Tuesday, July 3, 2012

1 April 2012: Molla discharge application

After the discharge application of Kamruzzaman was read out, the defense lawyer Farid Uddin then read out the discharge application against charge framing relating to Quader Mollah. (This follows on from the prosecution frame charging application)
1. That the applicant is peace loving and respected citizen of Bangladesh. He is an amiable leader. Born in 14 August, 1948, Molla is known in political arena for his adroit political liaison. He is now discharging the responsibility of one of Assistant Secretary Generals of Bangladesh Jammat-E-Islami.

2. That he was born at Jariperdangi, Sadarpur in Faridpur District, he belonged to a noble family that is known as a religious family. He started his schooling in Jariperdangi Government Primary School. He was a brilliant student all along. He got both primary as well as junior Scholarships in 1959 and 1961 respectively. Therefore he passed the S.S.C. examination in the first division from Amirabad Fazlul Haq Institute in Faridpur in 1964. Then he got himself admitted into Rajendra College in the same district and passed the H.S.C examination with good result in 1966.

3. In 1968 he did his B.Sc from the same college. But he had to take teaching profession and continued the job for one year due to his acute pecuniary crisis. Consequently he could not continue his studies then.

4. That in 1970 he was admitted into University of Dhaka, Department of Physics. Unfortunately he did not sit for M.A. examination scheduled in 1971 owing to the Liberation War. In 1975 he stood first class first in the Diploma in Education Examination in “Social Science” breaking the past record. Then he did his Masters in Educational Administration in 1977 and was also placed first class first.

5. That Mr. Molla entered teaching profession from his student career. In 1977 he joined one of the renowned schools in Dhaka City named Udayan High School located in the heart of Dhaka University as a part-time teacher. After publishing his M. Ed Examination result, he joined Bangladesh Rifles Public School and College as a Senior Teacher and subsequently served as Acting Principal of the same. Apart from teaching he joined Islamic Foundation Bangladesh as the cultural officer.

6. That in 1978 he joined Bangladesh Islamic centre as Research Scholar. He was also founder-Secretary of Manarat International School and College in Dhaka City till 1979. In 1981 Mr. Molla was attached to an esteemed Bengali Daily ‘Dainik Sangram’ as Executive Editor. Since then he has still close association with journalism.

7. That After his remarkable student career Mr. Molla joined greater Islamic
Movement i.e. Jammat-E-Islami Bangladesh in late 1979. Then he was appointed as Private Secretary of elderly leader and former Ameer-e-Jamaat Prof. Ghulam Azam. Afterwards he was elected as shoora and Committee member of Bangladesh Jamaat-E-Islami Dhaka City Unit. Within a short span of time he became a member of Central Majlis-e-Shoora of the Jamaat.

8. That in 1992 he was appointed as Secretary of Jamaat Dhaka City Unit and City Nayeb-e-Ameer afterwards. In 1985 Mr. Molla was elected as Ameer of Jamaat Dhaka City Unit and also member of Central Working Committee. He was given the responsibility of Central Publicity Secretary in 1991 and is still discharging the onerous responsibility.

9. That in 2000 he was appointed Assistant Secretary General of Jamaat-e-Islami Bangladesh. In addition to the above responsibilities he is one of members of 4-Party Liason Committee of the current movement against the present fascist Awami League government.

10. That Mr. Molla is a good social worker. He was elected Vice President of combined Dhaka Union of Journalist (DUJ) for two consecutive terms from 1982 to 1983. He is actively involved in many educational institutions and social welfare organisations such as Badshah Faisal Institute, Islamic Education Society and its School Managing Committee, Sadarpur Madrasha and Orphanage and Hajidangi Khademul Islam Madrasha and Orphanage under Faridpur district and Sayyid Abdul A'la Maududi Academy. He is the Adviser of the above mentioned Madrasha and orphanages. Besides he was Secretary of Badshah Faisal Institute and its Trust for three consecutive terms and founder
Secretary of Manarat International School & College.

11. That The concept of Pakistan was based on a two nation theory – that the Muslims and the Hindus constitute two different nations and they must have their separate independent homeland to live and flourish on the basis of their own belief, civilization and cultural values. This concept emanated from some excruciating experiences that the Muslims gathered in the united India from the Hindu-British attitude towards them. Before the British subjugation of India the region was under Muslim rule for about eight hundred years and during this period there was no discrimination in the dispensation of justice from the ruling class and the Hindus and other religious groups lived together with the Muslims in complete peace and harmony. There was no forceful conversion and had the Muslim rulers been antagonistic against the Hindus the Muslims would not have been a minority in undivided India. They were always tolerant and the Muslims tried their best to live with Hindus as good neighbors. In fact, geography, defense, economic development and the welfare of the people from both the communities demanded that they should live as good and friendly neighbors. But still why there was mutual distrust and enmity was a big question. Again after partition, why could not India and Pakistan live on friendly terms as do Norway and Sweden whose union was dissolved with by no means of unmitigated good will?

12. That the roots of the trouble lie far back in history. The tension between the two communities that forced partition of India was a prolongation of the Hindu-Muslim feelings that characterized British India long before independence and partition, notwithstanding the fact that the Muslims did not conceive any idea earlier to have separate homelands for themselves and their Hindu counterparts. The seed of antagonism was in fact sown after the British government introduced the policy of progressive realization of responsible government in India. The experiments of representative institutions under the ‘colonial democracy’ rather than bringing the two communities nearer, served to widen the gap.

13. When the British government in 1892 introduced in a rudimentary way, the principles of election and representative institutions, the Muslims expressed their apprehension of being dominated by a majority with whom they differed in every sphere of life. The Muslim leaders warned them against the dangers of majority rule in India contending that the larger community would totally override the interests of the smaller community. This fear of domination by the Hindus governed the Muslim policies and actions; the Muslim minority in undivided India considered itself to be in perpetual danger of domination by an intolerant majority.

14. It may be mentioned here that when the Indian statutory commission came to the India subcontinent in 1930 to examine the problems and prospects of representative institutions in India, it stated: “It would be an utter misapprehension to suppose that Hindu-Muslim antagonism is analogous to the separation between religious denominations in contemporary Europe. Differences of race, a different system of law, and the absence of intermarriage constitute a far more effective barrier. It is a basic opposition manifesting itself at every turn in social custom and economic competition as well as in religions antipathy.” (Report of the Indian Statutory Commission, 1930, Vol. I, Page 25) A British author, Sir Theodore Morrison in his book ‘Political India’ (1832-1932) observed that France and Germany were to Europeans, “The standard examples of enemy nations’, and yet a young Frenchman might go to Germany for business or study; he might take his residence with a German family, share their meals and go with them to the same place of worship; eventually he might marry the daughter of the house and nobody would find this a matter for scandal or surprise. No Muslim, he concluded, can live on such terms within a Hindu family and vice versa.” The Muslims in undivided India found themselves in every social and economic sphere total aliens with the Hindus; and in the political sphere there was sharp and fundamental antagonism.

15. That the process of introducing representation institutions began in India after the great political upheaval and revolution of 1857 which resulted in the transfer of direct political control from the East Indian Company to the British Parliament acting through the secretary of State for India.

