|Delwar Hossain Sayedee at the tribunal|
It concerns the defense's application to review the 29 March 2012 order which allowed 15 unsigned statements to be admitted as evidence against Delwar Hossain Sayedee
An analysis of the 29 March order was dealt with in a separate post. There I concluded that though there were reasons to question the Tribunal's decision to admit the statements, it was arguably reasonable within the tribunal's broad discretion. The lack of reasoning in the order was however of concern, as well as the court's failure to provide the defense a copy of an investigation report upon which the tribunal based its decision.
However, the application filed for the review of this order opened up a whole new can of worms, raising very significant issues concerning the very integrity of the investigation and prosecution process.
The tribunal has so far failed to engage with the issues of integrity raised by this. In addition it passed orders that failed to assist the defense lawyers in proving the authenticity of documents that it had ruled the defense should prove
This is what happened.
15 witness statement order: On 29 March 2012 the tribunal passed an order which allowed 15 unsigned statements to be admitted as evidence without the relevant witnesses being brought to court. This order was given on the basis of prosecution arguments that the witnesses were either missing or were in hiding due to threats from armed men on the side of the accused.
Safe house registers: On 10 April 2012, the Amar Desh newspaper, a pro-BNP publication wrote an article alleging that three registers concerning the safe house (the place where prosecution witnesses stayed in Dhaka prior to attending court as a witness) showed that some of the witnesses whom the prosecution said were not available to give evidence (missing or threatened) and whose statement the tribunal had agreed to admit on the basis of the prosecution assertions, had in fact stayed at the safe house in Dhaka at the time when the court was hearing testimony.
As part of their application filed by the defense to 'review' the 29 March order, the defense lawyers initially appended the Amar Desh article and then subsequently on 3 June filed a copy of the actual registers with the court as part of their review application.
The defense lawyers appear to have received the register from the Amar Desh journalist, Oliullah Noman. This journalist has not revealed how he obtained these registers - and it is of course possible that Noman actually received the registers from the defense lawyers (though the defense lawyers deny this).
The registrars are very detailed daily records providing information not just on every entry and every exit of every person from the tribunal, but also administrative details about the house (including the names of all the police offices involved in dealing with the safe house, their mobile numbers, badge numbers, what was purchased etc).
The defense lawyers argued in court that the witnesses whom the register shows had come to Dhaka from Pirojpur, did not wish to give evidence to the tribunal, as they did not want to lie for the prosecution. The register however provides no actual evidence that this was the particular reason behind their non-attendance.
What the registers show: What the registrars do however show is that out of the 15 witnesses whose statements the tribunal agreed could be admitted as evidence without them having to be brought to court, seven had come to Dhaka and were available to give evidence during the period when the tribunal was taking testimony, and either they did not want to give evidence or the prosecution did not in the end for them to give evidence.
In two of the cases, the witnesses were actually brought to the tribunal itself and sat in the prosecution rooms but were not brought to court.
Specifically the registrar shows that, in date order:
- Abdul Latif Howlader was in the safe house between 31 December 2011 and 5th January 2012. During this period the register states that he was taken to the Tribunal consecutively on 2nd, 3rd and 4th January - but was never produced before the court. The register goes onto state that on 5th January along with five other people he went back to his home. 'At 6.30 am [they] started their journey for their house,' it states.
- Shohidul Islam Khan Selim stayed in the Safe House from 10th to 12th January and was taken to the prosecution room in Tribunal on the 11 and 12 January.
- three witnesses Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mondol were present in the safe house between 31st January and 16th March 2012. On the 16 March the register states that these witnesses at 6.20 am 'started their journey for their own house.’ However on 2 February the prosecution had told the tribunal that these three witnesses had left the house to go to a relative's and had never came back. In their application to admit their statement, the prosecution added that these three people had secretly gone to India
- Anil Chondro Mondol stayed in the Safe House from 12th to 16th January 2012.
- Ajit Kumar stayed at the safe house on 10 February and stayed until 13th February.
(I have checked the registers, with the help of an independent translator, and this is exactly what they show)Defence review application: The defense lawyers first of all made their arguments on 22 May (here and here) on the basis of the Amar Desh article. [Note: On that same day the defense also showed video broadcast on Diganto and Islamic television in which four other witnesses, also amongst the 15 whose statements were admitted, denied Sayedee's involvement in offenses. This post does not deal with this relevance of the video evidence].
Prosecution response: On the next day, the prosecution responded and said that the information concerning the presence of these witnesses was 'false information'. The tribunal however asked the prosecutor to provide a written response.
