Bangladesh War Crimes Tribunal

19 Feb 2012: Azam frame charging 2

2012-02-26T22:27:00.002+06:00

Molla documents
In relation to the case against Abdul Quader Molla concerning charge framing, the defence told the tribunal that they had not received the documents. The prosecution said that they were facing difficulties in scanning those documents as all are newspaper print. The chairman said that they should try to do it as soon as possible. The case was then adjourned until 4 March 2012, and the prosecution was directed to give the documents within a week.

Gholam Azam Frame charge application, continuing
Continuing from 15 February, Saiful Islam came to the dais and carried on reading from the formal charge of Gholam Azam from page no.44.Para 4:

In 30th November 1971, news was broadcast on ABC channel of U.S.A “The story sound incredible, the men, children and women were tortured. Women were raped by Pakistan army before they were killed”

On 11th August 1971, news broadcasted on ABC channel of U.S.A “There are now 7 million refugees. The Indian Government is trying to solve this urgency of problem”.

In a report published in Daily Azad 3rd March, 1972 “Occupation force and their auxiliary force killed 3 million Bangali people. First twenty women who were raped, their age was 16 or less then 16. Each of them were raped by 10 people for a month.”

ICJ’s (international commission of jurist) report relating to 14th December’s killing of intellectuals was refered to.

Vice chancellor Muzzaffar Ahmed said, more then 3 million people were killed. There were no single village or a ward where people were not tortured.

Pakistan army were helped by the auxiliary force. Continuing their fight required assistance was provided by the auxiliary force, such as giving local knowledge.

This murder was committed by Albadr, Alshams, Jammat-i-islam,Razakar force. These are the alleged group of Pakistan officer. Many of them were taken to Dhaka physical education college building.

Main purpose of Genocide: There are many similarities among the Pakistan Army and their auxiliary force (Albadar, Alshams, Razakar force). They all are tried to exploit the East Pakistan economically so that they can never raise their voice for self-determination.

Lieutenant General Tikka khan said one of his speeches “I want only the land of East Pakistan not the people.” Their main purpose was to destroy the then popular party Awami-league who won the majority seats in 1970’s election. However, government of Pakistan never handed the power to Awami league. Enmity against Bangali population was one of their main reasons. They thought that culture and religion of East Pakistan were influenced by Hindu religion and in actual sense they were not true Muslim. They also said that behaviour and other rituals of East Pakistan were reflected by the culture of Hinduism. At that time Hindu women were raped by them and after raping they used to give the logic that they tried to enhance Muslim generation. Jamaat people thought that principle of Jamaat was the best principle to lead one state for that reason they did not want to give birth to a new nation. Thus they did “Zihad”( fighting for Islam)

Para: 5: Mechanism of selecting victim of Genocide: In case of determining their victim, Pakistan army and their auxiliary force applied their same policy. They identified their victim according to the gender, race, and religion.

Hindu people were victimised more. The people who are not true Muslim and who are related to education and cultural activities are also their victim. They looted goods by explaining goods as Ganimoter (gift of war) Maal. During the war Awami league politicians were victimised as they were considered a spy of India.

Finally, they killed the intellectuals of East Pakistan so that the newly born nation ‘Bangladesh’ born with disability and can never stand up its on feet.

As regards religious sectarianism Mr.Moududi declared Kadyani as Non-Muslim. They added another 3 points with 22 points. 3 points were:

(1) Declared kadyani as non-muslim.

(2) Demand resignation of Jafrullah Khan

(3) Deprived Kadyani from all political activities.

Then Jamaat declared Kadeani Danga as People’s fight against the Government. In 1951 under the leadership of Joinab Rafi Ahamed indori Jamaat-i-islam was established. In 1954 Amir was Mawlana Abdur Rahim.

In 1970’s election, Jamaat won only 4 seats in whole Pakistan. Ghulam Azam lost the election and the difference between him and the person elected was 80 thousands vote.

Jammat always supported Pakistan for establishing undivided Pakistan and opposing Liberation war of East Pakistan. Jamaat used to claim that they are working for Islam by supporting them.

Presence of Islamic value among the Jamaat people was the main reason of genocide because they thought that clothing of Muslim people was influenced by the Hindu people. In fact, they wanted a pure Islamic country. They considered Bangla Language as Hindu Language since Rabindranath tagore had many contribution on Bengali literature. They thought Urdu Language as Allah’s Language.

They wanted to help Pakistan Army to destroy Hindu and Awami league.

In 1971 Mawlana Mowdudi met with Tikka Khan and assured him to give full support of Pakistan army.

Then court was adjiourned till 2pm.

After the end of the adjournment, the prosecutor Saidul Islam came to the dais and continued reading out the formal charge:

“My lord, I am reading out from page 66.

Organizational structure of Jamat-e-Islami and the position of the accused thereof: We have attached a diagram in the formal charge for your convenience. According to this diagram, the most powerful person in the organization is ‘Ameer’ (in Arabic; in English the equivalent word is ‘President’) and his office. The next most powerful body is ‘Mojlish-e-Shura’ (in Arabic; in English the equivalent word is ‘executive committee’). The Ameer is elected by the member of the Mojlish-e-Shura. After the Mojlish-e-Shura, the next powerful person is Secretary General. The Secretary General is basically responsible for day-to-day activities. In the every stage of the organization i.e. central committee to Union Porishad (UP) same organizational structure is followed.

It has been evident from the books/speeches Md. Siddque Ali who was the Public Relations Officer the Eastern Command of the Pakistan Army and Lieutenant Colonel (Retired) Nadeer Ali who was the officer of the Eastern Command of the Pakistan Army, ‘Golam Azam directed us (Pakistani Army) to attack on Hindus and he used to mobilize us to follow his direction.’ Lieutenant Colonel (Retired) Ali himself received such direction from Golam Azam.

Ideology and conflict of ideology: The ideology of Jamat-e-Islam conflicts with the spirit of Independence of Bangladesh. They consider Hindus as spy of India. They further consider culture of Hindu as the culture of Kafeer (in Arabic; the word refers to those people ‘who does not believe in Allah’). They wanted a country/state of ‘pure’ Muslims and they believed if the Hindus live in the same state as well, the Muslims here in East Pakistan cannot be ‘pure’ as their culture will be influenced by the Hindu’s culture. Thus, they declared ‘zihaad’ against those Kafeer (Hindus). They also considered the looted goods of the Hindus as ‘gonimot’ (in Arabic; it refers to ‘war produce’ or ‘gift of war’) which is permitted in Islam. They further considered that raping Hindu women or persecution (force conversion in Muslim) is not unjust and that is why they agreed to help Pakistani Army. And they also committed different crimes as well.

Jamat-e-Islam and 1971: Jamat-e Islami considered Awami leaguers as Indian spy and culprits. Thus they formed auxiliary force and assisted Pakistani Army. The top leaders of Jamat-e-Islami was involved in incitement to commit international crimes, some were involved in planning and preparation of such crimes and some of them directly participated in committing such crimes. Such information can be found from parts 1-10 of the ‘Seizure list and documentary evidences’ attached with the formal charge.

Islami Chatra Shongho “ICS” (in English ‘Islamic Student Union’ “ISU”): It was the student wing of Jamat-e-Islami. 2 of the auxiliary forces were formed by the members of ICS namely, Al-Badr and Al-Shams. There was an advertisement published in the Daily Sangram dated 8 July 1971 on the banner of ISU asking the youth to join such auxiliary forces. In another report published in Daily Sangram dated 12 September 1971 where it was reported that the accused Golam Azam said they need more activists. As per the Fortnightly Report, Special Branch, Dhaka, on 17 October 1971, Ali Ahsan Muzahid, President of East Pakistan ICS and ATM Azahar of East Pakistan ICS declared that ICS will protect East Pakistan both internal and outer attack. On 7 October 1971 Al-Badr Day was observed as well. As per the Fortnightly Report, Special Branch, Dhaka, ICS member members basically joined Al-Badr.

I am done with that my Lord. My learned colleague will come to the dais and will continue.”

There was a change of Prosecutor at this stage. Prosecutor Sultan Mahmud came to the dais and continued reading out the formal charge:

“My lord I shall continue from paragraph 5.3.2.

On 4th April 1971, PDP President Nurul Amin conducted a meeting with the Governor and Chief Martial Law Administrator (CMLA) of East Pakistan. They formed a ‘Nagorik (Citizen) Committee’ as reported in Daily Azad and Daily Purbanchal.

Paragraph 5.3.3: On 9 April 1971 the (extended) central peace committee was formed and among 140 members, accused Ghulam Azam’s position was 3rd. A meeting of the committee was held on 15 April 1971 and they decided to take any measure for the interest of the peace and tranquillity of the East Pakistan. Later on, an executive committee containing 21 members was formed to run the Central Peace Committee effectively. The accused Ghulam Azam was one of the first 5 most important members of that executive committee. Later on the name of the ‘peace committee’ was changed to ‘peace and unity committee’.

Purpose/objective of Peace Committee: The main purpose of forming peace committee was to assist Pakistan Army in removing (by way of killing or torturing or deporting) Hindus and Awami Leaguer from East Pakistan for the interest of unity of Pakistan. The general activities of peace committee included coordination with local Pakistani Army and rajakar and other auxiliary force.

Purpose/objective of Rajakar Force: The main purpose of forming rajakar force was almost similar to peace committee, however, the basic difference between the 2 was the nature of the rajakar force is more military in nature.”

There was a change of prosecutor in that stage. The only female prosecutor in prosecution team Prosecutor Nurjahan came to the dais and continued reading out the formal charge:

“My lord, I shall continue reading out from page 104.

Paragraph 5.5 – Al-Badr: It was an auxiliary force, most specifically, a counter insurgency unit as evident from the book of General A A K Niyazi, Commandant, Eastern Command, Pakistan Army in 1971, named ‘The Betrayal of East Pakistan’, page 78.

Major Riaj Hossain of Baluch Regiment of Pakistani Army told in an interview about the ‘background of forming Al-Badr’. According to him, 'We could not fully rely on rajakars as our auxiliary force. That is why we were thinking about alternative. At that time, a proposal came from the Islamic Student Union (ISU) to form separate force comprising members of ISU and the proposal was pending then. However, on 16th May 1971, I started to train 17 local ISU members with short-term military training. The training was completed on 21st March 1971 and the name of the first commander of Al-Badr was Kamran who was a student of Science group of higher secondary.’ (quoted in Bengali)”

At this stage, Justice AKM Zaheer asked for an explanation to the prosecution. He asked, “Can anyone from the prosecution explain me why have you quoted a Baluch Major in Bengali?”

Prosecutor Ziad-al-Malum came to the dais and replied, “The original statement was in Urdu and that is why we have translated in Bengali. And the translation has been done from University of Dhaka.”

Then Prosecutor Nurjahan continued reading the formal charge once again which was as under:

“Matiur Rahman Nizami was the chief of Islami Jamat-e-Talaba (IJT) which was combined of two paramilitary counter insurgency units (2 special brigades) - Al-Badr and Al-Shams. ‘Al-Badr’ was named by famous ‘War of Badr’ of Islam. They hoped that the new ‘Al-Badr’ force will protect the ‘Flag of Islam’ in South Asian region. Another explanation can be found as the background history on its naming i.e. in Arabic ‘Badr’ refers to ‘moon’ and ‘Shams’ refers to ‘sun’.”

Tribunal member AKM Zaheer interrupted at that point and said, “You have not mentioned any source here.”

Prosecutor Ziad-al-Malum stood up and replied, “My lord, we have prepared this part of submission on the basis of 7/8 books. I think it has been taken from either of those books.”

Tribunal member AKM Zaheer said in reply, “You have mentioned sources in some of the parts. On the other hand you have not mentioned any source that is why I am asking you the same.”

Prosecutor Nurjahan then again continued reading the formal charge:

“Activities of Al-Badr: A book has been written by Salim Mansoor Khaled named ‘Al-Badr’. In this book he has mentioned that the members of the Al-Badr were provided ‘short-term military training’ by Pakistan army directly. The training included the techniques using, opening and carrying fire arms, using wireless sets, raiding, patrolling, guarding etc. Further, they were trained with .12 gun, 303 rifle, stain gun, anti-aircraft gun and other Indian fire arms they seized from the freedom fighters or left in the battle field after a fight won by Pakistan army. The Al-Badr’s activities particularly involved creating social consensus in favour of Pakistan force and its collaborators. Apart from that, Al-Badr had got its own medical unit the member of which ISU medical students.

It has further been mentioned in Salim Mansoor Khaled’s book that regular salary was proposed for Al-Badr member which was BDT 70 per month per member. However, Central Majlish-e-Shura (executive committee) refused the proposal and suggested to deposit the money in the District Al-Badr fund. In addition to that ID card was issued for the Al-Badr members. (a copy of an ID card attached with the formal charge and the prosecutor read out the wording of that ID card)

Field Brady of NBC News Channel was the first to report/news against Al-Badr activities and was the first to telecast the ‘genocide of Rayerbazar’ for the people of the world. Al-Badr’s raid was also described in the same book. The raids were operated at night; the victims were blind folded on gun point under the direct supervision of Pakistani army officers.”

At this point, prosecutor Nurjahan referred an ICJ case. However, both Justice Nizamul Huq and Justice Zaheer pointed out that the judgement of that case has not been included in the formal charge bundle and asked for an explanation from the prosecution for that. Prosecutor Ziad-al-Malum stood up once again and explained that they have downloaded the judgement from internet and they shall produce that before the Tribunal before the argument.

Prosecutor Nurjahan again continued reading out the formal charge once again :

“Rao Forman Ali mentioned the name of Al-Badr. However, he never officially acknowledged the force.

Al-Shams: It was another paramilitary force. Matiur Rahman Nizami took the initiative to form this auxiliary force. This force was trained by Pakistani Army as well. Although it was formed by the members of ISU, Al-Shams had close connection with Jamat-e-Islami.

That is all for today my lord.”

Thus the Prosecutor Nurjahan finished reading out formal charge for that day.

16 Feb 2012: Abed cross exam day 1

2012-02-26T22:23:00.002+06:00

After Professor Abed gave his evidence in chief, the first day of his cross examination took place undertaken by the defence counsel Mr. Mizanul Islam.

Defence: Do you know Mr Mawlana Abdur Rahim who was the founder of the East Pakistan?

Witness: Yes, I know.

Defence: Is renowned journalist Mr. Akram Kha, your relative?

Witness: Yes.

Defence: Daily Azad and its editor was the supporter of Language movement? Was not it?

Witness: No, Daily Azad was not the full supporter of Language movement.

Defence: But the editor of that newspaper Mr. Abul Kalam Shamsuddin was the supporter of Language movement. Was not he?

Witness: Yes.

Defence: At that time office of Daily Shongram was burnt by agitated people as it opposed the Language movement in 1952 and the owner of the Daily Shongram was the then chief minister Nurul Amin and most probably the editor was Khairul Kabir.Is that true?

Witness: Yes.

Defence: Did Jamaat take part in the election led by Joktafrant in 1954.

Witness: So far I know Jamaat did not participate.

Defence: Mr.Mowdudi was sentenced death penalty because of his involvement at ‘Kadeani Danga’ and Mr Hossain Shahid Sohrowardi was his appointed lawyer at the highest court. Do you know that?

Witness: Yes, Mr. Mowdudi was punished for instigating at ‘Kadeani Danga’ but whether his lawyer was Hossain Shahid Sohrowardi or not, I do not know.

Defence: Can you tell us, which type of instigation was given by him?

Witness: Yes, he wrote a book claiming a declaration to recognise Kadyani as non-muslim.

Defence: Was this book banned by the Pakistan Government?

Witness: I do not know.

Defence: For assassination of Kadyani, was any other person sentenced death?

Witness: I do not know.

Defence: The last election held during the regime of Ayub Khan (Fundamental Democratic Government), Fatema Jinnah contested against Ayub Khan from the banner of combined opposite party. Do you know that?

Witness: I do not know it.

Defence: Awami-league and Jamaat-i-islam was the party of combined opposition party. Do you know it?

Witness: So far I know Awami-league was the party of combined opposition party but whether the Jamaat-i-islam was the party or not, I do not know.

Defence: Khane Shabur was the leader of ruling party of national assembly.

Witness: Yes.

Defence: Who was the leader of opposition party?

Witness: Mr. Mashiur Rahman .

Defence: The then speaker of national assembly was Fazlul Kader Choudhury and after that Abdul Zabber khan was the speaker for few days.

Witness: Yes.

Defence: Abdul Zabber Khan was the father of Rashed Khan Menon. Do you know that?

Witness: Yes.

Defence: At that time Asdusjjaman Khan was the leader for opposition of provincial assembly.

Witness: No, Advocate Afseruddin was the opposition leader of provincial assembly.

Defence: At that time Mr. Mawlana Abdus Subhan was the deputy leader for opposition of provincial assembly. Is it true?

Witness: No, it is not.

Defence: Was there any report published during 1966-1969 regarding the ‘Let Ayub Khan rule the country’?

Witness: During 1966-1969 Ittefaq newspaper was not published and whether any other newspaper published that type of report or not, I do not know.

Defence: In 1905 the then British Government divided the East Bengal from West Bengal (Bangabhanga) based on the idea of divided and rules.

Witness: Yes.

Defence: They made an excuse that they wanted to divide the two part of the Bengal for making improvement of the East Bengal. Is that true?

Witness: Yes.

Defence: Was Dhaka the then capital East Bengal?

Witness: Yes.

Defence: Indian National Congress initiated their movement against the decision of ‘Bangabhanga’ (separation of Bengal). Is that true?

Witness: Yes

Defence: Rabindranath Thakur also opposed the Bangabhanga by writing a song. Do you know that?

Witness: Yes he oppposed but whether he wrote a song or not, I do not know.

Defence: In 1940 Lahore Resolution was proposed to make more than one Muslim state by the minority of Muslim. Is that true?

Witness: Yes.

Defence: In 1946 by an amendment the word ‘more than one state’ was replaced by the word only ‘one state’. Is that true?

Witness: [answer not clear]

Defence: Muslim-League was led by Hossain Shahid Shorwardi, Abul Hashim and Mawlana Mohammad Akram Khan. Is that true?

Witness: Yes.

