Friday, July 6, 2012

22 May 2012: Sayedee witness order review 2

Following the reading out of the written application seeking a review of the Tribunal order regarding the 15 witness statements which the tribunal has allowed to be admitted without the witnesses having to be cross examined, a number of senior lawyers then made some oral arguments.

Barrister Moudud Ahmed (formely BNP law minister) made the following comments:
- defense always concerned that the tribunal was intentionally started, and the review petition has mentioned certain facts that need to be taken into consideration by the tribunal;
- clearly shows that witnesses were brought to Dhaka, given food, transport and brought to the court, and then allowed to go from safe house without giving evidence. These are all facts.
- principle of our courts that if witnesses can't be cross examined, their statements can not be admitted. This is fundamental.No were in the whole world this type of witness statements are considered as evidence.
- if costs and time are exceptions, then it is necessary for the court to determine how much cost and how much time it will take for witnesses to come to give evidence.
- the tribunal has an institutional responsibility that this should not proceed with allowing these statements
- if the tribunal allows these kinds of statements to be admitted, then this is no free and fair trial.
- This tribunal is dealing with offences that may attract capital punishment. So the statement of PWs alleged to have been recorded by the Investigation Officer should not be considered as evidence;
- The video and the news paper report clearly shows that these PWs are not missing, they are available. So the Prosecution and the investigation officer is lying about these PWs.
- Under section 19(2) there is no scope to receive as evidence of the statements of the prosecution witnesses alleged to have been recorded by the investigation officer since the prosecution has suppressed material facts about them

Khondaker Mahbubul Hossain then spoke and made the following points:
- if the witnesses are not able to be present to be cross examined, then this violates an age old rule of criminal procedure
- Section 19(2) can only be applied if the prosecution witnesses cannot be produced without an unreasonable delay or expense. The delay must be unreasonable – Justice hurried, justice buried.
- The government is not poor – so they cannot say that they cannot bear the expense of producing these PWs.
- The investigation officers recorded statement is equivalent to section 161 (Cr.P.C) statement in our local trials and in these we always see that officers not recording the statement correctly. This is why when a prosecution witness comes to testify there are many differences between the 161 statement and live testimony. This is why 161 statements are not considered as evidence in our local trial.
- If the 15 prosecution witness statements to the investigation officer is considered as evidence then this will not be internationally accepted. Justice should not only be done, but must be seen to have been done. Your lordships should not do something that may shock our judicial system.
- Receiving the recorded statements of the witnesses will hamper justice. The consequence of any sentence by the Tribunal will be very severe. The accoused and his family members will have to bear the consequence of any injustice for years together.
- There is no signature of the witnesses in the statements alleged to have been recorded by investigation officers.

The tribunal chairman then said: In section 19(2) there is no requirement that the statement of the prosecution witness needs to be signed. So if the investigation officer certifies that these are statements of the prosecution witnesses then prima facie we should accpet this. We are concerned that these witnesses are not cross examined by the defence counsel and their statements are not under oath. We will consider these issues at the time of judgment.

The lawyer responded by saying that the video recording and the news reports clearly shows that these 15 witnesss did not give the statements to the investigation officer which the officer says that they did.

Advocate Joynal Abedin then made similar comments, adding only that the investigation officer is an interested party in this case and should not be relied on.

Again the tribunal said that it can consider these points at the time of judgment; there are no grounds for review.

Then Abdur Razzaq, the main defense lawyer started his arguments

He first asked what are the ground for our review? He said that this application is made under Rule 26(3) for Review - that the court can make any order 'in the interest of justice'. Section 114 and Order 47, Rule 1 of the Code of Civil Procedure also provides for a similar review – but the power of the court there is very limited to some specified ground. But under Rule 26 this tribunal has deliberately made the power of review very wide. The test is ‘for interest of justice’. It is not a narrow ground, it is a very wide one.

The term justice is a very wide term. He then quoted from the Bangladesh, India and United States constitutions and from textbooks about the meaning of justice to make the points that it should be  constued very widely and that it is a word with passion and power.

He then talked about section 19(2). This states: 'A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.'

