Following reading out its order relating to recusal/transfer, the tribunal then read out its order relating to the application to review the indictment order.
1. The application filed by the Accused, Professor Ghulam Azam, for review of Order No. 25 dated 13.05.2072 under Rule 26(3) of the International Crimes Tribunal Rules of Procedure, 2010 is taken up for order today, which we now read out in the absence of the accused who has not been produced before this Tribunal today on the prayer of the learned defence.
2. This review application was filed by the Accused challenging this Tribunal's Order No.25 dated 13.05.2072 (the indictment order). It was an application for discharge of the accused from the crimes he was indicted by the Tribunal for alleged offences under sections 3(2), 4(1) and, 4(2) of the International Crimes Tribunals Act 1973 Submission by the learned defence counsel on behalf of the accused
3. The learned counsel of the accused Mr Abdur Razzak made the following submissions before this Tribunal in support of the application seeking review of the indictment Order against Ghulam Azam, the accused
4. First, it was submitted by the accused counsel that the said Order indicting the accused has been passed in violation of section 16(1) of the Act and Rule 38(1) of the Rules.
5. The learned counsel. quoted section 16(1) of the Act as follows: "16(1) Every charge against an accused person shall state. (a) The name and particulars of the accused person. (b) The crimes of which the accused person is charged (c) Such particulars of the alleged crimes as are reasonably sufficient to give the accused person notice of the matter which he is charged.
6. The learned counsel also quoted Rule 38(1) of the rules of procedure as follows: ‘If after consideration and hearing under Rule 37, the Tribunal is of opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offences of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.’
7. Relying on the above provisions, the learned counsel for the accused submitted that the charges that have been finally framed against the accused petitioner do not have any legal basis. It was also submitted that they do not contain sufficient factual information which may be considered as sufficient notice of the accused of the charges that have been levelled against him, thus would result in an unfair trial by both domestic and international standard. Elaborating thee point, it was further submitted that a charge is made up of both legal and factual components, but the Order of the Tribunal that finally framed the charges against the accused, failed to specify the particulars of the crime which have been allegedly committed by the accused petitioner, in addition to failing to specify which of the crimes mentioned in section 3(2) of the Act had actually been allegedly committed by the petitioner. Such failure to identify the crimes with which the accused person has been charged amounts to lack of specificity and clarity of the allegations. It was submitted that the particulars of the crimes, such as the place, date and time of occurrence were not stated, and therefore the Indictment Order was passed in violation of sections 16(1) (b) and (c) of the Act
8. Second, the learned counsel of the accused also submitted that the accused has been charged cumulatively on the basis of the same conduct and as such the charge framing order is defective and is liable to be set aside.
9. Third, it was submitted by the learned counsel of the accused that some of the observations made by the Tribunal in the Order are liable to be expunged from record, including for example: 'A number of Auxiliary forces. such as the Peace Committees Razakars, Al-Badr, Al-Shams etc. were set up to assist the Pakistani military in eliminating all those who supported or sympathized with the liberation of Bangladesh, individuals belonging to minority religions groups, especially the Hindus, political groups belonging to the Awami League and other pro-independence political parties, Bengali intellectuals and civilian population of Bangladesh."
10. The learned counsel submitted that whether or not the peace Committee be termed an auxillary force is a contentious issue which may be resolved only upon evidence. Therefore, without taking that evidence, there is no scope for the Tribunal to conclude that ‘the auxiliary forces were set up for eliminating minority religious group and the Hindus and political groups belonging to the Awami league.' The aforesaid conclusions are not supported by the evidence of record and as such should be expunged.
11. The learned counsel further referred to the said order wherein under the title The Accused it has been stated that the place of birth of the accused petitioner is Bitgaon, Nabinagar, Brahmanbaria, although the Accused petitioner was in fact born in Dhaka. He prayed for correction of the same.