16. That the India council Acts of 1861 and 1892 followed by the Morley Minto reforms of 1909 were the rudimentary steps towards the realization of representative institutions in India. Then came the most momentous utterance ever made by India’s chequered history by the secretary of state for India, Edwin Montagu on August 20, 1917 in the House of Commons. The British government adopted the policy of progressive realization of responsible government in India. The result was the Act of 1919 under which partial responsible government was introduce in the provinces. The partial responsible government was popularly known as ‘Diarchy’ by which certain subjects at provincial level was transferred to the control of the ministries who were responsible to the members of the provincial legislature. The Diarchy was a unique experiment in the constitutional development of India and it was given a trial in the provinces for a period of sixteen years (1920-37).

17. The authors of the reforms of 1919 expected that the introduction of responsible government might bring the two great communities Hindus and Muslims closer; but, as Professor Coupland remarked, ‘more serious on long view than the failure of the Act of 1919 to make a reality of responsible government was its failure to overcome the barriers of caste and creed’ (The Indian Problem, London 1944, Page 72). In fact the biggest hurdle in the path of representative government in India was Hindu Muslim differences. Democracy requires for its success agreement on fundamentals, mutual toleration and understanding and these were utterly lacking in undivided India. Muslim and Hindu Ministers in the same government often canvassed against each other, as happened in the Bengal Council over the Calcutta Municipal Bills. The Hindus and the Muslims belonged to two different civilizations which were based on conflicting ideas and conceptions. The authors of the reforms of 1919 looked to the goal of ‘India nationhood’ not only as an end in itself but as a means of overcoming the dissensions which obstructed the path of political advance. But the goal was not brought nearer by the reforms.

18. By 1928, the gulf was wider than it had been in 1918 (Coupland, p-72). The Muslims numerical position in the central legislature and in most of the provincial councils made them realize the implication of majority rule in India. Its fullest implication for them was to become apparent with passing of the government of India Act 1935 when full responsible government was introduced in the provinces.

19. That the introduction of parliamentary government in the provinces in 1937 under the Act of 1935 ushered in a new era of Hindu Muslim relations in undivided India. It was an era of parting in which political developments were moving nearer and nearer towards partition of the subcontinent. Already by 1930 poet Philosopher Dr. Sir Mohd Iqbal was proclaiming that the future of the Muslim with the distinct cultural and spiritual characteristics lay in a separate state. For a time Allama Iqbal’s idea remained a ‘poets vision’ but their sad experiences of majority rule under the Act of 1935, eventually led the Muslims, under the leadership of Muhammad Ali Jinnah to transform the poet philosopher’s vision into a living force and an international reality.

20. That the congress captured most of the Hindu seats in the provincial elections held in 1937 under the Act of 1935. The Muslim League was not then properly equipped to face an election; the Muslim seats were therefore, divided into a number of organizations. In Bengal the Muslim seats were shared by the Muslim League and the Krishak Praja Party of A.K. Fazlul Huq; while in the Punjab, the majority of such seats went to the unionist party of Sir Fazle Hosain. Subsequently members of the Krishak Praja Party in Bengal and of the unionist party in the Panjab joined the Muslim League under Jinnah’s Leadership. Out of 1771 seats throughout India the congress won 706 seats, less than half. The congress’s claim as made by Gandhi at the Round Table conference of 1930-32 that it was the sole representative body in India was disproved by the results of 1937 election which also disposed of its assertions that it effectively represented the Muslims. The congress gained only 5% of the Muslim seats, which seats, moreover, were confined to one area only, the North West Frontier Province, where due to a temporary alliance with the leader of the Red Shirt movement, Khan Abdul Gaffar Khan it won about 38% of the seats, including non-Muslim seats. The congress gained a clear command in five Hindu majority provinces – Madras, united Provinces, central province, Bihar and Oriessah – and in Bombay also it was in a position to form a government with the help of some pro-congress groups.

21. That the Congress demanded an assurance that the provincial governors would not exercise their special responsibilities before it agreed to accept Ministerial offices. One of the special responsibilities assigned to the Governors was the Safeguarding of all the legitimate interests of minorities. The Muslims viewed the Indian Congress’s demand with concern and anxiety. The Secretary of state for India declared in the House of Lords that the governors could not be expected to give up their special responsibilities or safeguards. On June 21, 1937, the viceroy issued a statement which softened the congress’s attitude. Although this statement did not meet the congress leaders’ demand to scrap the safeguards it assured them that the governors would leave nothing undone to avoid and to resolve all conflicts with their Ministers. There were suspicions among the Muslims that a secret understanding had been reached between the viceroy and the congress. Whatever might be the case, the congress agreed to accept offices as a result of the statement of June 21, forming Ministries in eight out of eleven provinces and congress rule in these eight states continued from July 1937 to October 1939.

22. That this period of rule by the congress had tremendous impact on Hindu Muslim relations and more than anything else it hastened the partition of India and the setting up of two separate states. The congress rule was marked by such systematic attacks on the culture and way of life of the Muslims that it killed every hope of Hindu Muslim settlement in the ‘right royal fashion of fascism’. The congress leaders refused to have any representatives from the Muslim League or any other group in their Ministries.” In due course of the discussion from which the Act of 1935 was evolved” Coupland wrote, “it was generally agreed that the main minority communities, particularly the Muslims ought to be and in fact would be represented in the provincial ministries.” In affirming the Muslims League’s willingness to form coalitions with the congress Jinnah said: the constitution and policy of the League do not prevent us from cooperation with others. On the contrary it is part and parcel of our basic principle that we are free and ready to cooperate with any group or party from the very conception, outside or inside the legislature, if the basic principles are determined by common consent. A prominent figure form the congress side, Abul Kalam Azad has stated, “Chowdhury Khalequzzaman and Nowab Ismail Khan were then the leaders of the Muslim League in the U.P. When I came to Lacknow to form the government, I spoke to both of them; they assured me that not only would they cooperate with the congress but would fully support the congress programmes. The congress response to the Leagues’ offer of cooperation was to demand that the League group in the united provinces Legislature cease to function as a separate group;

23. That the existing members of the Muslim League party become part of the congress party that the Leagues parliamentary board be dissolved and that no League candidatures thereafter be put forward at any by-election. The congress demand, to quote the worlds of Jinnah, was, “abjure your party and forswear your policy and programmes and liquidate the Muslim League.” No political party with an iota of self-respect could possibility accept these demands.

24. That the fatal attitude of the congress in rejecting the idea of coalition with the Muslims in provinces where the former had gained a majority destroyed a great opportunity for uniting the two communities in a constructive effort of self-government in India. This deliberate spurning of Muslim offer of cooperation, which was to have far reaching consequences, was inspired by the ‘intoxication of victory among the congress leaders.

25. That the effects of the Muslims exclusion from the congress Ministries were soon to appear. In every Hindu majority province, the Muslims complained of unfair treatment. They did not get their due share of promotion in government services; they were deprived of local and municipal offices wherever possible and in every way they suffered administrative discrimination. In this connection Sir Percival Griffiths, in his book, ‘The British Impact on India’ (London 1952, p. 341) wrote the congress … used its strength unwisely. Muslims can expect neither justice not fair play under a congress government. On March 20, 1938 the Council of the All India Muslim League passed a resolution on the complaints reaching the League office of the hardships ill treatment and injustice that is meted out to the Muslims in various congress government provinces. A Committee of eight members was set up to investigate the Muslim sufferings and grievances under the congress rule. The committee submitted its report, popularly known as the Pirpur Report on November 15, 1938. Its findings were supplemented by two other reports the Shareef Report, published in March 1939 and report on Muslim sufferings under congress Rule by A. K. Fazlul Huq, chief Minister of Bengal in December 1939.