In the written response, that came before the court on 3 June, the prosecution denied that such a register was ever kept, and that all the information in the Amar Desh article was false
Defence response: On 3 June in its response to this, the defense then filed a copy of the Attendance Registrar, General Diary Book and the Food Book of the Witness Safe House. The defense lawyer said that that the documents were now in the public domain having been put on the internet.
In camera proceedings: In response to seeing the documents, the tribunal passed the following order:
Upon the perusal of the reply we direct the person-in –charge of the safe house where the prosecution Witness are kept, and all others persons of the safe house to be produced before the Tribunal on 7 June 2012. The investigation officer is directed to inform and bring them to the Tribunal.On 7 June the safe house officers came to court and were questioned by the tribunal 'in camera' (i.e not in public). It is not known what was stated.
Defence 'prove' authentication: The matter then continued on 11 June. Here the defense went through the registers in detail, and showed how the comings and going of the witnesses to the safe house, as noted down in the registers, matched exactly the attendance of the witnesses in court.
As part of trying to prove the authenticity of the registers, the defense pointed to a number of entries in the registers that the defense could, they say, never have known about. This included:
- An entry numbered 175 on the page dealing with 12 January 2012 which stated that 'S.I. Kalachan has left the safe house to go to the CMM Court Number-31 Dhaka to give a statement on the case of Chawkbazar Police Station containing case no- 41(03)10 GR Case- 102/10 in Metropolitan Magistrate Court No. 31, Dhaka.' The defense said that there was no way the defense could have known about this information and then produced the court documents to prove that in fact the police officer had indeed gone to the court as the register stated.
- An entry numbered 75 dated 06 February 2012 and Entry No. 175 dated 23 February 2012 which indicated that payment of telephone bills of the Safe Houses telephone numbers 7547810, 7547807 and 7547804 to BTCL needed payment. The November 2011 bill for those three numbers was stated for each of these numbers as 4912 taka, 4114 taka and 4168 taka. It was then written in the register that, 'The bill has been sent to the ICT Head Office.' A further entry numbered 374 stated that the bill had been paid. The defense then showed the tribunal copies of these paid bills;
- the mobile phone telephone numbers of all the police officers in the safe house;
- an entry numbered 59 dated 22 October 2011 which set out what furniture etc was purchased for the safe house.
- Entries numbered 115, 116 and 117 on the page dealing with 9 December 2011 which stated that someone had called Mr. Mahabubul Alam Hawladar and threatened him. The note states that: ‘I the In Charge of Safe House, hereby note it down that I have called the Operation Officer Majharul Islam of Jatrabari Police Station to take necessary steps about the GD Entry No- 490, 491, 492, 516 and 534 dated- 08-12-2011 about the threats of the witness of the safe house over telephone. I hereby record the matter for the future reference. Majharul Islam has made a GD Entry No- 516, dated- 9-12-1011 about the above matter.’ Again the defense stated that it could never have known this detail of what happened.The defense lawyer argued that these registers showed that the investigation officer had committed fraud upon the court and had perverted the course of justice as he failed to inform the court that these witnesses had been present at the safe house.
Prosecution 'concoction' allegation: In the afternoon of 11 June, the prosecution responded by saying that there was no need for the kind of establishment like the safe house to have a register and that it in fact it never had such a register. 'These documents never existed,' the prosecution said. 'These registers are concocted by some one who is expert in doing this. This is like fake currency. General people may not be able to identify it. But it is fake.' He went on:
'And my lord, a document which has been given by the defence these are nothing but fraudulently prepared. They have created these registers within this one month time for filing this review petition. there was fraud – by you have to determine who have committed fraud. The defence prayer for discharge shows that these documents were concocted to substantiate this argument.Tribunal ruling: Over a month later, on 12 July, the tribunal passed an order on the review application. In relation to these registers, the order stated:
The defence has produced photocopies of documents allegedly of witness safe house, witness and guests register, general dairy book and the food book and annexed as annexure A, B and c respectively. It has not been stated how they have collected these documents when the very existence of those documents are challenged by the prosecution and on that challenged in a camera proceedings in presence of two counsel from the defence and two prosecutors we have examined the persons in charge of the witness safe house and they also denied the existence of the documents. Moreover when the prosecution has denied the existence of the documents, the defence is to prove the same, as they had produced the alleged photocopies of the same. ...