Defence: Jatir Janak Bangabnadhu Sheikh Majibur Rahman was also one of the activists of Muslim league. Is that true?

Witness: Yes.

Defence: In 1946 Shere Bengal A.K Fazlul Huq left Muslim League because the provision of making ‘more than one Muslim states’ by Lahore Resolution was amended by the word ‘one state’. Is that true?

Witness: I want to explain something that basically Mr. A.K Fazlul Huq was the activist of Krishok-Proja Party. Subsequently he became a member of the Muslim league for a very short time. Then he left Muslim League and joined again to the Krishak-Proja party. Only for the amendment of Lahore resolution he did not leave the Party.

Defence: In 1940 when Lahore resolution was passed Shere Bengal A.K Fazlul Huq was general secretary All-Indian Muslim League.

Witness: I am not sure.

Defence: Shere Bengal A.K Fazlul Huq resigned the Muslim League and then Abul Hashim became the General Secretary of All-Indian Muslim League. Is that true?

Witness: I am not sure.

Defence: Abul hashim was the father of renowned columnist Badruddin Omar. Do you know that?

Witness: Yes.

Then court adjourned till 2pm.

Before the cross examination finished, Justice AKM Zaheer asked the defence to please finish it by today. Mizanul Islam responded by saying that the 'witness has said a lot of things. That is why it will take time. '

The tribunal chairman said, 'We shall continue until 4 pm; try to finish by that time.'

Defence: The Indian National Congress (a party; widely known as ‘Congress’) was against creation of new state Pakistan, right?

Witness: It is not 100% true. A part of the party supported the cause as well.

Defence: RSS (Rashtriya Shayangshebak Shongha) also took part in the movement supporting the Congress, is that true?

Witness: I cannot answer this question.

Defence: The then Communist Party of India was also against the division of India (creation of Pakistan), right?

Witness: True.

Defence: After the division of India, the leaders and MPs of Congress in Pakistan part formed a new party named ‘Nikhil Pakistan Congress’, is that true?

Witness: Yes.

Defence: In the same way the communists formed a new communist party in East Pakistan, right?

Witness: Yes, however, I need to explain the background. (He asked permission of the Tribunal and duly permitted to explain that) After the emergence of Pakistan in 1947, a popular saying was originated by communists- ‘Ye aazadi jutha hai, lakho insaan vukha hai’ (This independence is unfruitful because thousands people are starving). The ruling government did not like that. A lot of communists were arrested and tortured. Some of them died in the jail custody and some of them left the country. Thus to fill up the political vacuum, the Communist Party was formed in East Pakistan.

Defence: Shyam Proshad Mukhopoddhai and Ballabh Bhai Patel were involved in Congress’s and RSS’s politics at the same time, is that true?

Witness: It is not true. One cannot be involved with two parties at the same time. Basically the left the Congress and formed RSS.

Defence: In 1971, during the Independence of Bangaldesh, Indian National Congress was the ruling power in India, right?

Witness: True.

Defence: After the emergence of Pakistan, Muslim failed to fulfil the hope and desire of the people of East Pakistan and thus the Awami Muslim League was formed, is that true?

Witness: Yes, on 23rd June 1949.

Defence: Later on, the word ‘Muslim’ was omitted from the name of the party (Awami Muslim League) and Pakistan Congress (Nikhil Pakistan Congress) was incorporated with Awami League, is that true?

Witness: The fact is not exactly like that. Some of the leaders and supporters personally joined Awami League and that does not mean that the party was abolished then.

Defence: Well, all the Congress MPs of ‘Bangiyo Gono Porishad’ (provincial assembly for East Pakistan) joined Awami League, is that true?

Witness: True.

Defence: And afterwards (after 1954) Congress did not take part in any election as a party, right?

Witness: True but explanation required for that. No election held then until 1970 due to Martial Law in Pakistan. And it is true that Congress did not take part in the 1970’s election in the capacity of a party.

Defence: Principle of ‘Secularism’ was included in the Indian Constitution in 1970’s, right?

Witness: Yes, end of 1970’s; most probably in 1976.

Defence: 1975, by an amendment in the (Bangladeshi) constitution, ‘democracy’ was changed to ‘one-party system’, is that true.

Witness: No. BAKSHAL was formed by that amendment. There were some other parties who did not join BAKSHAL.

Defence: (being surprised) Can you please name some those parties?

Witness: Yes, Jashod (National Socialist Party), Communist Party, NAP etc. There were some other parties as well, however, I cannot remember the name right now.

Defence: After the formation of BAKSHAL, one cannot participate in the national election without being member of BAKSHAL, right?

Witness: Not true. There was no election held afterwards. Sheikh Muzib was assassinated in the same year.

Defence: Mr Moijuddin Ahmed Manik’s, the then MP from Rajshahi-2, membership in the Parliament was cancelled as he did not join BAKSHAL and Mr Abdul Hakim was elected from that seat upon a by-election, do have any idea about that?

Witness: I cannot remember that right at this moment.

Defence: Now I am saying, after the formation of BAKSHAL, ‘one party system’ was introduced in the country and knowing the same you are intentionally concealing that.

Witness: It is not true.

Defence: No person had right to politics without being a member of BAKSHAL, right?

Witness: Not true.

Defence: Can please tell us East Pakistan Communist Party alias Shorbohara Party was valid or forbidden?

Witness: I think it was not officially forbidden.

Defence: Do you have any idea that arrest warrant was issued against two of the then opposition leaders Comrade Shiraj Shikder and Comrade Abdul Haq and they were absconded?

Witness: I do not have any idea. However, so far I know, whoever involved in leftist politics, sometimes they go underground on their own will.

Defence: In 1974, the government did not allow the people gathering of the great leader Maulana Abdul Hamid Khan Bhashani (founder leader of Awami Mislim League), do you remember that?

Witness: I do not know that.

Defence: After the formation of BAKSHAL, government stopped the publication of newspapers except 4, right?

Witness: True.

Defence: And government took over the control of those 4 newspaper, right?

Witness: True.

Defence: After the change of BAKSHAL government, by the 5th amendment (by President Ziaur Rahman) permission of publication of newspapers was given once again.

Witness: True.

Defence: After the change of BAKSHAL government, the martial law government enacted an Ordinance named PPR (Political Party Regulation) for the formation of political party, is that true?

Witness: True. For the purpose of forming political party limitedly under the martial law government.

Defence: The political parties, namely, Bangladesh Awami League, Jago Dol, Muslim League, Islamic Democratic Party started their activities under PPR, right?

Witness: True.

Prosecutor Haider Ali raised objection to above question. He submitted that Awami League’s name should be omitted from the question as the name of Awami League cannot be written together with such rightist parties. He further submitted, Awami League was formed long before.

Tribunal chairman Justice Nizamul Huq asked him to sit down and opined, “It is not a big deal as it does not affect anything. We heard you but we shall keep that as it is.”

Prosecutor Haider Ali said, “I have objection against that.”

Defence counsel Mizanul Islam said, “Where the witness is admitting the fact there is no scope for the prosecution to raise an objection.” He further submitted, “Awami League was abolished and replaced by BAKSHAL in 1974 and by PPR it started its activities like a newly born baby.”

Prosecutor Haider Ali made his point again and again until Justice Nizamul Huq ordered that the record should include the words: ‘it has been recorded with an objection of the prosecution.’

Defence: Who was the founder President of IDL (Islamic Democratic League), right?

Witness: Maulana Abdur Rahim.

Defence: He was the Nayeb-e-Ameer (in Arabic; in English it is similar to ‘secretary general’) of Pakistan Jamat-e-Islam in 1971, is that true?

Witness: I do not know that exactly, however, it is true most probably.

Defence: Due to a internal clash, Maulana Abdur Rahim and Maulana Siddique Ahmed formed separate IDLs, is that true?

Witness: I do not have any idea about that. I have not studied that.

Defence counsel Mizanul Islam prayed adjournment at that time on the ground that he is sick (another defence counsel M Tazul Islam informed the Tribunal about the fact on an earlier hearing date) and he has come to the court directly from the hospital with the permission from the doctor and he has not been released from the hospital yet.

Prosecutor Ziad-al-Malum told the Tribunal that he is an Editor of a newspaper and he will come to the Tribunal if he is summoned. The Tribunal should consider that.

Tribunal decided they will allow an early adjournment, however, they will continue until 3:30 pm. Thus the cross examination continued.

Defence: During the regime of Ziaur Rahman, Mr Ali Khan applied for registration on behalf of Jamat-e-Islam under PPR, however, it was not granted.

Witness: Well, the situation was not in favour that is why Jamat-e-Islam was not allowed to come on the surface.

Defence: And afterwards, by the 5th Amendment of the Constitution, PPR was legally abolished (as it was not submitted before the Parliament for ratification) and then the Jamat-e-Islami started their political activities, right?

Witness: After the abolition of PPR, opportunity was created for Jamat-e-Islam to take part in the politics openly. (he agreed slightly differently; he meant actually Jamat-e-Islami did not start their activities at that time. Simply the door was open for them by the abolition of PPR)

Defence: In the election of 1977 during the regime of Ziaur Rahman, the Jamat-e-Islami leaders/activists/supporters under the leadership of Maulana Abdur Rahim and under the banner of IDL made a ‘front’ (coalition) with Muslim League which was lead by Khan-a-Sobur. And they took part in the election.

Witness: The two parties did not participate in the election as a ‘front’. The front was formed after the election.

Defence: I am saying they formed the front before the election and they had a clash after the election and then they (Maulana Abdur Rahim and Khan-a-Sabur) leaded the 2 groups.

Witness: I cannot remember that at this moment.

Defence: In that election. 12 from Muslim League and 6 from IDL were elected as MPs, do you have any idea about that?

Witness: I cannot remember that right at this moment.

Defence: In that election, Muslim League candidate Razia Foyej became MP by a direct vote, do you know that?

Witness: Yes.

Tribunal chairman Justice Nizamul Huq: Stop here for today. It will be continued. When shall we fix the next hearing date?

The prosecution informed the tribunal on next day they will bring another witness named Syed Hafizur Rahman for examination. Mr Aded Khan will be present before the Tribunal any day it may thinks fit and then this cross examination will be continued.

Tribunal chairman Justice Nizamul Huq adjourned the matter until 20.02.2012 (Monday).

16 Feb 2012: 26th witness statement

2012-02-26T22:07:00.000+06:00

The 26th witness, Abed Khan went to the witness box and the Prosecutor Haider Ali opened the examination in chief.

Prosecutor: What is your name?

Witness: My name is Abed Khan.

Prosecutor: How old you are?

Witness: I was born on 16th April in 1945. I am about 67 years old.

Prosecutor: What do you do?

Witness: I am a journalist. I have started journalism in November, 1962 when I was a student.

Prosecutor: In 2007 where you were appointed?

Witness: I was editor of the Daily Shomokaal.

Prosecutor: What was the news published in Daily Shomokaal in 10th February 2007.

Witness: That was the time of care taker government in Bengaldesh, the report was ‘God father of Jaamat-e-Islam are out of reach’. Names of four persons was published in that report, they are (1) Delwar Hossain Sayedee.(2) Shahjahan chowdhury (3) Golam Sarwar (4) Abu Taher.

Prosecutor: What is the basis of that report?

Witness: Basically news is sent by different reporters and before publishing this news as a report we compile this news in our office desk.

Prosecutor: What was mentioned in that report regarding Delwar Hossain Sayedee?

Witness: It was mentioned that during the Liberation War he formed a Razakaar Force, tortured people and looted the shops of Narayan Shaha, Bhajon Shaha, at Parer haat bazaar.

Prosecutor: After the publication of that report, did he take any action against you?

Witness: Yes, he filed a defamation suit claiming compensation a sum of ten core taka against 3 people including me.

Prosecutor: Did you appear before the court?

Witness: Yes, that suit was filed in Pirojpur Joint District Judges Court and the case no. was 4/2007. I appeared before the court. Few days later that suit was dismissed.

Prosecution: Where were you in post when the investigation officer came to you for recording your statement?

Witness: I was appointed as founding editor of ‘Kaaler Kantha’.

Witness: My lord, as an active freedom fighter and as an journalist I am very much involved with the history of our country, that is why I seek permission from the Tribunal to submit my Speech before the Tribunal.

Justice Nizamul Huq: You can submit but it should be related to the concerned case.

Prosecution: Yes, my speech is related to the concerned case.

Justice Nizamul Huq: okay, then you may submit.

Defence raised objection and Mr. Mizanul Islam said “My lord, I think matter which is undisputed need not to be submitted before the court”

Justice Zaheer: Historical background of our country need not to be submitted as well as it is already in our notice.

Witness: Emergence of jamaat-i-islam is very much relevant to this case. Mr. Mawlana Mowdudi was the founder of Jamaat-i-islam. In 1947 when Pakistan and India was divided according to the two-nation theory he did not support Pakistan then and declared in his article Pakistan as No-Pakistan. After that Mr. Mowdudi entered into Pakistan and then there started “Kadeani Danga” which was instigated by him, for that reason he was punished for death penalty. Later his sentence was indemnified and from the history it appears that Mr. Mowdudi and whole Jamat-i-islam yielded to the then Pakistan Government. After that they started to work against democracy. As a reference I can say from the autobiography of Mr. Abbas Ali which reflects the philosophy of Mr. Mowdudi. And now it is the philosophy of Jamaat-i-islam. It is proved enough that Mr. Sayedee also in his different religious speech have discussed that philosophy. Basically the main purpose of autocratic government of Pakistan was the destruction of the nationalism of Bangali and Bengali culture. In that case rightist especially Jamaat-i-islam played an important role. For that reason they opposed the Language movement in 1952, 1954’s election led by joktofrant, movement against martial law in 1962, 6 point movement, and movement for self determination. Jamaat-i-islam played a mysterious role when Ayub khan handed over the power due to the 1969 mass-people movement and martial law administrator Yahya khan took over the power. From that time, Golam Azam and his party Jamaat-i-islam worked as an association and they were active in forming Al Badar, Al Shams, Razakaar force. So when Mr. Sayedee used to do any anti-social act, commit looting, act as a spy of West Pakistan then naturally his force was considered as Al Badar, Al Shams and Razakaar force. After the period of Liberation war Sayedee along with other members of Jamaat hide there selves. In 1975 after the assassination of Jatir Janak Bangabandhu Sheikh Majibur Rahman, Jamaat-i-islam came before the society and by establishing Islamic Democratic Party Jamaat started their political activities, at that time Golam Azam came to Bengaldesh by a special arrangement and Jamaat openly started their political activities.

At this point Defence Counsel Mr. Tajul Islam raised objection by saying that “My lord, Tribunal is not a place for a political lecture.”

The witness said, 'My lord, as I was journalist I was going different places during the war. No one was stable that time. Village people was coming to the town and town people was going to the village. One crore people left the country ...'

At this point Justice Zaheer stopped the Witness no.26 and said these are the universal truths of our country so you need not submit it before the court.

Prosecution: Mr. Abed Ali why did you leave the country?

Witness: I was bound to leave the country to escape from genocide, torture. We know 3 million people lost their lives, 4 hundred thousands women were raped, 1 core people left the country and many others became shelter less. And later, in different times Sayedee and other members of Jamaat by their different religious speech and other activities were trying to give validity of those acts.

Justice Zaheer: You have to say what was exactly happening during the Liberation war, not subsequent incident of the war and you should speak accurate and specific involvement of Mr. Sayedee during the Liberation war.

Witness: My lord, my word may be irrelevant but I am saying this on my own motion. And the incident of liberation war which I was explaining before Tribunal was my submission.

Thus examination in chief was completed.

15 Feb 2012: Azam charge framing 1

2012-02-26T20:43:00.000+06:00

After dealing with the four applications filed on behalf of Gholam Azam, the tribunal chairman Justice Nizamul Huq asked the Chief Prosecutor whether he was ready to start the charge-framing, and when Tipu said he, the chairman asked him to come upto the Dais.

Defence counsel M Tajul Islam arrived in court in the meantime and Tribunal chairman Justice Nizamul Huq said, “Let Mr. Tajul come to the dais' and then he said, "We will hear Mr. Abdur Razzak afterwards (In respect to the time petition/application for adjournment) Now prosecution will carry on reading out the formal charge.”

Defence counsel M Tazul Islam said that “My lord, in that case the matter will be proceeding and there is no point for adjournment hearing then. We have submitted the time petition and your lordship should hear that one first. I do not have any problem if the prosecution then reads out the whole formal charge and related documents.”

Tribunal chairman Justice Nizamul Huq then replied, “You will automatically get the time as it will take time for prosecution to read out the whole formal charge. They are not going to make any argument right now.”

He then told the Chief Prosecutor to start.

“The procedural history of this case: Investigation officer Matiur Rahman filed a complaint against the accused on 31.10.2010 being powered by section 8 (1) of the International Crimes (Tribunal) Act 1973.

On 12.12.2011, the formal charge had been submitted before your lordship, however, it was returned on 26.12.2011 on the ground that the charges were not sorted out properly. On 05.01.2012, your lordship finally accepted it.

Personal history of the accused: The accused Golam Azam was born on 07 November 1922. He was graduated from Department of Political Science, University of Dhaka in 1950. He started his career in 1955 as a lecturer at Rangpur Carmichael College.

His political career started at University of Dhaka when he was elected as the General Secretary of Dhaka University Central Student Union. He became the Secretary of the East Pakistan Jamat-e-Islami then. And afterwards, he became the Ameer (chief) of the same party and held the same office until 1971.

During the war of Independence he was directly involved in forming and mobilizing the auxiliary force of Pakistan Army namely, Razakar, Al-Badr, Al-Shams, Islami Student Union (ISU) etc. They committed crimes under section 3 (2) of the International Crimes (Tribunal) Act 1973.

Further, he was elected MNA (Member of the National Assembly of Pakistan) in 1970.

Activities against Bangladesh: After the victory of 16 December 1971, he surrendered. Then he left Bangladesh and went to Pakistan. There he formed a committee named ‘East Pakistan Revival Committee’ demanding and recommending that international recognition should not be given to Bangladesh. To mobilize it more actively he went to London.

