Sunday, September 1, 2013

HRW contempt: How the media reported judge's speech, pre-Azam judgement

What did the chair of Tribunal 1 state in his introductory statement prior to reading out the summary judgment in the trial of Ghulam Azam on 15 July 2013?

This is relevant as one of the criticisms made by Human Rights Watch of the judgement of Ghulam Azam, was that in this speech, the judge had stated that due to the paucity of evidence provided by the prosecutors, the tribunal had to undertake its own 'investigation', something unknown to the defense and about which they could not respond. The relevant part of the HRW report is as follows:
In an extraordinary break with practice in Bangladesh, the judges in the Azam case conducted their own investigation into the case to make up for deficiencies in the case presented by the prosecution, calling into serious question the impartiality of the court. Defense counsel were unaware of this investigation, and were thus unable to comment and challenge the evidence obtained by the judges. This constitutes a serious violation of article 14 of the International Covenant on Civil and Political Rights to which Bangladesh is a party. 
During the oral presentation of the verdict in court on July 15, 2013, the presiding judge, AKM Fazle Kabir, referred to the paucity of evidence presented by the prosecution during the trial, saying “the prosecution did not provide us with much” and “the documents which the prosecution . . . submitted as evidence were not adequate.” 
Verdicts in ICT cases have usually been delivered within a month after final statements by each party. The Azam verdict was unusual as the judgment was delivered several months later because, as Justice Kabir explained in his oral statement, the judges decided to conduct their own investigation in order to strengthen the prosecution’s case. Justice Kabir noted that the prosecution had submitted mainly newspaper articles which were not reliable as they could often be wrong, and therefore the judges conducted their own research to get “reference books.” Although they reached a verdict of guilty on all counts, Justice Kabir went on to say that they “were still not too satisfied with the documents [they themselves] were able to collect,” all the while conceding that the case rests largely on documentary evidence. 
Bangladesh is a common law country and trials are conducted on an adversarial basis. The standard practice in such jurisdictions is that the judges reach verdicts on the basis of the evidence produced by the various parties to the case. According to practicing lawyers in Bangladesh, judges do not conduct their own investigations when they find that they are unable to reach a guilty verdict.
This raises two questions. First, what did Justice Kabir actually say? (i.e did he say what HRW states that he did?) Secondly, if HRW is correct, is this the criticism given by HRW appropriate?

This post is very limited in its purpose - just setting out extracts from the Bangladesh media which reported the introductory speech on 16 July, the day after the judgement.

There is no further comment in this post - the extracts speak for themselves. This is not comprehensive - but includes a total of 9 newspapers/online news portals.

If the issue of what was stated by Justice Kabir becomes a substantive issue, it may be possible to find out exactly what was stated in court since apparently all proceedings in the tribunal are recorded by the tribunal itself.

It should be noted that the prosecutors are seeking to convict HRW for contempt of court in relation to its criticisms of the Azam verdict, and have argued that HRW has misrepresented what was stated by Justice Kabir in court. (See a previous post assessing the contempt application).

English language media (in alphabetical order)

