2 April 2012: Mujahid charge framing response 1

Munshi Ahsan Kabir, the defense lawyer set out his discharge application involving Mujahid. This follows on from the prosecution application seeking to frame charges against him

3. That it is stated that this Honorable International Crimes Tribunal-1, Dhaka by an order dated 26.01.2012 was pleased to take cognizance of offences under sections 3 (2), 4 (1) and 4 (2) of the International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter: IC(T)A) against the Accused-Petitioner, stating that the Prosecution had established a prima facie case as required under Rule 29 (1).

4. That the Hon’ble Tribunal ordered the Prosecution to serve the relevant papers and documents on the Accused-Petitioner by 1st February 2012. The Prosecution did comply with this order and the Defence did receive a proposed indictment along with a list of 44 witnesses in support of the Prosecution’s case against the Accused-Petitioner. The proposed indictment in its final form charges the Accused-Petitioner with a total of 32 charges.

5. (a) That the accused petitioner born on 1st January 1948, he learned his primary education under the tutorship and guidance of his father, renowned scholar and religious saint of the region. The accused petitioner later formally admitted in Faridpur Moijuddin High School and then Faridpur Zilla School. After completing his Secondary education he was admitted into Rajendra College and completed Higher Secondary and graduation degree from the same institution. He obtained MA in Political Science from Chitttagong University.

(b) That the accused petitioner started his professional career as the principal of the Narayanganj Adarsha School. Right now, he is discharging his duties as the chairman of the Bangladesh publications. He is also the chairman of the Bangladesh Publications. Before being arrested, he was discharging his duties as the editor of English weekly named ‘The Rising Sun’.
(c) That the accused petitioner joined Jamaat-e-Islami after completion of his student life. He served as Ameer of Jamaat-e-Islami Dhaka City Unit as well as a member of the Central Executive Committee from 1982 to 1989. He also served as Assistant Secretary General of Jamaat-e-Islami from 1989 to 2000. On 8th December, 2000, he became the Secretary General and since then he has been successfully discharging these duties.

(d) That the accused petitioner from 16th December 1971 to the mid of the 1972 lived in Dhaka. Later, he left Dhaka for Narayanganj. The petitioner got married in 1973. His wife is his maternal cousin. His maternal uncle who became later his father-in-law lived in Narayanganj. Just after the independence, the petitioner started to live initially in Faridpur and Narayanganj, but mostly in Narayanganj at the house of his maternal uncle. The petitioner’s father in law was a high official of the fire brigade and civil defense in Narayanganj district. The petitioner, even after his marriage lived for several years in Chashara of Narayanganj. The accused petitioner was workless for several years. During this period, he was taking preparation to take part in MA exam in private; besides he was also carrying effort to establish a school over there. Finally on 14.01.1975, he along with some other local peoples, established Narayanganj Adarsha School. The accused petitioner lived in the district till 1981 and worked hard to manage students and to ensure their accommodation facilities. He served as the principal of the school from the year 1977 to 1981. In 1977, the petitioner attended the MA exam from the Chittagong University. He left Narayanganj finally for Dhaka when Jamat got official recognition as a political party. But, by this time, up to class 10 of the school started to function. It should be mentioned here, the petitioner became the father for the first time in 1974. In the same year, his father late Maulana Abdul Ali went to Saudi Arabia to perform Hajj. But Maulana Abdul Ali died over there while taking part in the Hajj rituals. His body was buried at the Jannatul Mawa, just by the side of the graveyard of Bibi Khadiza (R). Prior to his burial, his namaj-e-Janaja was held in the premises of the Holy Kabaa. In the meantime, the accused petitioner also became engaged with various academic and social activities in Faridpur as well. He played a vital role in establishing Baitul Mokaddam mosque, school, complex, Muslim Mission orphanage and Arambagh orphanage in Faridpur.

6. That the learned chief prosecutor of the International Crimes Tribunal, Dhaka submitted the formal charge against the accused petitioner on 16 .01.2012 alleging inter alia that he has committed offence under Section 3(2), 4(1) and 4(2) of the International Crimes Tribunal Act 1973. The Prosecution story relates to the accused petitioner, inter alia, is as follows:

The Indian sub-continent came under British rule following the defeat of Nawab Shirajuddowla to British forces at the Lakkabad of Poliashin on 23rd June 1757. The people of this continent then carried a struggle with their aspiration to get free from the autocracy of the foreign invaders. At one stage of this century-long struggle, Pakistan and India two separate states were emerged on 14th and 15th August of 1947 based on the spirit of two-nation theory. After analyzing the backdrops of the liberation war of Bangladesh, history relevant documents and news papers, it has been appeared that, the state of Pakistan was formed consisting two separate territory named East Pakistan and West Pakistan. The distance between these two territories was around 12 hundred miles. Pakistan was established to preserve the interest of the Muslim communities of the East and West Pakistan. But, practically from the initial stages, a sectarian group of West Pakistan captured the central power and most of them were land lord, more precisely Panjabi land lord. From the beginning of the new state, the rulers of West Pakistan carried their repression and discrimination by suppressing the basic rights of the people of East Pakistan. The inhabitants of East Pakistan became the worst victim of those tyrannical rules in all sectors including education, job, trade and commerce, industry, social welfare, budget, foreign business and foreign currency based development projects, donor aid, agriculture and power and electricity. East Pakistan remained under insecurity during the war between India and Pakistan in 1965. In this backdrop, prior to a conference of the opposition leaders of the West Pakistan on 6th February 1966, the pro-people leader of the East Pakistan Sheikh Mujibur Rahman placed the historic 6 points at the subject committee meeting in Lahore on 4th February. He boycotted the conference and returned to Dhaka as the pro-Islamic leaders of Pakistan rejected his proposals. Then he placed his 6 points again at the working committee meeting of Awami League on 21st February. Following the move, the rulers of West Pakistan bolstered their repression and as a part of it, a new case named Agortola Conspiracy case was filed at the beginning of the year 1968, keeping Sheikh Mujibur Rahman as the principal accused. Massive movement launched consequently with the demand of withdrawing this intentional cases and against the West Pakistan conspiracies, those were made to foil the interest of the Bengali of the East Pakistan. This movement created an upsurge across the East Pakistan. Facing that mass movement, the West Pakistani rulers were compelled to withdraw Agortola Conspiracy case and to release Architect of Independent Bangladesh Sheikh Mujibur Rahman and other accused on 22nd February of 1969. Later, appearing as the uncontroversial leader of East Pakistan, Architect of Independent Bangladesh Sheikh Mujibur Rahman called for a massive movement based on 6 points claiming the Right of Self Determination and the 11 points, which had been placed by the all party student movement committee. The Southern region of Bengal became widely affected by the cyclone that hit the area on 12th November, 1970. The entire life of the locals became shattered. Thousands of people became homeless and bankrupt by that cyclone and high tide. The role of Yahia government testifies their reluctance towards the impoverished people of this locality. In this circumstance, the election of general assembly held on 7th December 1970 and the provincial election followed that on 17th December. In the national assembly election, Awami League owned 167 seats including the 7 women reserve seats in East Pakistan. While, the Peoples Party secured victory in 88 seats and 5 women reserve seats in West Pakistan. Despite the Awami League gained outright majority in the general elections, the then military rulers of the West Pakistan denied to hand over power and plotted manifold conspiracies. As its consequence, President Yahia Khan suspended the session of the National Assembly scheduled on 3rd March in an announcement on 1st March 1971. On 15th March 1971, Architect of Independent Bangladesh Sheikh Mujibur Rahman announced 35 points declarations for the people of East Pakistan including the announcement of autonomous rule. In the meantime, Yahia Khan arrived at Dhaka and started a formal dialogue with Architect of Independent Bangladesh on 19th March. Mr. Bhutto consulted the facts with Yahia coming into Dhaka on 21st March. Yahia also hold an informal meeting with Architect of Independent Bangladesh. Yahya Khan adjourned the inaugural session of the National Assembly scheduled on 25th March intentionally on 22nd March. In the guise of these formal discussions, as a part of their secret plan, the authority of the West Pakistan reinforced huge amount of military forces in East Pakistan. President Yahia left Dhaka secretly on 25th March after giving the instruction to implement the pre-planned conspiracies to demolish and repress the Bengals. Architect of Independent Bangladesh declared the independence following the midnight crackdown of the Pakistani forces. Just immediate after the declaration, the Pakistani authority detained Architect of Independent Bangladesh and took him into West Pakistan. The elected representatives of the East Pakistan declared the independence formally at Mujib Nagar on 10th April 1971. At one stage of that struggle, the nation of Bengali achieved victory on 16th December following the surrender of the Pakistani forces before the joint command of the Freedom fighters and Joint force.