26. That these reports gave balanced and well documented accounts of the suppression and oppressions of the Muslims by the congress rule in India under the first experiment in majority rule of the parliamentary system of government. Their experiences of this indicated clearly to the Muslims what their fate would be in a Hindu dominated free India and as mentioned earlier, their bitter resentment against congress rule had considerable impact on their demand for a separate state. ‘This bitterness’, writes Sir Percival Griffiths, ‘had its inevitable reaction on Muslim constitutional thought. Up to now the Muslims had been prepared to depend for their protection on “weightage” or “safeguards”. By 1939, they were convinced that whatever safeguards might be designed an Indian federation in which the centre retained substantial power would in fact mean Hindu domination.

27. That in examining the Muslim allegations against the congress rule, the Pirpur Report included a summary account of events in all the congress governed provinces except North West Frontier Province, based on personal enquiries made by the committee. The report stated: the congress has failed to inspire confidence in the minorities and has failed to carry them with it in spite of its oft-repeated resolution guaranteeing religious and cultural liberty to the various communities because its actions are not in conformity with its words….. The Indian National congress conception of nationalism is based on the establishment of a national state of the majority community in which the nationalities and communities have only secondary rights. The Muslims think that no tyranny can be as great as the tyranny of the majority.

28. That it is not only a question of their religion and cultural freedom… they must obtain their due share in the government of the country. The congress has denied them this – it has tried indeed to break the political power of the Muslims by the old device of ‘Divide and Rule’. The flag, the anthem the reverence paid to Mr. Gandhi, the emphasis laid by mahatma himself on ‘cow protection’ all these are evidence of a deliberate and far reaching attack on the civic and cultural rights of the Muslim community.

29. That the Shareef Report depicted the reign of terror let loose upon the Muslims in Bihar province. Based on the atrocities meted out to the Muslims under the congress-run provinces and a court judgement, Hon’ble A. K. Fazlul Huq wrote an open letter to congress leader Mohan Lal Karamchand Gandhi which reads as follows: “I beg to be pardoned, Mahatmaji, for inflicting upon you long extracts from this judgment. but I am sure you will realize how terribly important and significant the observations of the Judges are. Responsible Hindus, Congressmen, non-congressmen and even the man who is the Premier of a Province and in whose keeping democracy has entrusted justice and the lives of all alike – practically see red. They prejudge the issue and publicly pronounce a verdict holding the Muslims guilty of deliberate conspiracy and of ruthless murder. The farce of an investigation follows and then a trial in which ‘a comic opera story’ is told to a Court of justice through the lips of perjured witnesses. From the witness box ‘lies fall thick and fast’. Hindu witnesses vie with each other ‘in a gruesome festival’ their only aim being ‘to swear away the lives’ of as many as they can just because they are Muslims…..“Imagine the tragedy of it. Imagine also the trials and tribulations of these poor unfortunate Muslims, of their relatives and friends who had to find money and find legal assistance, in order to wrest their lives from the gallows and the Andaman’s. Had the means been lacking and the appeal to the High Court not preferred, six innocent Muslim lives would have perished at the gallows and twenty-four would have now been locked up for life. Just think of it. “That is the way that mean brought to power by the much vaunted Congress behaved towards Muslim minorities in the name of democracy. That is the way that justice was meted out to the Muslim minority. “And yet you talk of democracy and justice and accuse Britain for not having yielded to the Congress demand which would enable the Congress to give forever such displays of democracy and such displays of justice. “You may say that this is but an isolated case. Scores of examples can be cited to show how the same mentality was at work and caused incalculable suffering and even loss of life, limb and property, to the Muslim minorities in several other provinces when the Congress was in power.

30. There after it is stated that “In the second place has a single Hindu anywhere in the whole of India expressed his abhorrence at the conduct of those who thus conspired to send innocent Muslims to the gallows? Has a single Hindu newspaper expressed sympathy with the Muslims whom justice has rescued from the jaws of death or condemned the Hindus who conspired to send these innocent men to the gallows? Does it not show that either the Hindus, generally speaking, are disappointed at the result of the Muslim’s appeal to the High Court or that they see nothing wrong in the manner in which Hindu Ministers and others sought to prejudice the issue and some of them even helped to concoct false evidence in order that innocent Muslims might be hanged? “And Mahatmaji, what have you yourself done about it? You could not have been ignorant of these facts. “Was not your sense of truth, your sense of non-violence, your sense of justice, your sense of righteousness, outraged by the despicable conduct of some of these men belonging to the Congress and belonging your community? You found the trivial affairs of the small district of Noakhali in the province of Bengal sufficiently important to elicit from you an article in Harijan with clear directions to the Hindus to use violence against their alleged opponents. In fact nothing at all was or is wrong with Noakhali except that just one Muslim had once delivered just one indiscreet speech.

31. “But the tragedy of Chandur Biswa, the tragedy of the mean conspiracy by Hindus against the lives of innocent Muslims has left you unmoved. Not a word has dropped from your lips and not a word has flowed from your pen to indicate that you condemn the conduct of the Hindus who vied with one another, ‘in a gruesome festival of lies’ with the sole aim of swearing away Muslim lives. How are we to interpret your silence? “Do not all these facts conclusively prove that Hindus and Muslims are two different peoples, that democracy in the sense of pure and simple majority rule cannot be accepted by Muslims and that justice cannot be expected from Hindus in power towards the Muslims?

32. “In the circumstances if the Muslims maintain that democracy in the sense of majority rule is absolutely unsuited to India, can you blame them? “In the circumstances if the Muslims believe that possessing the mentality which they do and which has been revealed in connection with the occurrence at Chandur Biswa, Hindus, if they secure the power of domination, cannot and will not render even the most elementary justice to the Muslims – can you honestly maintain that this belief is unjustified? “You and other Hindus have taken exception to His Majesty’s Government declaring through His Excellency the Viceroy that it goes without saying that they could not contemplate the transfer of their present responsibilities for the peace and welfare of India to any system of Government whose authority is largely denied by large and powerful elements in India’s national life. Nor could they be parties to the coercion of such elements into submission to such a government.’ In the light of the circumstances narrated above can you honestly maintain that His Majesty’ Government in giving this assurance to the minorities have done aught but the barest justice?

33. “Can you deny that the peace and welfare of the entire Muslim population of the village of Chandur Biswa in the Central Provinces were put in peril by the conduct of the Hindu government and those who acted according to the lead of the Hindu politician who was for the time being head of that Government? “Can Muslims therefore, who constitute ‘a large and powerful element in India’s life’ be expected to submit to the authority of Governments at the head of which such persons may preside? Is it not absolutely right and proper and in accordance with the elementary principles of justice that Hs Majesty’s Government has now declared that they would not ‘coerce such elements into submission?’ “And, finally, did not democracy fail in the Central Provinces when in the democratic Legislature speaker after speaker belonging to the majority party sat in judgment over innocent Muslims and pronounced them guilty of conspiracy and murder even before there was any inquiry into facts or any judgment on facts by any judicial tribunal?