12. The learned counsel also draw attention to another part of the order wherein it was stated that "At the time of the Liberation war under his leadership, all the leaders and workers of Jamaat-e-Islami and its student wing Islami Chaatra Sangha opposed the Liberation movement. At that time, Jamaat-e-Islami became an auxiliary force of the Pakistan army and since he was the Amir of Jamaat-e-Islami, he not only controlled the organizational framework of Islami Chaatra Sangha, but played the pivotal role in forming the Shanti Committee, Razakars, Al Badar, Al-Shams etc’
13. It was contended that the above statement being a contentious one cannot be made without taking evidence. The learned counsel argued that Jamaat-e-Islami and Islami Chatra Sanga were separate entities and that there is no scope for the Tribunal to remark that these two organizations were under the leadership of the accused-petitioner, and that they opposed the liberation movement.
14. The learned counsel draw attention to the observation of the Tribunal in the Order where it was stated that the ‘Jamaat-e-Isiami became an auxiliary force of the Pakistan Army'. Such a remark of the Tribunal was contended by the learned defense counsel that there is nothing on record to establish that Jamaat-e-Islami was placed under the control of the Pakistan Arrny for operational or administrative purposes as there exists no legal instrument placing Jamaat-e-Islami under the control of the Pakistan army and as such the observation of the Tribunal is liable to be expunged.
15 The learned defense counsel further submitted that the observation that the accused petitioner 'not only controlled the organizational framework of Islami Chaatra Sangha, but played the pivotal role in forming the shanti committee, Razakars, Al-Bar, Al-Shams is also not supported by the evidence on record. It can only be resolved by taking evidence as such the observation of the Tribunal is liable to be expunged.
16. In the said title of the Order, the learned defense counsel submitted, observation has been made regarding involvements of the accused in the formation of East Pakistan Restoration Committee in 1971 in the following matter: 'In the first part of 1972, he formed a committee named Purbo Pakistan Punoruddhar Committee (East Pakistan Restoration Committee) as part of his campaign to restore East Pakistan. As a leader of this committee up to March 1973, he tried to create sentiments against Bangladesh in the Islamic countries of the Middle East and campaigned internationally against recognizing Bangladesh as an independent and sovereign State. He left Pakistan for London in the middle of 1973 and set up the head office of Purbo Pakistan Punomddhar Committee there. He also published a weekly newspaper name shonar Bangla in London which propagated against Bangladesh. He visited Saudi Arabia in March 1975 and met King Faisal where he also canvassed against Bangladesh. He told the King that Hindus had captured East Pakistan, Qurans had been burnt, Mosques had been destroyed and converted into Mandirs and many Muslims had been killed. On the basis of this propaganda he collected funds from the Middle East in the name of re-establishing mosques and madrashas.”
17. The learned counsel of the accused stated that the above quoted observations by the Tribunal are categorically denied by the accused-petitioner Ghulam Azam. The learned counsel argued that the accused had no involvement in the formation of thee East Pakistan Restoration Committee. All these statements made above are denied which are essentially the Prosecution's versions of historical events and thus should not be quoted in the Indictment order.
18 The learned counsel of the accused further submitted that the statement relying on Misbahur Rahman Chowdhury, a prosecution witness, regarding an alleged meeting of the accused with King Faisal of Saudi Arabia should be expunged as the same cannot be accepted without the witness being placed under cross-examination.
19. The learned counsel contended that the observation of the Tribunal that the 195 Pakistani prisoners of war who were military personnel were allowed to return to Pakistan due to 'political reason' and that they were handed over to the pakistani Government with the understanding that the Pakistan Government will try them does not have any support in the text of the Tripartite Agreement, which is also known as the Delhi Treaty of 1974. As such, such a statement is also liable to expunged.
20. The learned defense counsel also contended an observation in the Indictment Order regarding Awami League's electoral victory in 2008 wherein it was stated: 'Responding to the overwhelming demand for justice, the Awami League incorporated in its Election Manifesto the pledge to initiate the long overdue justice process, which made all the difference in the General Election that followed, resulting in a landslide victory of the parry.’
21. The learned counsel argued that 'all the difference in the General Election that followed' cannot be said to be a direct result of the inclusion of the pledge to hold the war crimes trial in the Awami League's electoral manifesto Moreover, it was contended that the observation 'regardless of their affiliations, political or otherwise' is a contentious. Thus, the learned counsel prayed both statements be expunged.
