Friday, July 6, 2012

28 May 2012: Nizami indictment 1

The hearing started with tribunal chairman reading out the following order (copied from the written order). It is divided into the following sections
- introduction
- historical context
- the accused
- procedural history
- submission by the prosecution and defense
- charges.

Below are the first five sections. The charges are on a separate page. The defense written application argued prior to this order can be found here.
Accused Motiur Rahman Nizami has been produced in this Tribunal by the prison authority. Today is fixed for passing order on charge matter and as such the record is taken up for order. Before passing the ordet we want to provide a brief background and context of the case, its history and the arguments put forward by both the prosecution and defence before this Tribunal.

International Crimes Tribunal-I (heteinafter referred to as the "Tribunal') was established under the Intrnational Crimes Tribunals) Act,1973 (hereinafter refetted t6 as the "Act) to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes, and crimes under international law committed in the territory of Bangladesh. This Act was enacted to try the international crimes committed in Bangladesh in 1971 by Pakistan Army and auxiliary forces. This is a case bearing considerable signifi.cance for the people of Bangladesh as well as for the victims of international crimes committed in Bangladesh during the Liberation War, particularly between 25th March and 16th December 1971. As such, it is a significant moment in the legal history of Bangladesh when we are entrusted with the task to address the matter of framing the chatge involving international crimes under Section 3(2) of the Act.

Historical Context: 
[This section is almost identical to the one relating to Gholam Azam, see here)

The Accused 
The accused Motiur Rahman Nizami was born on 31.03.1943 in village-Monmothpur, Police Station-Sathia, District-Pabna. In his early life he studied in Boalmari Madrasha at Sathia and passed his Dakhil examination in 1955, then he passed lIim examination in 1959 and Fazil examination in 1961. He got his Kamil degree in Fiqh from Madrasa-e-Alia in Dhaka in 1963. He also got his graduation degree as private student in 1967 from University of Dhaka. During war of liberation he was the president of Pakistan Islami Chatra Shangha the student wing of. Jamaat-e-Islami and also the chief of Al-Badars, an auxiliary force, most of the members of which were members of peace committee and Islami Chatra Shangha. He joined Jamaat-e-Islami after completion of his student life and he was Ameer of Dhaka city unit as well as member of central executive committee of Jamaat-e-Islami from 1978-1982. He was also assistant secretary general of Jamaat-e-Islami from 1983 to December, 1988. He became the secretary general of the said party in December, 1988 and he remained their till 2000, then he became the Ameer of Jamaat-e-Islami in 2000 and he is still continuing that post. He assisted Professor Golam Azam in forming the Shanti Committee, Razakars, Al-Badar, AI-Shams etc. He was elected member of parliament in 1991 and was the leader of parliamentary party of Jamaat-e-Islami from 1991 till 28 December 1994. He was also elected a member of parliament in 2001 and he became the minister of the ministry of agriculture from 2001-2003 and thereafter, he was minister of the ministry of industries from 2003-2006.

Procedural History:  
The investigation agency established under the Act began investigating the accused for crimes committed in 1971 on the basis of the complaint registered as serial no. 1, dated 21.7. 2010. During investigation upon an application filed by the prosecution, the Tribunal vide order dated 02.08.2010 passed in ICT-BD Misc. Case 01 of 2010 showed him arrested in connection with the instant case. During investigation he was also interrogated by the investigating officer in safe home vide order of this Tribunal. Since his arrest the Tribunal has disposed of a number of bail petitions which were disposed of in accordance with law. In addition on the prayer of the accused, the Tribunal directed the relevant authorities to ensure better treatment of the accused in the hospital as desired and also directed the concerned authorities to provide him with 'heath friendly'' transportation while transporting the accused from prison to hospital and this Tribunal.

After completion of the investigation the investigating officer submitted the investigation report to the chief prosecutor and on the basis of that investigation report evidence of witnesses and documents received and collected during investigation, the prosecutors prepared the formal charge and submitted it on 17.12.2001 to this Tribunal. Upon perusal of the formal charge the Tribunal took cognisance on 09.01. 2012 - against the accused Motiur Rahman Nizami under section 3(2), 4(1) and 4(2) of the Act. Then this Tribunal fixed for hearing on the matter whether charge will be framed against the accused or not. The learned prosecutor Mr. Syed Haider AIi and Md. Altaf Uddin Ahmed made elaborate submissions on behalf of the prosecutions while the learned defence counsels Mr. Abdur Razzak and Mr. Tajul lslam made elaborate submissions on behalf of the defence. The defence also filed an application for discharge of the accused from the case. In following paragraphs we surmarise the submissions with the views of the Tribunal on the point whether charges will be framed against the accused and if framed, then on which counts.