His citizenship was cancelled in 1973. Then he arranged a meeting with the Badshah (king) of Saudi Arabia and he particularly misled the Badshash saying that, (i) Hindus has occupied Bangladesh, (ii) they have killed the Muslims, and (iii) they have replaced the mosque with mandeer (house of Hindu Goddess). He was able to convince the Badshah and received 45,00,000 (4.5 million) Saudi Riel as donation for the reconstruction of the mosque. He came to Bangladesh in 1978 during the regime of General Ziaur Rahman using Pakistani passport.

Other activities: The accused has a severe malicious mentality for Hindus and other religions. He also thinks that Bangladeshi Muslim as the spy of India.

Historical background of the War of Independence: In 1947, Indian subcontinent was divided into countries namely, India and Pakistan under ‘2 Nation Theory’ on the basis religion which was unfair. Pakistan had two provinces namely East Pakistan (now Bangladesh) and West Pakistan (now Pakistan). The distance between the two provinces was 1200 miles. There were linguistic differences. There was economic discrimination as well. From 1947 to 1956, rupees 760 cores were spent for the development of the West Pakistan where as only rupees 42 cores was spent for the development of East Pakistan. There was discrimination in the appointment in the government service. 42,000 West Pakistanis were employed in government service where as only 209 Bengalis (East Pakistanis) were employed in the government service and mostly as 3rd class or 4th class employee.”

Defence counsel Barrister Abdur Razzak entered the courtroom by the meantime and he raised his hand to make his submission. Tribunal chairman Justice Nizamul Huq allowed him to make his submission in between prosecution’s submission and Mr Razzak submitted as under:

“My lord, the matter is proceeding. In my opinion, your lordship is not following your previous precedence. In the case of Delwar Hossain Sayedee, your lordship first heard the application then proceeded with the matter”

In response tribunal chairman Justice Nizamul Huq and Justice AKM Zaheer explained: “You will get time for preparation. You have applied for adjournment on 2 grounds- (a) you have not got some papers, and (b) you need time for getting prepared. We expect you will get the papers by tomorrow and you will automatically get the time as it will take time for prosecution to read out the whole formal charge.”

Defence counsel M Tazul Islam argued, “We have to be present at the courtroom while prosecution submits their submission even though there are not making any argument in favour of their submission otherwise it would be disrespectful for the prosecution that none from the defence present at the courtroom.”

Justice AKM Zaheer considered it as a valid argument, however, he suggested, “You can ask your junior/assistant to stay here. You may go and start taking preparation.”

Defence counsel Barrister Abdur Razzak asked for clarification, “After my learned friend finished reading the formal charge, we shall get the chance to submit our argument in support of the time petition. The matter is still pending before your lordship, right?”

Justice Nizamul Huq confirmed that and then the defence counsels Barrister Abdur Razzak and M Tajul Islam left the courtroom leaving one junior. Justice Nizamul Huq then asked the chief prosecutor to carry on with his submission.

“In the cabinet among 17 ministers, only 2 ministers were from Bangladesh (East Pakistan). 56% of the population’s language was Bengali whereas 9.2% of the population’s language Urdu. Surprisingly, on 4th June 1948, in a meeting of Muslim Student League at Race Course ground Mohammad Ali Jinnah (Father of the Pakistan Nation) declared that Urdu will be the state language of Pakistan. Later on, at the Karzon Hall of University of Dhaka he declared the same and the students present there protested instantly.

Death of parliamentary of democracy: After the death of Mohammad Ali Jinnah and Liaqat Ali (assassinated), army took over the power. Awami Muslim League was formed then and Sheikh Muzib became the Joint General Secretary of that party. Afterwards the word ‘Muslim’ was omitted from the name to give the party a secular image. In 1954, Juktafront (Joint Front) won the provincial election and Sher-e-Bangla A K Fazlul Haq became the Chief Minister of the East Pakistan provincial government. Jamat-e-Islami won only in 10 seats in that election. Pakistan Central Government was not happy with that and they deployed army along with 40,000 police to torture the East Pakistanis.

Defence Minister of Pakistan Iskander Mirza said, ‘He is ready to kill 10,000 Bengalis rather to allow them to have good relationship with Hindus’.

Movement for Autonomous Government: There was movement initiated for autonomous government for the province. In 1956, awami-minded members left the Gono Porishod (Assembly).

Declaration of Martial Law: Eskender MJirza, the then Governor General of Pakistan declared the martial law. He handed over the power to Ayub Khan. On 1st March of 1962, Ayub Khan declared ‘Fundamental Democracy’. On 6th September 1965, the Indo-Pak War started. Ayub Khan took the policy ‘Defence of East, life of the West’. The whole border East Pakistan with India was unprotected then.

Movement for self-determination: General Ayub Khan asked his followers to get ready for civil war upon declaration of ‘6 dofa (point) movement’ by Sheikh Muzibur Rahman. He banned Rabindra Sangeet (songs written by Noble winner Rabindranath Tagore). Further, under his direction Agartola Conspiracy case was filed against 28 leaders including Sheikh Muzibur Rahman. Later on, they were discharged from that case. Another movement named ‘1 person – 1 vote’ was initiated then. However, the discrimination was increasing day by day. In West Pakistan the production of electricity increased 5-6 times, whereas in East Pakistan it remained the same. There were 26,200 hospitals in West Pakistan whereas there were only 6,900 in East Pakistan. The 80% of foreign (monetary) aid were used in West Pakistan. Almost all the foreign scholarships were recommended/arranged for West Pakistanis. Although the number of school going children in East Pakistan increased, the number of schools was not increased. However, the number of schools in West Pakistan greatly increased. Only 15% of Central Cabinet members were East Pakistani. When Lahore became the capital of Pakistan rupees 20 cores were spent for its development. Another rupees 20 cores were spent when it became the capital of West Pakistan. On the other hand, only rupees 2 cores were spent for Dhaka when it became the capital of East Pakistan. Even in the armed force the Bengali (East Pakistani) officer were posted in a scattered way so that they would not able to united or become powerful. On 13th March 1969, Ayub Khan agreed with the demand for holding election and handover the power to Army Chief General Yahya Khan. The Legal Framework Order was passed then and the Election of 1970 (both the provincial and national) held thereof.”

There was change of prosecutor at this stage. Prosecutor Rana Das Gupta came to dais and continued reading out the formal charge which was as under:

“The election was won by Awami League. In the National Assembly, among 313 seats Awami League candidates won in 167 seats which was an absolute majority. And in Provincial Assembly, among 300 seats Awami League candidates won in 288 seats. Pakistan Army and its intelligence agency (e.g. ISSB) were quite surprised with that outcome. According to their intelligence report Awami League would win in only 80 seats at best in the National Assembly which would not give them absolute majority. Further, the other parties participated in that election, namely, Pakistan People’s Party (PPP), Jamat-e-Islami and Nejamat Islam gave them (army authority) false impression about their actual position/people’s support in the election. Thus General Yahya along with the PPP chief Zulfikar Ali Bhutto started conspiracy against East Pakistanis and Jamat-e-Islam joined them. PPP won in 88 seats in the National Assembly, thus became the main opposition party.

However, PPP chief declared Zulfikar Ali Bhutto declared that his party will not become the opposition in the parliament. Gono Porishod’s (National Assembly) session was to be held at Dhaka on 3rd March 1971. He travelled different districts of West Pakistan before that showing off the reason that he was hunting in those places. General Yahya met him in a boat at Larkana district of Pakistan near Mr. Bhutto’s house and made a plan. That plan is popularly known as ‘Larkana Plan’ in the history. PPP Chief Bhutto was not willing to join the National Assembly session at Dhaka. He even threatened to punish the Members of the National Assembly (MNAs) of his party if they join the assembly to be held at Dhaka on 3rd March. On 22nd February 1971, General Yahya held a secret meeting with the governors and chief martial law administrators (CMLAs) of all provinces and decided to military intervention to East Pakistan which is known as ‘Bliss Plan’. The 16th and 4th Infantry Divisions were brought to Dhaka by PIA (Pakistan International Airlines) aircrafts and ships.

And thus they started to increase their military power in East Pakistan. Lt. Gen. Yaqub was appointed as the CMLA and Governor of the East Pakistan. On 6th March 1971, the dates of session of National Assembly rescheduled and Tikka Khan, who is known as the ‘Butcher of Baluchistan (a province of Pakistan)’, was appointed as the CMLA and Governor. He took over the power on 7th March 1971 and on the same day Sheikh Muzibur Rahman delivered his historic speech at Race Course ground in front of a million people. He (Muzib) said, ‘this movement is for freedom, this movement is for independence’. On 10th March 1971, chief of Pakistan air force Air Vice-Marshal Asgar Khan said, ‘government should agree with Sheikh Muzib’s demand’.

On 17th March 1971, General Yahya started to give a false hope that he would hold a meeting to resolve the problem between Mr. Bhutto and Mr. Muzib. On 18th March 1971, he made the plan for ‘Operation Searchlight’. And as a part of that plan, he made an order requiring Bengali (East Pakistani) soldiers to surrender their arms. By the meantime, on the 2nd March 1971, 2 ships loaded with arms and ammunition anchored at Chittagong port. The local people of Chittagong protested that and as a result the labours in the port denied to handle those cargos. On 23rd March General Yahya went to President House from Hotel Inter-Continental being cordoned by army and came back in the same way. The session of National Assembly on 25th March 1971 was again adjourned.

On 24th March 1971, Sheikh Muzib delivered a speech to 100 thousand people in front of house. General Yahya then left East Pakistan and upon his arrival at West Pakistan he said, ‘Thanks God! Pakistan is saved!’ On 26th March 1971, Sheikh Muzib declared the independence. He said, ‘Bengalis are free from today’. On 10th April 1971, the temporary government of Bangladesh was declared at Meherpur. Sheikh Muzib became the President, Syed Nazrul Islam became the Vice-President and Tajuddin Ahmed became the Prime Minister of that government. Civil Pioneer Force was formed.

Committing of crime and crimes committed: The Pakistani force committed crimes against humanity namely, murder, extermination enslavement, deportation, imprisonment, abduction, confinement, torture, rape under section 3 (2) of the International Crimes (Tribunal) Act 1973. They had done the act of genocide (against Hindus) on the basis of religion at Jagannath Hall of University of Dhaka, Shakhari Bazar and Ramna Kali Mandeer. They killed 1,000 trainee soldiers at Chittagong. Governor and CMLA Tikka Khan declared, ‘I do not want people, I want land’ and General Rao Forman Ali was much obliged to that declaration. Journalist Anthony Maskarnhash termed that as ‘Kill & Burn Mission’ and he considered it as flagrent breach of Geneva Convention. International Commission of Jurists made a report on that which is to be found at 4th part of the seizure list and evidence of proof. A BBC journalist wrote, when he tried to go outside of the hotel to see what is happening outside, he was pushed to stay inside the hotel on gunpoint which can be found at the same part of the seizure list and evidence of proof. U.S. TV channel CBS interviewed the U.S. citizen staying at Bangladesh at that time which also be found at 4th part of the seizure list and evidence of proof.”

Tribunal chairman Justice Nizamul Huq asked the prosecutor Rana Das Gupta to stop there as it was 4 pm then.

Delwar Hossain Sayedee
Justice Zaheer asked the prosecution whether or not they are going to produce witness in Delwar Hossain Sayedee’s matter on the next day. Prosecutor Haider Ali stood up and confirmed that they are going to produce witness on the next day before the Tribunal. Tribunal chairman Justice Nizamul Huq said that they will take the testimony of the witness first and then the prosecution will continue reading out formal charge against Golam Azam. Prosecutor Haider Ali said, “It would be better to produce the witness before the Tribunal on later part of the day as the witness is outside of Dhaka and he is on his way to Dhaka now.” Tribunal chairman Justice Nizamul Huq rejected that suggestion said, “We shall take the testimony of witness first.”

The hearing was adjourned until next day.

15 Feb 2012: Azam bail application

2012-02-26T20:41:00.000+06:00

Prior to the formal reading of the charge framing application by the prosecution, the defence counsel Abdur Razzak made four applications - one relating to legible documents, another to do with seizure documents. another to do with accessing the original complaint. and finally a bail application.

Application about legible documents

Abdul Razzaq in his application argued that on 9 January 2012, theTribunal stated that a prima facie case had been established against the Accused-Petitioner and ordered that cognizance be taken under sections 3 (2), 4 (1) and 4 (2) of the International Crimes (Tribunals) Act 1973. He said, that on 15th January 2012, the Defence Counsel engaged on behalf of the Accused Petitioner received 10 volumes of Prosecution Documents from the Registrar comprising of the following:
i. Petition of Formal Charge comprising of 191 pages.
ii. 2 Volumes of the History of Liberation War comprising of a total of 533 pages.
iii. 6 Volumes of documents titled ‘Seizure List and Documentary Evidence’ comprising of a total of 1565 pages.
iv. Witness Statements of 88 Prosecution Witnesses comprising of a total of 224 pages.

He said that the prosecution Documents received by the Defence Counsel comprises of a total of 2513 pages, but that upon receiving the 10 volumes of documents from the Prosecution, it transpired that 25 pages of the Prosecution Documents were illegible photocopies, which were impossible to read. He then set out what those were
Prosecutor (Saiful Islam) came up and told the chairman, my lord, not 25 pages only 5 pages are not legible to read.

Justice Nizamul Huq then told the prosecution to give the defence legible copies and cross-check the copies of defence. 'In fact, it is not necessary that every document should be legible; however, the document on which this case is relied should be legible. And I think it is not a big deal, lawyer from both sides can solve the matter easily. Even then I am passing an Order.' he said.

Order given by Justice Nizamul Huq:

‘This is an Order for directing the prosecution to supply legible copies to defence. Upon hearing both sides, we are allowing the petition and directing the prosecutor to supply legible copies to the defence within two days. ‘

Razzaq then told the court that the defence had also not received the copies of CDs, but the prosecution said that they had now submitted these copies of CDs to the Tribunal.

Application about undisclosed seizure list documents
The chairman asked what does 'undisclosed seizure list documents' mean?

The defence lawyer said some documents which were set out in the seizure list but have not been included in our documents provided by the prosecution.

The prosecution said that after scrutinizing the issues we will give them the list. The tribunal chairman asked them to do that.

Application for copy of original complaint.
Razzaq argued that the defence want a copy of original compliant. 'Original complaint was the heart of the case. Therefore, a copy of an original complaint should have been provided to us. Actually I want to say ‘this is the seed of banyan tree that set off thousands mile journey’ he said

Justice Nassim called prosecution for placing their argument.

Prosecution (Rana Das Gupta) replied in the following way:

'My lord, Code of Criminal Procedure, 1898 and Evidence Act 1972 are not applicable under this Act. Tribunal should be regulated according to its own rules and regulation.

He read out section 9(1) of the International Crimes (Tribunal) Acts, 1973, Rule 2(6) and Rule 5 of the International Crimes (Tribunal) Rules of Procedure, 2010 and claimed complaint is a part of the case diary. The defence maintains the case diary only to refresh its memory. It is not such a type of document upon which they rely in support of charges.

In section 9(3) of the International Crimes (Tribunal) Acts, 1973 prosecution are required to provide those documents upon which they rely in support of such charges. However, providing case diary to the defence is not mentioned here (complaint is the part of case diary). So it is not maintainable that original copy of complaint should be provided to the defence. '

Abdur Razzak: Sec 9 (3) of International Crimes (Tribunal) Acts, 1973 states that the chief prosecutor shall furnish to the Tribunal at least three weeks before the commencement of trial a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges. So prosecution was expected to provide all documents to the defence upon which the case is relied. My lord, my question is whether the prosecution would rely upon the complaint or not?

Justice Nizamul Huq said that the documents which are used in favour of charge should be provided to the defence. And the prosecution might not be relying upon the complaint or if they do, it will be forbidden for them to rely upon the complaint.

Order given by Justice Nizamul Huq:

‘Mr. Razzak submitted that the said complaint document is vital document which should be given to the defence and prosecution argue that the complaint is the part of case diary and legal provision prohibits furnishing case diary to the defence. Also argue that according to the sec 9(3) the prosecution should provide that document on which prosecution rely for supporting charges.

Upon hearing both sides, we are of the view that complaint is the part of the case diary and prosecution is not bound to give it to the defence.’

Application for bail
The bail petition was submitted by Imran Siddique (the full filed bail application is at the end of this posting)

Accused-petitioner Mr. Golam Azam has been admitted at Bangabandhu Sheikh Majibur Rahman Medical College hospital from12.02.12 as he has been suffering from various complications. There is no ground for rejecting bail petition as he is not getting proper medical treatment. There are several grounds for filing petition for bail.

In Para five: A medical board has been formed for giving treatment to Golam Azam. They have advised him (1) to take absolute bed rest and (2) to continue present treatment.

In Para six: He has been suffering from severe back pain as well as he is given physiotherapy treatment and as per doctor’s advice his movement is strictly limited.

In Para seven: Several complications have been found by the medical board.

In Para nine: Standard of food is unsuitable for Mr. Golam Azam. Wife of accused-petitioner submitted an application for providing home-cocked food but she was not allowed to provide food.

In Para ten: He has been suffering from hearing problem.

In Para Seventeenth: He has no connection with any activities outside the Bangladesh.

In Para twenty: He is a man of good character. So there is no ground for detaining him. If it is so, then it will be considered as arbitrary detention.

So court must not deny granting of bail as there is no ground for being prejudiced against public interest.

Then the defence counsel Imran Siddique placed Annexure A and Annexure B before the court:

Annexure A and B: Application has been submitted by the accused-petitioner wife to provide home-cocked food as he had fallen down in bathroom.

After that Mr. Abdur Razzak came to the dias and asked that the tribunal given attention to pages 31 of the petition application.

He said that the news “Golam Azam may die of negligence by jail authority” has been published in Daily Ittefaq dated on 28th January 2012. My lord, he is getting weaker day by day, losing his weight as well. Any time a severe incident may occur. And 21st January, it has been published in another newspaper that “Authority should ensure the proper treatment of Golam Azam”.

So before the court my humble submission is that there is no prima facie case against Golam Azam. Bail can be enlarged even in non-bailable offence as per section 497(1) of code of criminal procedure 1898, if the person is
(1) Under the age of sixteen years
(2) A women
(3) Sick or infirm person.
As a reference I want to mention the case of (14 DLR SC page 321) where bail was granted upon reasonable ground. Therefore my lord, bail can be granted :
(a) If there is no reasonable ground to believe that he is guilty of offence.
(b) Or if he is an infirm person though there is reason to believe that he is guilty of offence.