7. That the learned Prosecutor further submitted that the Pakistani invading forces killed millions of people, raped thousands of women and carried inhuman torture and repression against the people of Bengals with the assistance of Auxilaries Forces like, Rajakar, AL Badr and Al Shams. It is further stated that the Pakistani forces initiated a military crackdown from 25th March 1971, through Operation Searchlight and it continued for 9 months till 16th December, when the Pakistani forces surrendered before the joint command of the Freedom Fighters and Joint Force. From 25th March to 16th December 1971, Pakistani forces committed various crimes under section 3 (2) of the International Crimes (Tribunals) Act, 1973 including crimes against humanity such as murder, genocide, conversion, enslavement, deportation, imprisonment, hostages, abduction, confinement, tortures, rape, persecution, arson and looting.

8. That it is stated that the abovementioned historical background submitted by the learned Prosecution is a picture of one side. There is other side on the coin. The learned Prosecution has failed to point out the malign policy of our neighbouring country India to divide Pakistan into two parts. The learned Prosecution did not mention the reasons in the formal charge that why Jamaat-e-Islami, Muslim League, Nezam-e-Islam party, PDP under what circumstances they played a silent role during the glorifying liberation war of Bangladesh. The learned prosecution also did not disclose the information that these parties particularly Jamaat-e-Islami always urged the then Pakistani rulers to hand over power to Awami League who gained outright majority in 1970 election. The Prosecution also categorically avoided the statements and address of the leaders of these parties, what they had delivered against the torture and inhuman crackdown of the occupying Pakistani forces.

9. That Jammat-e-Islami was a democratic party and it vehemently opposed the tyrannical role of the Pakistani rulers. But despite the fact, the party could not take part in the liberation war apprehending the aggression of the neighboring India. Jamaat-e-Islami could not take part in the liberation war due to some significant reasons, which are given below:

a) Jamaat was not in a position to participate in the war of independence actively due to some ideological and political differences
b) Historically India played a hostile role against the then Pakistan and this is why, Jamaat-e-Islami never considered India or India’s interference positively and logically. They apprehended that, whether erstwhile East Pakistan is going to be ruled by Delhi instead of Rawalpindi.
c) Jamaat thought and believed that, the majority of the population of Pakistan lived in the East Pakistan and their dominance and control over the region could be ensured by establishing democratic system
d) The party thought that, unity of Pakistan is necessary to resist the Indian aggression
e) Indian dominance will put the East Pakistan under more economic discrimination as to establishing a balanced economic ties with a larger country like India would be impossible for the people of this region
f) Jamaat was keen to establish Islamic law and regulations in the state as Islam is the only guarantee to secure peace, stability, equality, human and fundamental rights and to remove any kind of discrimination irrespective of religion, race or color and geographical demarcation.

10. That the history and the real picture of the contemporary politics and the role of Jamat-e-Islami is as follows:

11. That Jamaat was formed in August 1941 in a convention called at Lahore by Maulana Syed Abul A’la Maududi, a renowned Islamic scholar. 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:

a) Islam is a complete code of life.
b) Those who are ready to accept this ideology must be organized and trained up according to that ideology.
c) The people, thus trained up, should strive to change the un-Islamic leadership and to establish Islam in the society

12. That it is stated that during the British period (1941-1947), Jamaat concentrated in the following activities:
a) To organize Islamic research for producing necessary books in various aspects of Islam.
b) To widely propagate the teachings of the Quran and the Sunnah and to spread basic Islamic knowledge with a view to removing intellectual slavery and stagnation.
c) 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.

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

14. That after the establishment of Pakistan the Jamaat studied the policies of the then ruling party and realized that they were not 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 recognised 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.

15. That 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. Jamaat was also banned by the then military rulers of Pakistan along with other political parties.

16. That 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.

17. That 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 remained 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.

18. That 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 to develop the 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 some 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.

19. That 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.

20. That 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. Professor Ghulam Azam, the then Secretary of East Pakistan Jamaat-e-Islami, was given the executive responsibilities of COP in the first month of its operations. 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.

21. That 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 points formula. Advocate Abdus Salam Khan was appointed PDM’s East Pakistan President, while Professor Golam Azam was appointed as PDM’s East Pakistan Secretary.
22. That 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 points 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. Professor Golam Azam was nominated as one of the representatives of Jamaat-e-Islami to attend the Round Table Conference in Rawalpindi. Jamaat-e-Islami played a very active role in the activities of DAC. Eventually, following a mass movement, Ayub Khan, on 24th March 1969 resigned as President of Pakistan.

23. That 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 Jamaat-e-Islami was however able to win one seat in Bogra in the Provincial elections in 1970.

