Sayedee trial analysis: prosecution statement admission

This third analysis of the Sayedee trial looks at the decision made by the tribunal on 29 March 2012 to admit as evidence 15 unsigned written statements written by the investigation officer.

There are some concerns about this court order (set out at the end of this note). But this tribunal order is considered here not so much because it raises significant concerns in itself (since the tribunal did accept that it would be cautious in dealing with these statements considering they were unsigned and the witnesses could not be cross examined) but it provides the context of a subsequent analysis which looks at issues raised when this decision was subject to a review application. It is how the tribunal dealt with the review application which raises issues of a more serious nature.

First analysis: limiting defense witness numbers

Second analysis: defense witness summons refusal

Background
The prosecution started calling its first witness in December 2011, and by the end of March had called 20 witnesses of fact, about 7 'seizure list' witnesses. On 18 March, the prosecution announced its intention to call the investigation officer. At that hearing the tribunal warned the prosecution that if they called the investigation officer then they could not call any other witness. A few days latter the prosecution filed with the court an application seeking the admission of the statements of 46 witnesses.

Prosecution application
On 27 March 2012, the prosecution argued before the tribunal that the statements of 46 witnesses which had been prepared by the investigation officer should be admitted as evidence. Section 19(2) of the Act 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 trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable”.

In the application the prosecution listed one witnesses as 'Sick, Lost memory, Death risk in traveling'; 1 as  'Missing for about last 4 months after he went out of his house'; 3 as  'Missing from the first week of February 2012 and secretly gone to India'; 14 as having been threatened by an 'armed terrorist group in Piropur and since they are in fear, they cannot be found;' and the remaining 26 as 'not witnesses of facts. But their statements recorded by the Investigation Officer are important for the case'. The application went onto say:

'The attendance of the said witnesses cannot be procured without an amount of delay and expense and it is not at all possible to bring those witnesses and for that reason it is not logical to try such a thing. ... If the statements of the above witnesses recorded by the Investigation Officer are not admitted as evidence the fair trial will be hampered and the Prosecution will suffer loss ... .'

The application pointed to an investigation report upon which the prosecutor was relying. When the prosecution sought a copy, the tribunal refused to give it saying that the defense have no right to be provided it.

In oral arguments, the prosecutor, Haider Ali made the following further points:

- Sukho Ronjon Bali is not at home. His wife and daughter informed the investigation officer that one day he went to Parerhat Bazar and did not come back. They have video statement of his wife and daughter; Usha Rani Malakar is suffering from old age complications; Asish Kumar and Sumoti Rani, went to India; Suresh Chandra Mondol is at home but threatened by local terrorists; Gonesh is at home but threatened by local terrorists; Ayub Ali - is physically sick. He is also at home but threatened by local terrorists.
- witnesses 6 to 19 in his application were being threatened by armed terrorists in the locality who are known as Shamim; Parvez; and Almas Khan and others
- a report in the newspaper Kalor kantha on 23 March stated that witnesses were being scared away from giving evidence. It said that supporters of Sayedee were publishing rumors that those who are giving testimony against Sayedee are 'falling at the anger of God'. It mentioned that one of the prosecution witnesses Basudev Mistri, prosecution witness no. 10 died from a heart attack, and one police officer died whilst in the process of obtaining witnesses against Sayedee to the tribunal and for this reason local witnesses are frightened. The article alleged that one of the defense witnesses Mr. Mokarrom Hossen Kabir preached such propaganda among the people.
- when asked by the tribunal whether there was 'any value of this type of witness if they are not cross-examined', the prosecutor argued the evidence would be considered as weak evidence.
- when asked about Asish Kumar, Somor Mistri, Usah Rani Malakar whom the prosecution said had been in the investigation officer's custody, the prosecutor said that they left the safe house saying that they were going to visit their relatives but later on they did not come back.

Defence response 
On the following day, 28 March, the defense responded. In their written response they argued that:

It is not correct that the Investigation Officer has recorded statements of the said 46 PWs. In fact the copies of the statements that were served in the names of the PWs are prepared and concocted by the Investigation Officer. The PWs are not ready to support the statements that were served earlier in their names and they are not ready to give false evidence against the Accused and this is why the prosecution is unable to bring those PWs. This was reported on 24th March 2012 in The Daily Sangram, on 25th March 2012 in the Daily Amar Desh and on 27th March 2012 in the Daily Naya Diganta. [NOTE: Daily Sangram and Daily Naya Diganta are pro-Jamaat papers; and Daily Amar Desh is a pro-BNP newspaper]

Not fit section 19(2) criteria: They then argued that the reasons given by the prosecution do not fit into the criteria of section 19(2):

In relation to the Usha Rani Malaker who is said to have lost her memory, the defense argued that: 

'the prosecution failed to produce any supporting document to show that this witness has lost her memory. Moreover there is no evidence as to whether Usha Rani Malakar’s alleged a statement was recorded before or after her mental disorder. It may be noted that a statement made by person with mental disorder does not have any value in the eye of law.' 