The defence has not stated from where they have got this photocopies but it appears that in the news report dated 12.04.2012 the materials have been stated. Now defence is to disclose from where they have collected the said photocopies in order to get any benefit out of those documents. However in disposing of this review application we do not want to go further into the question of genuineness of those documents and leave it to the parties to do the needful. We are of the view that on the finding of the genuineness of the claims of the parties, we can finally decide on evidence whether the witness statements received in evidence shall be considered by us or not. But if we get on evidence that either of the party or somebody belonging of them, is responsible for misleading the Tribunal or for forgery then proper action will be taken against the responsible persons for misleading this Tribunal or for committing forgery.Subsequent applications: On 19 July, the tribunal heard a number of applications relating to this order:
- application that action should be taken against the investigation officer for lyng to the tribunal, and the accused discharged. It was alleged that he had 'perverted the course of justice and wilfully misled the Hon’ble Tribunal when submitting that the remaining 46 Prosecution witnesses were not available when in fact they were in the Prosecution’s custody at the time.' This was rejected by the Tribunal as the issues will be considered 'after taking the evidence'
- application that the exhibit numbers of the 15 witness statements should be removed. This was rejected.
Defense authentication issues: The nub of the 12 July tribunal order rejecting the review application was that the defense had to provide further proof of the genuineness of the registers.
On 19 July, the defense sought an order from the tribunal requiring details of the phone and badge numbers of the relevant officers of the safe house to show that they matched those in the register. It also asked for relevant records of police documents relating to a series of notes contained in the register. It stated:
'That it is stated that the General Diary Book of the Witness Safe House (Annexure B to the Reply) is an hourly record of the Witness Safe House which is maintained under Regulation 377 of the Police Regulation of Bengal (PRB).It contains detail information, including mobile phone numbers and the badge numbers, about the Police Constables and the Officers who were in charge of the Witness Safe House, a list of which is given in Schedule X of this Application. It is submitted that no one other than the concerned Police Constables and the Officers of the Witness Safe House are in a position to know these information. Moreover the General Diary Book (Annexure B to the Reply) also contains diary notes containing information regarding the Witness Safe House which an outsider is not in a position to know. A list of these diary notes have been given in Schedule – Y of this Application. Since the Prosecution has challenged authenticity of Annexure A, B, and C of the Reply, it is now very important to call for the records of the relevant Police Constables and Officers (Schedule – X) and the Office records regarding authenticity of the diary notes (Schedule – Y) to cross check the same with information contained in Annexure A, B, and C of the Reply.'The tribunal rejected the application saying that it was the responsibility of the defence to prove the registers.
Ten days later, on 22nd July 2012 the defense filed another application seeking an order by the tribunal to summons the safe custody house police officers. This was heard on 29 July and the tribunal ordered it to be kept on the record. On 8 October, the defense then filed another application - on the basis that the first one was rejected - with the same request. It argued:
'It is further submitted that the persons named in Schedule X are relevant witnesses without whose testimoney the contents of the three registers of the Safe House cannot be proved. They are necessary witnesses who have direct knowledge of the contents of those registers. It is also submitted that without calling those persons as witnessess it will be simply impossible for the Accused-Petitioner to prove the contents of the three registers of the Safe House because they acted as Inspector, Sub-inspectors, constables and perform other duties in the Safe House, as listed in Schedule X of this Application.'On the following day the tribunal rejected the application, saying that the defense can bring to court as witnesses whoever they wished but the tribunal would not summons then. The tribunal also said that any of those safe custody house witnesses that they did bring had to come within the 20 witness limitation that the tribunal had earlier imposed. The tribunal also suggested that if the defense wanted to bring any police officer from the safe custody house, the permission of the prosecution would be required, as they are technically part of the investigation agency. [The issue of the tribunal refusing to issue summonses for defense witnesses, is discussed here]
On 10 October, the tribunal rejected an application for an adjournment to allow the defense try and bring one or more safe custody house witness to the tribunal. This was not allowed.
On 16 October, the tribunal ruled that the registers could only be admitted as evidence through the journalist who obtained the documents and that he must come as a witness to the court for these documents to be admitted
On 31 October, the defense lawyers filed an application asking that the journalist Oliullah Noman who initially broke the story about the registers be allowed to come to court. An application of this kind had to be made as the tribunal had close the defense case on 23 October (against the wishes of the defense team)
1. That it is stated that the defence has already called 17 DWs out of the 20 DWs limited by the Tribunal. On 15-10-2012 and 16-10-2012 the Hon’ble Tribunal did not allow DW 13 to exhibit (1) PWs’ Attendance Registrar (2) General Diary Book and (3) Food Book maintained in the Safe House from 18.10.2011 to 30.03.2012 (jointly referred to as ‘Safe House documents’) in the 11th Volume of the Defence Document submitted as Annexure A, B and C of the ‘Reply to the Prosecution’s Written Objection on the Application for Review of the Accused-Petitioner against the order under Section 19 (2) IC(T)A’ filed on 3rd June 2012.