34. That In the course of the resumed debate a number of members thought fit to speak as though it was known with precision what crime had been committed and so far as one member was concerned indication was given as to who had committed the murder. In the course of that debate the then Prime Minister himself did not hesitate to use the word murder and to indicate that this was not a case of riot but a carefully planned murder ruthlessly carried out”. The Chief Justice further remarked, “This is a distressing case. The epithet is justified when we see in this case where forty-three men are standing on their trial on a capital charge, witness after witness whose evidence is false, improved and tutored going into the box. So far as seen of those witness are concerned, they are children for young people who have been coached to give false evidence. False evidence in such a case means that the witness or the coach is doing his best to get another human being hanged careless of whether he is innocent or not Human conduct can hardly stoop to anything lower than endeavoring to kill one’s enemies through the lips of perjured children.” The judgment of the High Court was hummed up in the following words: “the concoctions transparent and so are the reason. Ikramuddin (one of the accused)( was the leader of the Muslims and therefore, the five most important witnesses in the case come forward and concoct a deliberately false story in order to swear away the leader’s life….. All these fantastic stores would be comic if it were not for the tragedy of it. The conspiracy has resulted in six men being sentenced to death and twenty-four to transportation for life…. The case has been treated as some gruesome festival in which witness has vied with witness to see how many Muslims he could be instrumental in sending to the gallows. Truth, honor, respect for human life, and regard for one’s sworn word has all been thrown to the winds…. When attempts are made to tamper with evidence and to deflect the normal course of justice by such one-sided and in some respects outrageous investigation as we had in this case, such results are perhaps inevitable…We find a deep laid concert on the part of those witnesses to bring in every Mohammadan they possibly can, just because he is a Mohammadan.”

35. That the Muslim intelligentsia was seriously concerned over the threats to the Muslim culture and education under the congress rule. The All India Muslim Educational conference at its 52nd session in Calcutta in 1938 appointed a committee to investigate the plight of the Muslim education in congress governed provinces. The congress had already formulated a plan, known as the Vidya Mandir Scheme, which was a part of a bigger plan known as wardha scheme under which the Hindu culture and way of life were to be imposed on the Muslims. The ideas behind these schemes, Coupland has pointed out ‘were certainly colored by Hindu rather than by Muslim thought’. The report of a sub-committee of the Muslim Educational conference, published in 1942 drew a somber picture of the position of Muslim education. That Muslim school children should be obliged to honor the congress flag, to join with “folded hands” in singing Banda Mataram, to wear Gandhi caps and home spun clothes – al that was bad enough but its significance might seem primarily political. Could the same be said of the children not merely celebrating Mr. Gandhi’s birth day but doing puja – a ceremonial act of reverence or worship – before the Mahatma’s portrait?”

36. That such were the experiences of Muslims under the congress rule. The Muslim grievances were brushed aside by the congress and its press with more or less contempt or ridicule. Gandhi did not make any reply. Jinnah demanded the appointment of a Royal commission to enquire into the oppression and suppression of the Muslims but this offer of an impartial commission was turned down. When the congress rule came to an end in 1939, the Muslims all over India observed a ‘Day of Deliverance’ on December 22, 1939 as a mark of relief that the congress regime has at last ceased to function. Resolutions were passed at Muslim meetings denouncing the congress leaders who have done their best to flout the Muslim opinion, to destroy Muslim culture and have interfered with their religious and social life and trampled upon their economic and political rights. It demonstrated the widening gulf between the two communities, as a result of the congress policy and actions between 1937 and 1939. The inevitable result was the Muslim demand for a separate state.
Brief History of Bangladesh Jamaat-e-Islami:
37. The Jamaat was formed in August 1941 in a convention called at Lahore by Maulana Syed Abul A’la Maududi, a renowned Islamic thinker. It was attended by 75 well-read ulama and modern educated persons from various parts of United India. They were morally and intellectually impressed by the monthly journal of Maulana Maududi, the Tarjumanul Quran. The Maulana explained before the Convention the soundest program as followed by the last Prophet of Islam (pbuh) for the Islamic movement. These are:
1) Islam is a complete code of life.
2) Those who are ready to accept this ideology must be organized and trained up according to that ideology.
3) The people thus trained up should strive to change the un-Islamic leadership and to establish Islam in the society

38. During the British period (1941-1947), Jamaat concentrated in the following activities:
1) To organize Islamic research for producing necessary books in various aspects of Islam.
2) To widely propagate the teachings of the Quran and the Sunnah and to diffuse basic Islamic knowledge with a view to removing intellectual slavery and stagnation.
3) To organize the honest and sincere elements of the society and to train them properly so that integrity and efficiency are combined in the same character.

39. The second phase of the Jamaat (1947-1962) started with partition of India when the Jamaat was also divided into Jamaat-e-Islami Pakistan and Jamaat-e-Islami Hind. The two organizations became separate both in form and character as the respective fields of work were different.

40. After the establishment of Pakistan the Jamaat studied the policies of the then ruling party and realized that they were not in inclined to fulfill the promise of establishing an Islamic state. In this context, Jamaat submitted a four point demand to the government to declare the Islamic objectives of the state. It organized a movement to pressurise the Constituent Assembly to accept its demand. But unfortunately the party leaders including its Secretary General were arrested on account of their ‘audacity’ in placing such a demand. But all the Islamic forces of the country including some members of the Constituent Assembly of the ruling party recognized this demand of Jamaat-e-Islami, following which the movement gathered momentum. Ultimately, the Constituent Assembly adopted the ‘Objectives Resolution’ in terms of the demands made by Jamaat.

41. Thereafter Jamaat chalked out a permanent and comprehensive four point program and continued its movement for an Islamic constitution as well as realization of the economic and democratic rights of the people.

42. This phase of the activities of the Jamaat ended with the fall of democracy in October, 1958 when the Constitution of Pakistan was abrogated and Martial Law was imposed. The Jamaat was also banned by the then military rulers of Pakistan along with other political parties. The Martial Law continued till 1962. During this period the Jamaat performed the following activities:

a) To educate people in general and the intelligentsia in particular about an Islamic society.
b) To organize the masses under the leadership of trained people and to educate them properly about the practical benefits of Islamic society.
c) To employ the workers of the Jamaat to various social services.
d) To combat the undemocratic and un-Islamic forces and ideas by launching campaigns in political, social and cultural fields.
e) To give opinion from Islamic point of view on every issue in order to guide the people and to counsel the government.
f) To publish Islamic literatures on a large scale in all the national and regional languages of Pakistan and in some foreign languages, especially in Arabic and English.
g) To work intensively and extensively for creating conditions conducive to a truly Islamic and democratic constitution.

43. The third phase of the activities of the Jamaat (1962-1971) included a movement for democracy. This phase started from July, 1962 when Jamaat was revived after the withdrawal of Martial Law.

44. Before Martial Law the Jamaat did not feel the need for entering into any kind of political pact with secular forces. The Jamaat regards democracy as a prerequisite for an Islamic social order and in this context after July, 1962 the need for restoring democracy compelled the Jamaat to think in terms of combined efforts by the democratic forces inside parliament and outside of it. The efforts of the Jamaat remain instrumental in the formation of combined opposition parties (COP) with Awami League, Muslim League (council group), Pakistan Democratic Party, National Awami Paty, Nezame Islam party as components.

45. The Martial Law government of Pakistan framed a constitution in 1962 which was both undemocratic and un-Islamic in nature and content. There was a wide spread demand for its rejection. But the Jamaat thought that amendment of the Constitution was the only course left open for democratization of this Constitution in order to avoid greater political crisis at that moment. It was successful in convincing other leaders of opposition parties and worked with them for restoration of democracy, reduction of regional disparity and provincial autonomy. The Jamaat also continued its own program for Islamization of politics and human resources development on the basis of the teachings of Quran and Sunnah as enunciated in its permanent program and party constitution. In January, 1964 the Government banned Jamaat on frivolous charges. However, this action of the government was declared illegal by the Dhaka High court in July and by the Supreme Court of Pakistan on 25th September, 1964.