So my lord, there is no ground for refusing bail as this case has been argued for two months and there is no reasonable ground to believe that accused-petitioner is involved in any atrocity.

And there is no question of public interest. In fact, accused-petitioner medical condition is deteriorating day by day, he had been afflicted with diarrhoea, now he is too weak to go toilet alone. In this critical situation presence of his wife beside him is very urgent. However, bail should not be denied merely because this case is sensational one.

Justice A T M Fazle Kabir: Learned counsel, have you ever submitted any report, record, document before the Tribunal for substantiating your claim regarding the physical condition of Mr. Golam Azam?

Abdur Razzak: We are not allowed to get such report as he was in jail.

Justice A T M Fazle Kabir: By submitting material have you tried to convince the Tribunal before, regarding this matter.

Abdur Razzak: My lord, it is proved that physical condition of accused petitioner is severe since he have been at the Banghabandhu Sheikh Mujibar Rahman Medical College hospital after the day of his arrest.

There is no reason to believe from the fact presented by the prosecution that accused –petitioner is guilty of offence. Therefore, there is no ground for refusing bail.

Chief Prosecutor (Ghulam Arieff Tipoo) then placed his arguments:

I would like to begin with International Crimes Tribunal Act-1973, where law of the land ( CrPc, Evidence Act etc) is not applicable. In old age, there may arise different types of complications. Therefore, fallen down in bathroom is an act of God. So, his wife’s plea to provide home-cocked food, seek assistance of the wife to go bathroom as he never allowed to any other one for assistance to go bathroom, fallen down in bathroom are not sufficient ground for enlarging him on bail.

My lord, hospital authority is trying their possible best to give proper treatment and medicine. In fact, accused-petitioner is a man of mastermind and one of the top leaders of Jamaat-i-islam. He was involved in different atrocity during the Liberation war. And there creates no extra-ordinary situation of granting bail.

The tribunal asked the prosecution whether they wanted to submit counter arguments against cases cited by Abdur Razzak

The Chief Prosecutor replied, 'No, my lord, because this Tribunal absolutely stands on different footing, so different case law and other statutes are not applicable here. And gravity of this case is far more than the different citing of defence counsel which they have referred.''

The chairman said that the order regarding bail will be passed on 23 Feb 2012.

Thus court was adjourned till 2pm.

The tribunal members took their seats; prosecution was ready there was no defence counsel except a junior associate of a defence counsel.

---------------
Full Bail application

1. On 9th January 2012, the Tribunal was pleased to take cognizance of offences allegedly committed by the Applicant under section 3(2) of the Act, and directed the Applicant’s counsel to produce him before the Tribunal on 11th January 2012. On 11th January 2012, this Hon’ble Tribunal was pleased to reject the application for bail filed on behalf of the Applicant. Thereafter, the Applicant was taken into custody.

2. That there are no reasonable grounds for believing that the Applicant has committed the offences in which he has been implicated. Although, the Hon’ble Tribunal has taken cognizance of offences allegedly committed by the Applicant under section 3(2) of the Act, the Applicant has not been formally charged of any crimes by the Prosecuting Authority and as such no proceedings have commenced under Section 9 of the Act. Without a formal charge, there can be no reasonable grounds for believing that the Applicant committed any crimes under the Act and as such, he may not be detained in custody.

3. That the Applicant is 89 years old and suffers from a number of old age complications and ailments. The Applicant suffers from Hypertension and Diabetes mellitus. He also suffers from Back Pain and Pain in neck and Knee Joints. The Applicant also suffers from Electrolytes Imbalance, Loss of Vision (in the right eye), Osteo Arthiritis (both knee joints) and Cervical and Lumbar Spondylosis with radiculopathy. The Applicant has an enlarged Prostrate and experiences pain in his thighs and legs when walking.

4. That on 5th November 2011, a Medical Board was constituted comprising of (1) Professor Tofayel Ahmed, MBBS, FCPS, FCCP, MRCP, FRCP (Professor of Medicine and Cardiology and former Principal, Dhaka Medical College); (2) Dr. M Shaheed Uddin Ahmed, MBBS, FCPS (Consultant, Cardiologist and Physician) and (3) Dr. Md. Iqbal Hossain Chowdhury, MBBS, FCPS, FRCS, Orthopedic and Trauma Surgeon, to conduct diagnosis of the Applicant’s medical condition. The Medical Board, after examining the Applicant, advised the following:
(i) Absolute bed rest.
(ii) Continue present treatment with continuation of physiotherapy and restrictions of physical activities.
(iii) Use of lumber corset and walking elbow sticks.

5. It is apparent from the above recommendations of the Medical Board that the Applicant suffers from a number of old-age complications and is required to take complete bed rest. Furthermore, there are restrictions on his physical activity and the Applicant is required to take regular physiotherapy. It is specifically stated that the Applicant, who is 89 years old, is incapable of moving around freely and needs the assistance of an attendant in order to move from one place to another. Prior to being taken into custody, the Applicant’s movements were strictly limited to going to the adjacent mosque to perform his daily prayers, and that too with the assistance of an attendant.

6. That on 11th January 2012, upon the rejection of his bail application, the Applicant was taken to Dhaka Central Jail. Thereafter, upon an application by his son, the Applicant was admitted to Bangabandhu Sheikh Mujib Medical University (BSMMU) Hospital for medical treatment. Upon being admitted to BSMMU Hospital, on 13th January 2012, a Medical Board comprising of (1) Professor ABM Abdullah, Dean, Department of Medicine (2) Professor Shajal Krishna Banerjee, Cardiologist, and (3) Professor Nokul Kumar Datta (Orthopaedics) was constituted with a view to monitoring the medical condition of Professor Ghulam Azam.

7. Thereafter the Hospital authorities conducted an X-Ray of the Accused Petitioner, which revealed several complications with his bones as a result of his old age. On 14th January 2012, an Ultrasonogram revealed that there were numerous stones in the Petitioner’s gall-bladder.

8. It is stated that the Applicant, being a very elderly person requires special care and attention which is not possible to be given to the Applicant in the Prison Cell in BSMMU. The Applicant has a special dietary requirement which is required to be followed strictly at all times in order to ensure that the Applicant’s health condition remains stable. Any deviation from these special dietary needs of the Applicant is seriously detrimental to the medical condition of the Applicant, which is aggravated by his Applicant’s old age. Furthermore, the standard of food being provided to the Applicant at BSMMU is unsuitable for an 89 year old and as such, the Applicant has not been able to have all the food items supplied to him at BSMMU. This has resulted in the Applicant losing weight, and has seriously aggravated his health condition. Furthermore, as a result of the poor quality of the food supplied by the hospital authorities, the Applicant suffered from diarrhoea for several days and now experiences considerable general weakness.

9. It is stated that the Petitioner suffers from back pain, sciatica and pain in his waist, knees and thighs. Since being admitted to BSMMU on 11th January 2012, the Applicant has not been provided physiotherapy regularly, which has resulted in the pain in his joints being aggravated. Furthermore, the Applicant has been suffering from impaired vision and hearing problems, which have been aggravated during his stay in the hospital. It is further stated that the Applicant has not been provided hot water in the mornings to perform him ablution and as such, he has been compelled to use cold water, which is seriously detrimental to the health condition of an 89 year old.

10. Furthermore, as an 89 year old, the Applicant requires the constant assistance of an attendant. However, such facilities are not available in custody. It is stated that on 25th January 2012, while taking a bath, the Applicant, due to his physical weakness, slipped and almost fell down on the bathroom floor. In such situation, the Applicant sat on the bathroom floor and thereafter made repeated attempts (for over a period of 30 months) to stand by leaning on the basin and toilet, but failed to do so. Thereafter, the Applicant had to call the security guard, who helped him to his feet. As a result of the accident in the bathroom, the Applicant’s knees had been badly bruised. It is stated that the abrasions in the Petitioner’s knees are taking time to heal because of his old-age complications.

11. That on 12th January 2012, an application was made to the Deputy Commissioner for granting division facilities to the Applicant while in jail custody. By a letter dated 24th January 2012, the Additional District Magistrate, Dhaka rejected the application under Rule 910 of the Jail Code. No reasons were assigned for refusal to grant division facilities to the Applicant, although the Applicant had on two previous occasions, been granted division facilities while in jail custody. (A copy of the said letter dated 24.1.2012 is annexed herewith and marked as Annexure)

12. It is stated that although the Applicant is a highly educated individual who is accustomed to a superior mode of living, he is not being granted division facilities by the relevant authorities in blatant violation of the provisions of the Jail Code. It is also specifically stated that on two prior occasions when the Petitioner was arrested in 1964 and 1992, he was granted division facilities by the relevant authorities. It is stated that upon completion of his medical treatment, if the Applicant is sent from the BSMMU hospital to jail custody, he will not be granted division and will be treated like an ordinary criminal, thereby causing him serious hardship, which is likely to be aggravated by his old-age complications.

13. By letters dated 14th January 2012, the Applicant’s wife requested the Director, BSMMU and Vice-Chancellor, BSMMU and the Superintendent, Dhaka Central Jail to allow home-cooked food to be supplied to the Accused Petitioner in order to ensure his physical well-being. However, such facilities have not been made available to the Petitioner. (Copies of the said letters dated 14.1.2012 are annexed herewith and marked as Annexures)

14. Furthermore, by a letter dated 26th January 2012, the Applicant’s wife informed the Superintendent, Dhaka Central Jail that the BSMMU authorities are not providing food to the Applicant, which is not included in the approved menu of the hospital authorities, and that this has resulted in a reduced food intake and consequent physical weakness of the Accused Petitioner. By the said letter dated 26th January 2012, the Applicant’s wife once again sought permission to provide home-cooked food to the Applicant. However, the said application of the Applicant’s wife has not been allowed. (A copy of the said letter dated 26.01.2012 is annexed herewith and marked as Annexure)

15. That the news of the deterioration of the Accused Petitioner’s health was widely reported in a number of daily newspapers. Furthermore, the accident suffered by the Accused Petitioner in the hospital bathroom on 25th January 2012 in the absence of an attendant was also reported in several daily newspapers. (Copies of the said news reports dated ….. and … are annexed herewith and marked as Annexures)

16. It is stated that the Applicant is a Bangladeshi citizen and has been living here with his family. He has no place of residence outside Bangladesh.

17. Taking into consideration the Applicant’s age and ill-health, it is respectfully submitted that the Applicant is unlikely to abscond and as such, may be granted bail by this Hon’ble Tribunal.

18. It is submitted that there are no reasonable grounds for believing that the Applicant will be convicted in this case. The Applicant is the former leader of a major political party. The present ruling party has a bitter relationship with the Applicant and as such, false allegations of war crimes, crimes against humanity and genocide have been made against him to harass him politically. The prosecution has miserably failed to produce any evidence against the Applicant. In the premises, the Applicant may be granted bail by this Hon’ble Tribunal.

19. The Applicant has no previous convictions.

20. The Applicant, due to his age and ill-health, is highly unlikely to commit any crime.

21. It is respectfully submitted that the Hon’ble Tribunal takes into consideration the Applicant’s character when exercising its judicial discretion to grant bail.

22. It is stated that there is no allegation that the Applicant has ever tampered with any witness or created any obstacle in the process of investigation. Furthermore, the investigation having already been completed and the Investigation Report having been submitted by the Investigation Agency, there cannot possibly be any apprehension of the Applicant tampering with any witness or evidence.

23. The Applicant is an elderly person and suffers from a number of ailments including Diabetes Mellitus, severe Back Pain and spondylosis as set out in the aforesaid paragraphs.

24. In the above circumstances, it is respectfully submitted that the Applicant cannot and will not get proper medical treatment in the custody of the jail authorities and as such this Hon’ble Tribunal may exercise its judicial discretion to grant bail to the Applicant.

25. It is respectfully submitted that taking into consideration the arguments made in this application, the Hon’ble Tribunal grants conditional bail to the Applicant on the condition that he:

i. Surrenders his passports before the competent authorities;
ii. does not apply for any travel documents without the prior permission from the Hon’ble Tribunal;
iii. resides at the address stated above;
iv. reports to the Hon’ble Tribunal as and when directed to do so;
v. does not travel to any crime scene without prior permission from the Hon’ble Tribunal;
vi. does not contact any of the Prosecution witnesses;

26. It is further submitted that Mr. Abdullahil Amaan Azmi, son of Professor Ghulam Azam of 119/2, Elephant Lane, Boro Moghbazaar is willing to provide surety of an agreed amount as a condition for bail.

13 Feb 2011: Twenty fifth witness

2012-02-26T20:12:00.002+06:00

At the very beginning of the hearing, defence counsel Tajul Islam had came to thedais and told the judges that the defence was unable to undertake any crossexamination as one of their counsels who leads the cross examination wasinjured when he was on his way to Dhaka when he fell from his seat while thebus was breaking hard. At firstTajul Islam said there were fractures on legs but after that other counselsconfirmed that there were no fractures other than a cut. He said that Mizanul Islam was the main personinvolved in preparation for cross examination and that isthe reason why they wanted an adjournment for calling further witness to DelwarHossain Sayedee. However, no adjournment was given.

Following applications relating to the case of Nizami and and another to the case of Salauddin Quader Chowdhury, the 25th witness to give evidence against Delwar Hossain Sayedee was then called.

The prosecution Saiful Islam took the witness through his evidence-in-chief.

Prosecution: What is your name?

Witness: My name is Mobbarak Hossain.

Prosecution: What do you do?

Witness: I am acting chief librarian of the Bangla Academy.

Prosecution: where were you appointed in 30.03.11?

Witness: I was appointed at the same post and in same office on that date.

Prosecution: In 30.03.11 Mr. Helal went in Bangla Academy library and seized some documents. And then did you sign in seizure list?

Witness: Yes, I signed there.

Prosecution: How many items were there?

Witness: There were 24 items.

Prosecution: Can you tell us please, actually what those items were?

Witness: These were the newspaper of 1970, 1971, and 1972.

Prosecution: If Tribunal orders you to bring these items before the Tribunal, then will you bring it before the Tribunal?

Witness: Yes, I have brought it with me now and if Tribunal order then I can produce it again.

Prosecution: On 28.03.11 Mr. Helal went in Bangla Academy library and seized some documents. And then did you sign in seizure list?

Witness: Yes, I signed there.

Prosecution: How many items were there?

Witness: There were 16 items.

Prosecution: Can you tell us please, actually what those items were?

Witness: These were Headlines of different newspaper in 1970, 1971.

Prosecution: If Tribunal ordered you to bring these items before the Tribunal, then will you bring it before the Tribunal?

Witness: Yes, I have brought it with me now and if Tribunal order then I can produce it again.

Prosecution: In 29.03.11 Mr. Helal went in Bangla Academy library and seized some documents. And then did you sign in seizure list?

Witness: Yes, I signed there.

Prosecution: How many items were there?

Witness: There were 12 items.

Prosecution: Can you tell us please, actually what those items were?

Witness: These were headlines of different newspaper in 1970, 1971.

Prosecution: If Tribunal orders you to bring these items before the Tribunal then will you bring it before the Tribunal?

Witness: Yes, I have brought it with me now and if Tribunal order then I can produce it again.

Prosecution: In 29.03.11 Mr. Helal went in Bangla Academy library and seized some documents. And then did you sign in seizure list?

Witness: Yes, I signed there.

Prosecution: How many items were there?

Witness: There were 12 items.

Prosecution: Can you tell us please, actually what those items were?

Witness: These were headlines of different newspaper in 1970, 1971.

Prosecution: If Tribunal orders you to bring these items before the Tribunal then will you bring it before the Tribunal?

Witness: Yes, I have brought it with me now and if Tribunal order then I can produce it again.

Prosecution: In 03.04.11 Mr. Helal went in Bangla Academy library and seized some documents. And then did you sign in seizure list?

Witness: Yes, I signed there.

Prosecution: How many items were there?

Witness: There were 9 items.

Prosecution: Can you tell us please, actually what those items were?

Witness: These were headlines of different newspaper in 1970, 1971.

Prosecution: If Tribunal orders you to bring these items before the Tribunal then will you bring it before the Tribunal?

Witness: Yes, I have brought it with me now and if Tribunal order then I can produce it again.

Prosecution: In 03.04.11 Mr. Helal went in Bangla Academy library and seized some documents. And then did you sign in seizure list?

(Note: In the above-mentioned date there were 13 seized items and examination in chief was not continued any longer as the serial no. and pages no of the prosecution documents and judges document wwere not the similar. Then prosecution told the tribunal that it was their last question.

Thus examination in chief was completed.

Cross examination of the witness was then undertaken by Manjur Ahmed Ansari

Defence: Can you tell us, have you any personal knowledge regarding the news published in newspaper?

Witness: No.

Defence: Can you tell us, do any headlines or any seizure list items contain the name of Mawlana Delwar Hossain Saidee ?

Witness: No. His name is not mentioned anywhere.

The cross-examination of prosecution witness no.25 finished.

After this the defence counsel Tajul Islam again came to the dias prayed for the adjournment of Sayedee’s matter till Sunday (19.02.12) as Mizanul Islam was sick but the chairman said that they had many senior lawyers on your team so it should not be a big problem. Mr. Tajul Islam said that he is involved with this case from the very beginning but he has hardly cross examined any witness. The Tribunal then fixed the next date for hearing on 16 February.

13 Feb 2011: SQ Chowdhury jail transfer

2012-02-26T20:09:00.000+06:00

After the tribunal dealt with the Nizami adjournment applications - and before the hearing relating to Delwar Hossain Sayedee - Ahsanul Huq, the defence lawyer acting for Salauddin Quader Chowdhury told the tribunal that he had gone to Kashimpur jail to visit their client but he could not meet him. He sought a transfer of their client from Kashimpur-2 to any other jail so that they can visit their client frequently. If we fail to consult with our client then it will be difficult for us to represent him that is why the application has been submitted.

Prosecution Haider Ali said that the issue of transfer was a matter for the jailers.