24. That despite the victory and outright majority of Awami League in the 1970 election, the then Pakistani rulers did not hand over power to the winner Awami League. 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 then Jamaat leaders on 17th March 1971 urged 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 liberation war. Bangladesh emerged as an independent country in December 1971.

25. That Jamaat-e-Islami along with Awami League and other parties carried a movement against the repression of the then Pakistani government. They also took part in the movement demanding the release of Sheikh Mujibur Rahman from the Agartala conspiracy case. Pakistan witnessed the last democratic election in 1970. Awami League gained an outright majority in that election. But Pakistani contemporary rulers did not hand over the power to them. Historical fact is, the Jamat leaders including its chief Professor Golam Azam had delivered several statements and played an active role demanding the peaceful transition and hand over of power to the Awami League under the leadership of Sheikh Mujibur Rahman.

26. That Islami Chhatra Shangha as a student organization did not support the atrocities, genocide, rapes or murder, which were committed by the occupying Pakistani foces as their aims and working perrifirries were completely different. The aims and objectives of Islami Chhatra Shangha were to seek Allah (SWT) by moulding entire human life in accordance with the code, bestowed by Allah (SWT) and exemplified by His Messenger (Peace be Upon Him).

27. That the programs of Islami Chhatra Shangha are as follows:
a) To convey the message of Islam to the students, to inspire them to acquire Islamic knowledge and to arouse in them the sense of responsibility to practice Islam in full.
b) To organize the students prepared to take part in the struggle for establishing Islamic way of life within the fold of this organization.
c) To take effective steps to impart Islamic knowledge to the students organized under the organization, to make them men of character, capable of braving all the challeneges of the Jahiliah (prejudices and supersititions) and thus proving the superioriority of Islam.
d) To struggle for changing the existing system of education on the basis of Islamic values to groom up ideal citizens and to launch the struggle for solving the genuine problems of the students.
e) To make an effort to resolve the lacking of the mass students and to fulfill the justified demand of the students.
f) To strive for building up an Islamic society for freeing humanity from all forms of economic exploitation, political oppression and cultural servitude.

28. That Islamic Chhatra Shangha was a student organization and was functioning to address the student related affairs only. It was a very small organisation. As the war began, the students were scatterd and lived in different parts of the city. The leaders of ICS sometimes gathered together for the freedom of assembley as per the decision of the student organization. The situation of the country was so bad that leaders were hidden and left out Dhaka and committee was radically changed due to unavoidable circumstances and within just 10 months, the accused petitioner became the president of the Islamic Chhatra Shangha. If the organization was that much strong, a man cannot be promoted to the highest level post of the organization.

29. That Islamic Chhatra Shangha was completely an independent student organization. It was separate in structure. ICS conducted activities independently; they could fix their organizational policy following internal consultation. They were not bound to be accountable before Jamaat for any of its decision. On the other hand, there was no scope from ICS to influence over the Jamaat-e-Islami, particularly in taking decisions. It is not justified to hold ICS for any particular role/decision of Jamaat. ICS was a student organization, mostly carried activities among the student community.

30. That when the accused petitioner took the charge as the president of the East Pakistan Chhatra Shangha, it had only 125-130 members across the country. The accused petitioner also became confined and his movement became limited within the city of Dhaka. The accused petitioner became the president of Chhatra Shangha in the month of October in 1971. The nation was experiencing war at that time. So naturally, the transportation management of the country was severely disrupted. The organization had not spread into all districts and the leaders were also passed the days amid fear and panic. The volume of ICS was not so big and its leaders were not renowned. So even, the then prominent student leaders, Nur-e-Alam Siddique, ASM Abdur Rab, Abdul Kuddus Makhon, Shajahan Siraj, Rashed Khan Menon, Motia Chowdhury or Tofael Ahmed were not familiar with the name of the accused petitioner.

31. That 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, after the constitution amendment allowing functioning of religious political parties, in May, 1979 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.

32. That 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 then Chief of Army, Lieutenant General Hussain Mohammad Ershad. On 24th March 1982, Ershad declared Martial Law and suspended the Constitution. 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 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-members 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 the residence of several Awami League leaders including the house of late Abdus Samad Azad, the former foreign Minister of the Government of the People’s Republic of Bangladesh. In those meetings were generally attended by the then Awami League leadership, Sheikh Hasina, Tofail Ahmed, Abdus Samad Azad, Amir Hossain Amu, Mohammad Nasim and others engaged in discussions with Motiur Rahman Nizami, Ali Ahsan Md. Mujahid, the present petitioner, Mohammad Kamruzzaman and Abdul 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 government. It should be mentioned here that, the accused petitioner had a good and trustworthy relationship with the incumbent Prime Minister Sheikh Hasina. During the movement against autocratic Ershad and later during the movement for caretaker government, the accused peititoner maintained a regular telephonic conversation with the Awami League President. The petitioner was also like a family friend to the Prime Minister as he had an intimate relationship with her husband, late Dr. Wazed Ali Mia.

33. That 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.

34. That 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) called on 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-e-Islami 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.

35. That in October 191, former Chief Justice, Mr. Justice Badrul Haider Chowdhury met Professor Golam 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 Mr. Abdur Rahman Biswas, who later became President of Bangladesh.
36. That following the controversial Magura by-election 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 Government. 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.

37. That in the general election of 1996 the Jamaat won only 3 seats. It joined the four party alliances 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.

38. That 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.

39. That from the above-mentioned statements, 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 associate members and supporters.

40. That 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. When all their efforts failed they clamped down on the Jamaat by raising the false issue of war crimes against the top Jamaat leadership.

41. That the ruling party Awami League and its alliances are 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.

42. That according to latest information over 2000 cases have so far been filed 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 numbers 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.

43. That it is stated that the accused petitioner was simply a student leader during the Independence war. He was neither a Rajakar nor an Al-Bader member. So, the question is to be Commander of AL-Bader does not arise at all. He was not involved with the crimes as alleged by the Prosecution in any manner whatsoever, rather he was in fear as the non-bengali East Pakistani people did not believe them, the Pak Army also did not believe them as bengali speaking persons did not trust them at all. Be it mentioned that in 1971, ICS Dhaka district Secretary Mr. Abdul Hoque and Secretary of Dhaka Medical College ICS Unit Mr. Abdul Matin were abducted by the non-bengali People and killed them in Mirpur area. Syed Sahajamal Chowhury President of ICS Dhaka City Unit and Abdus Salam the President of ICS of Faridpur District were also abducted from Paltan area by the Pakistani Army and killed them in Cantonment. Even then their dead bodies were not found.

44. That due to Indian repression, the accused petitioner made some press briefing, press statement and address against the Indian intervention and against the atrocities of Pakistani army. The accused petitioner was purely a student leader of the then Islami Chhatra Shangha and as a student organization ICS was not involved with the attrocity of Pak Army. Thus it is most humbly submitted that press statement about the Indian intervention and against the atrocities of Pakistani army is not a commission of offence.

