Wednesday, March 20, 2013

3 Dec 2012: Sayedee defense closing day 11

The defense closing arguments in the case of Sayedee continued (following on from the previous day) with Abdur Razaq saying that he would go through the charges, one by one to show that the prosecution could not prove the legal elements of the crimes. (The summary of Sayedee defense closing arguments partly draws from defence lawyer's own notes of proceedings)

Charge 1
charged under 3(2)(a) for murder directly by the accused – the prosecution could not produce evidence about the accused’s direct involvement in murder – only covered by the 19(2) witnesses who alleges that accused abetted – you cannot find the accused guilty in section 3(2)(g) for abetment since we have destroyed the 19(2) statements and credibility of the Investigation Officer (IO).

Charge 2
Charged under 3(2)(a) for persecution and 3(2)(c) for genocide – same as charge – 1.

Charge 3
Charged under 3(2)(a) for persecution – same as the above charges.

Charge 4
Charged under 3(2)(c) for genocide – same as the above charges.

Charge 5
Charged for both 3(2)(a)-Murder and abduction and 3(2)(g) abetment for these offence – the accused cannot be charged both as principal and secondary offender at the same time for same occurrences. This can be alternative but not concurrent. A person cannot be deemed concurrently as a principal and an accessory to the same crime (Prosecutor v. William Samoei Ruto and others, 8 March 2011 – ICC – para 36). Mizanul Islam will show you Prosecution evidence are poor and the wife, sons and daughters of the victims are not made witness though they are available.

Charge 6
Charged under 3(2)(a) for persecution re looting and damages but looting does not come under the meaning of persecution. Yesterday we have showed you (1) KupreŇ°kic Trial Judgment – ICTY, para 632 – 636 and (2) Kordic Trial Judgment – ICTY, para – 192 for meaning of persecution. It may include any of the listed offence of crimes against huamnity with discriminatory intent or offence of similar gravity. Looting does not come under that. Mizanul Islam will show you the weakness of the PWs supporting this charges.

Charge 7
Charged under 3(2)(a) persecution (torture) and 3(2)(g) – same as charge 5. Yesterday we showed you that mere torture does not come under persecution. Torture must be for obtaining information or similar purpose and the prosecution failed to adduce evidence on this. Mizanul Islam will show you other weakness in the prosecution case.

Charge 8
Charged under 3(2)(a) murder, abduction and persecution on religious ground. PWs did not bring any direct allegation against accused. So how it can be 3(2)(a). It can at best be 3(2)(g) and Mizanul Islam will show you that all the Prosecution witnesses are lying about accused. The allegation of destruction of Manik Poshari’s house was charged as persecution on religious ground. Is it the prosecution case that Manik poshari’s house was destroyed because of his being Muslim? The defence documents will show that the facts are concocted by investigation officer and the PWs supporting this charge.

Charge 9
Charge under 3(2)(a) for destroying Abdul Halim Babul’s house as persecution. The charge does not disclose on which ground of persecution. So this is a defective charge.
Member Justice Anwarul Haq (AH) – we will presume that it is persecution on ‘political’ ground.

Razaq: but there is no evidence before to support this presumption. You have to charge the accused with specific facts so that he can prepare his defence.

Huq: but rule 39A allow us to find guilty for one offence even if he is not charged for that.

Razzaq: No. Rule 39A merely allow you to find guilty for lesser offence (say as secondary offender) even if he is charged for higher offence (e.g. as principal offender). According to section 11(3) of the Act you must contain the trial to the issues raised by the charge.

Chairman: yes.
Charge 10:
Charged under 3(2)(a) as persecution – does not specify on which discriminatory ground. The charge is defective. PW Sukhuranjan Bali wanted to be DW which could show that the allegation against the accused was false. But unfortunately the law enforcing agencies abducted him from the tribunal premises before he could give evidence on this charge. Mizanul Islam will show you other weakness in this charge.

Charge 11
Under 3(2)(a) as torture and persecution (looting) – already said in charge 7 that mere torture is not sufficient. The charge does not say persecution on which discriminatory ground. It is already argued in charge 6 that looting does not come under persecution. Mizanul Islam will show you the weakness of the prosecution evidence.

Charge 12
Under 3(2)(c) for genocide. No specific date of the occurrences. You may note that charge 12 and 15 are same. [Chairman: it appears to be our mistake.]

Charge 13
Under 3(2)(a) murder, torture and abduction as CAH – only covered by 19(2) witnesses – already destroyed when discussing charge 1 to 4 and the 19(2) issues.

Charge 14
Under 3(2)(a) persecution on religious ground, rape and abduction and 3(2)(g) and 3(2)(h). Already said in charge 5 that cannot be charged concurrently both as principal and secondary offender at the same time for same event. In charge 5 it is discussed that abduction does not come under Crimes against Humanity. In charge 7 it is discussed that mere torture is not sufficient for Crimes against Humanity. Mizanul Islam has shown you the weaknesses in the prosecution evidence.

Charge 15
Under 3(2)(c) for genocide, you have admitted that it is a mistake and same event of charge 12.

Charge 16
Under 3(2)(a) for abduction, confinement and rape as Crimes against Humanity and 3(2)(g), cannot be concurrently charged as both principal and secondary offender at the same time for same event. The elements of rape are not proved. MI has shown you the weaknesses in the prosecution case.