The defence lawyer replied that they felt offended that they had to wait for 2 hours and then they were not gives permission to meet their client. He said that they were all here under the International Crimes Tribunal so there is no matter of the Jail Code or any provision or any law applying. He asid that he had brought books of International crimes from different countries and that he could give the tribunal a copy of these books. He said that if his client was transferred to another jail there would be no reason to be aggrieved. He said that when his client was transferred from Jail-1 to Jail-2, he did not say anything as he was not prejudiced. He said that the court had full discretion to give order regarding this matter as it was an innocent application. He said that in spite of having an order of the court to consult with his client, the jail authorities wanted various signed documents. He said that the behaviour of the jail authorities was not tolerable and that is why they were seeking an Order for transfer as Tribunal has the sole jurisdiction.

The tribunal chairman Justice Nizamul Huq then passed the following order

‘It appears from the defence submission that behaviour of the authorities in Kashimpur jail-2 was unsatisfactory and when they asked to meet with their client the authorities did not behave properly and that if this application was given, there would be no chance of being prejudiced.

The learned prosecution submitted that all issues relating to the jail should be arranged or provided by the jail authority.

After hearing both sides, we are of the view that accused person should be moved according to the jail authority, so we will not interfere but if there is any violation we will interfere, but now we are not passing an Order, just asked the prosecution to look into the matter so that accused gets proper treatment.

The defence lawyer then asked the tribunal if he could make some arguments relating to his discharge application. Justice Nizamul Huq, the chairman said that they would not hear the discharge petition today but on 22 February 2012.

13 Feb 2012: Nizami adjournment sought

2012-02-26T20:07:00.000+06:00

Abdur Razzaq, on behalf of Motiur Rahman Nizami, stood up and argued that there are 416 pages of prosecutions document that are totally eligible photocopies. He said that it was totally impossible for them to read the documents. Page no, serial no all are eligible to read. He also said that the seizure list items were also not included in the document which has been given to the defence, and as a result they wanted an adjournment for 4 weeks.

"If we cannot read the documents, we can neither prepare for the case, nor can assist your lordship," he argued.

Prosecutor Haider Ali then responded by saying that there were some lists that the prosecution could not even read. The chairman responded by saying that the prosecution cannot respond in that way, ‘You need to provide them legible copies’.

Justice Zaheer suggested that the prosecution should type out the document.

Defence counsel Tajul Islam suggested that as signatures were on some documents, the prosecution could scan the documents.

Justice Zaheer told the prosecution that they must give them legible copies and asked them them when they would be able to provide the defence the documents again?

Prosecutor Saiful Islam said that it could be done within 3 days.

After Justice Zaheer asked the prosecution whether they were confident that they could complete by the end of the week, and the prosecutor Ziad Al Malum asked whether they could extend the time until Monday.

Razzaq also requested the court to order the prosecution to provide his team with certain documents mentioned in the seizure list but not yet disclosed. Haider Ali said these were trivial records, such as photographs of mass graves and places of occurrence and so forth.

The tribunal chairman then passed the following order.

“3 applications have been filed by the accused petitioner for a direction upon the prosecution (i) to serve the document including the seizure list item, (ii) to supply legible copies to the defence, and (iii) for an adjournment of the matter.

We have heard Mr Saiful Islam and Haider Ali for the prosecution and Barrister Abdur Razzak for the defence. Upon hearing both side, on an agreeable consensus, legible documents should be given as soon as possible and the prosecution are directed to give 416 pages legible photocopies and documents including seizure list to the defence by 22nd February 2012. The defence is directed to collect those documents from the Office of the Register by 23rd February 2012. Let the matter of charge hearing be fixed on 5th March.”

Razzaq insisted that they needed another week of adjournment in order to allow them to prepare the list.

The chairman said that the date would not be changed. "If Mr Razzaq is not prepared on 5th March, then we shall reconsider," he observed.

12 Feb 2012: Nizami charge adjournment

2012-02-26T20:04:00.001+06:00

The date was set for the start of the hearing on the prosecution application seeking that the tribunal 'charge frame' Motiur Rahman Nizami

The senior defence lawyer, Abdur Rajjak came to the dais and submitted that the prosecution document was not fully eligible to read. He said that there were 416 pages of prosecution documents which were iligible photocopies which were impossible to read by the defence counsels, and that as a result they wanted an Order for adjournment for 4 weeks regarding the charge hearing of Matiur Rahman Nijami.

The chairman said that he should first file an application and that then tomorrow they would pass an Order.

The defence said that they would submit this application identifying all eligible copies by 2pm.

The prosecution said that amongst thousands of pages just 416 pages might be eligible. So I think my lord it is not a big problem. We want speedy trial.

Justice Nizamul Huq adjourned the court by directing the defence to submit their application by 2 pm and that then they will decide the matter.

7 Feb 2012: Twenty forth witness

2012-02-26T18:57:00.001+06:00

Defence counsel Mizanul Islam brought to the attention of the Tribunal, the news published in the Bengali Daily Janakantha dated 02 February 2012 and said that the paper misinterpreted the deposition of the prosecution witness Modhusudan Ghorami. The report's heading apparently suggested that Sayedee had raped the prosecution witness's wife.

In reply, tribunal chairman Justice Nizamul Huq said, “I have also read the news. Reporters should be cautious while reporting. I request you (the journalists) if you cannot remember anything or you are in a confusion what actually said/discussed, please simply do not mention that in the news. But do not make the wrong news or misinterpret the facts.”

Defence cousel Mizanul Islam then said, “My Lord, I want an amendment of yesterday’s news. They have to publish amended news with the proper interpretation of the Modhusudan deposition.”

Then Justice Nizamul Huq asked the prosecution, “Have you informed the name of the witness you are going to produce before the Tribunal today to the defence?”

Prosecutor Haider Ali came to the dais and replied, “His name is in the list of 10 witnesses which has already been given to the defence.”

He also told the Tribunal that they have submitted the documents of Qumaruzzaman to the office of the Tribunal.”

Witness number 24 was then called.

The witness went to the dais and Justice Nizmul Huq then asked the prosecution, “Have you brought only one witness after such a long vacation?”

Prosecutor Haider Ali replied, “My Lord, we always try our level best. It is a very tough job. We had nothing to do. That is what we can do. We are unable to do more than that.”

Tribunal chairman Justice Nizamul Huq ordered the Chief Investigation Officer, “Bring every witness in Dhaka, keep them in your custody and send them to the prosecution only at the time of giving their testimony.”

The prosecutor Saidur Rahman opened the examination in chief

Prosecutor: What is your name?

Witness: My name is Mohammad Hossain Ali.

Prosecutor: How old are you?

Witness: I am about 66/67 years old.

Prosecutor: There was a meeting held before the election of 1970 in the then Pakistan. Do have know about that?

Witness: I was not present in that meeting (relating to election), however, I heard that the meeting was held at the Bagarpara High School field, Jessore.

Prosecutor: What have heard about the meeting? Can please tell us in details?

Witness: I have just heard that the meeting was held. Nothing more than that.

Prosecutor: Do you know Delwar Hossain Saidee?

Witness: I saw Mr Sayedee when he used to go to the house of Raushan Ali of Bagarpara, Jessore.

Prosecutor: When did you see him?

Witness: I cannot remember whether the time was before or after the liberation war.

Examination in chief was then completed then and defence declined to cross examine the witness as he had not said anything material.

Justice Zaheer: Is there any possibility to produce witness before the Tribunal at tomorrow morning?

Prosecution: No my Lord, before Thursday we will not able to produce witness before the Tribunal.

Justice Zaheer: Prosecution, it is your duty to produce witness before the Tribunal! Our duty is only to examine the witness. And please inform defence counsels regarding the witness to whom you are going to produce before the Tribunal.

Justice Nizamul Huq: Prosecution, we have passed an Order in order to produce witness before the Tribunal on the basis of your application then why you are unable to produce witness.

Prosecution: My Lord, I have said before the tribunal that we have tried a lot but it is a difficult job. We are going everywhere, taking governmental assistance to make it possible.

Thus court was adjourned for Sayedee’s matter until 13 February.

2 Feb 2012: Witness apperance failure

2012-02-26T18:50:00.000+06:00

The Prosecutor Rana Das Gupta rose and told the tribunal:

‘Yesterday we informed your Lordship that we would produce three witnesses (1.Ashis Kumar Mondol, 2.Sumoti Kumar Mondol and 3. Shomor Mistri) before the Tribunal on the next day i.e. today. However, yesterday afternoon, the witnesses had left their residence (provided by us) informing us that they were going to their relative’s house and they would reach prosecution office on the next morning i.e. today. After that, we have tried a lot to communicate with them but unfortunately we failed to do this. Thus, we are submitting a time prayer before your lordship to give us 1-2 days to enable us to produce those witnesses.

Justice Nizamul Huq: Is there any chance for the witnesses to move to any other place from prosecution custody after you confirmed to the Tribunal that would be produced on the next day?

Prosecution: My lordships, we had no option but to allow them to go.

Justice Nizamul Huq: Learned prosecutor, they should be in your custody and you are solely responsible to produce them before the Tribunal. How could they leave your custody for their relative’s house then?

Defence: My lordships, we are very sorry.

Justuce Nizamul Huq: It is a matter of great regret that the Chief Prosecutor, Chief Investigation Officer both are absent today. Learned prosecutor, is there any possibility to produce the witnesses on Monday?

Prosecution: My lordships, we will try our level best unless there is an unavoidable circumstances arise.

Justice Nizamul Huq passed the following order,

“Learned prosecution submitted that the witness who scheduled to produce today had left their residence informing them that they will reach the prosecution office on the next morning but they did not do the same. An order was passed by the Tribunal that witnesses are brought in Dhaka and kept in secret place or under the custody of investigation officer so that they can give their testimony without any fear. The Chief Investigation Officer and Chief Prosecutor are not present today. However, we allow adjournment until 07 February 2012 for prosecution although their explanation is not satisfactory.”

The tribunal also heard matter concerting sending the accused Abdul Quader Molla to hospital. The following order was passed:

Justice Nizamul Huq then made thefollowing order,

“As per the standing Order of case no7/11, Abdul Kader Mollah will be sent to BIRDEM Hospital and treatment will begiven to him according the advice of concerned doctor of BIRDEM Hospital.Medicine will be supplied to the accused from outside as per the Order. We aredirecting the jail authority that the copy of document must have been given tothe accused.”

Thus the Tribunal Chairman JusticeNizamul Huq adjourned the hearing for that day.

1 Feb 2012: Ghorami cross examination

2012-02-26T18:49:00.000+06:00

After the 23rd witness finished his evidence in chief, the defence counsel Mizanul Islam started the cross examination then.

Defence: Madhu Babu, the name of your daughter was given in accordance to the Hindu religion, right?

Witness: Yes.

Defence: Mr. Madhu, can you please tell us the name of Imam (religious post of a mosque) of that mosque where you were persecuted into becoming a Muslim.

Witness: No, I cannot remember.

Defence: Do you have any idea what is Azaan (is something used to call the people 5 times in a day to come to mosque to say the prayer)? What was the name of Moajjem (religious post of a mosque) of that mosque then?

.Witness: No, I cannot remember.

Defence: Have you ever heard the name of Yaseen Mawlana?

Witness: Yes, I have heard.

Defence: Do you know that he had a Khanka (house used by Muslim religious leader to meet people) at Parerhaat where he used to stay sometimes?

Witness: No, I cannot remember.

Defence: Do you know Kashem (Kashem Ali Hawladar alias Kashem Master) of Haji Bari of Hoglabnia?

Witness: Yes, I know.

Defence: Do you know Razzak Rajakar?

Witness: Yes, I know.

Defence: Mr. Madhu, rajakaars came to your house once, right?

Witness: Yes.

Defence: Do you know how far Hoglabunia is from Parerhaat marketplace?

Witness: It is about half a kilometre.

Defence: It is true that, there was no other way to go Parerhaat marketplace without crossing Chalna Bridge?

Witness: No, It is not true.

Defence: When did the Ashirbaad (ritual formalities of Hindu marriage) of your marriage take place?

Witness: I guess 2 or 3 days before the marriage.

Defence: When was the Lagna (exact time for the Hindu marriage to be taken place fixed by the Hindu religious leader called Pandeet)?

Witness: It was at night.

Defence: When was the post wedding ceremony celebrated?

Witness: No, it was not celebrated.

Defence: Did you celebrate Ghorani-Firani (a Hindu ritual programme) programme? Or had you ever been to your in-laws house for Oshtomongola (a Hindu ritual programme).

Witness: No.

Defence: Where did you start to live after getting married?

Witness: At my house in Hoglabunia.

Defence: Do you know Sayed Uddin father of Abdus Subhan and Sultan?

Witness: Yes.

Defence: It is true you sold all of your property (land, house everything) to them 2 years bfore the Liberation War?

Witness: No, it is not true.

Defence: Ok, you did not sell the same in 1969, however, you sold all of your property to Abdus Subhan and Sultan. Is not it?

Witness: No, I only sold my own part of property but they took over my brother’s property also as I am an illiterate person I was unable to understand their cheating. They took 54 decimal of land instead of 10 decimal.

Defence: When did it happened?

Witness: 2 years before Liberation War.

Defence: After the selling of your part of the property, you started to live in your deceased brother’s part, right?

Witness: Yes, I started to live in my deceased brother Nikunjan alias Shadhu Ghorami’s house.

Defence: Do you and your sister-in-law (deceased brother Nikunjan alias Shadhu Ghorami’s wife) live at the same house?

Witness: Yes.

Defence: How much older is Shdhu Ghorami than you?

Witness: Two years older.

Defence: Your sister in laws might be younger than you, is not it?

Witness: Yes, she might be.

Defence: Did your wife used to go to marketplace?

Witness: No.

Defence: After being persecuted to become a Muslim, you did not need to hide here and there- is that true?

Witness: I used to stay at my house; however, I started to hide again after Kirshna Saha was killed.

Defence: 9 people were killed at Hoglabunia in 1971. Were you persecuted before that?

Witness: Yes.

Defence: When did the occupation force came to Parerhat?

Witness: Yes, they came to Parerhat and started looting, arson, killing etc. (He did not answer as per the question)

Defence: During the war, arms were looted at Pirojpur. Did you hear that?

Witness: Yes.

Defence: During the war, money was looted at Pirojpur. Did you hear that?

Witness: Yes.

Defence: Can you please tell us, whether the occupation forces came before or after those incidents?

Witness: Yes, the occupation force came after those incidents.

Defence: So Mr. Madhu, the peace committee was formed at Parerhat after the occupation force came, right?

Witness: No. Thats not true. Peace committee was formed at Parerhat before the occupation force came.

Defence: And what about rajakar force? (When did the rajakar force was formed at Parerhat)

Witness: Both the peace committee and rajakar force were formed at the same time.

Defence: Peace committee was formed by Danesh Mollah, Sekender Shikder, Delwar Shikder s/o Rosul Shikder and Moslem Maulana, right?

Witness: Yes.

Defence: Rajakar Razzak, Delwar Shikder s/o Rosul Shikder were beaten to death by local people and freedom fighters, is that tue?

Witness: Yes, they were killed at Pirojpur.

Defence: Did Mr Helal (CIO) inform you before taking your statement?

Witness: Yes, he informed me.

Defence: Did you make any statement to anyone before making statement to Mr Helal (CIO)?

Witness: No, I did not.

Defence: Did your wife use to know any member of peace committee or rajakar?

Witness: No, she did not then.

At this stage, defence counsel Mizanul Islam finished his part of cross examination and another defence counsel Manzur Ahmed Ansari came to the dais and continued the cross examination for contradiction.

Defence: Have you said it to Mr. Helal (CIO) that your brother died before 1970?

Witness: No, I do not say.

Defence: Did you tell Mr. Helal (CIO) that you got married at the end of Falgoon (name of a month as per Bengali calendar)?

Witness: No.

Defence: Have you tell Mr. Helal (CIO) that Delwar had no permanent shop, he just has a temporary shop?

Witness: No.

Defence: Did you tell Mr. Helal (CIO) that Delwar was known as Delwar Sikder but now he is heard of as Delwar Saidee?

Witness: I cannot remember that because I was sick at that time.

Defence: Rajakar came to your house after the incident of Tarani Sikder along with 8 others abduction, did you say that to Mr. Helal Uddin (CIO)?

Witness: As I was sick at that time so I am unable to recall it whether I have told that incident to him or not.

Defence: Your wife said to you, “The person who persecuted you to become a Muslim came. You just flee away.” Did you say that to Mr. Helal Uddin (CIO)?

Witness: I cannot remember.

Defence: You were persecuted as a Muslim in a mosque at Parerhaat. Did you say the fact to Mr. Helal (CIO)?

Witness: I cannot remember that.

Defence: After persecution your name was changed from Madhusudan to Ali Ashraaf and Krishana Shaha’s name was changed to Ali Akbar. Did you say that to Mr. Helal Uddin (CIO)?

Witness: I cannot remember.

Defence: Kashem Ali Hawlader alias Kashem Master was in jail for 6 or 7 months against your allegation. You brought the allegation against him that your wife was raped by him- is that true?

Witness: No, it is not true that I brought the allegation of my wife’s rape against him but it is true that he was in jail against my allegation.

Defence: Is that true Mr. Madhu that your wife migrated to India due to personal clash/problems with you?

Witness: No, it is not true

Defence: You and your sister-in-law have been getting ‘Old Age benefit’ from the government since 2010- is it true?

Witness: Yes.

Defence: You and your sister-in-law are living at the same house- is it true?

Witness: Yes.

Defence: When you came to Dhaka?

Witness: 18 or 20 days ago.

Defence: Mr. Madhu, you have come here to give false statement in a false case- is that true?

Witness: No, It is not true.

Defence: At the time you came to Dhaka you were physically well but you have become sick due to the undue pressure (duress) on you for giving false statement in false case- is that true?

Witness: No.

Thus the cross examination was completed. The Tribunal adjourned until next day.

1 Feb 2012: Twenty third witness day 2

2012-02-26T18:46:00.001+06:00

Application involving Quader Molla
Defence counsel Tazul Islam came to the dais and submitted as follows: “Our client Abdul Kader Mullah is a diabetic patient. He has been suffering from diabetics for last 25 years. The date 20.11.2011 was prescribed for an appointment by the doctor of BIRDEM Hospital as continuing process of his treatment. So he must be taken to the BIRDEM Hospital as per appointment otherwise it would be in breach of compliance with the Order passed by this Tribunal on 20.04.11.”