2. It is stated that the Tribunal observed on 16.10.2012 that the person from whom DW 13 collected the Safe House documents could only exhibit these documents. It is stated that DW 13 has collected the Safe House Documents from Mr. Oliullah Noman of the Daily Amar Desh.
3. That it is staed that Mr. Oliullah Noman has agreed to give evidence before the Tribunal to exhibit the Safe House documents.
On the 5 November, this application was rejected, and as far as I know, no reasons were given.
1. On the issue of authenticity of the registrars, it is very difficult to see howt the documents provided to the court are copies of original registers that were filled in by the safe custody house officers. Having seen the documents myself, the details contained in them, it would appear impossible for these documents to have been forged as suggested by the prosecution. It is also clear that there is detailed information within the documents that could only have been written by safe custody officers. The defense allegation of 'concoction' simply is not sustainable - they did not bring any alternative register, and their claim that this safe house had no register is unsustainable.
2. Without making any comment right now on adequacy of the evidence against Sayedee for the substantive offenses of genocide and crimes against humanity, I would suggest that there is far greater evidence to prove that these registers are authentic than any evidence that has been heard that Sayedee has committed an offence of crimes against humanity/genocide. So if the tribunal were to decide that Sayedee is guilty of one or more of the 1971 offenses, it would be difficult to see how they could not, at the same time, accept that the registers were authentic.
3. It is notable that the tribunal's orders have not made any evaluation of the authenticity of the registers, and in particular did not respond at all to the various points that the defense used to show the authenticity of the registers.
4. On the assumption that these are true documents, it means that there has been, as the defense has in fact alleged, serious deceit on the part of investigators and prosecutors. This would involve:
- failure of the investigation officer to inform the court that these witness had in fact stayed at the safe house, and therefore had been in a position to give testimony at the tribunal. Had the investigation officer informed the court of this, the tribunal would unlikely to have had the basis for admitting as evidence the 15 witnesses.
- the investigation officer's reports to the tribunal would therefore have been dishonest documents;
- the cover up. The prosecutor did not simply state that these 'registers' are forgeries but also that the safe house did not have any registers at all. Is it possible to imagine that any so called safe house, would have no record of any kind concerning the entrance and exit of people from it or that it had no administrative documents concerning the way it functioned? If so, what kind of safe house was this, one must ask. This is however what the prosecutor is suggesting by saying that there are no registers - and he has not submitted any other documents relating to the administration of the safe house. One can only speculate why he might have said this; though it should be noted that had he not said there was no registers at the safe house, then he would have had to have brought the actual registers, and since the defense provide registers are the actual registers he would not have been able to do so.
- what the head of the investigation agency and the safe house officers told the tribunal in camera. Whilst it is not known what happened there, it can be assumed that the safe house officers did not state clearly that defence-provided register was a copy of the actual register which they had been involved in filling it up. Since some of these officer's handwriting and signatures are contained in the register, this raises an issue about what they stated to the tribunal. The head of the investigation agency told me on that day that the 'safe-house had no register' and one imagines that is what he told the tribunal.
5. The tribunal's order of 12 July states that the defense must prove the veracity of these registers. This they tried to do by asking the tribunal to issue an order providing them information relating to police safe house officer's mobile numbers and badge numbers (so they could see if they matched with the information in the register) and also documents concerning particular notes made by police officers in the registers, so that they could verify them to be true. This application was rejected
Then the defense asked for the safe house police officers to be summonsed by the tribunal. Again this was refused. Not only that, the tribunal said that any safe house witness that the tribunal brought had to be within the number of 20 witnesses that the tribunal had allowed the defense to bring to court.
It is difficult to understand why the tribunal would not have wanted to assist the defense in coming to a proper understanding of these registers.
The effect of these decisions was to preclude the possibility of the defense being able to further 'prove' (though as I said they had surely already been proven to be genuine copies) the authenticity of the documents. It would appear that the tribunal had no independent interest in whether these registers were authentic or not.
6. The decision by the tribunal not to allow the Amar Desh journalist to come to the court is difficult to explain. Throughout discussion of the issue of the registers the tribunal has raised concerns about where the registers had come from. And here was a chance for the person who initially had obtained the registers to come and give evidence. Moreover, the tribunal had specifically mentioned that this witness should come to the tribunal to allow admission of the registers as evidence.
As of now, as far as I understand the tribunal has not admitted the safe house registers copies as evidence
7. I have asked a number of independent international lawyers about the significance of all this - and they suggest that this level of alleged chicanery on the part of the investigation/prosecution team would have raised, in most courts around the world, serious questions about the integrity of the whole trial process.