In relation to Sukharanjan Bali, the defense stated that:

 'the prosecution failed to produce a single evidence/document to support this claim. If this person was really missing for such a long time then his family members would have filed a general diariy in the local police station reporting the news of his missing. On 27th March 2012 the Daily Naya Diganta reported that this witness is not ready to give any false evidence as concocted by the Investigation Officer in his name. Perhaps, due to this reason the Prosecution cannot bring this person to the tribunal as they cannot rely upon this witness.'

In relation to Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri, the prosecution claimed that they were never missing. 

'It may be recalled that in the January 2012 these witnesses were brought to Dhaka in the secret witness hostel and kept there for more than one month in the said hostel. At one stage the prosecution filed Haziras (Appearance) for these three witnesses. On 2nd of February the prosecution informed the tribunal that these witnesses left witness hostel on the previous day in the name of visiting their families and did not return back. On 27th March 20012 the Daily Naya Diganta reported giving reference to the close relatives of these three persons that in fact these witnesses were in the custody of the Investigation Officer for about 30 to 45 days. It is reported that they were tortured but they denied to give false evidence against the Accused. This is why they were not brought to the tribunal.'

In relation to the 14 witnesses alleged to be in fear of coming to the tribunal, the defense lawyers stated:

'This allegation is already denied as being incorrect, fabricated and false. The prosecution fails to substantiate these allegations and there is no factual basis. It is submitted that the prosecution failed to produce a single evidence/document to support this claim. In fact the Accused has no armed or unarmed terrorist supporter who may have threatened the said PWs. It is not at all possible since the local administration has kept a very sharp eye on the PWs. ... It may be recalled that at the time of hearing of the Application on 27th March 2012 the prosecution submitted a report of the concern Police station (copy of which is not given to the Defence) to show that the witnesses in serial nos. 6 to 19 of the table are missing. But at that time the Prosecution admitted that the report did not contain names of Gopal Krishno Mondol (Sl 10), Bozlur Rahman (Sl 11), Khalilur Rahman Sheikh (Sl 18) and Eshak Ali Khan (Sl 19).

In relation to other 26 witnesses, the defence stated:

'The prosecution failed to provide any reason as to why they are unable to bring them in Tribunal for giving evidence in the instant case. Even the prosecution does not claim that these witnesses are unable to come. It is to be noted that most of these witnesses are well known in the society and some of them regularly address print and electronic Medias of the country. They are very much available.'The defense stated that 'section 19(2) of IC(T)A is applicable only for the statements of a person who is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal consider unreasonable. It may be noted that this does section does not apply for persons who are alleged to have been missing.'

Statements not taken by investigation officer: The defense application then argued that the statements taken are not in fact statements taken by the investigation officer, but are prepared and concocted by the Investigation Officer. There is no proof, they argued, that the 46 witnesses gave any statement to the Investigation Officer at the time of investigation. In support of this claim, the defense stated:

- 'some of the prosecution witnesses who have already given oral evidence before this tribunal did not admit giving evidence to the Investigation Officer at the time of investigation despite the fact that Prosecution has served witness statements in their names claiming them to have been recorded by the Investigation Officer at the time of Investigation. For instance the Complainant, PW 1, Mr. Mahbub Alam Talukder in his cross examination admitted that between the date of filing of the case on 20th July 2012 and giving evidence in tribunal on 7.12.2012 he did not make any statement to anyone. .... Moreover the PW 2, Mr. Ruhul Amin Nobin in his cross examination stated that he as discussion with the Investigation Officer about this case on March 2010 i.e. before comencement of the investigation. But he did not admit giving statement to Investigation Officer after commencement of the inestigation. It is to be noted that the Proseuction has filed statements of these two witnesses alleging them to be recorded by the Investigation Officer during investigation. But from the above statements it is clear that Investigation Officer did not have any opportunity to record the statements of these two witnesses.'

- 'Most of the material PWs who have already given evidence before the tribunal has contradicted their statement made to the Investigation Officer. ... For instance PW 24, Mr. Hosen Ali in his oral evidence before the Tribunal stated that he saw the Accused in the residence of Rawshan Ali in Bagharpara. He stated that he could not remember whether it was before or after the liberation war. This PW did not make any further statement about the case in the Tribunal. But it is to be noted that Investigation Officer prepared a very long statement in the name of this witnesses, which was served upon the defence. There is no similarity in the statement made by this PW in Court and in the statement alleged to have been recorded by the Investigation Officer.