Justice Nizamul Huq: It is the Jail doctor who will solely decide whether it is necessary to send the accused to the hospital or not. The condition of the patient might have been improved that is why he might not have been sent to the hospital.

Justice Zaheer: Learned counsel, so there is no violation of the Order.

Defence: My lordships, whether the physical condition of my patient is good or bad, it should be decided by the doctor of BIRDEM Hospital as he is the regular patient of the said doctor of BIRDEM Hospital not of the jail doctor.

Justice Nizamul Huq: Learned defence counsel, you cannot say that jail doctor is not capable to give proper treatment. So if necessary, jail doctor must send him to the hospital. Learned prosecutor please inquire this matter whether jail doctor are taking proper steps or not.

Prosecutor (Haider Ali): My lord, whether Mr. Kader Mollah has not been sent to the hospital, it is merely a presumption by the defence counsel.

Defence: No, it is not our presumption my Lord, it is fact that he has not been sent to the hospital on the scheduled date.

Justice Nizamul Huq: It will be better if we solve this matter not by passing order but through the prosecution. We informally require the prosecution to inquire into the whole matter i.e. what is the condition of accused, whether the jail doctor give him proper treatment or not. Then if it is necessary, we will pass an Order.

Sayedee Witness no 23 examination-in-chief continuation
There was a special arrangement for witness no. 23 as he had been admitted to Hospital and was 81 years old. He gave his whole testimony lying on a sickbed, a precedent for judicial proceedings in Bangladesh.

The Prosecutor, Rana Das Gupta) came to the dais and continued examination in chief of witness no. 23 again from the previous day.

Prosecutor: Mr. Madhusudan, can you tell us, when your brother had died?

Witness: Before 1970.

Prosecutor: Whether your two elder sisters had been married or not?

Witness: Yes, they are married.

Prosecutor: Where are they?

Witness: They have migrated to India.

Prosecutor: Are you married?

Witness: Yes, I am.

Prosecutor: When did you get married? Can you remember?

Witness: Yes, so far I can remember. It might be few days before the Liberation War on 1971.

Prosecutor: What is the name of your wife?

Witness: Shefali Ghorami.

Prosecutor: Where is your Father-in-laws house?

Witness: It is situated at Kachumonia village of Morolgang police station under Bagerhat district.

Prosecutor: What is the name of your Father-in-law?

Witness: Sri Nath Shikder.

Prosecutor: Where did you go after getting married along with your wife?

Witness: At my own village Hoglabunia.

Prosecutor: Can you tell us please, exactly in which month you get married?

Witness: So far I can remember, it might be end of the month of Falguun (a Bengali calendar month; it is the 11th among 12 months under Bengali calendar).

Prosecutor: Can you tell us, whether there was any committee during the Liberation War?

Witness: Yes, few days later of my marriage, looting, arson had been started in Pirojpur and there was a committee named ‘Peace Committee’.

Prosecutor: Mr. Madhu, Can you remember who were the members of Peace Committee?

Witness: Yes, I can. They were Sekander Sikder, Moslem Maolana, Danesh Mollah, Delwar (he did not mention the surname i.e. whether it is Shikder, Saidee or Mollick).

Prosecutor: What was Delwar’s profession?

Witness: He used to run a small business.

Prosecutor: Where?

Witness: He had no permanent shop, he had a temporary shop.

Prosecutor: Where was that temporary shop were situated?

Witness: I could not remember it now as it is the incident of 40 years ago.

Prosecutor: Mr. Madhu, was this shop situated in Parerhat Bazar?

On this point defence raise their objection as this question is asked like a leading question which is not allowed in examination in chief. Then the prosecutor withdrew the question.

Witness: Can you tell us, in which name Delwar was know?

Prosecutor: Delwar was known as Delwar Sikder then, but now I have been heard that he is known as Sayedee.

On this point there was a little argument between the defence counsel and the prosecutor. Prosecutor wants to establish that Madhusudan meant Delwar is known as Delwar Sayedee and defence argued that Madhusudan meant Delwar is known as Delwar Sikder. After that Justice Nizamul Huq resolved the matter by noting down that, “the name Sayedee has come after asking 2 or 3 questions to the witness.”

Prosecutor: Mr. Madhusudan, can you tell us, whether there was any other committee then?

Witness: Yes, other than Peace Committee they formed a Rajakar force at the same time.

Prosecutor: After the formation of Peace Committee and Rajakar Force, did they do anything in your village Huglabunia?

Witness: Yes, after the formation of those committees, they came to our village and started looting, arson, killings etc.

Prosecutor: What did you do while they (Rajakar) entered into your village?

Witness: We were so scared that we would not even come in front of them.

Prosecutor: Mr. Madhu, can you tell us now, exactly what happened in Huglabunia village?

Witness: One night they came to the village and abducted 9 persons from our village. Next morning, we came to know about the fact and they never returned to our village.

Prosecutor: Can you tell us name of those persons?

Witness: Yes, they are Tarani Sikder, Ramakanto Sikder, Banikanto Sikder, Nirmal Sikder, Horolaal Malakaar, son of Malu Haldaar, Prakash Sikder, Nirmal Sikder and his brother in law (name is unknown).

Prosecutor: Can you please remember any other incident at that time?
Note: On this point the witness Madhusudan become very emotional and he could but started crying. Then he started to dispose as follows:
Witness: After 3 or 4 days of that incident, rajakaar came to my house also.

Prosecutor: When they came?

Witness: They came at 4 pm or 4:30 pm.

Prosecutor: Were you at home?

Witness: No, I was not at home. I was at marketplace.

Prosecutor: Who were they?

Witness: My wife could not tell me the names of those person as she did not know them, however, she told me the guy who persecuted you to become a Muslim was among those persons.

Prosecutor: Did they do any thing else?

Witness: Yes, she said to me that she was raped by that person who persecuted me to become a Muslim. Then she said, “I am suffering in severe pain; it hurts. You do not need to be worried about me; you just flee away.”

Prosecutor: Who persecuted you in Muslim?

Witness: Delwar Shikder. He said to us, “If you become Muslims, you will not be killed.” I, Krishna Saha, Dr. Ganesh were persecuted in the same day at a mosque. After 2/3 days Krishna Saha was killed even being persecuted to become a Muslim. Then they changed my name to ‘Ali Ashraaf’ and they changed Krishno Saha’s name to ‘Ali Akbar’.

Prosecutor: Did you continue practising your new religion (as a Muslim)?

Witness: No. After the liberation war I did not continue the same and I did not tell that anyone (that I was persecuted). Another two men who was also persecuted with me, one of them was killed and another one was migrated to India.

Prosecutor: Where is your wife?

Witness: After 4/5 months of the looting, my wife gave birth to a child at the end of Agrahyon (Bengali calendar month).

Prosecutor: What happened to your baby girl?

Defence objected at this stage as the prosecution witness did not even mention that the baby was a ‘girl’. The Tribunal member agreed with the defence counsel and then the prosecutor amended his question withdrawing the word ‘girl’.

Witness: It was a girl named ‘Shandhya’.

Prosecutor: Where is Shefali (Ghorami) and Shandhya?

Witness: The people criticised my wife because she was raped and they presumed the child was born in pursuance of that incident. I discussed with my brother-in-law Kartik Shikder and he advised to send them to India. I sent them and since then I never met them.

Prosecutor: Have you ever got married?

Witness: No.

Prosecutor: Did you give your statement to the investigation officer (Helal Uddin)?

Witness: Yes.

Prosecutor: You said you know Delwar Shikder; can please confirm whether he is present in this courtroom?

The Tribunal member Justice Zaheer objecting the question asked the prosecutor, “The witness is lying on a sickbed and he is not in a position to move his head even, how he would recognize him...what is the point of asking this question to him?”

Thus the examination in chief was over.

31 Jan 2012: Twenty third witness day 1

2012-02-26T18:44:00.000+06:00

At the beginning of the hearing, Justice Nizamul Huq asked the prosecutor to submit the charge documents relating to Ali Ahsan Muahid before the Tribunal but the prosecutor failed to submit them and they said to the Tribunal that they will submit them by 3 pm.

Cognisance order relating to Kamruzzaman
Justice Nizamul Huq passed the following order:

'After examining investigating report, witness statement and prosecution charges, prima facie case has been established against Kamaruzzam under section 3 (2) and 4 (1), 4 (2) of The International Crimes (Tribunals) Act, 1973. The prosecutor is directed to submit documents against Kamaruzzan by 6th February and the defence is directed to receive those documents by 7th February. Charge hearing will be started on 29th February.'

Sayedee witness number 23
The twenty third witness giving evidence against Delwar Hossain Sayedee came to give evidence and the prosecutor Rana Das Gupta started the evidence in chief:

Prosecutor: What is your name?

Witness: My name is Madhusudhan Ghorami.

Prosecutor: How old are you?

Witness: I am about 81 years old.

Prosecutor: Can you tell us, what happened in 1971 in this country? Do you know about Liberation War?

Witness: Yes, I know.

Prosecutor: What did you do then?

Witness: I was a Carpenter.

Prosecutor: How old were you then?

Witness: I was about 38 years old.

Prosecutor: How old were you when your father died?

Witness: I was only 2 and half.

Prosecutor: At the time when your father expired, how many family members he left then?

Witness: My two elder sisters, one brother and my mother.

Prosecutor: What are the names of your sister?

Witness: Shushila and Golapi.

Prosecutor: What is your brother’s name?

Witness: Nikunjan.

At this point of examination in chief, suddenly Modhusudan Ghorami was feeling unwell and Judges as well as the defence said that it will be inhumane his testimony continued. Modhusudan Ghorami’s physical condition was so bad that he could not even held his head up straight.

Then it was discussed among the Judges, prosecutor and the defence that testimony could be taken even outside the court room in the presence of only one prosecutor, one of defence counsels and one of the tribunal members, however, defence counsel Tajul Islam came to the dais and suggested that testimony shall be taken in the court room publicly under ‘special arrangement’, for example, there may have a sick bad or a easy-chair and in the presence of the concerned doctor.

The Tribunal agreed with his suggestion and asked the prosecutor to produce their witness No. 23 Modhushudan Ghorami on the following day i.e. on Wednesday and, Justice Nizamul Huq adjourned the court by saying that “The court is adjourned upon an prayer from the learned prosecution and with full consent of defence counsels since witness 23 is unable to give his testimony because of his sickness.”

30 Jan 2012: Seizure witness 20 to 22

2012-02-26T18:42:00.000+06:00

Tribunal chairman Justice Nizamul Haq asked the prosecutor to produce the prosecution witness before the Tribunal.

One of the prosecutors came to the dais and informed the Tribunal that one of their witnesses named Modhusudhan Ghorami had been hospitalized and he has not got permission from the concerned doctor to appear before the Tribunal for giving his deposition as a witness because of his physical condition.

In the meantime, one of the defence counsels Imran Siddique came to the dais and submitted a petition before the tribunal for fixing date to meet with their client Golam Azam.

In response to the petition Justice Zaheer ordered that,

“4th February, 11th February and 18th February has been fixed for privileged communication. Any two of the three counsels mentioned in the application will be permitted to meet with him between 10 am to 1 pm.”

After that, tribunal chairman Justice Nizamul Huq asked the prosecutor again whether there were any witnesses ready to give evidence or not?

Prosecutor (Saiduur Rahman): Yes, my Lord, they are already at the Tribunal.

Prosecution witness 20 (who is a seizure list witness) came to the witness box, took oath and the examination in chief by the prosecution started.

Prosecution: What is your name?

Witness: My name is Ejabuddin Mia.

Prosecution: How old are you?

Witness: I am 39 years old.

Prosecution: What do you do?

Witness: I am an Assistant Librarian of Bangla Academy Library.

Prosecution: Would you please tell us, were you appointed in the same post during the period of seizure on 30th March 2011?

Witness: Yes, I was appointed in the same post and at the same library. On 30th march 2011 Investigation Officer came to the library and seized Daily Azad, dated 3rd February 1972.

Justice Zaheer: Did you sign there?

Witness: Yes, I put my signature there.

At that time there was confusion in the tribunal because the documents which have been submitted to the Tribunal as well as to the defence counsels by the prosecution were not corresponding to same page numbers which the prosecution had. Due to the error in page numbers the tribunal chairman was unable to follow the documents.

At this stage the Tribunal chairman adjourned the hearing for 30 minutes and ordered the prosecution to rectify the errors in the page numbers as it was difficult for the Tribunal as well as defence to find out corresponding pages when prosecution witness was referring to then.

After the recess, the prosecution continued the examination in chief again.

Prosecution: Can you please tell us, were you working as an assistant librarian on 24th March 2011?

Witness: Yes, I was also working on that day at the same post and at the same library. From a number of daily newspapers 16 items had been seized by the Investigation Officer. After that those were given under custody of Acting Head Librarian Mr. Mobrrak Hossain.

Justice Zaheer: Did you sign there?

Witness: Yes, I did my Lord.

Prosecution: Can you please tell us about seizure list of 27th March 2011?

Witness: Yes, on that day 10 items from different dailies had been seized. And as usual as a part of my duty, I have put my signature in the seizure list.

Prosecution: Can you please tell us about seizure list of 3rd April 2011?

Witness: Yes, on that day 9 items from different Daily Newspapers had been seized. And I have put my signature in the seizure list as well.

Prosecution: Can you please tell us about seizure list of 30th March 2011?

Witness: Yes, on that day 24 items from different daily newspapers had been seized. And as usual I have put my signature in the seizure list.

After that, the prosecution asked the witness about a seizure list dated 31st March 2011. However, the Tribunal Judges were having difficulties with the corresponding page numbers again. Prosecution, after several attempt, could not help the Tribunal and so withdraw the question about that seizure list.

Thus the examination in chief of the prosecution witness 21 finished.

Defence counsel Mizanul Islam then started the cross examination of prosecution witness 21:

Defence: Item No. 4 of seizure list of 29th March 2011 is Daily Azad, dated 8th May 1971, containing headline ‘Priojpur Mahakuma Peace Committee Formed’, is that true?

Witness: Yes.

Defence: Can you please confirm us, every newspaper, which had been seized in Bangla Academy Library, was published in either 1971 or 1972, is not it?

Witness: Yes.

Defence: Does any headline of those newspapers contain the name of Delwar Hossain Saidee?

Witness: No.

Thus, the cross examination of prosecution witness 21 finished and the prosecution produced the next witness (No. 22) before the Tribunal. Prosecutor Saidur Rahman opened the examination in chief.

Prosecution: What is your name?

Witness: My name is Saieed Masumul Kabir.

Prosecution: How old are you?

Witness: I am 43 years old.

Prosecution: What do you do?

Witness: I am distributor of Bangla Academy Library.

The above witness was also a seizure list witness and the prosecution termed him as ‘tender’ i.e. he is a seizure list witness on similar matter. Thus, defence did not cross examine him.

There was no further witness for that day. The prosecution then informed the Tribunal they will produce Modhushudan Ghorami on the next day. The judges advised the prosecution to prepare other witnesses if they were unable to produce the said prosecution witness Modhushudan Ghorami. The prosecution confirmed to the Tribunal they would produce the said witness taking permission from the concerned doctor.

The tribunal chairman Justice Nizamul Huq then adjourned the hearing until next day.

29 Jan 2012: Witnesses 17 to 19

2012-02-26T18:40:00.001+06:00

Abdul Quader Molla charge hearing adjournment application
Defence counsel Tajul Islam came to the dais and submitted an application regarding Abdul Quader Mollah’s matter. He submitted the following:

“The documents which had been sent to my client Abdul Quader Mollah, who is in the Jail custody now, could not be received by him. The Jail authority told him that they required Inspector General of Police’s (IGP) permission to allow him to read them. That is why we are making this petition before your Lordship for an adjournment of the charge hearing on the ground that he could not instruct us. Further, we could not even meet our client and we could not finish reading the entire document ourselves yet. Furthermore, we humbly submit before your Lordship that treatment in the jail custody which has been provided to Mr Mollah is insufficient. Thus, we humbly pray to you make such order as the Tribunal thinks fit for Mr Mollah’s proper treatment as well as to allow our petition for adjournment to enable us to take sufficient preparation for the charge hearing.'

Tribunal chairman Justice Nizamul Huq fixed the new date for the charge hearing on 19th February 2012 finding no other date for hearing before that day.

Sayedee Witnesses, 17 to 19
Prosecution witness 17 came to the witness box, took oath and the examination in chief by the prosecution started.

Prosecution: What is your name?

Witness: My name is Rabiul Anam Khan.

Prosecution: How old are you?

Witness: I am 44 years old.

Prosecution: What do you do?

Witness: I am Cataloguer of PIB (Press Institution of Bangladesh)

Prosecution: Can you please tell us the name of newspapers which were seized? Can please mention the respective seizure dates as well?

Witness: Newspapers which were seized:

(1) Daily Shomokaal, dated 10 th February 2007, pages No. 1 and 2.

(2) Daily Janakantha, dated 17th July 2010, pages no. 20 and 19.

Prosecution: Were you appointed at the same post and in the same office during the period of seizure?

Witness: Yes, I was. After seizing newspapers those were given to me and I had also put my signature on the seizure list of newspaper. The details of other seized newspapers are:
(1) Daily Janakantha, dated 14th April 2001, page No. 9.
(2) Daily Janakantha, dated13th February 2002
(3) New age, dated 16th March 2004.
(4) Daily Janakantha, dated 14th December 2000, pages No. 18 and 21.
(5) Daily Janakantha, dated 19th December 2000, pages No. 1 and 11.
(6) Daily Janakantha, dated 20th December 2000, pages No. 1 and 11.
(7) Daily Janakantha, dated 21st December 2000, pages No. 1 and 15
(8) Daily Janakantha, dated 22nd December 2000, pages No. 1 and 15.
(9) Daily Janakantha, dated 23rd December 2000, pages No. 1 and 11.
(10) Daily Janakantha, dated 26th December 2000, pages No. 1 and 2nd half of 11.
Justice Zaheer: Can you please confirm us whether you will be able to submit the seized newspapers again if the Tribunal so requires?

Witness: I have brought seizure list with me and it will be submitted before the Tribunal again when it is so requires.

Thus the examination in chief of the prosecution witness 17 finished and the Tribunal then adjourned for 30 minutes to enable the defence to prepare for the cross examination.