45. That the Prosecution brought allegation against the Jammat leaders alleging that the Pakistani invading forces killed millions of people and raped thousands of women and carried inhuman torture against the East Pakistani people with the assistance of them. This allegation is not correct. Be it mentioned that Jamat-e-Islami as an Islamic politiacl party played a silent role during that time apprehending the Indian aggression. They also played a vital role to protect the civilians of the then East Pakistan. For example, late Maulana Abdul Ali, father of the accused petitioner was the District Ameer of Jammat-e- Islami in 1971 at greater Faridpur. He was a provincial assembly member of Pakistan from 1962 to 1964, elected under the banner of Jamaat-e-Islami. His name was also in the District Peace Committee. He is the man who took strong stance against the killing and inhuman tortures and atrocities of the Pakistani forces. In a meeting of the district peace committee during the liberation war led by Major Akram Koraishi, he strongly condemned the misdeeds of the Pakistani forces. As a Jamat leader he opposed the barbarism of the Pak army. He termed the committed crimes of the soldiers as unislamic. Due to disclosure of his objection, Pakistani army commader Major Koraishi became dissatisfied with him and expelled him from that meeting. Following the meet, Maulana Abdul Ali came out and in an open address at the Ombika Moidan, he blamed the atrocities of the Pakistani army that had been carried on 21st April during their entrance into the district and called upon the soldiers to stop those massacres. After his bold stance against the Pakistani atrocities, the incidents of crimes had been decreased significantly in Faridpur. Many people of the Hindu community came to him for converting themselves as a Muslim to save their lives, but he denied doing so, saying that, it is not the right time for conversion. The Hindu people also put their ornaments including golds and other precious metals under his custody while leaving for migration. After the exemption from that peace committee meeting, he never took part in any activities of the peace committee till the war ended. Despite his humanitarian role, he was treated as a pro-Pakistani people. As he was the district Jamaat ameer, so only for some political reasons, just immediate after the liberation war, Maulana Abdul Ali was arrested under the allegations of collaborating with the Pakistani army. Maulana Abdul Ali was used to lead the Eid Jamat of the district. But, when he was arrested after the independence, the local district administration managed some one else to lead the Eid Jamat. Listenting to this news, mass people including the local senior Awami League leader late Imamuddin Ahmed, Mr Nurunnobi (Incumbent Advisory council member of the Bangladesh Awami League) reacted seriously. Centering the situation, the entire district witnessed chaos and turmoil just a day before Eid day. Acknowleding the fact, the then Prime Minister Sheikh Mujibur Rahman phoned the local Awami League leaders and wanted to know the real facts. The district Awami League leaders informed him that, the reason behind the mass resentment was the detention of Maulana Abdul Ali. Architect of independent Bangladesh Sheikh Mujibur Rahman also reacted at the news as he was familiar to Maulana Abdul Ali. He instructed the local ruling party leaders and the district administration to release him immediately. Then Maulana Abdul Ali was released and led the Eid Jamat as usually. Considering these benevolent and nobel deeds of Maulana Abdul Ali, the Faridpur district administration and the senior citizens of the district paid a tribute to him by hanging his photograph at the district museaum, which is there till today. Furthermore, the district administration also named a road of the town with his name. The road titled Maulana Abdul Ali Shorok is still there as well.

46. That the Prosecution brought 4 (four) counts against the accused petiitoner in Faridpur District. After having such a great image of the father of the accused petitioner in the district, the allegations of committing crimes as a student leader in the Faridpur district under the umbrella of his father was completely impractical and fictious. If the accused petitioner was really involved with such alleged crimes or offences, Sheikh Mujibur Rahman, the architect of a new born nation did not award the father of the accused petitioner, even the district administration would not dare to hang his photograph in the museum or even a road could be named after his name. If so facto suggests that the allegations against the accused petitioner in Faridpur district are concocted and fabricated.

47. That is is stated that, just immediate after the independence war, the first Government let the 195 identified as war criminals to leave the country without any trial. But the then Government started the trial of the collaborators to try the committed crimes against humanity that occurred across the country during the war of liberation. During the role of Sheikh Mujibur Rahman in 1972, Bangladesh government issued Bangladesh Collaborators (Special Tribunal) Order, 1972. The conviction period under this act from two year to death sentence. Some 73 tribunals were formed on 28th March nationwide. Till 31st October of 1973, total 37, 471 were accused brought under this act. Charges were framed against 2848 accuseds and out of that 752 accuseds were found guilty and awarded conviction. Bongobandhu Sheikh Mujibur Rahman declared general amnesty on 30th November 1973. The prosecution has failed to show single piece of documents against the accused petitioner that his name was found as a collaborator out of 37,471 accuseds through out the whole country.

48. That it is stated that Yahia Khan came to the then East Pakistan as military ruler and asked the Pakistani army to conduct crackdown upon the people of East Pakistan. Local law enforcing agencies were involved with the attrocity. The accused petitioner was neither a member of law inforcing agency nor in any way associated with the civil administration.

49. That it is stated that the accused petitioner was merely a student leader during the liberation war. As the war began, the accused petitioner passed his days amid panic and fear. The accused petitioner has no connection with the army officials or high ups of the then Pakistani government. He never met Generals like Rao Forman Ali or Tikka Khan or any other senior personality as he did not own such social or political status at that time. This assertion of the petitioner is justified, as the name of the accused petitioner did not came significantly in any documents or historical books written on liberation war. He had no connection with the Razakar, Al badar, Al Shams or Al Mujahid etc as well. During war in 1971, the accused petitioner and the leaders of Islami Chhatra Shangha were in severe trouble. As the nation was facing a severe war so the transportation and communication was disrupted. The party leaders and the activists became scattered and detached. There was no significant communication between the organizational leaders and the activists. In support of his claim regarding panic and fear and his war experience, the accused petitioner prays kind indulgence of the Hon’ble Tribunal to make the following statement:
xxxxxxxxxx
50. That it is stated that the accused petitioner admitted into the Department of Law, Dhaka University in January 1971. During the crackdown of 25th March, he was the secretary of the Dhaka district unit of Islamic Chhatra Shngha. Thereafter, in July 1971 he became Secretary of ICS of East Pakistan and October’ 71 he became the president of the Islami Chhatra Shangha. Although, it has been mentioned in the formal charges by the prosecution that the accused petitioner played the role as the acting President of the Islamic Chhatra Shangha in 1971. Be it mentioned that the accused petitioner had never discharged his duty as the acting president of ICS in 1971.