Submission by the prosecution
22. In reply to the submissions made by the learned counsel for the accused petitioner, Mr. Zeal Al-Malum, the learned prosecutor submitted that the same submissions were presented by the learned defense counsel, namely, in their earlier Petition for discharging the accused, and also during the charge hearing. The learned counsel for prosecution contended for the Tribunal has already heard the arguments of both prosecution and defense on the points which the learned defense counsel has raised anew in the present application. The learned counsel for prosecution also submitted that only upon considering all these arguments raised at least twice before in this Tribunal in the present case, the Tribunal went ahead framing the Final Charge (i.e the indictment order ) against the accused professor Gholam Azam which effectively makes them settled matters. Therefore, due to the matters being already settled by the tribunal the current review on application by the accused petitioner is not maintainable.
23. The learned counsel for the prosecution also submitted that the Tribunal formulated the final charges upon consideration of the materials available in the records and there being no illegality in such framing of charge, the same cannot be reviewed.
24. Regarding the prayer of the accused-petitioner for expunging certain observations from the Indictment Order, the learned counsel for prosecution submitted that the Tribunal has made those observations on the basis of the materials on record and the defence is at liberty to adduce evidence against those observations, but only during the appropriate stage of the Tribunal when evidences will be formally presented, admitted and appraised. If such evidence pass the test of the trial and are accepted the law will take its own course as it is bound to but the learned defence cannot simply demand at this stage that the observation are ‘wrong’, ‘denied by accused petitioner’ ‘contentious’ etc and thus liable to be expunged. The learned counsel further argued that the same should apply to materials which are placed on record for judicial notice.
25. With that, the learned counsel for prosecution end his submission adding the plea that the Review Application by the learned defence counsel be rejected as being repetitious arguments on matters that have already been raised and settled and also as being matters that should be more appropriate to raised and contended at the evidence taking stage of the trial.
Obervations of the Tribunal
26. We have heard the learned counsel for the accused petitioner and also the learned prosecutor. At the outset, the learned defense counsel raised three different lines of arguments to seek review of the Indictment Order of the Tribunal. They are: one, the framed charges against the accused are not clear or specific enough to give the accused sufficient notice; two, the accused has been cumulatively charged for the same set of facts and circumstances with offences under different heads of crimes under the Act; three, observations and statements have been made in the Indictment order which are contentious and thus liable to be expunged.
27. The charges framed are clear enough and the alleged involvement of the accused person in the crimes has been duly stated, including the particulars of those alleged crimes, as are reasonably sufficient at this stage of the trial in giving the accused person sufficient notice of the alleged offences with which he is charged. Therefore, the all 5 (five) cluster of charges have been duly framed considering different counts of activities of the accused person.
28. In charge no.1 the charge of committing conspiracy to commit the crimes specified the section 3(2) of the Act has been stated and in support of conspiracy 6 (six) occurrences have been stated. It has also been alleged that for committing conspiracy by the accused person as a result of which different crimes of section 3(2) of the Act were committed in all over Bangladesh. The Tribunal is within its power under the International Crimes Tribunal Act 1973 to take judicial notice of well established historical facts that offences of crimes against humanity, genocide etc were indeed committed during the war of liberation of Bangladesh in 1971. And those have been categorized in section 3(2) of the Act and committing crime of conspiracy is also an offence under section 3(2) of the Act and the accused person has been charged under section 3(2)(g) for committing crimes conspiracy specified in section 3(2) of the Act read with section 4(1) and 4(2) of the Act. It is stated that if the offences stated are committed by several persons and if such persons are liable for that crime, then anybody of those persons are liable for the same crime and that any commander, superior officer is liable for commission of the offences by persons under his command or his sub-ordinates and as such the charge no.1 has clearly been stated, how he committed the offence of conspiracy to commit the crimes and how he is charged also under section 4(1) and 4(2) of the Act. There is no ambiguity or vagueness in the framing of charge no. 1.