46. The dictatorial type of the government and restoration of democracy continued to be the main problem throughout the sixties and the Jamaat earnestly believed that without democracy and democratic institutions, Islamization of politics and political system, economics, banking and finance as well as other disciplines can never be achieved. Accordingly Jamaat placed greater emphasis on the movement for restoration of democracy, regional autonomy and equity in the dispensation of services. The party did not hesitate to join hands with other parties in its efforts to realize these objectives and launch a united movement.

47. Jamaat-e-Islami played a very important role in the movement against the autocratic regime of Ayub Khan (1958-1969). On 20th July 1964, Combined Opposition Parties (COP) was formed comprising of 5 parties, namely Council Muslim League, Awami League, National Awami Party (NAP) Nizam-e-Islam, Jamaat-e-Islami, , which nominated Fatema Jinnah to contest the Presidential elections against Ayub Khan. It was decided that the executive responsibilities of COP would rotate between the 5 parties on a monthly basis. Between 1964 and 1965, COP organized various political programs and adopted numerous resolutions criticizing the autocratic Ayub regime and demanding restoration of democracy. COP was the first broad-based political platform against the autocratic regime of Ayub Khan.

48. Following the 1965 Indo-Pak War, Opposition political parties, in order to provide the much needed impetus for democratic reforms, formed the Pakistan Democratic Movement (PDM). PDM comprised of Nizam-e-Islam, Council Muslim League, Pakistan Awami League (led by Nawabjada Nasrullah Khan), Jamaat-e-Islami, and Pakistan Democratic Party. East Pakistan Awami League led by Sheikh Mujibur Rahman refused to join PDM because of a difference of opinion among the political parties regarding its 6 point formula. Advocate Abdus Salam Khan was appointed PDM’s East Pakistan President.

49. In 1969, PDM was expanded to form Democratic Action Committee (DAC) to strengthen the campaign for democracy. DAC comprised of 8 Opposition political parties, being Council Muslim League, Nizam-e-Islam, Pakistan Awami League (pro- PDM), Jamaat-e-Islami, Pakistan National Awami Party, Jamiat-e-Ulama Islam and East Pakistan Awami League (6 point formula). In January 1969, Ayub Khan invited DAC to a Round Table Conference to discuss the mechanism for restoration of democracy. Each party nominated two representatives to attend the Conference. Eventually, following a mass movement, Ayub Khan, on 24th March 1969 resigned as President of Pakistan.

50. A parliamentary election was held in 1970 under General Yahya Khan’s military rule. The Awami League led by Sheikh Mujibur Rahman won 167 seats in the National Assembly. The Jamaat won 5 seats in West Pakistan but none in the East Pakistan, but still occupied second position in every seat it contested. The Petitioner’s party was however able to win one seat in Bogra in the Provincial elections in 1970.

51. After the election was over, as a matter of political courtesy, Jamaat congratulated Awami League and its leaders for winning the elections. Not only that, when a political and constitutional crisis arose after the postponement of the session of the National Assembly, which was due to take place on 1st March 1971, the Petitioner on 17th March 1971 urged upon the President of Pakistan to transfer power to the majority party, pending framing of the Constitution. However, the government refused to do so. Consequently, armed struggle followed with Indian assistance which subsequently culminated into war. Bangladesh emerged as a separate country in December 1971. The elected representatives of the winning party Awami League belonging both to the national and provincial assembly left for India for refuge. The leaders of the Jamaat and other Islamic and right leaning political parties could not go there for obvious reasons. They stayed in the country, tried their best to save the people from the oppression of the army.

52. During the Liberation War in 1971, on many occasions, the Petitioner strongly criticized the Pakistan Army for their attacks against the Bengali; however they said speeches were never reported in the newspapers because of the censorship regulations which were then in force.

53. When the country was liberated, Jamaat had to face a great calamity. The victorious members of Awami Leagu murdered thousands of Jamaat members, workers and supporters along with other helpless people belonging to their rival political parties.

54. That no proceedings have ever been instituted against the Petitioner in the last 40 years. With the repeal of the Collaborators’ Order, the notice issued under that Order died its natural death. Neither FIR nor any petition has ever been filed against him in any police station or court of law in Bangladesh.

55. The Constitution as adopted by the government of Bangladesh in 1972 prohibited formation of political parties based on Islamic ideologies and as a result Jamaat could not work openly and legally. However, following a change of government in 1975, the Constitution was amended allowing functioning of religious political parties. In May, 1979 the Jamaat decided to work publicly. It participated in the national election in 1979 in the name of Islamic Democratic League (IDL) and won 6 seats. The Jamaat contested in election in 1986 for the first time in Bangladesh in its own name and gained 10 seats, thereby qualifying itself as a parliamentary party. Thus the Jamaat got legal recognition as a political party.

56. Following the assassination of President Ziaur Rahman on 30th May 1981, Mr. Justice Abdus Sattar was elected as President in elections held in November 1981. However, within a few months of assuming office, Mr. Justice Abdus Sattar was compelled to hand over power to the Chief of Army, Lieutenant General Hussain Mohammad Ershad. On 24th March 1982, Ershad declared Martial Law and suspended the Constitution. Bangladesh Jamaat-e-Islami played a vital role in the campaign against the autocratic regime of Ershad and in the movement for restoration of democracy. On 20th November 1983, Abbas Ali Khan, the then Acting Ameer of Bangladesh Jamaat-e-Islami declared the Ershad government to be illegal and demanded the holding of elections under a neutral administration led by the Chief Justice. Thereafter, Jamaat-e-Islami formed a 5-member liaison Committee for communication with the Opposition political parties to ensure a coordinated movement against Ershad’s autocratic regime. For a period of 7 years, between 1983 and 1990, Jamaat-e-Islami fought side by side with the two Alliances led by the two major political parties, namely the Awami League and the Bangladesh Nationalist Party, for restoration of democracy. During this period, innumerable meetings were held in which the then Awami League leadership, Sheikh Hasina, Tofail Ahmed, Abdus Samad Azad, Amir Hossain Amu and others engaged in discussions with Motiur Rahman Nizami, Ali Ahsan Md. Mujahid, Kamruzzaman and Quader Mollah. As a result of the intense movement led by the Opposition political parties, including Jamaat-e-Islami, on 6th December 1990, Ershad was forced to resign leading to holding of elections under a neutral Caretaker administration.

57. It is an historical truth that Jamaat-e-Islami was the first political party which floated the idea of holding elections under a caretaker government.

58. Following the fall of Ershad, elections under the Caretaker Government of Justice Shahabuddin Ahmed took place in 1991 which resulted in a hung Parliament. With 18 seats, Jamaat-e-Islami was holding the balance of power. Both the major political parties, namely the Awami League and the Bangladesh Nationalist Party sought the assistance of Jamaat-e-Islami to form government. A very influential member of the then Presidium of Awami League (now a member of the Advisory Council) came to see Mr. Ali Ahsan Md. Mujahid, who was then the chief of Jamaat’s liaison committee and sought Jamaat’s support to form the government in exchange for 3 ministerial positions and half a dozen reserved seats for women. On the other hand, the Bangladesh Nationalist Party (BNP) also offered ministerial posts to Jamaat. After long deliberations, the Majlish-e-Shura of Jamaat refused to accept the offer of Awami League and instead decided to support BNP to form the government. At that time, as a matter of principle, Jamaat decided not to participate in the government, although they did accept 2 reserved seats for women in Parliament.