51. That the accused petitioner was all through inside the country. He never left the country. He was in Bangladeshi territory at pre and post liberation period. Though the prosecution has raised several allegations against the accused petitioner, but no case of such allegation was ever filed against him. The complainants who are bringing the allegations in forth, they did not file any case or even a GD in anywhere in the country in past 40 years. So many allegations or the place had been mentioned in different historical books and written on the liberation war of Bangladesh. But the name of accused petitioner was not found in those books or papers. As for example, in the famous book named, “Chorom Potro’ written by M R Akhtar Mukul or the Ekattorer Dinguli written by Jahanara Imam, the name of the accused petitioner was not found.

52. That the accused petitioner has been involved with the mainstream Islamic politics for years. As a Muslim, he sincerely tries to follow the ideals of the holy prophet Hazrat Mohammad (peace be upon him) and lead a very simple life. He has served the nation as the Minister for Social Welfare from 2001 to 2006. In his 5 years tenure, not a single allegation of corruption has been made against him. No allegation of forgery or misappropriation has been brought against him. There is no allegation of power abuse as well. The allegations brought against the accused petitioner just in order to tarnish his and his party image.

53. That the accused petitioner is the Secretary General of Bangladesh Jamaat-e-Islami, the biggest Islamic political party of the country. The party has played a significant role in all the democratic and political movements of the country. Jamaat-e-Islami had a regular representation in the Parliament since its function in the independent Bangladesh. As the key political component, Jamat-e-Islami and its leaders had developed a sustainable relationship with other political parties including the ruling Awami League. During the anti-autocratic movement, Awami League and Jamaat had worked together. So certainly Jamat should be given that credit to back the country in the democratic track in 1990. Jamat as a party is the founder of the caretaker government under which the first free and uncontroversial election held in 1991. After that election, the country faced a severe political stalemate as no party could achieve brute majority. Both Awami League and BNP sought the support of Jamat-e-Islami in forming the government. From Awami League, the then Presidium Member and the now the Advisory Council member Amir Hossen Amu called on the accused petitioner, who was then the Assistant Secretary General of Jamaat-e-Islami. He offered the posts of 3 cabinet ministers, several state ministers and at least 07 women reserve seats in the Parliament in exchange of the support of Jamaat. Though Jamat supported BNP at that time to form the government but the intimacy between Jamat-e-Islami and Awami League became stronger during the movement for caretaker government system.

54. That the accused petitioner has no idea about the formation story of Al Badar described in the book of Salim Monsur Khaled. The petitioner does not know Mr. Khaled personally. The prosecution termed the petitioner as the commander of Al Badar. But they failed to establish that how a civilian can be the commander of an alleged Para-military force. Razakar force was formed following an ordinance promulgated by the provincial government. A person or any organization did not formulate such a force. There is a specific list of Al Badar or Al Shams. The prosecution failed to show the name of the accused petitioner in such a list. They are just claiming $that, Chhatra Shangha is Al Badar, Chhatra Shangha leader is the commnader of Al Badar, that is incorrect. It is admitted that, the members of the Razakar forces had been recruited by the Circle Officer of different thanas and they had been paid monthly. The prosecution also failed to exhibit that, the accused petitioner was a paid member of the Razakar force. Neither he was recruited by some one else nor he recruited anybody in this force. Dr. M A Hasan gave the lists of the Al Badar, Razakar and the peace committee in his book. In any of those lists, the name of the accused petitioner was not found.

55. That war crimes trial is going on in different countries of the world. The men who are facing trial in those courts almost are from the defense forces. Usuallly civilians or students are not being brought for trials. But, here the allegations brought against the accused petitioner who was merely a student during the liberation war of Bangladesh.

56. That the allegations brought by the prosecution in the formal charge referring some books including Witness to Surrender, The Betrayal of East Pakistan, Al Badr, Sunset at Midday, Pakistan Between Mosque and Military, The Vanguard of Islamic Revolution, Sectarianism and Politico-Religious Terrorism in Pakistan, etc. are vehemently contradicted and refused by the accused petitioner. He had no connection whatsoever in the matters described in those books. These books are somehow novel in structure, written as per the whims and emotion of the particular writer. Be it mentioned that, nowhere in those books the name of the accused petitioner has mentioned.

57. That the prosecution has brought some allegations based on the fortnightly reports and some other intelligence reports. The correspondence and communication between the junior government officers and the top hierarchy are influenced by the contextual environment and other political grounds. Those reports were made to convince the government high ups and there were presumptive value of those documents in that level. But those documents had no presumptive value for the judicial matter. If those papers are being used here against the accused petitioner, that would be very much prejudicial for the accused petitioner.

58. That the accused petitioner was never involved with any auxiliary forces including Al Badar, Razakar,Al Shams or Mujahid force etc. The prosecution mentioned some information about the formation of Al Badar in different districts including Mymensingh. But the accused petitioner had no knowledge about this incident. He did not know the matter. It should be mentioned that, it is not possible for any civilian to form such a para-military force. Such as, no individual can formulate like a force as Ansar or VDP in our time. So undoubtedly, there was no chance from the view of the accused petitioner to have any role in formulating such auxiliary force or give instruction for that purpose.

59. That there are some relevant issues which are needed to be presented here. The incident of crime mentioned in the formal charge starts from 25th March, 1971 and ended at the 16th December, 1971. But in line with the allegations, the complaint has been registered on 21.07.2010. And the case started to function in 2011 that is 40 years after the crime had occurred. This long lapse of 40 years gives some room of manipulation and embellishment.

60. That the glorified Liberation war took place in 1971. Followed by that, several lists of collaborators were prepared for trial. The first government of the independent Bangladesh enlisted some 37 thousand men as collaborators. That list was prepared taking the assistance of the freedom fighters and local Awami League leaders. The witness and victims were available at that time as well. During that period, there was tremendous pressure from all quarters to try the 195 war prisoners. A commission was formed to investigate into the matter. But unfortunately, those reports had not been revealed yet. After the general amnesty declared by architect of independent Bangladesh Sheikh Mujibur Rahman, there were several thousand of prisoners who were facing the trial. Some trial was under process. But the accused petitioner was nowhere in those lists. Prosecution brought 4 charges in Faridpur and 4 in Dhaka against him. But no case was filed under the collaborators act in 1972 under any existing law against the petitioner. No one termed him as war criminals or raised any allegations of crimes against humanity against the accused petitioner in those years.