1. "Prosecution blamed for delay'
The war crimes tribunal blamed inadequacy of prosecution documents behind the unusual three-month delay in giving Jamaat guru Ghulam Azam’s judgement since his trial ended on Apr 17. The other judgements have typically come within under a month of trial conclusion. Azam was sentenced to 90 years in prison for conspiracy, planning, incitement, complicity and murder during the 1971 Liberation War when he headed Jamaat-e-Islami. Tribunal chief, Justice A T M Fazle Kabir acknowledged the speculation and apprehension centring around the delay in delivering this significant judgement.“There have been criticisms in the media,” he said remarking that there may well be criticisms — as long as there were no allegations or accusations. 
The presiding judge of the International Crimes Tribunal-1 said that Ghulam Azam’s case was distinct from the others for two specific reasons. “There are no allegations that he was physically present at any crime scene. And secondly, there are no allegations that he actively directed the commission of war crimes.” The judge said that most of the evidence against Ghulam Azam was based on documents, essentially news reports. “It would have been better if the prosecution had submitted more scholastic material like books, research paper or journal articles.” 
Justice Kabir said that it was perhaps unwise to depend entirely on news reports since they were written immediately after the event without affording the journalist much time to think.“Books and journals, they are different. The authors get more time to reflect on the events and research the matter, which make them more authentic,” observed Justice Kabir.“But the prosecution did not really provide us with much, in a manner of speaking.” He also lamented about the inadequate reference material at the tribunal saying that there was just one full volume of the authoritative ‘Muktijuddher Dolilpotro’ for both the tribunals, by way of an example. 
The tribunal, he said, went out and collected relevant material on its own. “We needed to satisfy ourselves. It was also necessary for a better judgement.”“This took us a long time. That is why it took us three months to give the judgement,” Justice Kabir continued, “But we are still not too satisfied with the documents we were able to collect.” It took this long only to enrich the judgement, the presiding judge told a packed courtroom before he handed over to co-judge Justice Anwarul Haque who read the first part of the judgement.
2. The Daily Star: Judgement due to poor logistics
Many in the courtroom were surprised when the International Crimes Tribunal-1 chairman said the court had to share a 15-volume book on Liberation War documents with the other tribunal.
The tribunal yesterday expressed discontent over the lack of logistics support while explaining its delay in preparing the judgment in the Ghulam Azam case.
About the prosecution’s submission of supporting documents, Tribunal Chairman Justice ATM Fazle Kabir said, “Had they submitted more books, it would have been better for us.”
The tribunal could not even collect a satisfactory number of reference books for preparing the verdict, Justice Kabir said before passing judgment.
He said the government had allotted only a set of Swadhinata Juddher Dalilpatra for the two tribunals dealing with the war crimes cases.
The proceedings of the case against Azam were completed on April 17, but the tribunal took nearly three months to come up with the verdict.
In the meantime, several newspapers had run reports speculating over the delay in delivering the verdict.
The war crimes trial campaigners on several occasions had tried to bring the needs of logistics, including a library and a research cell, to the government’s notice.
In his 15-minute introductory speech yesterday, Justice Kabir said Ghulam Azam was a very familiar figure in Bangladesh, and it was an established fact that he was the ameer (chief) of East Pakistan Jamaat-e-Islami and a powerful leader of the Central Peace Committee.
About the case against him, he said, “It carries some special features.”
No charges were brought against him for direct involvement in crimes, the judge said. “Mainly, the charge of superior responsibility or command responsibility was brought against him, which is a recognised matter.”
Para-militia forces like the Peace Committee, Razakar, Al-Badr, Al-Shams were formed mainly with the members of the Jamaat-e-Islami, and these forces in association with the Pakistan army committed numerous crimes during the Liberation War, Justice Kabir said.
“Although he [Ghulam Azam] had control over the para-militia forces, he did not bar them or punish them, and that’s why he was held liable for these crimes and he has to take all responsibility for the forces,” he said.
As per Section 4(2) of the International Crimes (Tribunals) Act-1973, the chief has to take responsibility for his/her subordinates, he added.
The tribunal chairman also said Ghulam Azam’s case was different from all other cases pending before the court. In this case, documentary evidence, not oral evidence, was very important.
He said the prosecution had submitted documentary evidence, mainly newspapers, to prove the charges. “It would have been better if they [prosecution] had submitted more documents.”
He said reference books were preferable to newspaper reports, as the latter could often be wrong. “But we did not get such reference books.”
About the media reports and criticism over the delay in the delivery of the verdict, the judge said, “There may have been criticism but we have no complaint in this regard.”
“Personal and collective reasons caused the delay,” he added.
He said hundreds of books on the Liberation War were published in the last 42 years. “But we have not enough reference books in hand. We have tried to collect more books.”
“We have taken more time to enrich the judgment,” Justice Kabir said.
Under Section 19 of the International crimes (Tribunals) Act-1973, the tribunal shall not require proof of facts of common knowledge but shall take judicial notice, he said.
“However, we are going to deliver the judgment today on the basis of the evidence,” said Justice Kabir before beginning to read out the verdict.
3. New Age: Ghulam Azam handed down 90 years in prison
Justice ATM Fazle Kabir, before delivering the verdict, it had taken the tribunal about three months to collect reference books which caused the delay in the delivery of the verdict.
4. The Sun: Ghulam Azam jailed for 90 years
In the preamble to the verdict, presiding judge ATM Fazle Kabir said as there is no sufficient oral evidence in the case, the tribunal had to rely on the documentary evidence, mostly paper clippings.
“The tribunal itself collected some references to hand down the verdict in the befitting manner,” he added.
Justice Fazle Kabir said the lack of oral evidence caused delay in passing the judgment.
Bangla language paper (in alphabetical order, unofficial translations)

1. Ittefaq
Justice ATM Fazle Kabir delivered a speech before the judgment. He said, “The only accused of this case is Golam Azam. He is a well-known person. Especially, in 1971 he was very well-known. It’s been acknowledged that in 1971 he was the Ameer of Jamaat of the then East Pakistan. He was also an influential leader of the Peace Committee (Shanti Committee). In this case, the prosecution has brought 5 charges against him. There is some specialty in this case, because there is no charge against him where he was present at the crime spot or where the crime was committed with his order. Rather, the charges brought against him are of “Superior responsibility”.