59. In October 1991, former Chief Justice, Mr. Justice Badrul Haider Chowdhury met Professor Ghulam Azam, the then Ameer of Bangladesh Jamaat-e-Islami and sought the support of his party’s Members of Parliament for election as President, which has been reported in the Daily Inqilab dated 5th October 1991. However, Jamaat-e-Islami decided to give its support to Abdur Rahman Biswas, who later became President of Bangladesh.

60. Following the controversial Magura by-elections in 1994, Jamaat-e-Islami fought side by side with the Awami League and the Jatiyo Party for amendment of the Constitution to incorporate provisions for holding elections under a neutral Caretaker administration. Reports of the meetings of the top leadership of Awami League, Jamaat-e-Islami and Jatiyo Party were widely publicized in a number of daily newspapers.

61. In the general election of 1996 the Jamaat won only 3 seats. It joined the four party alliance in 1999 with BNP and two other Islamic parties, contested in 31 seats in 2001 and won 17 seats. According to pre-election declaration of the alliance the Jamaat agreed to accept two ministries. It nominated its Ameer Maulana Matiur Rahman Nizami and Secretary General Ali Ahsan Muhammad Mujahid to become ministers. As ministers both of them proved their skill, ability, honesty and integrity.

62. The Jamaat is not only a political party, but it is a social movement as well. The Jamaat has various side organizations working in the field of labour, farmers, education etc. They are:
1. Bangladesh Labour Welfare Federation: 2. Bangladesh Cultivators Welfare Association 3. Bangladesh Masjid Mission

63. Some of the institutions established by the Jamaat are as follows: 1. Bangladesh Islamic Institute
2. Syed Abul A’la Maududi Research Academy  3. Bangladesh Islamic Center
4. Islamic Education Society  5. Islamic Economics Research Bureau 6. Falah-e-Aam Trust  7. Darul Arabia and Darul Iftah 8. Adhunik Prakashani 9. Ideal Teachers Council

All these institutions maintain the principle of transparency and accountability.

64. From the statements made hereinabove, it is clear that Jamaat is a democratic political party. Jamaat’s vision is to establish a democratic and pluralistic society and it denies the allegations in the Formal Charge that it believes in compelling people to accept Islam. In fact, Jamaat considers it to be a social and religious obligation to establish communal harmony. It is an indisputable fact that Jamaat has a large number of non-Muslim members and supporters.

65. Meanwhile the nationalist BNP and the Jamaat formed an alliance with other two parties and won the election. The Awami League and its allies evaluated the situation and came to the conclusion that it was the Islamist forces, particularly the well-disciplined Jamaat which was the main factor behind their defeat and as such made all out efforts to isolate Jamaat from BNP and the four party alliance but failed. It also tried to bifurcate the Jamaat through creating internal feuds but could not be successful. When all their efforts failed they clamped down on the Jamaat by raising the false issue of war crimes against the top Jamaat leadership. When they found it difficult to try Jamaat leaders under the 1973 Act, they made suitable amendments in 2009.

66. The ruling party is determined to destroy the Jamaat. Immediately after coming to power in January 2009, it hatched a conspiracy against Jamaat. Although Jamaat is a lawful party with two Members of Parliament, the office of Jamaat is occupied by the Police. No one can enter or leave Jamaat office without being subjected to scrutiny by the Police.

67. According to latest information over 2000 cases have so far been instituted against more than 30000 Jamaat leaders and workers across the country. Each of the Central Leaders including the Amir and the Secretary General are facing over a dozen false cases including sedition charges. The number of cases lodged against the Jamaat leaders are on the increase. Those who are getting bails from the courts (lower or superior) are mostly arrested on release from the jail gate in connection with another case.
68. That on 28 December 2011 this Hon’ble Tribunal took cognizance of offences under section 3(2) of the International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter referred to as the IC(T)A) against the Accused-Petitioner, stating that the Prosecution had established a prima facie case as required under Rule 29 (1) of the International Crimes Tribunal Rules of Procedure, 2010 (hereinafter referred to as the Rules of Procedure).

69. That the Tribunal ordered the Prosecution to serve the relevant papers and documents on the Accused-Petitioner by 1 January 2012. The Prosecution complied with this order and the Defence received a proposed indictment along with a list of 40 witnesses in support of the Prosecution’s case against the Accused-Petitioner.

70. That subsequently, the Prosecution submitted a further additional charge under section 3(2)(a) of the IC(T)A in relation on 17th January 2012 to the alleged crimes committed against the family of Hazrat Ali. Regarding this additional charge this Hon’ble tribunal on 08.03.2012 passed an order, that is as follows: “So at this stage it is better to keep the petition in the record for decision at the proper time, when the charge, if any, will be made. The instant prayer is thus disposed of with the order to keep it in record for consideration later on.”

71. That the proposed indictment in its final form charges the Accused-Petitioner with 7 (seven) counts of crimes against humanity and 1 (one) count of genocide. In total there are 8 (eight) charges against the Accused-Petitioner.

72. That Rule 37 of the Hon’ble Tribunal’s Rules of Procedure provides: “When the accused appears or is brought before the Tribunal, and if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused and record its reasons for so doing”.

73. There are a number of requirements that must be met in order for an Accused-Petitioner to be sufficiently charged. These requirements are provided for in both domestic and international law. The Tribunal’s own legislative structure provides for certain particulars to be provided for by the Prosecution in its proposed charges against an accused. Section 16 of the IC(T)A provides that:

“Every charge against an accused person shall state-
i. the name and particulars of the accused person;
ii. the crime of which the accused person is charged;
iii. Such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged”.

The use of the word “shall” in section 16 of the ICT(A) indicates that these requirements are mandatory.

74. That the above proposition is supported by Rule 20 (1) of the Rules of Procedure which provides as follows: “At the time of submitting a formal charge in the form of a petition, it must contain the name and address of the accused person, witness, and the date, time and place of the occurrence”.

75. That it is therefore submitted that under the framework provided for by section 16 of the IC(T)A, the purpose of the framing of the charges is to characterize the alleged facts in accordance with the legal elements of a crime so as to provide the Accused-Petitioner with the opportunity to raise his defence. This is a practice developed in criminal proceedings as provided for in section 221, 222 and 223 of the Code of Criminal Procedure. In particular section 221 (5) provides that when a charge is made, it is the “equivalent to a statement that every legal condition required by law to constitute the offence charge was fulfilled in the particular case”. Section 222 of the Code provides that particulars as to time, place and person must be stated in the charge.

76. That both the IC(T)A framework and domestic criminal practice are in conformity with international standards. Under Article 14(3)(a) of the International Covenant for Civil and Political Rights (hereinafter referred to as the ICCPR) which provides for the right to be informed of the charge, states as follows:- “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him (emphasis added)”.

77. That the right under Article 14(3)(a) has been discussed by the Human Rights Committee (hereinafter referred to as the HRC), which is tasked with administrating and interpreting ICCPR provisions. In its General Comment No.32 the HRC stated as follows:- “The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally - if later confirmed in writing - or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based”.