Submission by the prosecution and the defence: 
The learned prosecutor Mr Syed Haider Ali at the outset of his submissions drew our attention to atrocities and crimes committed by the Pakistan Army, its auxiliary forces and supporters including the ties, who actively collaborated with the Pakistan Army during the liberation war of 1971 in Bangladesh. It was submitted that the accused was the president of Islami chatra Shangha, the student wing of Jamaat-e-Istami, and that he was personally involved in conspiracy and. planning as well as in incitement and complicity to commit international crimes, and in crimes against humanity proscribed under section 3(2) of the Act. As President, he had superior status over the leaders, members and followers of his party and also gave orders, permissions or acquiesced in commission of crimes. He was involved in planning to perpetrate crimes and execution thereof with the leaders of Jamaat-e-Islami and through them with the Pakistani Army and Authority. Moreover, he failed to discharge his superior status obligations to maintain discipline or exercise control or supervise the actions of subordinates while they committed such crimes and failed also to take necessary measures to prevent the commission of such crimes. Instead, he incited those acting under his authority, followers and others, to commit further crimes. He never restrained his followers and took any effective step to halt the crimes unleashed. It was further submitted that the accused was even personally involved in the commission of the offences which comes under the purview of section 3(2) of the Act.

It was also submitted that the documents collected during investigation and statement of witnesses established beyond reasonable doubt that the allegations narrated in the formal charge were indeed committed by the accused, and in proving the same, they have ocular, documentary and other evidences to establish the offences mentioned therein committed during independent war of 1971. The offences of which the accused is liable to be charged and his superior status liability are adequately defined in the Act in sections 3(2),4(1) and,4(2) and that the accused should be charged accordingly.

On the contrary, the learned counsel for the accused Mr Abdur Razzak, by filing an application on 22.03.2012 to discharge the accused emphatically argued that the purpose to enact the Act and establish the Tribunal was to prosecute only 195 prisoners of war who were all members of Pakistan while for the trial of others, the Collaborators order 1972 was promulgated pursuant to which many alleged collaborators were arrested, some of them tried and convicted. He submitted, that the said 195 prisoners of war, subject of the Act and the Tribunal, were given clemency by the government of Bangladesh, released and sent to Pakistan. When the principal and original offenders had been let go, he argued, that others who supported, collaborated, abetted cannot thus be tried for the commission of the same offence. It was further argued that the prosecution of Motiur Rahman Nizami has been for mala fide purpose in that only when Jamaat Islami did not extend political support to the present government, did the government moved against the Jamaat-e-islami leaders including the accused. As such he contended its being a clear case of mala fide and for collateral purposes and therefore the proceedings against Motiur Rahman Nizami is not sustainable in law. It was further contended that they have observed executive interferences affecting the trial because of which the process cannot continue. Moreover, trial also cannot proceed because the prosecution has not furnished reasoning as to why it has taken 40 years to start the proceedings, and in absence of such statement explaining the reasons for delay, fair trial demand that proceedings should not be allowed to continue. Mr. Abdur Razzak further submitted that in the formal charge, 15 counts of charges have been mentioned but on perusal of all the charges, it is clear that no prima facie case has been made therein and no relevant evidence has been provided with respect to any accusation, and maintained that not a single count speaks of an offence as such the accused should be discharged. He then placed before us that they do not deny that international crimes were committed during the war of liberation in 1971, but they assert that accused Motiur Rahman Nizami did not commit any of such crimes.

Finally, Mr Razzak assailed holding of the trial under the Act on the ground of established principle of criminal law; the principle of non retrospectivity, in that he submitted the offence was allegedly committed in 1971, whereas the Act was enacted in 1973, after alleged commission of crimes, and as such, the whole trial process is barred by law. The trial should have been held under laws which were prevailing in 1971 since the alleged crimes were committed in that year.

