Tuesday, July 3, 2012

29 Mar 2012: Azam discharge prosecution response

Following the order relating to witnesses in the Sayedee case, the charge hearing relating to Gholam Azam continued with the prosecutor Zead Al Malum responding to the defense arguments (see last hearing dealing with this matter)

Malum made the following points:
- there is no legal basis of the discharge petition presented by the defence counsel. What is the content of the discharge petition which contains 41 pages and 70 paragraphs? Many pages are about the activities of the Jamaat-e-Islami between 1941 to 2012. There is no legal basis to this discharge petition. But they took 2 days to complete their submission.

- the senior Counsel of the defence has uttered the word ‘with Political motive’ 38 times during their submission. By this, he has shown his own ill intention. He is using this phrase to derail the path to justice for the atrocities committed in 1971. It is important to point out his involvement with the Jamaat-e-Islami in between 25th March, 1971 to 16th December, 1971.

- he referred to Section-10 (1) (h) to allow the tribunal to obtain information about the Jamaat which the prosecution could not access. This says: ‘the Tribunal may, in order to discover or obtain proof of relevant facts, ask any witness any question it pleases, in any form and at any time about any fact; and may order production of any document or thing or summon any witness, and neither the prosecution nor the defence shall be entitled either to make any objection to any such question or order or, without the leave of the Tribunal, to cross-examine any witness upon any answer given in reply to any such question’

Justice AKM Zaheer: Mr. Prosecutor; Section-10(1) (h) involves the matter in respect of witness after the commencement of the trial.

Zead-Al-Malum then referred to Rule-40 of the International Crimes Tribunal Rules of Procedure-2010: 'Whenever the Tribunal considers that the production of any document or other thing is necessary or desirable for the purpose of investigation or trial or other proceedings under the Act, the Tribunal may issue a summons, or an order to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it at the time, place and date stated in the summons or order.'

Justice Nizamul Haq: How would we be satisfied that- the accused petitioner holds the documents of Jamate Islami within the period of 1947, 1962, 1967-1971? You have to prima facie prove that Mr. Golam Azam actually holds those above documents. To hold the top position doesn’t necessarily means that a man will hold those documents of the organization right after the end of his service.

Justice Anwarul Haq: You have filed an application under section-10 instead of Rule- 40 of ICT Rules of Procedures-2010. Now, how can we understand who actually possess those documents?

Justice Nizamul Haq: If you do think that the documents are being possessed by the Jamaat-e-Islami then in that case it would be directed to produce those papers.

Justice Anwarul Haq: At first go and ask the defence lawyer or the Jamaat to produce those documents. In case of failure, ask to us for giving direction.

Justice Nizamul Haq: But the question is to whom the direction would be issued and whether it is really necessary.

Justice AKM Zaheer: It is easily assumable that-they have not mentioned the accused petitioners’ involvement with the organization during the period of 9 months of liberation war. You are asking for the involvements and activities of the accused petitioner during this timeframe.

Zead-Al-Malum [Prosecutor]: My Lord; the discharge petition is divided into three parts as follows- history of Jamate Islami, background of International Crimes Tribunal Act and discharge petition of the accused. Para-4 of the discharge petition says that- when he was active at the Language Movement of 1952, the then he was not involved with Jamate Islami.

My Lord; Bangladesh is a country with such a glorious past. Liberation war is the pride of Bangladesh and the International Crimes Tribunal Act is the pride of Bangladesh as well. It was adopted by following so many International conventions and covenants like- Genocide Convention, Geneva Convention, Nuremburg Principle, Universal Declaration of Human Rights and so on. So it holds also the international standards.

Adjournment for lunch

Zead-al-malum read out section 3 of the ICT Act and said that there is no time limitation in ICT Act. Therefore it is not barred by law.

In 1992 when general people were very much excited to punish the war criminal, at that time Sheikh Hasina, leader of opposition party, delivered a speech in the parliament referring to the gazette of Razakaar Ordinance-1971, where she said “From 25th March our full family was detained under the control of Pakistan Militia. After that they hand over their duty at the hand of Razakar. That means Razakaar were working under their (Pakistan militia) command, so Razakaar were come under the scope of Auxiliary force.”