78. That Bangladesh is a state party to the Rome Statute for the International Criminal Court (hereinafter referred to as the ICC). The Hon’ble Tribunal is therefore required to comply with Article 67 (1) of the ICC, which guarantees the above right (described in paragraph 10 above). The Hon’ble Tribunal is also required to comply with the practice of the Pre-Trial Chamber at the International Criminal Court, which has held that the document containing the charges must include the full name of the person and any other relevant identifying information; a statement of the facts; including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial; relevant facts for the exercise of jurisdiction by the Court; a legal characterization of the facts to accord both with the crimes and the precise form of participation (Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 208.).

79. That the purpose of this right provided for in international and domestic law, is to provide the accused with the information necessary for the preparation of his defence in order to uphold fair trial guarantees. It is respectfully submitted that the current charges against the Accused-Petitioner cannot be framed as they provide and rely on both an insufficient legal basis and contain insufficient factual information and as such would result in an unfair trial by both domestic and international standards.

80. That as abovementioned, section 16 of the ICT(A), Article 14(3)(a) of the ICCPR and Article 67(1)(a) of the ICC all guarantee the right of an accused to be provided with reasonably sufficient information of a specific crime with which he is charged detailing the nature and content of the charge in order to give the accused notice of the matter with which he is charged.

81. That it is respectfully submitted that the Prosecution have failed to clarify the specific charges against the Accused-Petitioner. In Events 1, 2, 5 and 7 the Prosecution state that a crime has been committed crimes according to the section 3(2)(a)(g). In Event 4 they submit that a crime has been committed according to section 3(2) (a) (c).

82. That it is noted by the Defence that no such sections exist within IC(T)A. There is a section 3 (2) (a) which refers to a crimes against humanity; a section 3 (2) (c) which refers to genocide and a section 3 (2) (g) which refers to “attempt, abetment or conspiracy to commit any such crimes”. At first instance, the Defence may assume that the Prosecution seeks to charge mode of liability for the commission of crimes against humanity. However, notwithstanding the fact that this is just an assumption by the Defence and not clearly indicated by the Prosecution, there are two further problematic issues.

83. That firstly, if the assumption is correct, it does not account for Event 6 whereby the Prosecution allege that the Accused-Petitioner “committed crimes according to section 3(2)(a)(c)(g) IC(T)A”. The Prosecution has failed to specify which crime is charged as according to the IC(T)A. If the assumption is correct then the Prosecution has charged the same facts as both genocide and crimes against humanity within the same charge. This is a form of duplicitous charging which is prejudicial to the Accused-Petitioner as it fails to differentiate between separate offences within one charge.

84. That secondly, the Prosecution has referred to several offences within one charge and failed to distinguish between the different types of crimes within crimes against humanity. For example, Event 4 details alleged acts of looting, vandalism, rape and torture. This is another form of prohibited duplicitous charging. This was also repeated in the additional charge in Event 8 which cites acts of murder, rape and looting. The Prosecution has merely stated that these events collectively fall within section of the 3(2) IC(T)A but have not specified which crime from the exhaustive list provided within in section 3(2)(a) they are charging.

85. That in Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08 Decision Pursuant to Article 67 (1) (a) and (b) Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, paras 205 and 312), the ICC Pre-Trial Chamber failed to confirm charges of torture and inhumane acts when used in conjunction with the charge of rape with respect to the same act.

86. That as detailed above, duplicitous charging is prejudicial to the Accused-Petitioner as it fails to differentiate between separate offences within one charge. The end result is that any conviction or acquittal of an offence within a multi-offence count will not be recognized which is particularly important at the sentencing stage.

87. That for this reason, it is submitted that as they stand, the charges are unspecific and contrary to section 16 of the ICT(A) and Bangladesh’s obligations under Article 14(3)(a) of the ICCPR. For this reason the Accused-Petitioner prays that Events 1, 2, 4, 5, 6 and 7 may not be framed.

88. That following on from the point above, if the Prosecution are indeed only referring to mode of liability when charging crimes committed according to section 3(2)(a)(g) as in Events 1, 2, 5, and 7 then the Accused-Petitioner is being charged with the inchoate offence of conspiracy. This is an uncompleted crime. The same argument can be used in relation to Events 4.

89. That furthermore, in Event 6, the Prosecution has charged the Accused-Petitioner with crimes committed according to section 3(2)(a) (c) of the Act based on the allegation that he “advised” the Pakistani Army and auxiliary forces. The use of the term “advising” indicates that no actual order was given by the Accused-Petitioner. As a result the mode of liability for the commission of the alleged crime has not been established. The Prosecution have failed to state that the Accused-Petitioner was physically implicated in the alleged crimes committed, nor had the direct authority to order the Pakistani Army and auxiliary forces to commit such crimes. This submission is made in light of Event 7 whereby the Prosecution state that the Rajakars and Biharis were “under the command” of the Accused-Petitioner.

90. That it is submitted that throughout the proposed indictment, the Prosecution has failed to establish the Accused-Petitioner’s authority over the Pakistani Army despite the Pakistani Army being implicated in all 8 charges. Although it is mentioned in paragraph 26 of the proposed indictment that the Accused-Petitioner “formed Al Badr force by recruiting the members of Islami Students’ Society which was at first serving as a private force of Jamaat-e-Islami”, no further information is provided as to when this occurred or what role the Accused-Petitioner played during the Liberation War in 1971. The Prosecution also fails to establish the relationship between the Pakistani Army and the Al-Badr forces.

91. That for this reason, it is submitted that Events 1,2, 4, 5, 6 and 7 may not be framed against the Accused-Petitioner.

92. That in Events 1, 2, 4, 5, 6 and 7, notwithstanding the confusion surrounding the charges (as stated in paragraphs 11-17 above) the Prosecution has charged the Accused-Petitioner with the commission of crimes against humanity. For example, in Event 1 it concerns the abduction and killing of Pollob. In Event 2, it details the killing of Meherunnisa.

93. That however, it is respectfully submitted that the Prosecution has failed to establish why the alleged killings of Pollob or Meherunnisa amount to a crime against humanity and not a single count of murder as recognized under the Criminal Penal Code. The Prosecution has failed to provide any context to the individual killings in either the individual charges or the background information detailed in paragraphs 1 to 27 of the proposed indictment.

94. That the Tribunal will recall that in its order dated 3 October 2011 in ICT BD. Case No. 01 of 2011 in the matter of Delewar Hossain Sayedee, it stated that “the Tribunal may take into account jurisprudential developments from other jurisdictions should it feel so required in the interests of justice”. It further emphasized that “the Tribunal may take into account normative developments should it feel so required in the interests of justice”. This order was made in relation to the alleged charges against Delewar Hossain Sayedee.

95. That it is respectfully submitted that it is in the interests of justice for the contextual elements of crimes against humanity to be established so that the Prosecution, Defence and Tribunal can be certain as to the extent or to which elements must be proven in order to secure either an acquittal or conviction. For this reason the Defence submits that the practice of international tribunals, specializing in crimes against humanity and genocide be taken into account at this stage in order to prevent confusion and delay during trial proceedings.

96. That the ICC has documented the contextual elements of crimes against humanity in its ‘Elements of Crimes, Crimes Against Humanity’, which articulates exactly what is required to be proven in order to convict someone for any of the crimes listed within Article 7 of the Rome Statute. Ambassador Rapp, the US Ambassador for War Crimes, most recently addressed the essential requirement for elements of crimes. In a press release dated 28 November 2011, Ambassador Rapp addressed the conduct of trials before the Tribunal and stated: “First, it is important that the judges, at the first opportunity, define what “crimes against humanity” means. The term "crimes against humanity" has been defined in the statutes and cases of international courts. It has not been defined in Bangladesh. In their charge framing order in the first case, the judges said that they would interpret the statute according to Bangladesh law but look for additional guidance in the decisions of international tribunals. But it is not clear whether the prosecution must prove whether the alleged murders and rapes were committed as part of a widespread and systematic attack against a civilian population; whether they were committed on a racial, religious, or political basis; whether the alleged perpetrators would need to have knowledge of the larger attack. At other courts, the elements of the crimes have been defined by the judges in an early ruling. The same can be done here”.