In response, the learned prosecutor submitted that at this stage of the process, as to whether charges will be framed or not, the submissions of the learned counsel of the accused are not relevant. He maintained that the Tribunal has to consider the formal charge, the statement of witnesses and other materials to decide as to whether there are materials to frame charge. Upon perusal of the formal charge, statements of the witnesses recorded by the investigation agency and the documents ' submitted therewith, if the Tribunal is of the opinion that there are sufficient materials that the accused has committed an offence under the Act, only then the charge will be framed, otherwise the accused shall be discharged. He further submitted that the offences being adequately defined and the allegations made in the Formal charge being not vague, rather definite and clear, a prima facie case against the accused person has thus been established. He further submitted that on perusal of the Act, it cannot be said that it was enacted to try and prosecute only 195 prisoners of war. Even if this argument is accepted that the Act was promulgated for trial of 195 prisoners, still then there are no bar to try any other Persons under the Act since section 3(1) categorically states that "A Tribunal shall have power to try and punish any individual or group of individuals, or any member of any armed, defence or auxiliary forces irrespective of his nationality, who commits or has committed in the territory of Bangladesh, whether before and after the commencement of this Act, any of the crimes mentioned in sub-section 2". He said, the amendment made in the Act in 2009 extending its jurisdiction to individual or group of individuals have been added which has further made it clear that not only the 195 prisoners of war but anyone who has committed the said offences as mentioned in section 3(2) of the Act would come under the purview of the section 3(1) of the Act and can be tried by this Tribunal. He maintained the trial has to be concluded on the basis of the Act as it stands today.

He further submitted that Collaborators Order was for trial of persons who allegedly collaborated with the Pakistan Army during 1971 liberation war. All offences mentioned in the schedule therein are offences of Penal Code but this Tribunal has to try those persons who have allegedly committed offence of section 3(2) of the Act which are not offences of the Penal Code and as such there is no bar holding trial of this accused under the Act. He argued when the Tribunal has duly taken cognizance based on prima facie evidence found against the accused, the Tribunal should proceed to charge the accused. He further submitted that the question of clemency of 195 prisoners of war has no bearing to this process and cannot act in any way to bar the trial of this accused and as such this argument also does not stand. Then he submitted that whether the accused is the principal or main offender or that he only abetted has to be settled in trial and therefore the submission that when main accused have been released, the trial of the abettors cannot be held also does not stand. Moreover, abetment itself is an independent offence in this Act. He further submitted that the prosecution of Motiur Rahman Nizami is not at all mala flde and/or for political purpose as the prosecution has proceeded only after completion of investigation by the Investigation Agency that found materials of his involvement in the atrocities committed during 1971 and submitted report to the prosecution. The prosecution then submitted the Formal Charge on the basis of the investigation report and other materials. He submitted, the question of malafide is a mixed question of fact and law and before examining witness, the accused cannot be discharged on the ground of mala fide. He pointed out that the question of non- retroactivity having been discussed and decided by this Tribunal in two earlier cases of Delwar Hossain Sayeedi and Salahuddin Quader Chowdhury resulting in rejection of the pleas of the accused persons, the same pleas cannot be considered as the issue has been conclusively decided. Finally, he submitted that the 15 counts submitted by the prosecution in the formal charge are all, well founded allegations and whether there are evidence or not in support of those counts is a matter of evidence and cannot thus be decided at this moment, and therefore the discharge petition filed by the accused is liable to be rejected and charge may be framed against the accused. He urged the Tribunal to frame charge against the accused upon perusal of the Formal charge, the statement of witness and other materials submitted.

We have heard the learned counsel for the accused and also the learned prosecutor and perused the materials on record. As regards the submission that Act was enacted to try 195 pakistani prisoners of war and collaborators order was promulgated for trial of other persons, and that as such the trial under the Act for a non-military person is not legal we are of the view that the Act is very clear in this regard. It was enacted to provide for detention, prosecution and punishment of persons for genocide, crimes against humanity war crime and other crimes under international law and that any individual or group of individuals, or any member of any armed defence or auxiliary forces, irrespective of his nationality, who commits or has committed in the territory of Bangladesh whether before or after the commencement of this Act, any the crimes mentioned in the Act, could be tried. It is a fact that initially 195 prisoners of war were screened out for trial but the Act does not indicate that other persons who committed the said offences cannot be tried. After the amendment made in 2009, where individual or group of individuals were brought under the Act’s jurisdiction, making it further clear that any person who is alleged to have committed offences could be tried under this Act and as such, on this basis, the trial can be held under the Act. The collaborators order, on the other hand, was promulgated to try the collaborators for committing different offences of Penal Code. And as such it cannot be said that the accused being a Bengali cannot be tried under this Act as the allegations arc clear and comes under the purview of section 3(2) of the Act and not under the Penal Code under Collaborator’s Order.