61. That it may be mentioned that, Jamat and the accused petitioner played a significant role during the anti-autocratic rule. He was the Dhaka city Ameer and the liaison committee member of the party at that time. After the 1991 election, no party could attain the outright majority. Jamaat at that time was in a position to support both Awami League and BNP. Jamat became the deciding factor having 18 parliamentary seats. These two parties sought the assistance of Jamat. But Jamat extended its support to BNP. Another fact is, from the year 1991, Jamaat-e-Islami declared Professor Golam Azam as the Ameer of the party publicly. Following these two incidents, a platform titled Ekattorer Ghatok Dalal Nirmul Committee was formed, headed by Shohid Jononi Jahanara Imam. The platform voiced to start the trial of the perpetrators of 1971. One thing is very clear, the movement from its onset, demanded the trial of collaborators but not the trial of the principal accused, the 195 Pakistani soldiers. They did not demand to bring those 195 back to the country. A people’s enquiry commission was formed under the banner of Ghatok Dalal Nirmul Committee. They carried investigation against 16 persons. The commission published the reports in two phases. First phase with 8 persons and the second one with another 8. The accused petitioner was enlisted in the second commission report. Later, the Ghatok Dalal Nirmul Committee established a Gono Adalat and sentenced Professor Golam Azam in 1994. The target and purpose of the people’s enquiry commission and Gono Adalat becomes clarified from the conclusion of the report of the commission. In that conclusion, the report says, ‘the investigation report successfully establishes the ground of trial of the 8 persons. The report recommends that, these 8 accused can be tried under the International Crimes (Tribunals) Act 1973. The report opines that, it is earnestly required to try these war criminals to ensure the sovereignty and independence of the country. They also opine that, rule of law cannot be established unless the collaborators of the Pakistani army are not tried. At last, the report says, the responsibility of holding these trials goes to the authority of the government. In this backdrop, the demand for the war crimes trial has been initiated.

Here two points can be mentioned, firstly they never urged to bring back the Pakistani soldiers who actually committed war crimes in 1971 and secondly from that period, they started to create pressure upon the government to start this trial.

62. That the petitioner has full sympathy for those who embraced martyrdom during the 1971 glorifying liberation war. But if the Honorable Tribunal looks at the role of trial seekers, some variation in their role are found. After raising this voice for trial, Awami League also delivered several statements even in the parliament. After 1994-95, the demand became diminished a bit. As the Awami League started to work with Jamat for establishing caretaker system. Awami League formed government in 1996 and even at that period, they had a good connection with Jamat. The trial of war criminals was not included in the manifesto of Awami League. Even the ministers of that government or the trial seekers did not make any strong sound for that trial as are being observed now. Besides, that cabinet was accused to have at least two members who had played controversial role during the war of independence. Following the formation of that government, no step of trial has been initiated. No tribunal was established. The section which voiced for trial, their tone also became a bit lower. During the last two year of that regime, BNP and Jamat formed an alliance and took part in election in 2001. No quarter even Awami League did raise the demand for this trial at that time. And consequently, BNP-Jamat led alliance secured two-third majority and two men from Jamat sworn in as ministers including this petitioner. During the first 3 years of that regime, there was no demand for such a trial. All the ministers even the Jamat leaders discharged their duties very successfully. But after the occurrence of grenade attack on 21st August, 2004 on an Awami League rally, the distance between Awami League and the then ruling alliance became intensified.

63. That from the year 2005, when the Awami League led grand alliance was formed, suddenly they started to demand the trial of war criminals under a political banner. Even defying all the previous political records, democratic trend and history, they stated a new tone and claimed that, they will not take part or even sit with any Jamat leaders as they are war criminals. They boycotted the political program and dialogue with Jamat, they even boycotted the Bangabhaban function with same allegations. They only joined program with Jamat men in the function of different embassies which drew the attention and published in various newspapers.

64. That in the year 2007, Sector Commander’s Forum was established. The forum helps to bolster the movement of the Ghatok Dalal Nirmul Committee. Later, the political culture of understanding and bilateral talks became foiled that paves the way for a military backed caretaker government to take the charge of the office in the same year. All the cultural forums and the trial seeker forces placed the demand to initiate war crimes trial before the caretaker government. But that government did not start the process apprehending its complicacy and put the issue unheard and gave the ball to the court of the political and elected government. Following tremendous pressure from all these quarters, for the first time in political history, Awami League included the trial issue into their manifesto. That also encouraged the media to carry massive campaign for Awami League. Awami League subsequently secured outright majority in the 2008 election. Though there were some sensitive issues in the manifesto including pledge for free fertilizers, digital Bangladesh, job at every home but Awami League has brought the trial of war crimes issue in forward for some ill political motives and in order to tarnish the image of Jamaat-e-Islami as an Islamic political party. So, finally the recommendation of the People’s Inquiry Commission what has been mentioned earlier became included in the party manifesto and turned into a government agenda. The legacy or the chronological description of the political events clearly established that, how this demand for war crimes trial issue from a humanitarian ground turned into a political issue and how the fact is being used by a party in order to suppress the political opponents. So the question of manipulation arose when the issue of trying war criminals turned into a demand for trying the crimes against humanity.

65. That due to huge lapse of time, the evidences of crime became almost unavailable now. Many witnesses or victims died or the memory of the people, who are still alive, has been lost. After these long 40 years, who are processing to initiate this trial, they may have some political purposes. The accused are purely victim of that manipulation. Allegations have been brought against the petitioner instead of the real criminals. Many interested people are being treated as witness and they had been tutored to place false and concocted statements for some ill-motivation. Another fact is, the original evidences and documents had been destroyed in the meantime. There is no reason, that the evidences would be remain as same as before even after long 40 years.

66. That despite all these reality, the accused petitioner is facing this trial as he is involved with the mainstream Islamic politics and discharging his duties as the secretary general of Bangladesh Jamaat-e-Islami, the largest Islamic political party of Bangladesh. That the accused petitioner Ali Ahsan Mohammad Mujahid has been considered as one of the key figurey in the politics of Bangladesh, who played an outstanding role to form the 4 party alliances based on the spirit of Nationalism and Islamic values. 4 party alliances commenced new phase of politics, as it accommodate the majority of the population under a same platform. He is renowned for his bold steps and dynamic role in all the democratic movements of the country including the movement against the autocratic ruler Ershad and the movement for introducing non-party caretaker government system. Local media uphold a heroic image of this leadership during the state of emergency in 2007, as he was the one of the visible political figure at that time to carry the regular political activities to restore the democratic political system in the country. His name has been falsely implicated in this case by the vested quarter, who does not want to see a flourishing status of Bangladesh Jamaat-Islami in the country.

67. That it is further stated that the Pakistani forces initiated a military crackdown from 25th March 1971, through Operation Searchlight and it continued for 9 months till 16th December, when the Pakistani forces surrendered before the joint command of the Freedom Fighters and Joint Force. The land and area of Bangladesh was absolutely under the control of the then Pakistani government and all the penal and procedural and other relevant laws were valid. Article 64 of the Geneva Convention, 1949 terms that, “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention.” Therefore, as the criminal laws were in practice from 25th March to 16th December 1971 in the territory of the then East Pakistan, so the offences committed during this period are certainly under the jurisdiction of that law.