He said that it has three parts. (1) the statement must be rendered by the investigation officer (2) it must be the statement of the person and (2) attendence of the witness cannot be procured without an amount of delay or expense that the tribunal may consider unreasonable. He said that the burden of proving these are on the Prosecution and the standard is ‘beyond reasonable doubt’.

He then said that the tribunal had relied upon two reports of the investigation officer to come to the conclusion that the attendence of these 15 PWs cannot be procured without an amount of unreasonable delay or expense. One of 17 March and another of 19 March and made the point that the defense were not given copies of these reports. There is no reason why the defense was not given copies of these. Under which provision have the defense not been given a copy, he said. 'It is a state secret?'

He said that his case is that the witnesses did not make the statement. 'A fraud has been committed by the investigation officer on the court.'

He then argued that the investigation officer had 'concocted and fabricated' the statements. The prosecution can not show that the 15 PWs have in fact made these statements to the IO. There is no signature of the witnesses. 'The prosecution have utterly failed to prove their case under 19(2)', he said.

'If these are not the witnesses statements then the question of delay or cost are not relevant' he said.

The chairman said that there is no requirement in the law that the 19(2) statement should be signed by the prosecution witnesses. If the IO is certifying that they are the statements of the witnesses, then there is a presumption that these are statements are made by the relevant PWs. 'Until we are satisfied that they are not genuine, we can assume they are genuine' he said.

Razaq responded by saying, 'Then you are doing an injustice to us.'

The chairman then replied that there are provisions 409 and 409A in the Cr.P.C. to allow a post mortam report of a medical officer to be accepted without them having given oral testimony.

Razak said that these two things cannot be equated - one is an expert report, and the other is someone saying that 'this person did that'. Also there is an obligation for the witness to sign the statement in the CrPC. 'And who is the investigation officer? He is a party to the proceedings'

The second point is that the 'investigation officer is perpetrating a fraud on the court' he said.
- he says that a person is too ill to travel, but does not produce a medical certificate
- he says that someone is missing for four months, but there is no report to the police
The reason the witnesses are not coming is that 'they are not willing to give false evidence'

Neither the investigation officer nor the prosecution have provided any rejoinder against either the newspaper or video news.

'They were unwilling witnesses. I am a senior lawyer and would never make this allegation unless I was fully satisfied. This is hard evidence that we are relying on. No one has denied it,' he said

'How has this man misled your tribunal? This is fraud committed on this court. I am making a very serious allegation, that this senior investigator has committed fraud on this court, telling lies, perverting the course of justice,' he added.

He went on to say: The IO has concocted facts in the names of the PWs. Well known persons like Shahrier Kabir and Jewel Eich are claiming that they did not give any statement to IO while the IO submitted witness statements in their names. He brought prosecution witnesses in the Safe House in Dhaka. They were tutured to give false evidence against Sayedee. The Safe House Register is an evidence to this. When they denied they were sent back. Now the IO is saying that these witnesses are not available and wanted to submit the concocted statements as evidence. This Tribunal should direct the Investigation Agency to produce the Safe House Register. This is not for the first time the IO is doing this fraud upon this court. He is doing this from very begining, from the investigation stage. I will show that the witness staements of many of the prosecution witnesses are merely copy and paste work by the investigation officer.

The chairman said that this is matter for argument at the end of the trial. You do not need to show this now.

Razaq said how can you rely upon the report of this person to receive as evidence the statements of prosecution witnesses alleged to have been recorded by him?

Justice Zahir Ahmed then said that there are at least two serious allegaitons that the prosecution must answer: (1) prosecution witness Usha Rani Malakar was claimed to be very sick and cannot get up from bed. But from the video we saw that this does not seem to be the case; (2) regarding Ashish Kumar Mondol, Sumoti Rani and Somor Mistri the prosecution claim that they left the safe House in the name of visiting their family, but the defense are claiming that they stayed there at that time.

Rajaq then pointed to a number of decisions which he said showed the importance of procedural fairness and said that it is a long settled principle that fraud nulifies everything. He referred to the following cases 9 Eur. Court HR, Kostovski v. Netherlands, 20 October 1989, Series A No. 166: 45 DLR; (2008) 12 SCC 353 – para 20: (2007) 8 SCC 751 – para 19.

'You should review this order and strike it down' he said.

The prosecution was asked to respond the following day.

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