After the recess defence counsel Mizanul Islam opened the cross examination of prosecution witness 17 which was as under:

Defence: Can you tell us what the highest post in PIB (Press Institute of Bangladesh) is?

Witness: Yes, highest post is the Director.

Defence: Who is the head of Archives?

Witness: Archives and library section is managed by one who is called Librarian.

Defence: Do you know the founding year of PIB?

Witness: No, I do not know that. However, collection in the archives has been started from 1984.

Defence: Did you make the seizure list of evidence?

Witness: Yes. I along with my assistant have done that as per the requirement of the Chief investigation Officer Helal Uddin.

Defence: Whether there were any headlines of that reports which were seized?

Witness: Yes, there were headlines of the reports; however, the names of concerned reporters had not been disclosed.

Defence: Do you know the launching dates of major newspapers in Bangladesh?

Witness: No.

Defence: Do you have any idea regarding the objectivity of newspaper?

Witness: No.

Thus, the cross examination of prosecution witness 17 finished.

The prosecution then produced the next witness (No. 18) before the Tribunal. As usual Prosecutor Haider Ali opened the examination in chief.

Prosecution: What is your name?

Witness: My name is S. M. Amirul Islam.

Prosecution: How old are you?

Witness: I am 41 years old.

Prosecution: What do you do?

Witness: I am Book Sorter of PIB (Press Institution of Bangladesh).

Thus the examination in chief of prosecution witness No. 17 finished and the defence declined to cross-examine the above witnesses on the ground that he worked with the investigation officer at the time of preparing seizure list of evidence. The prosecution then produced the next witness (No. 18) before the Tribunal and the examination in chief of the said witness was as follows:

Prosecution: What is your name?

Witness: My name is Fatima Begum.

Prosecution: How old are you?

Witness: I am 32 years old.

Prosecution: What do you do?

Witness: Guide cum computer operator of the Jatir Janak Bangabondhu Memorial Museum.

Prosecutor: Where were you appointed in 17th October 2010?

Witness: I was appointed at the same job in the same place. Mr. Helal Uddin (CIO) seized some things, those were:

(1) Two computer type page of historic speech of 7th March 1971 (by Sheikh Mojibur Rahman).
(2) Audio cassette “BAJRAKANTHA” of historic speech of 7th March 1971.
(3) Album “JATIR JANAK” (pages No. 1 to 244) published by Jatir Janak Bangabandhu Sheikh Majibur Rahman Memorial Trust, Road No. 32, Dhanmondi Residential Area (R/A), Dhaka 1209, the 1st edition published on 1st August 1997.

I also signed this list of seizure.

Thus the examination in chief of prosecution witness 18 finished. Defence also declined to cross-examine the above witnesses on the ground that she worked with the investigation officer at the time of preparing seizure list of evidence.

Prosecution then produced the next witness (No. 19) before the Tribunal and examination in chief of the said witness was as under:

Prosecution: What is your name?

Witness: My name is Mohammad Nesar.

Prosecution: How old are you?

Witness: I am 36 years old.

Prosecution: What do you do?

Witness: I am a Guide cum Computer Operator of the Jatir Janak Bangabondhu Memorial Museum.

Defence also declined to cross-examine the above witnesses on the ground that he workers with the investigation officer at the time of preparing seizure list of evidence. Thus, the all 4 witnesses produced by prosecution examined and the Tribunal Chairman Justice Nizamul Huq then adjourned the hearing until the following day

26 Jan 2012: Nizami cognisance

2012-02-26T09:54:00.001+06:00

The day was fixed for two matters – taking cognisance in the matter of Matiur Rahman Nizami hearing further witnesses in the case of Delwar Hossain Sayedee.

Prosecutor adjournment request
The judges took their seat and prosecutor Ziad-al-Malum came to the dais and asked that in respect of Sayedee case, he was seeking an adjournment until 2 pm as the witness has not arrived yet.

Tribunal Chairman Nizamul Huq said, “I have a question- it has become a common phenomenon; you are failing to produce the witnesses timely, why it is so?

Prosecutor Ziad-al-Malum replied, “For today it was gap of communication. We have informed the local authority to send the witnesses to Dhaka, however, they failed to communicate it with the witnesses in due time. They are on the way now and we shall produce them before the tribunal at 2 pm. There shall be 4 witnesses altogether. Here is list to be submitted before your Lordship.”

Provision of witness statements
Defence counsel Barrister Abdur Razzak came to the dais at this stage for making his submission in respect of some issues regarding witnesses and submitted as follows referring- to section 9 (3) of the ICT Act 1973 and what has happened previously in failing to supply a witness list to the defence.

Section 9(3) states: ‘The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges.

Razzaq stated:

“As per section 9 (3) of the ICT Act 1973, we are entitled to have notice regarding witnesses 3 weeks before their examination. We have got first list of witnesses and the second list of witness containing names of original 36 witnesses and 70 seizure list witnesses. And finally we have got an additional list containing the list of 68 witnesses. We do not have the details/statements of seizure list witnesses. Now, can you please clarify us what is meant by ‘notice’ under section 9 (3) of the ICT Act 1973. Is it the mere list or is it the statement of all witnesses including the seizure list witnesses?”

In response, Tribunal Chairman Justice Nizamul Huq replied in the following manner

“Mr. Razzak, we have already heard this from your friends’ yesterday afternoon. The last witnesses were regular witnesses, thus, there should not be any question about this issue at this stage and it has been taken properly. Now, in future, if any witness is produced out of the list or any seizure list witness say anything extra apart from their relevance with the matter/witness statement of the original witness, we shall not allow any statement apart from the seizure list witness. If they have any other witness and if we have to allow them, in that case surely you shall get the 3 weeks’ proper notice as required by law. I am confirming you that this Tribunal is competent enough to deal with these sorts of matters. However, from the day one I am saying one thing to all of you. This tribunal is a new one, judges are new, prosecutors are new, defence counsel are new representing in this kind of cases and this case is the first case we are dealing now. There are some mistakes which we should overlook.”

Defence counsel Barrister Abdur Razzak then sought clarification: “If there is no disposition earlier, or any witnesses says or want to say anything outside of the seizure list, then we need at least 3 weeks’ notice.”

Agreeing with that Justice Nassim confirmed, “Surely you will get that.”

However, Justice Zaheer asked for a clarification to the prosecution team on the following issue and in his words- “Can anyone from the prosecution explain me why have you submitted the additional (third) list of witnesses whereas the first 2 books you submitted to us contained all the names of the witnesses?”

Prosecutor Ziad-al-Malum came to the dais to explain that they were directed to supply this.
Defence cousel Tazul Islam then said:

“My Lord, you were pleased to make on order in the open court to the prosecution to supply us all 15 lists of witnesses. However, they have supplied the list of only 10 witnesses. (he showed that). Further, under section 9 (3) of the ICT Act 1973, we are entitled to get (i) lists of witnesses to be proceeded and (ii) statement of the witnesses. Now, if it is ignored or overlooked by the Tribunal on the ground that the prosecution is new dealing such matter, then the defence will be prejudiced and I believe you shall agree with me that if prosecution is prejudiced then it is not a big deal however, defence cannot be prejudiced anyway as it is the accused who will get death sentence (or capital punishment)

Furthermore, section 9(4) of the ICT Act 1973 - which states that 'The submission of a list of witnesses and documents under subsection (3) shall not preclude the prosecution from calling, with the permission of the Tribunal, additional witnesses or tendering any further evidence at any stage of the trial - is similar to section 550 of the Code of Criminal Procedure 1898 and as per section 550, normally the original witnesses are examined first then the seizure list witnesses are examined. Although there is no bar in the law to do something different, it would be outside the practice to examine the seizure list witnesses in between i.e. before examining last original witness. '

”And finally, the prosecution has produced the list of names of 4 witnesses before your Lordship but they have not given us the list yet. In that case, how shall we cross examine the witness without taking any preparation?”

Justice Zaheer then asked the prosecution, “You have given us the list of 4 witnesses. Who will be the first to be examined among them?”

One of the prosecutors replied, “We shall follow the list, my Lord. Thus, Mr. Rabiul who is in the top of the list will be examined first.”

Defence counsel Tazul urged, “May we have the ‘list of attendance of witnesses’”?

Justice Zaheer then ordered, “Can please provide the ‘list of attendance of witnesses’ to the defence so that they shall have knowledge of the fact who are going to be examined next?”

The prosecution agreed and then the Tribunal Chairman fixed that the examination in chief of the next prosecution witness will be started at 2 pm. However, the defence requested the Tribunal to fix it on Sunday 10:30 am as they have just come to know the name of the witness and they do not have any preparation for the cross examination.

Justice Zaheer however stated that, “Let the prosecution start their part; if we consider that the defence would require time to cross examine the witness then we shall allow you time surely.”

Nizami's cognisance
Tribunal Chaiman Justice Nassim then asked for the matter of Nizami’s cognisance be taken. He then passed the following order:

“Today is fixed for passing order for cognizance. We have perused the formal charge, supporting documents, statements of the witnesses and other documents. Having considered the documents, we are in the view that there is a prima facie case under sections 3 (2), 4 (1) and 4 (2) of the ICT Act 1973 available against the accused and trial should be initiated.

The prosecution is directed to submit the documents for service to the accused person within 31.01.2012 and defence is directed to collect those from this office with in 02.02.12. From 23.02.12 for hearing charge matter.”

Matiur Rahman Nizami’s counsel Munshi Ahsan Kabir then came to the dais and brought before the matter to the attention of the Tribunal that he has already come to know the decision from the media. The learned prosecutors have already informed the decision of the Tribunal before it has even passed its order.

Tribunal Chairman Justice Nassim then criticised the media that has now more powerful than anyone. He also said that the prosecution need to be extra cautious while speaking to media.

Gholam Azam's documents
Defence counsel then brought another matter to the attention of the Tribunal in respect to Golam Azam’s case. He submitted that the oral order that had previously been passed ordering the prosecution to put page marks in the documents supplied to the defence has yet to be done. Tribunal Chairman was surprised to know that and then invited both the prosecution and defence to name one person form the each party to do this task and then ordered them to finish it by that day.

Proceedings were adjourned

Some notes are missing relating to this session, however this report from bdnews provides details

25 Jan 2012: Sixteenth witness

2012-02-26T09:52:00.001+06:00

After the cross examination of witness number 15, the tribunal Chairman Justice Nizamul Huq then asked the prosecution to produce the next witness - witness number 16. His evidence in chief was then taken by the prosecutor.

Prosecution: What is your name?

Witness: My name is Julfikar Ali.

Prosecution: How old are you?

Witness: I am 59 years old.

Prosecution: Where were you in 1971? What did you do then?

Witness: I was at Bagarpara in Jessore. Then I took part in the freedom fight under the command of Major Manjur of Sector No. 8.

Prosecution: When did you come back to your area?

Witness: After the victory.

Prosecution: What did you do then?

Witness: We, all the freedom fighters from Bagarpara, started to unite at Bagarpara. Then we initiated search to find out rajakars. Then we came to know that at Roushan Ali’s house, who was one of our friends, a man took shelter. We saw the man with Raushan Ali at Bagarpara marketplace. Then we tried to know the identity of that man and came to know from the local people that the man had been hid at Roushan’s house. Mr Solaiman, who was the Commander of Bagarpara freedom fighters (now expired) discussed with us about the matter and then ordered us bring that guy before him. Then we cordoned Raushan Ali’s house, however, we did not find that guy. He fled already then. As did not find him, we asked Raushan Ali about him. He replied under pressure that the guy was Delawar Hossain Sayedee. Then we initiate a search to find him and then came to know that he fled wearing a veil and travelled to Talbaria using bull-cart.

Prosecution: Then did you try to know the further details about the said Delwar Hossain Sayedee?

Witness: Yes, we put pressure on Raushan Ali and he then told us he and said Sayedee used to organize religious meetings together.

Justice AKM Zaheer interrupted at this stage and asked the witness a question:

Judge: Did you not aske Mr Raushan Ali where was Delwar Hossain Sayedee from?

Witness: Yes. Raushan Ali told us he was from Pirojpur.

Prosecution: Did you ask him why Sayedee took shelter at his place?

Witness: Yes, he replied he could not stay at his area.

Prosecution: Why he could not stay at his area?

Witness: I heard from the people that Mr Sayedee took shelter and hid himself at Raushan’s house because he tortured the people of his locality during the war. However, I did not see that.

Judge: When did you see Sayedee Hossain Sayedee the next time?

Witness: In 2005/06 when he came to Bagarpara for delivering his speech at a religious meeting.

Prosecution: What did Mr Delwar Hossain Sayedee say in his speech?

Witness: Mr Delwar Hossain Sayedee said, “I would not have survived if brother Raushan would not have saved me.”

Prosecution: What Mr Sayedee told then?

Witness: Mr Sayedee called Raushal Ali to the stage then.

Prosecution: Can you please confirm whether Mr Delwar Hossain Sayedee is present here?

The witness stood up and indentified the accused Delwar Hossain Sayedee. And the examination in chief finished. The judges wanted adjourn the hearing the for lunch recess as it was already 01:15 pm then. However, defence counsel Mizanul Islam wanted to open the cross examination with at least one question so that witness could change his deposition after the lunch break saying that the cross examination had not been started which happened at an earlier occasion in respect of the witness AKMA Awal, MP. The judges agreed and defence counsel Mizanul Islam opened the cross with the following question:

Defence: You are the current General Secretary of Bagmara Upazilla Awami League, right?

Witmess: Yes.

The, Tribunal Chairman Justice Nizamul Huq adjourned the hearing until 02:15 pm. On return, the Defense counsel Mijanul Islam then started to continue his cross-examination.

Defence: Can you tell me the tenure of the previous witness as General Secretary of Bagaharpara Thana Awami League?

Witness: He was in that post for more than 10 years.

Defence: I was asking about the time-frame?

Witness: He was general secretary before 2004.

Defence: Can you remember his earlier posts in Awami League?

Witness: no.

Defence: When you joined Awami League?

Witness: I was a supporter of Awami League from my student life. I was an admirer of this party since the liberation war. I was a member of Bangladesh Chatra League.

Defence: I was asking about the year?

Witness: I cannot remember.

Defence: You were a student in 1971?

Witness: Yes.

Defence: You have told us in your statement that, you heard the speech of the accused in 2005/06 at Baghar para School meeting. How many meetings of four party alliances did you attend in between 2001 and 2006?

Witness: I haven’t counted them.

Defence: did you listen to the whole speech?

Witness: I haven’t heard the whole.

Defence: The accused told the audience about the shelter of Mr. Rawshan Ali, and then requested Rawshan Ali to come to the stage. Were you present at that time?

Witness: Yes. I was.

Defence: Have you heard that part of speech?

Witness: Yes

Defence: Who was presiding over that meeting?

Witness: I cannot remember.

Defence: Who was conducting that meeting?

Witness: I cannot remember.

Defence: Can you remember any other speaker than the accused?

Witness: No

Defence: Are you aware of the fact that, a lot of people listen to the accused speeches in audio and video?

Witness: Yes

Defence: The speech of that certain meeting could have been recorded, are you aware of that?

Witness: I don’t know anything about that.

Defence: The accused spoke about the atrocities in between 7th march, 1971 to 25th march, 1971. The accused talked about Kabuliwala killings and Jhum Jhum pur killings and the torture of the non-bengali speaking people during the non-cooperation movement lead by Sheikh Mujibur Rahman. He also told that Mr. Rawshan gave him shelter in those days. Did you hear any of that?

Witness: I haven’t heard.

Defence: Who organized the freedom fighters in your locality before the war?

Witness: Our leaders.

Defence: Can you give us some names?

Witness: Our leader was Adv. Rawshan Ali, Shahadat Farazi and may others.

Defence: Shahdat Farazi is dead. Isn’t he?

Witness: Yes. Both of them are dead.

Defence: They are not from Baghar para?

Witness: No

Defence: Who was your leader in Baghar para?

Witness: Late Mr. Solaiman and Mr. Momin were the organizers in Baghar para.

Defence: You have told that an unknown man took shelter in your friend Mr. Rawshan’s house. How you acquire this information?

Witness: From Mr. Rawshan Ali

Defence: When you get that information?

Witness: At the end of the January, 1971. We got information about the accused.

Defence: When did you go to Mr. Rawshan’s house with your group?

Witness: We cordoned that house on the same day right after we discussed this information with our commander.

Defence: How many rooms were in Mr. Rawshan’s house?

Witness: We didn’t have the time to count. We went there to find a razakar not to count the rooms.

Defence: Can you tell us what the pattern of Mr. Rawshan’s house was?

Witness: It was maybe a Bangla Ghar( house with a space in every side of wall).

Defence: Who were with you when you cordoned that house?

Witness: We were 10 or 12 people including me and our commander Mr. Solaiman. However I cannot remember the others now.

Defence: When you went to raid that house?

Witness: In the morning.

Defence: What is the distance between Razbari and Baghar Para?

Witness: Taal baria is approximately 8/10 kilometers on the west from Baghar para.

Defence: There are 10 to 15 different villages in between the places. Aren’t they?

Witness: May be.

Defence: How did you acquired the information about the accused is hiding in Taal baria?

Witness: From Mr. Rawshan Ali.

Defence: Did you sent someone to catch the accused in Taal baria?

Witness: No. I didn’t.

Defence: Which side Mr. Rawshan took in 1971?

Witness: He was neutral.

Defence: Was Mr. Rawshan involved in Waz with the accused prior to the liberation war?

Witness: They were friends but I am not aware of their activities.

Defence: Was Mr. Rawshan involved in Waz?

Witness: I am not confirmed about these facts.

Defence: Do you know the accused prior 1972?

Witness: Yes. I know him from 1970.

Defence: What was the accused occupation prior 1971?

Witness: He was a member of a student organization.

NH: Involving in a student organization cannot be a profession.

Witness: I don’t remember.

Defence: Did the accused take shelter with his family in Rawshan Ali’s house?

Witness: We didn’t know about that.

Defence: How many brothers Mr. Rawshan have?

Witness: Maybe five. I only know two of them.

Defence: How many razakar did you caught during your raid?

Witness: None.

Defence: Who was the razakar commander in Baghar Para?

Witness: I do not remember.