68. That the Defence states 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”.

69. That 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 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 ICT(A) indicates that these requirements are mandatory.

70. That this is supported by Rule 20 (1) of the Rules of Procedure which provides: “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”.

71. That it is therefore submitted that under the framework provided for by section 16 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.

72. That both the IC(T)A framework and domestic criminal practice are in conformity with international standards. The Tribunal will be familiar with Article 14 (3) (a) of the International Covenant for Civil and Political Rights (hereinafter: ICCPR) which provides for the right to be informed of the charge: “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”.

73. That this right under Article 14 (3) (a) has been discussed by the Human Rights Committee (hereinafter: HRC), which is tasked with administrating and interpreting ICCPR provisions. In its General Comment No.32 the HRC stated: “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”.

74. That as Bangladesh is a state party to the Rome Statute for the International Criminal Court (hereinafter: ICC) the Tribunal will recall both Article 67 (1) ICC, which guarantees the above right, as well as 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.

75. That the purpose of this fundamental 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.

76. That it is most humbly 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.

77. That the Prosecution has sought to charge Counts 1 to 12 as allegations of abetment pursuant to section 3 (2) (g) IC(T)A.

78. That it is submitted that abetment is a form of mode of liability and not a specific offence in itself. Furthermore, in order for an individual to be convicted of abetting a crime, the conduct in question must meet a qualitative and quantitative threshold. In international customary law, it has been established that this threshold is one of “substantial contribution” i.e. the abetment must have substantially contributed to the commission of the offence.

79. That for the contribution to be deemed substantial it must be a contribution that “in fact has an effect on the commission of the crime”.

80. That it is most humbly submitted that the alleged speeches given by the Accused-Petitioner do not amount to substantial contribution for two reasons. Firstly, the speeches included by the Prosecution in the indictment are alleged to have occurred at the earliest, 11 August 1971 and at the latest, 10 December 1971. However, the Prosecution also alleges that the commission of “crimes defined by the section (3) (2) of the above mentioned act (ICTA) during the time period from midnight, 25 March 1971, till the surrender of Pakistani Occupation Army and their auxiliary forces at 16:30 hours of 16 December 1971”. It is thus submitted that the alleged crimes were already being committed before any of the indictable speeches occurred and subsequently cannot amount to substantial contribution to the commission of the crime. “it is required for ex post facto aiding and abetting that at the time of the planning, preparation or execution of the crime, a prior agreement exists between the principal and the person who subsequently aids or abets in the commission of the crime”

81. That for the following reasons the Accused-Petitioner prays that this Hon’ble Tribunal issues an order directing for his discharge.

82. That in Counts 1 to 12, the Prosecution is not alleging that the Accused-Petitioner’s speeches were agreed to be delivered in 1971 prior to the commission of crimes on 25 March 1971. Indeed, they are actually alleging that “the Accused-Petitioner’s speeches against India, was not in a form of Indian reppression rather the speches was to abolish the freedom fighter of Bengali people”.

83. That Secondly, in Counts 2 and 5, the Prosecution seeks to charge the Accused-Petitioner with abetment for merely being present during the delivery of speeches by Motiur Rahman Nizami and Mohammad Nurul Islam. The confusion created by this is two-fold. Firstly, Counts 2 and 5, seek to charge the Accused-Petitioner with both inactive and active conduct in a single count. This form of charging is in violation of the need for specificity as upheld in section 16 IC(T)A, Rule 20 of the Tribunal’s Rules of Procedure and section 221, 222 and 223 of the Code of Criminal Procedure. Indeed, it is respectfully submitted that this form of conflict within a single charge is prejudicial to the Accused-Petitioner as it fails to differentiate between separate offences within one charge.

84. That furthermore it is most humbly submitted that the inaction of the Accused-Petitioner during the delivery of speeches by Motiur Rahman Nizami and Nurul Islam cannot be deemed as substantial contribution to the commission of any criminal offence. The Prosecution has failed to establish that the Accused-Petitioner agreed, endorsed or even co-authored any of the speeches delivered by other individuals. Indeed it cannot be said that he had any prior knowledge of the speeches delivered.

85. That it is submitted for the abovementioned reasons, the Accused-Petitioner prays that the Tribunal should not frame charge from Counts 1 to 12.

86. That in Counts 13 to 24, the Prosecution seeks to bring charges against the Accused-Petitioner based on the exact same facts as those listed in Counts 1 to 12. The only difference being that in Counts 13 to 24 they are brought as complicity charges under section 3 (2) (h) IC(T)A.

87. That it is respectfully submitted that this form of charging is incorrect and indeed amounts to double counting. Complicity is an umbrella mode of liability for several forms of participation including abetment. As a result in charging the Accused-Petitioner with abetting in Counts 1 to 12, the Prosecution has already alleged that he is complicit in these events and therefore it is most humbly submitted that the Tribunal should not frame charges as per counts 13 to 24.

88. That as abovementioned, section 16 (1) IC(T)A provides that the charges sought by the Prosecution must 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”.

89. That however, in Counts 1 to 12, the Prosecution alleges that the Accused-Petitioner has abetted crimes against humanity and genocide. Similarly in Counts 13 to 24, the Prosecution alleges that the Accused-Petitioner is complicit in the commission of crimes against humanity and genocide.

90. That however, throughout the indictment the Prosecution has failed to establish that genocide or crimes against humanity even occurred. Subsequently, the Prosecution has only charged the Accused-Petitioner with modes of liability rather than any actual crime.

91. That it is submitted that charges are made up of two components; the legal and factual basis. Although the Prosecution have sought to fulfill the legal requirement by establishing the mode of the Accused-Petitioner’s liability, they have not established the factual existence of any crime be it genocide or crimes against humanity. For this reason it is most humbly submitted that Counts 1 to 24 are indefinite and should not be framed.

92. That in Counts 1 to 32, the Prosecution has sought to charge crimes against humanity under section 3 (2) (a) IC(T)A. However, within each if these counts it has alleged that the Accused-Petitioner has committed crimes against humanity including genocide. For example, Count 1 states that “crimes that goes against humanity including torture, murder, detention, rape and genocide”.

93. That in doing so the Prosecution has failed to recognise that crimes against humanity and genocide are two separate and distinct offences. This is indeed reflected in the Act itself under section 3 (2) (a) IC(T)A and section 3 (2) (c) IC(T)A. As two different sections, the Tribunal has established that crimes against humanity and genocide require different elements to make up each charge. However, the Prosecution has ignored such differences and failed to bring any charges under section 3 (2) (c) IC(T)A even where genocide is cited.