Statements 'copy and paste': As part of proving their claim that the investigation officer made up the statements, they pointed to some of the statements being exactly the same as each other. 'Sometimes it is merely a copy and paste work by the Investigation Officer.' They pointed to the similarities between the statements of

- Sayef Hafizur Rahman (who had already deposed) and that of his younger Sister, Ms. Afroza Parveen; 

- Asish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri;

- Md. Solaiman Hossen and of Hossen Ali, both of whom had already given statements; 

- Khondokar Sohidullah and Julfikar Ali; 

- Md. Mostafa, Rani Begum and Setara Begum.

Securing attendance of the witnesses not ‘unreasonable’: the defense argued that the Prosecution 'has failed to factually establish that an unreasonable amount of delay of expense would be incurred in securing the attendance of the remaining 46 Prosecution Witnesses.' The defense further argued that the Prosecution has failed to 'establish measures taken to secure the attendance of witnesses or proof of expenses incurred or potentially incurred in securing the attendance of such witnesses.'  They also said that in light of the amendments to the Rules of Procedure allowing special protective measures to be implemented, the Prosecution cannot prejudice the Accused if they fail to give protection to the PWs.

Section 161 of the Criminal Procedure Code: The defense argued that was well settled principle of Bangladesh law that the statements recorded by an investigation officer have got no evidential value in the eye of law and that they can only be used to show contradiction of a witness statement made in court. 'Moreover there is no valid reason why a statement alleged to have been recorded by the Investigation Officer should be believed, particularly when there is no proof that the Investigation Officer has actually recorded those statements. This has never been practiced in our legal system.' [NB: CrPC is excluded from the operation of this tribunal]

Prosecution response

The prosecutor responded by showing that the prosecution cannot afford unreasonable delay; that if the tribunal would like them to find the missing witnesses who went to India they would need to scan 150 crores people in India. This is not realistic, he said. 

He said that statement made to the investigation officer was reduced into writing as the investigation officer deemed fit.

Tribunal order

On the following day the Tribunal passed its order. The relevant extract of the decision is set out below:

We have considered the statements made in the petition and also made in the written objection. Rule 19(2) of the Act runs as follows: ‘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.’ The statements made in the petition supported by the annexures with the petition and the submissions made by the prosecutor in this respect we are satisfied that the prosecution has been successful in making out a case that some of the mentioned witnesses cannot be procured without an amount of delay of expense. In this regard we are of the view that regarding witnesses Usharani Malaker, Sukhraranian Bali, Ashish Kumar Mondal, Sumati Rani Mndal, Somar Mistri, Suresh Chandra Mondal, Ganesh Chadraa Saha, Shahidul Islam Khan Selim, Md Ayub Ali Howlader, Sitara Begum, Rani Begurn, Md Mostafa, Abdul Latif Howlader, Anil Chandra Mondal and Ajit Kurnar Shil, the 15 witnesses, the prosecution has successfully satisfied the requirement of section 19(2) of the Act and regarding those witnesses, we pass the order to receive the statements made by them for the investigation officer in evidence. As regards the prayer for other witnesses, as we are not satisfied, the prayer is rejected. We are cautious about the matter that these witnesses are not being brought and produced before the Tribunal and cross-examined by the defence and no oath is there for consideration of them as evidence. The law will take its own course. These statements will be treated in evidence considering all these aspects. Accordingly the application is allowed in part. After the order was passed Mr. Syed Haider Ali, learned prosecutor informed us that they will produce only investigation officer for recording evidence and no more witness. (emphasis added)

Comment

(This comment is made on the basis of information that was made at the time the tribunal order was made - not in the context of subsequent revelations which are dealt with in the fourth analysis, to be posted shortly.)

It is important to note that the tribunal admitted 15 statements with a 'caveat - specifically stating that it was 'cautious about the matter that these witnesses are not being brought and produced before the Tribunal and cross-examined by the defence and no oath is there for consideration of them as evidence. The law will take its own course. These statements will be treated in evidence considering all these aspects.' This is a significant concession, though we will have to wait until the judgment of the court to see what level of caution the tribunal gave to them.

There may well be criticisms that can be made of this ruling - and the defense certainly have them - but it's basic ruling that the statements are admissible arguably falls within the discretion permitted of a judge in this tribunal. 

However, the concern about this order is the lack of reasons for its decision. 

It states the requirements of section 19(2) have been satisfied, but it does not explain why it is of the view - particularly in light of the defense arguments. The order mentions some of the defense arguments, but it does not respond to them in any way at all. 

With such an important decision as this one - the admission of unsigned statements where the defense have raised some apparently legitimate concerns about their bona fides - one would hope that the tribunal would set out clearly in relation to each of the 15 statements why it was its view that their 'attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.'

However they were entirely absent. A lack of reasoning does provide an opportunity for parties to question the integrity of the decision making process.

Another concern is the decision by the tribunal against allowing the defense to see a copy of the investigation reports submitted of the investigation officer upon which the tribunal based its decision. How can the defense respond if they are not provided a copy of the report - it is a pretty basic issue.