Monday, November 12, 2012

Tribunal response to abduction allegation

It is worth considering whether or not the tribunal's response to the allegation made by the defense that a witness was abducted by law enforcement personnel outside the tribunal gates was sufficient or not

What was the response?
The incident happened at around 10:10 am. At 10.30, twenty minutes later, the tribunal sat and the defense lawyer Mizanul Islam immediately brought the incident to the attention of the three member tribunal. He was followed by the defense lawyers Abdur Razzaq and Tajul Islam. They also complained of, and questioned the need for, the extraordinary level of security at the gates that required the defense lawyers in Mizanul Islam's car to get out of the car along with the witness.

The tribunal chairman called the registrar who explained that the security system was strengthened on that day.

The lawyers continued to complain, particularly mentioning that whilst the defense had to get out of their car, the prosecutors did not.

Haider Ali, the prosecutor was asked to come forward and said that he noticed the increase in security and thought that they must be some reason for it. He then said that another matter is about whether Sukhronjon Bali could be now called as a defense witness as he was previously a prosecution witness.

The tribunal chairman said that this this is not the issue here. 'We would like to know whether the person has been taken away from the gate?' Haidar Ali responded by saying, 'We are not informed about the matter.'

The tribunal chairman then passed an order - a summary of which is set out below:
When the Tribunal sat in the room at 10:30 A.M. Mizanul Islam the learned counsel of the defence team submitted before the Tribunal that when he was entering the Tribunal with his juniors and a defence witness Sukhronjon Bali in his car a plainclothes policeman came and said only the senior counsel could enter with the car and others have to stop at the door. He submitted that Mizanul Islam has entered the Tribunal with his car and his junior didn’t get the entrance. The junior and the witness Sukhronjon Bali have been taken at the side of the gate by the civil dressed person and the junior was told that he is not allowed to enter without pass.  
We are concerned about the occurrence. A special arrangement has been made for security purpose. The lawyers have to come at the Tribunal with their Pass. We also find no reason why the numbers of lawyers present today are much more than another day.

We are very much concerned about the matter of taking Sukhronjon Bali away from the gate. We ask the Chief Prosecutor to immediately ask the higher authority to take necessary steps.

Mr. Haidar Ali also stated that he has observed the checking at the gate.

Now Mr. Chief Prosecutor is asked to go to his chamber to take necessary steps by consulting with the Police authority and take necessary steps. Also the Coordinator of the Investigation Agency is asked to look into the matter with the Chief Prosecutor.
 Abdur Razzaq then asked for an adjournment of proceedings, but this was rejected. Instead the tribunal dealt with a series of applications.

After some time the chief prosecutor and the head of the Investigation Agency came back into the court. A summary of the interaction that took place is as follows.
Chief Prosecutor: We have discussed about the matter of the witness missing with the officials of Ramna Police Stations at the Registrar’s office. They have stated that the security has been strengthen from today. Everyone is required to hold pass to get the entrance. And no one has been abducted from the Tribunal gate. They knew nothing about it.'

Chairman: Are you saying about the civil dressed persons that nothing has happened?

Chief Prosecutor: Yes the Police Officers have stated that nothing has happened within their knowledge.

Chairman: Okay, we will sit at 2:00 P.M. In the meantime we’ll look at the matter by sitting at our chamber.

Tajul Islam: No let the matter be solved first, then you may depart. 
Mizanul Islam: Let us give us the scope to speak. [Angrily]
Tajul Islam went to the door of the Tribunal and came with some photographs in his hands from another lawyer claiming that these were photographs of the witness who was then being abducted.
Tajul Islam: Let the matter be solved first.
There was then an angry cacophony of insults between the defense and the prosecution.
Chairman: No we will not hear this, we will sit at 2:00 P.M.
The defense lawyers did not attend the afternoon session of the tribunal (which started with the closing statement of the prosecution). On the following morning, the Mizanul Islam says that he asked the tribunal about whether they had passed any order the previous afternoon, but the tribunal said that it had not as the defense lawyers were not present. Since then (till now: 12 November), the issue of the alleged abduction has not come up before the tribunal which has continued on its normal course.