94. That it most humbly stated that the prosecution brought few charges under section under 4 (2) of the International Crimes Tribunal Act. On the plain reading of section 4(2) refers commander or superior officer. This section is particularly applicable for the military or the any organized defense force. The post of commander or superior officer can never be endorsed for a civilian or students political organization. Since the accused petitioner was not a commander of Razakar, Al Badar, Al Shams or Mujahid etc. and as such allegations brought against the accused petitioner under section 4 (2) is liable to be set aside.

95. That it is most humbly submitted that Counts 1 to 32 are violation of section 16 IC(T)A and as such create uncertain charges so that the Accused-Petitioner is not given sufficient notice of the nature and cause of the charge against him. For this reason, the Accused-Petitioner may kindly be discharged from the counts 1 to 32.

96. That the learned Tribunal will recall the principle of nullum crimen sine lege enshrined in Article 15 (1) ICCPR: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby”.
97. That for this reason, proceedings brought against the Accused-Petitioner must be guided by definitions of crimes under international customary law as it stood in 1971, at the time of the alleged commission of crimes. Definitions of crimes are fundamental to adversarial proceedings and without which, neither the Prosecution, Defence or Tribunal can be sure as to which threshold must be passed in order to secure either an acquittal or conviction.

98. That in Counts 28, 29, 31 and 32, the Prosecution seek to charge the Accused-Petitioner with direct participation in the commission of torture as a crime against humanity pursuant to section 3 (2) IC(T)A. In the absence of a contextual elements in the Act itself, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment can be of assistance (hereinafter: Torture Convention). Article 1 of the Torture Convention defines torture as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.

99. That it is therefore submitted that the definition of torture in international customary law includes a purpose requirement. However, in Counts 28, 29, 31 and 32 the Prosecution has failed to establish that the alleged acts of torture were made in pursuant of any purpose including inter alia, to obtain confession, information or punishment.

100. That for the reasons abovementioned, it is respectfully submitted that Counts 28, 29, 31 and 32 should not be framed, as they do not conform to the definition of torture in international customary law prior to 1998.

101. That it is most respectfully submitted that in view of the Formal Charge, witness statements, related documents, the facts and circumstances of this case and abovementioned reasons in this application, the Accused-Petitioner may kindly be discharged from the case.

Having read out most of the written application, the defense lawyer said Islamic Chatro Sangha (ICS)  was a small student organization and the student members were scattered. The condition of the organization was so poor that the accused petitioner became the President of the Organization within a very short period of 10 months among the total members of only 125 to 130.

Justice Nizamul Huq: What do you mean by becoming a president within a short span of time?

Munshi Ahsan Kabir [Defence Counsel]: I mean they were not well organized and so scattered and the total members were only 125 to 130. So it should be assumed that it was not a strong wing. They were not liable for the activities of Jamaat-e-Islami, as it was a separate student organization. Accused became the President of ICS in October, 1971. The organization was not operating in the whole country.

The accused petitioner possesses a good reputation in the politics. In 1996 the Jamat won 3 seats. Jamat has also hold a good number of non Muslim members.

Justice AKM Zaheer: I’ve heard it for the first time that Jamat hold non Muslim members.

Munshi Ahsan Kabir: Yes My Lord, they do possess such members.

Justice Nizamul Huq:  The Prosecution has brought thirty two charges of crimes against humanity against the accused committed in 1971 in in Faridpur. The accused has no connection with Pakistan Army. He had no connection with Razakar, Al-Badar, Al-Shams. He was a student at that time, aged- 23 years. He has become the President of ICS at October, 1971. The members of the organization were almost 5000 who were scattered over the country. At that time they were facing lot of hurdle to tackle with. Though he has obtained the power of the ICS President but he didn’t get the chance to perform his duty whatsoever. The name of the accused is absent in the significant books on liberation war of Bangladesh. During his political life there was no allegation of corruption against him. He has no idea about the formation of Al-badar or anything. The prosecution is claiming that- ICS was a student wings of Al Badar. But the point to be noted is that- the accused was a paid member of that organization.

Dr. M.A. Hasan has given the list of the Razakars and Al-Badars in his book; but the name of the accused has not been found there. [Then he started reading out from Paragraph-65 from the documents of the defence argument. Thus he read out the counts raised by the Prosecution team. He has stated that section- 4(2) was invoked which is particularly intended for the military or the auxiliary forces. Afterwards he prayed for the discharge of the accused petitioner. Afterwards he has mentioned section-01 of the Torture Convention which is stated as below---

“For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”]

Justice AKM Zaheer: You are referring to section-1 of the Torture Convention which also states about the physical and mental torture.

Munshi Ahsan Kabir: My first submission is that- ICS was not an auxiliary force. Prosecution could not explain that whether he has any involvement with Pakistan Army. Where they have described the accused as the 2nd in Command of Al Badar and they have also stated that the accused used to roam around the area with 6 razakars. Now the question is whether they have produced anything in supporting their statement. They have also stated that- the accused to roam the area by riding on a Jeep; now the question is whether they have produced the number of the Jeep. No they could not, as the fact is not true.

A case was filed under Collaborators Ordinance1972 against Maulana Ali Ahmed of Faridpur who was accused father and also the chief of district Jamat-e Islami. Afterwards, Sheikh Mujibur Rahman has dropped the charge against him for his good deeds.

There are 5 books on the history of liberation war in Faridpur, where there is no mention of my name anywhere. The question of the involvement of accused with the auxiliary force has not been raised anywhere, but 40 years they are raising a vague issue. Only one report titled “Fortnight Secret Report” contains the name of the accused, but the accused denied it. If he was involved with such many atrocities why there has not a single General Diary been filed?

Another allegation against the accused has been raised about the murder of the Journalist Sirajuddin Hosain. My Lord, there happened a thousands of crimes. Now is it fair to accuse someone by reading a news report of Daily Sangram or whatsoever about the event?

The main reason here is that if he was not a political leader of Jamaat-e-Islami then the Prosecution wouldn’t raise the issue against the accused.

Justice AKM Zaheer: The synopsis is that- you would like to say that in 1971the accused was a student and left Faridpur towards Dhaka. His father was a district chief of Jamate Islami. Your point is that- where his father was not involved with any kinds of activities being a chief of Jamate Islami, then how come the accused be held liable for the atrocities committed in the area. Your another point is that- the accused has traveled the area with the companionship of 6 razakars and he has used an Army Jeep to roam around the area, now you would like to know, if it is so, then where are the name of the razakars and where is the number of the Army Jeep. And your another point is that- no allegations have been brought against him in 1971 and there is no mention of his name in the historical book on war of 1971 which is specially written on the atrocities committed in Faridpur. So, by raising the above issues you would like to pray for the discharge of the accused petitioner.

The remaining part of the application will be heard on 11th April, 2012.

The court was adjourned.