97. That it is noted that Ambassador Rapp was invited by the Government of Bangladesh in January 2011 to provide recommendations on legislative and procedural issues concerning the International Crimes Tribunal. His observations are therefore of direct concern to the Tribunal and to the proceedings brought against the Accused-Petitioner.

98. That for the reasons abovementioned, it is respectfully submitted that Events 1, 2, 4, 5, 6 and 7 are not framed in the proper form as they do not clarify the necessary parameters for the commission of offences amounting to crimes against humanity.

99. That in Event 3 the Prosecution seeks to charge the Accused-Petitioner with genocide which is a crime under section (3) (2) (c) IC(T)A. This provision specifically states that genocidal acts can only be proven if they have been “committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group (emphasis added)”. It is respectfully submitted that the Prosecution has failed to establish the requisite intent in Event 3.

100. That furthermore, it is respectfully submitted that the Prosecution has failed to identify the specific group allegedly targeted by the Accused-Petitioner. The reference to “liberation loving people” is ambiguous and vague in terms. It is not a determinative group as required under section 3 (2) (c) IC(T)A.

101. That in Event 4 the Prosecution has alleged that the Accused-Petitioner looted and vandalized homes in the Mirpur, Kollanpur and Mohammodpur area. This is charged under section 3 (2) (a) (c). Although there is confusion as to what section 3 (2) (a) (c) relates to (paragraphs 11 to 17 above) it is presumed that this is a charge of crimes against humanity.

102. That the individual crimes that constitute crimes against humanity are detailed in section 3 (2) (a) of the IC(T)A. These include “murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds”.

103. That there is no mention of looting or vandalism within the Act. It may be that the Prosecution intend to categorise looting and vandalizing as “other inhumane acts” which is listed in section 3 (2) (a) IC(T)A. However, to do so would, respectfully, be incorrect. The elements of ‘other inhumane acts’ are detailed in the ICC’s ‘Elements of Crimes, Crimes Against Humanity, Article 7 (1) (k)’ which states that in order for a crime to constitute an inhumane act the perpetrator must have “inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act” (para. 2). The Prosecution has merely stated that looting and vandalism has occurred and has not established the gravity of such acts to fall within the scope of ‘other inhumane acts’. They have omitted to provide any description of what was looted or vandalized; the amounts looted or indeed the effects of the looting and vandalism.

104. That furthermore, if the Prosecution intend for looting and vandalism to be classified as persecution, which is listed in section 3 (2) (a), then an identifiable group needs to be established. Persecution is a crime of discrimination, intended to target a group as provided for in section 3 (2) (a). This is based on Article 6 (c) of the Charter of the International Military Tribunal which includes persecution as a crime against humanity on “political, racial or religious grounds”. This is also established in the ICC’s Elements of Crimes, Crimes Against Humanity, Article 7 1 (h) paras 2 & 3:  “2. The perpetrator targeted such person or persons by reason of identity of a group or collectively or targeted the group or collectivity as such. 3. such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognize as impermissible under international law”.

105. The Prosecution has given no indication as to which groups were targeted by the alleged acts of looting and vandalism. For this reason it is respectfully submitted that as Event 4 stands, it is incorrectly charged and may not be framed against the Accused-Petitioner.

106. That as abovementioned, section 16 (1) of the IC(T)A provides that the charges sought by the Prosecution is required to contain the particulars and facts of an alleged offence as well as the crime of which the accused person is charged in order to “give the accused person notice of the matter with which he is charged”.

107. That it is therefore submitted that in order to determine whether the facts accord with the crime or the form of participation charged, further information must be provided by the Prosecution within the proposed indictment. This is particularly important in light of the fact that the alleged events occurred forty years ago.

108. That in Event 3, the Prosecution charges the Accused-Petitioner with “abducting and killing thousands of liberation loving innocent people”. It fails to provide a schedule detailing a list of alleged victims or an indicative schedule of killings. The same submission applies to Event 4 and the non-specific locations provided for by the Prosecution. The proposed indictment simply states that the crimes occurred in “Different spots of Mirpur, Kollanpur and Mohammodpur in Dhaka” and in doing so the Prosecution has failed to provide a schedule detailing the specific properties alleged to have been destroyed and looted.

109. That these details are required under Rule 20 (1) in order to verify the truth of the fact and the number of victims killed and properties destroyed. It is respectfully submitted that if the Prosecution is unable to provide a comprehensive schedule of victims killed and properties destroyed then the incidents are required to be withdrawn from the count.

110. That the accused-petitioner was simply a student of Dhaka University at the time of liberation war, he was neither Razakar nor an Al-bodor member, the question of being Al-bader member is not also arise at all by the prosecution in the charges alleged him.

111. That the International Crimes (Tribunals) Act,1973 (Act No XXI of 1973) enacted on 20th July 1973, and according to the section 1(3) , it is stated that-“ it shall come into force at once”, but nowhere in this act it is stated that the act has an status of retrospective effect.

112. That it is stated that the entire allegations brought against the accused-petitioner held during the liberation war from 25th March to 16th December 1971. As nowhere in this act any statement of retrospective effect completely absent, so any crime or occurrence which was held during 1971 cannot be tried by this Act.

113. That in the press relies of the Government of Bangladesh on war crime trial (17 April 1973) it is clearly stated that –“Investigation into the crime committed by the Pakistani occupation forces and their auxiliaries are almost complete. Upon the evidence, it has been decided to try 195 persons of serious crimes, which include genocide, war crimes, crimes against humanity, and breaches of article 3 of the Geneva conventions, Murder, rape and arson. ”

114. That it is stated that, the ICT act enacted for trial only 195 specific war criminals of 1971. As such no individual can be tried except those 195 war criminals as specifically defined by the new born Govt. of Bangladesh.

115. That it is humbly stated that an amendment of section 3(1)of ICT Act was held on14th July 2009, in this manner- “A tribunal shall have the power to try and punish any individual or group of individuals or any member of any armed, defence or auxiliary forces”, which only amended with the political motive after 37 (thirty seven) years later, in this amendment there has no specific instruction about its retrospective effect.

116. That it is humbly stated that from prosecution 2992 pages documents, which is consisting of Formal Charge, Additional formal charge, Witness statements and 9 volumes “Forfeited list and documentary evidence” , among all those documents we got 1 page against and about accused-petitioner Abdul Quader Molla at Volume-9, page no.-2761, a news report published on “Daily Bhorer Khagoj” dated 10.11.2007, page-02, Colum-07 and 08. This is not reliable because of the attraction of this news paper to “Yellow Journalism” and tendency of its reporting against Bangladesh Jamat-e-Islami. And also it’s a recent report.

117. That the accused petitioner had never went Mirpur and Keranigong at the time of liberation war, as such those allegation brought against him is false, fabricated and concocted, the object of those allegation is only to harass him with a political motive.

118. That for the abovementioned reasons in this application, the Accused-Petitioner humbly prays that this Hon’ble Tribunal issues an order directing for his discharge.

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