The tribunal has previously heard allegations made by both the defense and the prosecution that witnesses on either side in the Sayedee case were being intimidated in Pirojpur. It has not taken any action itself in relation to these allegations, as far as I know, but it is clear from a number of orders that it has believed the allegations when they have come from the prosecution and given favorable orders as a result. So, for example, the prosecution alleged that a number of witnesses that the prosecution had wanted to bring to court were too intimidated in doing so, and this was part of their argument in in its application that their statements could be admitted as evidence. In its order on the application the tribunal stated:
In another report [of the investigation officer] dated 19.03.2012 it is stated that witnesses Suresh Chandra Mondal, Gonesh Chandra Shaha, Shahidul Islam Khan Selim, Md. Ayub Aii Howlader, Sitara Begum, Rani Begum Md. Mostafa, Abdul Latif Howlader, Anii Chandra Mondal and Ajit Kumar Shil, the investigating officer went to their houses and only found the witness Sitara Begum sick in her house and others could not be found. The investigating officer stated in the report that during his investigation, he found that the local arms cadre has given threats to those witnesses and as such due to fear of their Iife, they have kept themselves in the secret place so that they cannot be produced in the Tribunal and their life is saved. The investigating officer mentioned that the terrorist groups who gave threats are man of the accused. Based on that report, the learned prosecutor Mr. Syed Haider Ali submitted that a prima-facie material was found by the prosecution in support of their statements that these witnesses cannot be produced in this Tribunal and their attendance cannot be procured without an amount of delay or expense. Mr Ali further submits that considering this aspect, this petition may be allowed.
The Tribunal's order on the back of these allegations went on to allow 15 statements - including all of those alleged to have been intimidated - to admitted as evidence. The order appears to accept the prosecution claim that these witnesses were subject to threats.

The defense have also argued to the tribunal that its witnesses have been intimidated by the police. The Tribunal in response has said that the witnesses can always seek the use of the safe house used by the prosecution, but the defense have responded that they do not trust the authorities to be involved with their witnesses.

However, the allegation about the abduction of Shukharanjan Bali is of an entirely different order.
- The defense had specifically filed an application on 21 October with the tribunal requesting it to issue a summons so that he would appear in court; the tribunal had ruled against this, and simply said that the defense were at liberty to bring any witness to court. The defense lawyers have said that they sought the issue of a summons as part of protecting the witness from intimidation, and making it easier to come to the tribunal. It remains unclear why the court was not willing to issue a summons in this case.
- A subsequent application had been made by the defense seeking permission from the court to allow him to appear as a witness even though the tribunal had closed the defense case. The court set the 4th November as the date for this. The witness was brought by the defense to the tribunal and he was present the whole day in the tribunal premises. In the morning the tribunal said that they would hear the application at 2pm. However, at 2pm the tribunal did not hear the application, providing no reasons for not doing so, even though the witness was present in court to give evidence. It remains unclear why the tribunal did not hear the application at 2pm.
- the witness was  abducted right outside the court premises;
- the complaint was made to the tribunal within twenty minutes of the abduction;
- eye-witnesses to the events that morning was a senior defense lawyer, a number of junior defense lawyers, and two other journalistic eye-witnesses who were present in court;
- the tribunal must also have been aware of the potential significance of the evidence that Bali may have given.

However, all that the tribunal did was to ask the chief prosecutor and head of the investigation agency to find out about the allegation. The tribunal was not adjourned in the meantime - it continued with business as usual. It did not take any statements from any of the witnesses to the incident. When the prosecutor returned after about an hour, and reported that the police had no knowledge of the incident, the tribunal took no further action. It did not seek to take any further detailed information about the allegation from those who alleged that they had directly seen it.

A further legitimate question would be why did the tribunal ask the prosecution and investigation team to find out what happened - since they are very much a party to proceedings, and have a direct interest in the matter. Why did the tribunal not use his own executive personnel, including the registrar, to make enquiries on the court's behalf?

Many will conclude that the tribunal did not respond satisfactorily to a serious allegation of witness abduction outside its court gates

Perhaps, though, what this incident shows is the extraordinary lack of trust that imbues this whole process.

It is impossible to say what an international tribunal would do in this situation - since it is unfathomable to think that such a thing would happen (as the witnesses would be involved in a proper protection service) and if if somehow it did happen, the tribunal would almost certainly accept the allegation made by the defense lawyers, the prosecution would be just as outraged as the defense, and there would be a system to undertake immediate enquiries that would get to the truth of what happened.

We now have to wait and see how the High Court responds to the Habeas Corpus application that was heard on Sunday.

1 comment:

  1. Hi David,

    Your useful posts have been missed over the past few months. I wonder whether you're still supporting the ICT in principle, given all the recent developments? Is it not by now obvious what a farce this whole process is, and how systemically biased the court is? Or will it take innocent people getting executed to make you think that there is perhaps a very clear and rather sinister answer to your questions like: 'Why did the tribunal not use his own executive personnel, including the registrar, to make enquiries on the court's behalf?'. The outcome of the trials has been determined a long time ago, and the issues such as the one you highlighted here are not simply an occasional glitch in the workings of an otherwise reasonably just and balanced court.