29. Similarly charge no. 2 the charge for planning to commit crimes specified in section 3(2) of the Act has been stated and all the requirements of framing of charge under section 16(1) of the Act has been complied with. The said charge contained 3 occurrences. Charge no. 3 relates to commission of the offence of incitement to commit crimes under section 3(2) of the Act and 25 (twenty five) occurrences have been stated which prima facie establish that the accused has committed the offence of incitement to commit the crimes and other offences as mentioned in the order.
30. Charge number-4(Four) relates with 23 occurrences to establish his complicity in commission of the crimes specified in section 3(2) of the Act and charge number 5(Five) specific involvement of the accused person in the murder and torture as crimes against humanity under section 3(2) of the Act and other section. In all the charges the offences have been clearly stared. The section of the Act by which he is charged has also been stated and allegations have been stated in such manners that the accused gets clear notice on the allegation brought against him. And he can very well prepare himself for his defence and thus the requirement of section 16(1) of the Act having been complied with in framing of the charges and the allegations are based on materials available in the records. We do not find any reason to allow review of any of the charges.
31. The learned defense counsel's contention that the Indictment Order is liable to be set aside due to cumulative charging of the accused-petitioner under different heads of offences involving circumstances arising out of the same set of facts is patently flawed. It is well settled practice that the same set of facts can attract criminal liability under different heads of crimes when applying their definition and elements involve circumstances that are grounded in interconnected and/or adjoining set of events or event that are built on each other. In such type of charging it is the definition and elements of crimes under different heads that dominate such initial determination, with the factual circumstances providing the backdrop. Also at a stage of the trial when evidences have not yet gone though rigorous scrutiny by the prosecution and defence in the form of examination and cross-examination, it is neither prudent nor possible to limit the scope of judicial determination of guilt or innocence pre-emptively, as that will not serve the interest of' justice. We need to remind all parties that the core/purposes of this Tribunal is to determine the truth of the offences that have been committed, as well to determine the extent of guilt or innocence, and that can only be conclusively determined through judicial appraisal of evidence at the final stages of the trial when the Tribunal may convict an accused for a higher offence or a lower offence or for both, or even acquit an accused, depending on the content and strength of evidence. As such, the prayer to set aside the Indictment Order on the ground of cumulative charging is rejected.
32. As grounds for expunging certain statements from the Indictment Order the learned defence counsel relied on two broad sets of arguments, namely: first, that the accused petitioner has denied them to be accurate, and, second, that these statements can only be made after appraisal of evidence (e.g., through cross-examination).
33' This Tribunal is of the opinion that mere denials of the accused at this stage do not amount to nullify the evidence where there are volumes of works on history that state the contrary. However, the remarks made in the indictment order are not meant to be conclusive statements of fact. They merely demonstrate that these are contentious issues and that there is a case to answer. It is only after complete admission of evidence and their appraisal during the course of the trial that the accuracy of any observation can be conclusively determined.
34. The learned defence counsel should be aware that Indictment orders or final charges" are not conclusive testimony of guilt or culpability of an accused, "Judgment or Acquittal orders" are. Indictment orders are simply a conduct through which accuracy of evidences proving or disproving the guilt or innocence of an accused person is finally determined. Therefore, the Indictment order in Professor Ghulam Azam's case is exactly what it presents itself to be, that is, a chronicle of allegations and statement, in support of those allegations, which the Tribunal, on balance, finds adequate reasons to put under judicial scrutiny through the process of a trial For that purpose, an Indictment order simply pinpoints the set of allegations and the surrounding circumstances of the alleged crimes in order to facilitate and initiate formal evidence taking and their judicial appraisal. The learned defense counsel's submission that such statements cannot even be made in a document (i.e., an Indictment order) as part of construction of alleged crimes, is simply irrational, and legally unsound. Such a submission by the learned counsel is also premature in that they should actually be raised, if at all, at a later stage when full scale evidence taking will commence before this Tribunal.