Charge 17
Under 3(2)(a) for rape, elements of rape are not proved. MI has shown you the weakness in the prosecution case.

Charge 18
Under 3(2)(a) and (g) for abetment in murder as CAH –
Chairman: Charge 18 has been argued in detail by MI. You can leave this charge.

Razaq: but I should discuss the issue of abetment as it is common in some other charges. For criminal liability the abetment must have substantial effect on commission of the offence. The following cases are relevant: Blaskic Appeal Judgment-ICTY, para 45-50; Gacumbitsi Appeal Judgment-ICTR, para 140; Kvocka Appeals Judgment – ICTY, para 9o; Tadic-ICTY-Trial Chamber Judgment, para 688
Charge 19
Under section 3(2)(a) for other inhuman act (conversion) as CAH – already discussed.

Charge 20 
Under section 3(2)(a) – not pressed by prosecution – so no argument.

Razaq finished his argument in the following way. The prosecution has miserably failed to prove the elements of crimes. Mizanul Islam has shown you already that how the prosecution has failed to prove the alleged facts in some of the charges. After my submission he will continue to show you in each charges how the prosecution has failed to prove the alleged incidents.

- I have shown you how the IO has committed fraud upon the court. He was supposed to investigate as per law to find out truth. But he concocted evidence, manufactured witnesses, told lies to be court and has carried out his investigation to find the accused guilty. He did not go to the relevant witnesses. He submitted witness statements without interviewing the concerned witnesses. The PWs were willing to come to tell truth before this tribunal. But this IO prevented them from coming.

- The IO has written a drama against the accused to falsely implicate him with events he was never involved with. The present government has appointed him to do this. We know from Bengali literatures how drama can be written to falsely implicate someone. Julius Caesar was falsely incriminated a long ago. After thousand year of his death Shakespeare wrote a drama revealing the conspiracy. Time will come when conspiracy of the investigation officer and the present government will reveal.

- The accused is innocent. The accused is victim of conspiracy of the present government only because he is a leader of Jamaat. He is an eloquent speaker and an expert in explaining Quran. He has been critical of Awami League. This is why the present government has targeted him with the false allegation.

- The prosecution has miserably failed to prove their case and as such the accused should be acquitted. This is all I need to say, unless I can assist any further. MI will continue after recess.

Razak: Daily Bangladesh Protidin today reported that you will allow our summing up upto 6th December 2012 and then pass your Judgment in this case on 13th December 2012.

Chairman; we would love to if we could. But it is not possible to pass judgment on 13th December 2012 within such a short time.

Razaq: prosecution has given us copies of three cases (1) Akayesu-ICTR, (2) Anto Furundaiza and (3) Jorgic vs Netherlands. They did not make clear on which issue they want to rely on these decisions. After the prosecution’s submission on these cases, you should allow me to reply.

Chairman: you do not need to reply. They should restrict themselves to the issues raised from your summing up.
After the lunch adjournment, Mizanul Islam (MI) then started his submissions.
- He reads the rule 11 which shows that the Investigation report should be submitted after the investigation. During cross examination of IO on 25-4-2012 he admitted that after the submission of investigation report, investigation was continuing. It is a fraud upon Court. Now I will try to argue on different Alamats(materials) and Charge 1-4.

- During cross examination of IO we have questioned him about how many pages they have submitted to the prosecution. IO admitted that they have submitted more than 1200 pages as Volume 11,12,13 and 14 to the prosecution. But the Prosecution has supplied us only 397 pages in four Volumes. So we have been deprived of getting the relevant documents also.

- He refers to the Report of the daily Somokal.and the testimony of Abed Khan (PW 24). He said that PW 24 is a star witness for the prosecution. He is a renowned journalist. He did not bring any direct allegation against the Accused. This witness has said nothing against the accrued in material part. He was here only to cover media. He claimed many things but could not stand these up during cross examination. He could not substantiate.
- Prosecution has exhibited about 200 news reports of different news papers. None of the reporters or journalists of those news reports are called to testify except PW 24. If a man like PW 24 can admit that he could not confirm the authenticity of his news then you can imagine what would be quality of other exhibited news reports.

Charge 3He then submitted on Charge-3

- During cross examination IO admitted that he had never been in Kukarpara, Dumur Tola, Kalamtola, Nawabpur, Alamkuthi, Dhukigathi, Parerhat and Chinrakhali.

- He admitted that there are people living there. He also admitted that there are people aged more than 50 years. Why he did not call them as witness. This charge was framed without any basis.

- No live witness. Only four 19(2) witnesses

Accused should be discharged from these Charges.

Charge-1 and 2.
He then submitted on charges 1 and 2
- IO admitted that he did not find any disappeared person in the related area. He admitted, people lived there and some of them are more than 50 years. Why he could not bring any witness from that locality.

- Charge framed against me was without any basis.

- No live witness. Only four 19(2) witnesses. Accused should be discharged from these Charges.

Charge 4
He then submitted on charge 4
- There is only one 19(2) witness. No live witness. No basis. Accused should be discharged from these Charges.

The incidents in Charge – 1 to 5 were committed on 4th and 5th May 1971 in Pirojpur town. But PW 8 said that he saw the accused on those two days in Parerhat which is 7/8 miles away from Priojpur. The communication in 1971 was not good. How the accused could have committed the offences of charge 1 to 5 if he was in Parerhat according to PW 8.





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