With regard to the clemency extended to the 195 prisoners of war, it is stated that the said clemency if at all, apply only to the said prisoners of war, and not to others. Moreover, this clemency given to the prisoners of war does not in any way debar the trial of the present accused in any manner. And in regard the submission that when principal perpetrators have been released, the associates cannot be tried does not also stand because it is evidence and evidence alone that will determine who was the principal offender and who was an associate. Moreover, abetrnent has been made a specific and independent offence in the Act and on this ground alone, the preferred argument on this point also does not stand. Mr Razzak further argued that the proceeding against the accused Motiur Rahman Nizami is mala fide and for political purpose. In this case, there is no allegation that the accused is being tried as Amir of Jamaat-e-Islami. Rather we are trying to determine whether the accused Motiur Rahman Nizami has committed any offence under section 3 (2) of the Act. On the question of this case being mala fide, which is a combination of both fact and law, this cannot be determined without taking evidence. If on evidence it is found that this proceeding is mala fide proceeding then the accused will be released but it cannot be said at this stage that the proceeding is a mala fide one and the accused is to be released. Mr Razzak also submitted that the proceeding was been interfered by the executive and since it is being held after 40 years, he cannot be tried. In criminal proceedings, time is not a bar. We are to find only if the accused has committed any offence under this Act 40 years and that is dependent on evidence. Regarding the executive interference, we note here that we are receiving news reports from different corners in favour as well as against the proceeding, but such reports do not and cannot in any way influence this Tribunal and as the Tribunal is an independent entity and is proceeding with this case independently and without any influence from any quarter, this point cannot come in aid of the defence. Mr.Razzak then submitted that in 61 counts mentioned in the formal charge, no prima facie case is made out. We have gone through the different counts and cannot find that the submission of Mr. Abdur Razzak possesses any substance. The allegation against the accused is that he has conspired with the occupation forces, planned, incited and was also complicit and responsible for the commission of crimes in 1971 by making speeches, giving directions, making press comments and by meeting with heads of different civilian and army administration and also he was personally involved in the crimes mentioned in section 3(2) of the Act and thus the submission that no prima facie case is available does not carry any weight.

With regard to retrospectivity of the offence, in the earliest orders passed in the case of Mr. Delwar Hossain Sayeedi and Salahuddin Qader Chowdhury, we discussed elaborately on this particular issue and concluded that the trial can be held for offences committed in 1971 under this Act. And now we do not intend to repeat those discussions in this order. As such Motiur Rahman Nizami can also be tried under this Act of 1973 for commission of offence in 1971. The word individual or group of individuals were included in 2OO9. We determined in the case of Salahuddin Qader Chowdhury that if a person can be tried for the offence committed 1n 1971. by the Act of 1973 then he can also be tried for the offence committed in 1971 by the Act of 1973, amended in 2009. As such the question of retrospectivity does not arise here for the purpose of debarring the trial of Motiur Rahman Nizami under the Act Mr. Razzak has further placed some reported decisions of our national courts as well as from the foreign jurisdiction in support of his submissions. Those decisions or similar decisions have been considered by this Tribunal earlier and we arrived at those findings in the case of Delwar Hossain Sayedee and Salahuddin Qader Chowdhury. Moreover, we have observed that if after taking of evidence we find that it requires reconsideration of all these findings, then, we will consider them. We have already found in the two earlier cases that the definitions of the crimes in this Act are quite clear and complete without any ambiguity. The crimes under the Act are adequate in all respect and therefore it is not necessary to visit with recent notions developed by the statutes of various international Tribunals. As regards nexus between armed conflict and crimes against humanity, we are of the view that the notion of armed conflict with crimes against humanity is not required under the Act.

In view of the above discussion, we are of the opinion that the discharge petition filed by the accused Motiur Rahman Nizami bears no merit in the eye of law and thus is liable to be rejected. We have perused the formal charge, other documeents and statements of witnesses upon which the prosecution intends to rely upon and considered the submissions made by both the sides on those materials. We are of the opinion that there are sufficient grounds to presume that the accused Motiur Rahman Nizami has committed offences under section 3(2), 4(1) and 4(2) of the Act and as we find that there is prima facie case against the accused, charges will be framed against him in the following manner:

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