took the charge of the Ministry of Health in the same year. He established National Democratic Party in 1988 and elected as an M.P in the subsequent election. Mr. Chowdhury served as a Member of the Parliament for four terms, starting from 1991 He was reelected into office from the same constituency, Rangunia in 1996, 2001 and finally in 2008.
The charges against Mr.Chowdhury are,
With the help of his father and under his close supervision the accused was a member of the main culprits of the genocide.
Crimes against Humanity: if we take the Geneva Convention 1945 in account then the territory of Bangladesh was a war zone between 25th March 1971 and 16th December 1971. That’s why this territory was to be run by the rules of Pakistani government. Hence, my client was a patriot and does everything possible to remain in a united Pakistan. It is true that, there was certain unequal measure from the Pakistani rulers and the East Pakistan was deprived since 1947. The military junta suppressed the bangalies by using all sort of discriminations.
In the National Assembly elections of 1970, Awami League emerged as the majority party which was an unexpected result. As a result, the junta declined the power to the newly elected members of the Parliament. Nevertheless, Bangabandhu Sheikh Mujibur Rahman declared the independence at the first hour of 25th March, 1971. The struggle for autonomy thus formed a war of independence.
My lord, from the beginning of the history of civilization every government used some terms like anarchist, foreign agent and enemy of the state. It is a common trend and well practiced custom. From 23rd June, 1757 then until this day it has been practiced in our region.
My lord, the Awami League emphasizes on full autonomy in their election manifesto. However, in 1971 the plea for autonomy has been concealed by the dream of independence. The whole act of declaring the independence was the result of the struggle between the junta and the Awami League. Awami League convinced the people that their overtaking of state power is the only way of empowering the mass. The military junta took inhuman measures to suppress the movement. In this circumstances, both parties used torture and killing as their prime weapon. A large amount of people took refuge in the neighboring country to avoid this duress. It is accepted that this sort of cruelty takes place in every war.
Crimes against the Humanity: by examining all the documents provided, my client was not a member of any political party during the war and thus he is not a criminal.
According to the International War Crime Tribunal Act 2010, Section 3/2/c-
Genocide: meaning and including any of the following acts committed with intent to destroy, in whole or in part , a national, ethnic, racial or religious or political group such as(2) causing serious bodily or mental harm to the members of the group.
According to the Black’s Dictionary of law, Genocide is an act committed with the intent to destroy, in whole or part, a national, ethnic, racial, or religious group.
These definitions certainly proved that the Bengalis of all social strata attacked the Pakistani forces with whatever they had. The governments tend to suppress this sort of movements by every means since the anti-British movement. They used different reasons to justify their actions. We can show some examples of government atrocities like the student killing of 3rd February, 1983 in front of the High court or the mass killing in a harmless procession in Chittagong in 1980. These government actions were never questioned. The current government and its predecessors were following the same custom in Bangladesh.
In accordance to United Nations Charter, the war in Iraq was unjust. Despite the international community continued the war. Furthermore the war against the LTTE was unjust too. This means that, the government can do whatever to secure its territory.
War crimes: my client was not a member of the Pakistan Army. He was not a member of any other forces. Hence, these charges didn’t apply.
My client was not involved on that.
According to Geneva convention, 1945; the territory of now Bangladesh were part of the Pakistan before the surrender of the Pakistani forces in 16th December, 1971.
7. Formal charge sheet shows that, the majority party of the Pakistan national election,1970 describes their struggle for gaining charges of the state as the war of independence. Awami League used the dream of the mass to gain the control of the country. They have shrouded the urdu-speaking people by torture and devised another state mechanism just as worse as its predecessors.
Then again my lord, the accusations against my client should be confined in the cases of crime against humanity and genocide. Hence, crimes against humanity and other war crimes are a custom in the whole world. Due to, these document which have initiated this legal proceeding we came to talking are also indicates the incidents occurred in the East- Pakistan was basically a fight for the power. Despite claims that, the Nuremburg Tribunal and the Tokyo Tribunal was to arbitrate the main conspirators and the planners of the holocaust and genocides during 2nd world war. Moreover, this same argument can be given in the case of Yugoslavia, Ruanda, Sierra Leon, and Cambodia. Even 90,368 Pakistani forces were taken prisoners of war. Although, they were freed under the Simla Treaty. Some Bengali officers of Pakistani forces were rehabilitated in Bangladesh too. One of them even becomes an Inspector General of Bangladesh Police. This government is not conducting any inquiries about these people. Whereas, my client is being questioned for his activities!
The government of Bangladesh had withdrawn the case against my client and his younger brother in 1975 and in 1996. Once a case is withdrawn by the state then it cannot start that case again. Hence, this tribunal doesn’t have the jurisdiction of pass judgment on my client.
My lord, my client is an honorable member of the Parliament. He was elected 6 times from the same electorate. If he was involved in these crimes, how come his people elect him to represent them that many times?
His father supported the Pakistan on political grounds. In 1971, my client was not part of any sort of atrocities. It will be unfair and immoral if you tried him on behalf of his father.
The grounds of discharge:
- Any criminal cases of pre-independence era aren’t in the jurisdiction of this tribunal.
- In accordance to the history, the government can take any measures to sustain itself in the power. This has become a custom here.
- Since 1945, every international war crime tribunal works on the main conspirators and my client was not one hence he is not the guilty party.
And all criminal cases against my client have already been withdrawn by the state. Current government is continuing these cases out of sheer jealousy of his popularity.
That will be all, your Honor.
The Chief Prosecutor and the other prosecutors were objecting while I was submitting my case. Adv.Bodiuzzaman is now the spirit of his client. No lawyer should be himself in the courtroom. He must be his client’s voice. All the atrocities mentioned in the charge sheet are customs in our region. Before the emergence of Bangladesh, the Pakistan government was doing the right thing to save its solidarity. The people of Bangladesh are used to these atrocities in both war and in peace. Hence, this cannot be the ground of the case. In 1973, the government issued an order to open fire on unarmed students.Justice Nijamul Haque confirmed the word “un-armed”.
My lord, all I am saying is that, it was a war. Everybody fought with what they have then on their hands. The Pakistani army had bullets and the Bengalis had bricks. The thing we have to remember is, both sides were involved in torture and inhuman measures to win until we liberated in the 16th December, 1971.Then justice Zahir asked the accused about the performance of the state appointed defense counsel. The accused answered that, he is satisfied with this bright and confident young advocate. However, he urged to change his counsel. Then the tribunal issued an order in favor of the accused. The tribunal relieved Adv. Md.Bodiuzzaman as the state appointed defense counsel. He will be submitting all his documents regarding the case to the Register today and Adv. Ahsanul Huq will have them by tomorrow.
The next hearing on this case will be on 23rd January.
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