35. The learned defence counsel's contention that claims (e.g, regarding King Faisal) made in the Indictment Order should not be included until they are scrutinized under cross-examination is riddden with misconception about the stages of the trial before this Tribunal. The stage of the Indictment, regarding which the contended Order is about, precedes the evidence taking stage of the trial and the issue of cross-examining a witness strictly belongs to that evidence taking stage. The submission by the learned defence counsel is not only unfortunate but is also unhelpful to the justice process, given that the learned counsel for defence being an officer of the court is duty bound to uphold the law and raise only arguments that are legally correct. lt is also a flawed argument by the learned defence counsel that a witness's testimony cannot be taken into account without being cross-examined first, also because every allegation included in the Indictment Order is reflective of either a witness testimony or a piece of document, obviously to be scrutinized further at a later stage of the trial. It is the Tribunal's duty to take into account these allegations in the witness testimonies and include them in the Final Charges and not wait until the cross-examination stage of evidence taking. This is how the stages of the Tribunal are set out by law and it will not be re-written just because the learned counsel feels it should be. However, it needs to be stressed that the Tribunal takes its obligation under the law very seriously when dealing with such witness statements indicating that there is a prima facie case or that there may be a case to answer by the accused.
36. We have based our observations on the material submitted in prosecution and on admitted facts applying our authority of judicial notice. If the observations are disputed by the learned defence, then they can adduce evidence in support of their submission, but at this stage, we do not find any reason to deviate from our observation and as such those cannot be expunged. It is well established that Rajakars, Al-Badr and Al-Shams etc were auxiliary Forces. With regard to the question regarding inclusion of Peace Committee on the list of auxiliary forces the defence will be free to Present evidence to the contrary in the course of the Trial.
37. Similarly whether Jamaat-e-Islami was an auxiliary force in 197 is also a matter which depends on evidence. It is a fact that Jamaat-e-Islami and Islami Chatra Sangha were separate entities and it is also well known that Islami Chata sangha was de facto the student wing of the Jamaat-e-Islami. It is also well established that Professor Golam Azam was Ameer of East Pakistan Jamaat-e- Islami in 1971, and it is a historical fact that all of them opposed the liberation movement and as such the Tribunal observations that it was under the leadership of the petitioner that both Jamaat-e-Islami and Islami Chaaa Sangha opposed the liberation movement cannot be expunged at this stage.
38. As regards the observation that Jamaat-e-Islami became an auxiliary force of the Pakistan Army, it is only evidence which can establish that whether it was auxiliary force or not and as such that will be considered at the proper time but not now. Some statement have been made in the order which the accused petitioner denied contending that if those can only be resolved by taking evidence. At this stage expunge those observations is unnecessary as there will be ample scope to determine their correctness during evidence taking
39. As regards the subsequent activity of the accused petitioner after the liberation of Bangladesh, it is admitted fact that he was in England and then in Saudi Arabia and we can take judicial notice that he acted against the interest of Bangladesh Government. If it is established on evidence that he was not involved in publication of Sonar Bangla from London then that too will certainly be considered.
40. The statement of his discussion with King Faisal is based on recorded testimony of one prosecution witness before the investigation authority, as such supported by prosecution materials. This observation of the Tribunal cannot be expunged at this stage only because the accused denies this as there will be more fitting occasion to disprove the claim during evidence taking. Therefore, we see no reason to pre-emptively expunge the statement when there remains the scope to determine its correctness at the evidence taking stage.
41. As regards the statement that the Pakistani prisoner of war allowed to retum to Pakistan upon the understanding that the Pakisan Government to try them is also not expungable because this statement has no affect whatsoever on the case of the accused and poses no threat of prejudice to the accused. Moreover, as regards the observation of the order regarding result of general election, it is a fact that it was in the manifesto of the Awami League that they will try the perpetrators of 1971 which was not there in earlier manifesto and this time Awami League got overwhelming victory. And as such the observation in this regard all the difference in the general election that followed cannot be unwarranted. The Tribunal finds no reason to expunge this statement. The Tribunal was established on 25.03.2012 and. to prosecute the international crimes committed during 1971 through a process of investigation of individuals alleged to have committed these comes regardless of of the fact that the learned defence might have a plea that accused persons are being tried for their political affiliation. But the Tribunal does not have any material that just only for political affiliation the accused person has been implicated. Rather the activities of the accused person were mentioned and upon investigation it was found that in 1971 they committed offences under the Act and as such this observation cannot be expunged. With this, the application having no merit stands rejected.