He said, this has been acknowledged that, in 1971 he was the Ameer of Jamaat of the then East Pakistan. Back then, the Jamaat leaders formed paramilitary forces like Al Badar, Al Shams and Rajakar. These paramilitary forces assisted the Pakistani Army in killings, genocide, rape, loot and setting fire. Golam Azam had command over these forces. In spite of having command over them he didn’t stop them. He didn’t even take any punishment step against anyone for committing those crimes. According to section 4 (2) of International Crime (Tribunal) Act, 1973 the responsibility of these forces goes to Golam Azam. Four among the five charges brought against him is of Superior Responsibility.

He further said, according to the nature of this case, there is no need for oral evidence (witnesses). Documentary evidence is enough for this. The prosecution has shown some paper cutting of news papers from 1971 and 1972 and some books. However, some times the news in news paper might not be comprehensive due to time constraint. For this reason, books or research papers written on these incidents are much more acceptable. If the prosecution had submitted some more books, it would have been much helpful for the Tribunal. This is why, the Tribunal tried to collect few more book through judicial notice within its jurisdiction. However, we didn’t get anything remarkably satisfactory. It took some time. However, the Tribunal has prepared the judgment on the basis on the given evidence.
2. Kaler Kontho
Kabir said, “It took three months for us to declare the judgment. The media has criticized us regarding this. We have noticed that.” He said, “There were some holistic problems regarding the judgment. This is an exceptional case. In other cases the accused are charged with direct involvement in crime. In this case, Golam Azam is not accused of direct involvement in the crime. The charge against him is of “Superior Responsibility”. Some news paper cuttings of 1971, 1972 and 1973 have been submitted as document in support of the charge against him. Some books have been submitted which were written much later. The submitted documents are not enough. It would have been good if some more documents were submitted. He further said, “There are two Tribunals for crime against humanity but only one set of the documents related to liberation has been provided. There is no other reference copy beside this. It took time to collect reference and other documents. He said, “The prosecution could not satisfactorily submit everything. Neither could we collect those."
3. Naya Diganta
At 10:45 am, after the court started its proceedings, Chairman Justice ATM Fazle Kabir delivered a speech on the judgment. He said, Professor Golam Azam is a well-known person. Especially, in 1971 he was very well-known. It’s been acknowledged that in 1971 he was the Ameer of Jamaat of the then East Pakistan. He was also an influential member of the Peace Committee (Shanti Committee).

He said, the prosecution has brought 5 charges against him. But there is no direct charge against him where he was present at the crime spot or where he has committed a crime. No such charge has been brought against him. No direct charge has been brought against him, unlike the other cases. In this perspective, this case is an exceptional case. The charges brought against him are of “Superior command responsibility”. Most of the members of paramilitary forces like Al Badar, Rajakar, Al Shams were from Jamaat-e-Islami. These paramilitary forces assisted the Pakistani Army in killings, genocide and rape. The charge against him is, he had command on these forces. Therefore, he cannot avoid the responsibility of these crimes. The responsibility of Al Badar, Al Shams and Rajakar falls on him.

The newspaper cuttings submitted by the prosecution reveals the facts about when, where and whom he met in 1971, where he delivered speech and where he asked for assistance from Pakistan.

ATM Fazle Kabir said, generally the newspapers publish the news right after the incident. Therefore, news paper report can be wrong. But, books are written much later and the writer gets the opportunity to scrutinize the information. But, in this case we did not get any book as reference. We only have a copy of Documents of Liberation war. We could not collect the books on liberation war written over last 42 years. It caused delay for this judgment. We could not collect it satisfactorily.
4. Prothom Alo
Justice ATM Fazle Kabir further said, “This is the main difference of this case with the other cases of this Tribunal. In other cases there is direct allegation but in this case there isn’t any. All the evidences of this case are documentary. News cutting from various newspapers shows that, Golam Azam delivered speech, participated in discussion, asked assistance through speech and consultation. However, I think that it would have been very helpful if some more documents were submitted. No remarkable book has been submitted as reference book.

Justice ATM Fazle Kabir said, many people have criticized us for taking three months to publish the judgment. They have their rights to criticize, but we have some collective problems. We have no other law books in the Tribunal except one set of Documents related to liberation and both the Tribunals have to share that. Hundreds of books on liberation have been written over the last 40 years but the prosecution did not submit those to us, so we did not get it. We tried to enrich the judgment by collecting references from various sources. But we could not be satisfied even after that. This is why, there was delay in publishing the judgment. He said, ‘the full judgment is of 242 pages but a brief judgment of 75 pages will be read out loud in the hearing."
5. Samakal
Before that, the Chairman of the Tribunal gave a 10 minute introductory speech. He said, Golam Azam’s case is an exceptional one. Though Golam Azam was not present at the scene when the crime was committed, he has been charged as the main planner of Bengali genocide.

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