Justice Nizam: Have you shown this document in the investigation report ? Have you said before regarding this gazette that Razakaar comes under the scope of Auxiliary force? Why you did not show it before? It is not possible for us to check out 5000 pages.

Prosecutor: Muhammad Nasim (member of Awami league) said in his parliamentarian Speech that, Razakaar Bahini, Al badr Bahini, are all well trained by the Pakistan militia and they are given 150 rupees as salary. And it is really matter to prove that Ghulam Azam was the head of razakaar force and Al Badr and Al Shams was the member of auxiliary force.

We are very concerned that the tribunal was formed in 1973 for punishing war criminal and there is no doubt that Ghulam Azam is a war criminal.

Justice Zaheer: Learned prosecution just make it clear whether Razakaar force falls under the scope of Auxiliary force or not?

Zead-al malum: Yes my lord it is very much clear from this gazette that razakaar is under the auxiliary force as well as why 40 years have gone by before filing the case is also very clear. The delay was only due to political reasons.

The defense just mentioned in their discharge petition about the activities of Jamaat –i-islam but they never pointed out directly that Ghulam Azam did not commit any offence.

There is no ground against framing 37 charges in the discharge petition

Justice Nizam: Is there any ground for framing charge?

Zead-al-malum: Yes my lord, there are lots of ground for framing charge. My lord, they refer the provision of ICCPR and ICESCR but we know principles of ICT is already existing, there will not be applied any ground of the Convention. In my view, submission of these grounds basically just to kill time.

My lord as an Ameer of the Jamaat-islam, he met with Tikka khan several times and committed genocide. He was the member of peace committee which was formed with 140 members.

He met with Pakistan militia several times and met with Yahya Khan by going to Capital of Pakistan.

Malum shows before the tribunal a news report concerning Ghulam Azam.
Reporter: Were you against the Liberation war in 1971?

Ghulam Azam: sDuring the Liberation war we were neither against the War nor in favour of war.

Reporter: Then why you formed several committee named as Peace, Albadr, Alshams?

Ghulam Azam: These committees were established for protecting the country during the war.
Zead-al-malum: So my lord, there is no ambiguity about Ghulam Azam’s involvement with the Pakistan Army.

So my humble submission before the Tribunal is that after hearing both sides if found no ground for discharging then charge should be framed with your due consideration.

Justice Zaheer: In all cases, Charge is described separately but in case of Ghulam Azam without shiru Miah all charge are not described separately. So far I remember charges against him were:
3. civil superior responsibility.
4. Conspiracy
5. killing of siru miah.
Our Acts deal with the command and Superior officer. My question is whether civil superior is come under the scope of Command and Superior officer which is described in Act?

Prosecution: My lord, as an Ameer of the Jamaat-i-islam and member of the Peace committee, he hold superior position in Auxiliary Force and it is very clear to us that Razakaar Bahini, Albadr and Alshams were the part of Auxiliary Force according to the gazette which was found from parliamentarian speech of Sheikh Hasina and Army Act-1952.

Justice Zaheer: Learned prosecution in our Act the offence ‘Incitement’ is absent. There is no offence in our Act which is termed as Incitement.

Zead-Al-Malum: My lord, it was the requirement of law.

Justice Zaheer: Learned prosecution, you should put your argument chronologically like defence.

Then one of the defence counsels Shishir Monir came to the dais and submitted his short argument.

1. Specially This Act was mended for 195 foreign prisoners

2. This case has been fully filed out of political motivation. It is clear from the combined movement in 1994.

3. And my lord, Superior position is not an offence rather than a status.

4. My lord, In case of answering your question whether “incitement” exists in our Act or not? In that case they (prosecution) could have referred the ground that the offence Incitement falls under the scope of “any other offence under this Act”.

Date for Order of Ghulam Azam was fixed on 17th April. Then the court is adjourned,

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