Wednesday, March 20, 2013

28 Nov 2012: Sayedee defense closing, day 8

Defence closing arguments in the case of Sayedee continued from the following day. Abdur Razzaq said that Mizanul Islam could not attend court that day so he would submit on legal points. He said he would submit on
- Delay
- Malafide
- 1973 Act was primarily meant for the 195 Pakistani Army officers, and if the principal offender is released then the accused cannot be charged as secondary offender.
- Definitions and elements of Crime.
- Legal arguments on points of law in Section 19(2) issues.
- What a Judge should do in a politically charged matter like this case.
(The summary of Sayedee defense closing arguments partly draws from defence lawyer's own notes of proceedings)
In relation to delay, Razzaq submitted the following points-
1. The instant case is filed 40 years after the incidents – this is unprecedented delay.
2. PW 1 and 6 filed the case alleging incidents of 1971 for the first time against the Accused in 2009. Those cases were filed to stop him from going abroad.
3. The prosecution should have explained the delay of this 40 years of filing this case, but they did not do so.
4. All PWs except PW 1 and 6 admitted that during last 40 years they did not complain in any Court or Police against the Accused. Even PW 1 and 6 filed their case in 2009 and could not give satisfactory explanation about delay in filing the case.
He then mentioned some cases
- 44 DLR 492 – Delay of few hours to file FIR is not acceptable.
- 10 BLC 175- delay of one day makes case shaky.
- 10 BLC 209- delay of 15 days was not satisfactory.
- 12 BLC 2007(165) unexplained delay is not satisfactory.
- 1994 (1) AC (42) HL. - Unjustifiable delay is prejudicial. It will go in favour of the Accused

He went onto say that PW 27 Mr. Saif Hafizur Rahman gave evidence about killing of his brother. He was a member of parliament twice when his party was in power. But during last 40 years he did not complain to anyone about killing of his brother. Prosecution did not make any attempt to explain the delay. Now I would like to give Challenge to the Prosecution to show us a single case where 40 years delay in War Crime case was held to be justified? Such a fabricated case was never been filed anywhere in the history of civilization. Earlier same government was in power. But such a case was not filed.
Razaq then moved onto discuss why the case was ‘male fide’
1. Mizanul Islam gave suggestion to all the prosecution witnesses that they gave false evidence for political prupose and about their Malafide intention. (relevant part of PW 12 and 27 were read out).

2. The first ever allegation against the Accused was made on 25.01.2001 in the Daily Jonokontho (Ex-27). The next one was on 5.3.2001 published in the same newspaper (Ex-8). This is a government supported news paper and the news reports were published to discredit the accused in the ensuing election in October 2001 national election. The next news was published in the Awami League supporting newspaper Bhorer Kagoj on 17.07.2007 (Ex – 46) and then in the Daily Jonokontho on 4.11.2007 (Ex – 11). Both of these news were published to discredit the Accused in the ensuing election in December 2007.

Chairman said that at first we need to be satisfied that the accused was not involved in the atrocities. If he was not involved then we shall look into whether there was Malafide intention or not.

Razzaq: No, My lord. If Malafide is there then everything will go. Because Malafide vitiates everything, and he quoted, 39 DLR AD 1 to show this

Chairman: there are 300 seats in our parliament and 300 MPs. Why government would target only Mr. DHS?

Razzaq: because he is the best Orator in Jamat e Islami. Only he has popularity beyond his party.

There are 11 accused altogether in both Tribunals. 9 are from Jamat Islami.
He then moved onto arguing that the 1973 Act was intended to prosecute the 195 Pakistani War Criminals.
1. It is very clear from the Preamble of 1973 Act that the intention of the legislators were to try 195 Pakistani War criminals.

2. There was a press release of the Govt about that intention to try the 195.

3. The parliamentary debate on the 1st Amendment of the Constitution and the 1973 Act clearly show that the legislators were intended not to indulge any citizens of the nation under this Act.

4. The Collaborators Ordinance was passed in 1972 to try the civilians. You may note that the legislators did not intend to withdraw the constitutional protections from the civilians. This is why the accused under the Collaborators Ordinance were entitled to invoke their fundamental rights under the constitution. But since the 1973 Act was for the foreigners, i.e. 195 Pakistani Army, they were not allowed to seek the fundamental rights as per 47A of Constitution (1st amendment).

5. The statement of the then MP Moinuddin Ahmed in the report of 1973 parliament shows that the intension was to try only those 195.

6. Also that of the MP Sirajl Haque also said this

7. Even Shiekh Muzibur Rahman voted in favour of that the intention of the law was to try the 195 war criminals.

8. The subsequent amendment in the 1973 Act was made in 2009 with sole motive to use the statute for political purpose to try only leaders of the opposite parties.

So, in short the intention was to try 195 only. Now the nationals are being tried.

9. DHS could have been tried under Collaborators Ordinance since many were tried under that law. But he was not ever prosecuted under that law. Never prosecuted, no FIR or even a GD was filed against him after the liberation war.

10. 1993 Vol-1, All ER 42 (Pepper vs Hart) – The court can look into the parliamentary hansard in case of ambiguity in the statute.
The following dialogue then took place (summarized)
Tribunal: the present Tribunal was established in 2010. So how a victim could have complained earlier?

Razzaq: the Collaborators Ordinance was there.

Tribunal: was there any tribunal under the Collaborators Ordinance.

Razzaq: there were many tribunals all over Bangladesh in 1972 – 73 under the Collaborators Ordinance and many persons were tried in those tribunals.

Tribunal: How could PW 1 have filed any complaint earlier since he was younger then.

Razzaq: But he could have filed the complaint at any time in last 40 years. There was no restriction for him to file any complaint in any police station.

Tribunal: ICT was not there at that time.

Razzaq: what prompted him to file the complaint in 2009? This was not filed before ICT. It was filed before Pirojpur court. He could have done this earlier if his complaint was genuine.
Then Razaq talked about the issue of aiding and abetting
If you do not proceed against the principal offender, you cannot proceed against anyone as aider and abettor of the same offence - 16 DLR 147.

Tribunal: if the Principal offender are not known, where is the restriction to tri an aider and abettor?

Razaq: here principal offenders are known, we caught them, established tribunal, appointed prosecutors but they were released. (54 DLR 298 and PLD 1961(wp), PLD 1961 Law 216)

So, in brief the Accused is being tried for only political purposes. If he were not involved in Jamat e Islami then he would not have been tried here.
He then went onto discuss what a judge should do in a Politically charged Trial.

The tribunal was then adjourned for the day

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