Defence: Who was the razakar commander in Jessore?

Witness: I forgot the name.

Defence: Is Mr. Rawshan Ali is alive?

Witness: Yes. He came back after pilgrimage to Mecca.

The witness then voluntarily submitted some information about Mr. Rawshan Ali’s truthfulness who is a defense witness. Justice Zaheer drew the attention of the Chief Prosecutor to this issue and omitted them from tribunal’s proceedings.

Advocate Kafil Uddin Ahmed then took over the cross-examiantion.

Defence: Which year did you pass your S.S.C [exams]?

Witness: I don’t remember.

Defence: You wrote that in the statement.

Chairman: though he didn’t write that in the chip.

Defence: You are from Ramkantapur. Aren’t you?

Witness: Yes

Defence: Do you know the famous journalist and the local correspondent of Sangbad [newspaper], Mr. Rokon-ud-dowla?

Witness: No. I was tortured in razakar detention during the liberation war. The razakars even cut my skin off.

Defence: Mr. Rokon-ud-dowla is a reputed journalist and author of the book titled ‘Gram Gramantore’. Do you have any idea about this book?

Witness: I do not have anything to say about this.

Defence: Do you know that, he is the local correspondent of Daily Sangbad till today from the liberation?

Witness: I don’t need to know that.

Defence: He won IDE awards, Jessore Shilpi Gosthi Padak and other awards for his contribution in literature and journalism. Are you aware of that?

Witness: I don’t know anything about that.

Defence: Do you know the late CPB leader Adv. Abdur Razzaque?

Witness: No

The tribunal then asked asked the defense about the book Gram Gramantore . He wanted to know whether this book is in the documents and properly submitted. Barrister Tanveer Al-Amin answered that the relevant book was submitted to the court which is Mukti Juddehe Jesorre by the same author. The defense was trying to put the fact that, Mr. Rokon-ud-Dowla has some other significant books too.

Defence: Do you know about Mukti Juddehe Jesorre which is about the liberation struggle in Jessore locality?

Witness: No

Defence: Your name is in that book as a listed razakar on page 168. Is it true?

Witness: They can write anything they want. If they wrote that, I was a razakar then they must have written wrong. They must have lied. My lord, can I say something about this?

Justice Zaheer: Yes. We will hear you.

Witness: I was detained in Bagharpara police station and was tortured to almost death by the razakar during the liberation war. They tortured me because I was a freedom fighter. I have seen the unspeakable agony the accused caused to the people of Pirozpur.

Justice NH: this book is wrong about the facts?

Witness: Off course, my lord.

Defence: Your son (Tuhin) got a job in this tenure of the current ruling party as a MLSS in the Health and Family Planning ministry?

Witness: I am a freedom fighter so he got quota privilege.

Defence: Do you get allowance as a freedom fighter?

Witness: Yes.

Defence: Were you and Mr. Solaiman in the same group of freedom fighters?

Haider Ali of the prosecution team tried to raise a point at this moment but Justice Nassim ordered him to remain silent.

Witness: He was a freedom fighter but we were not in the same group.

Defence: My lord, the whole statement of this witness in the court is contradictory with his statement to the Investigation Officer. There are two things that match. They are respectively; the accused was hiding and the mention of an oxcart.

Justice Zaheer: We have to check it. Let me rephrase, did you tell the investigation officer about joining the liberation war and fighting for the country under the command of Major Manjoor of sector 8 during the war?

Witness: Yes. I have told that.

Defence: My lord, every fact is contradictory

Justice Zaheer: We will record the witness now and you can cross-check the facts when the IO will be here.

Defence: My lord, everything is contradictory and even the mention of the oxcart!

Justice Nassim: Yes, it is.

Defence: The statement you have given to the tribunal is not true. Is it?

Witness: It is true.

Defence: You didn’t give this same statement to the IO. Did you?

Witness: Yes. I have given the same statement.

Defence: You lied about the meeting of the accused with Mr. Rawshan Ali at Bagharpara in 2005/2006. Did you?

Witness: No. I didn’t.

Defence: Did you give this statement to anyone else?

Witness: No. [The witness voluntarily added that, there wasn’t any court till this tribunal. Due to this circumstance, it is his first statement about the accused.]

Defence: Did you write any letter to any authority during the previous Awami regimes?

Witness: No

Defence: Did anybody impede you?

Witness: None.

Defence: Have you built a luxurious house in Mohiron municipality with the support of the ruling party?

Witness: It is a one storied building!

Defence: Have you given your statement against the accused who is a political opponent of the ruling political party to gain support, help and other profits from the government?

Witness: No.

Defence: This whole statement of yours is a piece of fabrication. Is it?

Witness: No

Defence: Are you a freedom fighter?

Witness: Yes

The tribunal finished with this witness and the counsels got involved in an argument about a witness list which was given by the prosecution to the defense.

Defence: My lord, the prosecution is not producing witness in accordance with their list. The list doesn’t match the witness list.

Justice Zaheer: Did you draw the attention of the tribunal?

Defence: My lord, these two witnesses and Dr. Sarafat Ali are the only ones that match in the given list.

Haider Ali: My lord, they are from the seizure list.

Justice Zaheer: Are their statements relevant to the formal charges?

Defence: No, My lord.

Chairman: How many names are there in total?

Defence: 132, but they have given us a list of 68 witnesses.

Chairman: What is this? Why this was given to the defense? We will ask the prosecution.

Defence: My lord, they have given us a list of witnesses for this case and it was given to us on 04/09/2011. We have raised this point yesterday too.

Chairman: Mr. Sayed Hayder Ali, you will give us an explanation after consulting chief prosecutor and your team.

Then the tribunal was adjourned for the day.

25 Jan 2012: Solaiman cross examination

2012-02-26T09:50:00.001+06:00

Prosecutor Haider Ali came to the dais and submitted an application in respect of witnesses relating to the trial against Delwar Hossain Sayedee. He said that the witnesses have given their attendance before the tribunal; however, they have subsequently become ill, and he was submitting an application for their temporary release.

Justice Zaheer said that this was a petition but the prosecution had not prayed anything. ‘These are simply some documents,’ he said.

Haider Ali responded by saying ‘I know my Lord. I am now submitting the prayer orally. If you look carefully, you shall find that the documents (medical evidence) are dated today.’

The Tribunal Chairman Justice Nassim agreed.

The witness took this oath and prosecutor Haider Ali explained him that the defence will cross examine him.

Mr Ali then informed the Tribunal that prosecution witness no. 10 Basu Deb Mistri had died

Defence counsel Mizanul Islam then continued the cross examination of prosecution witness 15 Md. Solaiman Hossain which they had just tarted the previous afternoon after he had given his statement.

Defence: At the time when you came to know that Sayedee has addressed ‘Bangabondhu’ as ‘Jogbondhu’, were you involved in active politics then?

Witness: Yes.

Defence: You were the secretary of Thana Chatra League (student wing of Awami League), right?

Witness: No, I was the president.

Defence: I see. You became the General Secretary of Thana (organizational division, normally based on police station area) Awami League later on, is that true?

Witness: Yes.

Defence: Julfikar Ali July is the current General Secretary of the Thana Awami League, right?

Witness: Yes.

Defence: How many religious or political meeting of Jamat-e-Islami you have attended from 2001 to 2006?

Witness: I have mentioned one earlier and that was the only one meeting I had attend.

Defence: Apart from that one, have not you attended any other meeting?

Witness: I have not got a scope to attend the same.

Defence: Well, can you please tell us how many meeting you have attended in 1971?

Justice Fazle Kabir explained him, “You have mentioned one, apart from that one”

Justice AKM Zaheer pointed to defence and said, “He has not said in his statement that he had attended the meeting. He said he was passing by and heard the same from the people present there.”

Witness: Yes, you are absolutely right, my Lord. I did not attend the meeting directly. The meeting took place near my house.

Defence: You were government service holder, right?

Witness: Yes.

Defence: In which year you joined government service?

Witness: in 1976.

Defence: And you retired in 1996, right?

Witness: No.

Justice Zaheer: Please clarify. You did not retire you said. What happened then? You resigned or something like that?

Witness: I just stopped going to office.

Defence: In 1996, you became an Awami League supported chairman candidate in the No. 7 Dolaghat Union Parishad Election under Bagarpara police station and you lost, is that true?

Witness: Yes, it is true.

Defence: At the same way, in 2007, you became an Awami League supported Mayor candidate in Bagarpara Pourashova Election and you lost, is that true as well?

Witness: True.

Defence: From 1981 to 1996 you were sent to jail twice, is that true?

Witness: Yes, in political cases.

Defence counsel Mizanul Islam then brought the matter to the attention of the Tribunal that an government service holder cannot go to the jail in political cases because for the government service holder there is complete restriction not to be involved with any political party. Justice Zaheer assured him that he could use it in future argument.

Defence: Have you applied for your pension?

Witness: No, I have not.

Defence: Is your pension proceeding pending?

Witness: I said I did not apply.

Defence: Now I am saying, as you were a government service holder from 1976 to 1996, there is no scope to file political cases against you. Basically, cases files against you due to your corruption in the government service, is that true?

Witness: No, it is not true.

Defence: Now I am saying, you have not got the pension, like all other government service holders get, just because there were cases against you the allegation that you did corruption during your service, is that true?

Witness: Not true.

Defence: After the meeting in 1971, did you try to know the identity of Delwar Hossain Sayedee?

Witness: I heard that he was a leader of Jamat-e-Islami or Islami Chatra Shongha (name of the student wing of Jamat-e-Islami then).

Defence: How he was introduced in that meeting in 1971 by the anchor before he delivered his speech?

Witness: I cannot remember that.

Defence: Did you make any enquiry about the fact that where was he from, what was his profession and where did he live?

Witness: No. I did not know him then.

Defence: You are not a freedom fighter, are you?

Witness: No, I am a freedom fighter.

Defence: Where did you fight?

Witness: I did not fight anywhere. I was in the camp of freedom fighters in India.

Defence: When did you go to India?

Witness: In June’1971.

Defence: When did you come back from India?

Witness: Before 16th December 1971.

Defence: What was the date?

Witness: I cannot remember the exact date.

Defence: Who told you that Mr Sayedee was staying at Mr Rawshan’s house?

Witness: Lot of people told me the same.

Defence: Name them please.

Witness: Delwar Molla, Tojammel Hossain, Hossain Molla, Julfikar Ali etc.

Defence: What was date then?

Witness: It was in the end of 1972.

Defence: You are from Jessore. There is a book titled ‘Muktijuddhe Jessore’ by Rokon-ud-Doullah. Have you heard about that?

Witness: No, I do not have any idea.

Defence: There is village named Ramkantpur under Bagmara police station (now upazilla), do know that?

Witness: Yes.

Defence: Bagmara thana Awami League’s current general secretary Julfikar Ali July is from Ramkantpur, right?

Witness: He is basically from Paikpara. Later on he moved Ramkantpur.

Defence: Since when he is living at Ramkantpur?

Witness: He is living there for long time, about 30 years.

Defence: You have stated that Mr Sayedee took shelter at Mr Raushan’s house. Did you go to his house during 1971-1972?

Witness: No, I did not.

Defence: Khalilur Rahman, brother of said Raushan, was the ex-Mayor of Bagmara Paurashova immediately before the current Mayor, right?

Witness: Yes.

Defence: He is an Awami League leader right?

Witness: Not actually. He has joined Awami League recently.

Defence: So you know Mr Khalilur and Mr Raushan for long time, right?

Witness: Yes.

Defence: What is the name of father of Khalilur and Raushan?

Witness: Sufi Daud Hossain.

Defence: Can please tell us whether he was for or against the independence of Bangladesh?

Witness: I do not have any idea.

Defence: Did you hear the full speech of Delwar Hossain Sayedee in 2005/06?

Witness: No. I heard it partially.

Defence: How long you heard it approximately?

Witness: About 10/15/20 minutes.

Defence: Did you hear it until Raushan was brought to the stage?

Witness: Yes.

Defence: Have heard about the ‘Oshohojog Andolon’ (Movement for Non-cooperation)?

Witness: Yes.

Defence: When did it happen?

Witness: After 7th March 1971.

Defence: Can you please tell us whether ‘the Kabuliwala Killing’ took place before or after 7th March 1971?

Witness: After 26th March 1971. In fact it would be wrong to term as ‘the Kabuliwala Killing’; it was an action of the war.

Defence: Do you know Jhumjhumpur? Behari’s used to live there.

Witness: Yes.

Defence: There was fight between Biharis and Bangalees in 1971, right?

Witness: Yes, after 26th March 1971.

Defence: In that fight a lot Biharis died, is that true?

Witness: Yes.

Defence: After that the Pakistani forces in the Jessore cantonment took the side of Biharis and started mass killing in whole Jessore, right?

Witness: Not really. Basically, it was a part of the national killing plan of Pakistan Army.

Defence: The Biharis also took part in the killing mission with the Pakistani Army, is that true?

Witness: Yes.

Defence: In the speech at Dohakola School field in 2005/06, Sayedee told that Raushal Ali gave him shelter- you have told that in your statement. Just after that, Sayedee told he was at Raushan place during the Kabuliwala killing, Jhumjhumpur killing, Movement for Non-cooperation called by the late Sheikh Muzibur Rahman, did you hear that? We have got that the audio recording in the CD. (He showed it)

Prosecution raised an objection on the allegation that showing the CD, defence is basically threatening the witness. The Judge agreed and then defence counsel Mizanul Islam begged pardon explaining that it was not his intention to threaten the witness.

Witness: I do not know that.

Defence: You said that you went to freedom fight in June’1971. Peace committee and rajakar force was formed before that, right?

Witness: Yes. However, I was not at my area then.

Defence: When did you leave your area?

Witness: Just after the war started, when the occupation force took over the control of Jessore, I went to the border area at my relative’s house.

Defence: In which month?

Witness: In April’1971.

Defence: Was there in residential area named ‘New Market’ in 1971?

Witness: Yes.

Defence: Do you know Peer Shaheb (religious post) Sodoruddin of Mohirun?

Witness: Yes.

Defence: Dohar Para is adjacent to Mohirun, right?

Witness: Yes.

Defence: Raushan’s house was at Dohara Para, right?

Witness: Yes.

Defence: There is a bil (swamp land) at the southern side of Raushan’s house, is that true?

Witness: Yes.

Defence: At the western side, the houses of Rustam Molla, Korim Molla, Altaf Biswas, Abu Taher Biswas (who is the current Upazilla Chairman) is situated, right?

Witness: Yes.

Defence: In that area, the Bagarpara Madrasha’s Principal’s house is also situated, right?

Witness: Yes.

Defence: In the northern side, there is an empty block and then the house of Shuknal is situated, is that true?

Witness: Yes.

Defence: In the eastern side, the house Khalek Molla, Ikram Molla and Mojibur Molla’s house, right?

Witness: Yes.

Defence: You came to give your deposition before the Tribunal yesterday, did you receive any notice from the Tribunal in respect of the fact that you need to come to the Tribunal to do the same?

Justice Zaheer interrupted at this stage and asked defence counsel, “Mr Islam, we have already accepted him for this purpose- is that really necessary to ask that question?”

Defence counsel Mizanul Islam replied, “My Lord, I have not asked this question to any former witnesses. Therefore, I have got reasons to ask that and it is really necessary for fairness.”

Tribunal Chairman Justice Nizamul Huq then explained that in respect to the matters in this Tribunals ‘Notice to the Witness:’ is not issued in the ordinary manner like other criminal courts. The Tribunal send the ‘notice’ containing name and details of the witness to the ‘district administration’ and they send witness to Dhaka with the help of police. However, the local police station has been forbidden to keep any record of that.

Defence counsel Mizanul Islam then informed the Tribunal that he would then continue the cross examination for ‘contradiction’.

Defence: Is there anyone from Pirojpur among the people from whom you came to know about Sayedee?

Witness: No.

Defence: You said you are a freedom fighter. Did not you take any step after you had come to know that a person against the independence war staying at you locality?

Witness: I did not take any step. However, my brothers took initiatives. I was ill then.

Defence: Can please confirm us whether the Chief Investigation Officer Helal Uddin is present in the Tribunal or not?

Witness: Yes, here is he.

Defence: When did you meet him for the first time?

Witness: In July 2010 when he went to our area for investigation.

Defence: Was there any advertisement/announcement through loud speaker that deposition against Sayedee will be taken after Mr Helal Uddin had gone to your area?

Witness: I cannot remember. However, Chairman, Members of the Union Porishod; Upazilla Porishod Authority and people from police station informed us about that.

Defence: Where did they suggest you to go?

Witness: At Upazilla Porishod.

Defence: Were Tojammel Hossain, Hossain Ali with you then?

Witness: Yes.

Defence: Do you know that Gono Adalot (People’s Tribunal) was formed in 1992 to try the war criminals of 1971?

Witness: I saw the news about that in the newspaper.

Defence: Do you have any idea about the Gono Todonto Commission (Mass Investigation Commission) formed in 1994 headed by Jahanara Imam and other people from civil society?

Witness: I cannot remember.

Defence: Dr. Anisul Hassan who is popularly known as M. A. Hassan took initiatives for indentifying the war criminals. Do you have any idea about that?

Witness: No.

Defence: Before giving deposition before the CIO Helal Uddin, you have not give any deposition or make any complain against the accused Delwar Hossain Sayedee to any person or to any authority, right?

Witness: No, I did not.

Defence: Mr Sayedee used to give speech in the religious meeting at different places in Jessore long before 1971, is that true?

Witness: I have no idea about that.

Defence: Mr Sayedee used live at Block- A of the New Market residential area of Jessore long before 1971, right?

Witness: I have no idea about that as well.

Defence: Look, I am saying- as you are an Awami League leader that is why being directed and assisted by the present Awami League led government you made false deposition against Sayedee in a false case, is that true?

Witness: It is not true.

Thus Mizanul Islam finished the cross examination of prosecution witness 15. However, Justice Zaheer asked for clarification from the witness in respect to the political cases against him.

Justice Zaheer: You said during the cross examination that you were sent to jail twice in political cases although you were a government service holder. And the defence counsel claimed you were sent to jail because of your corruption in the service. Thus, the Tribunal requires clarification for that from you.

Witness: My Lord, to be honest with you- I was sent Jail for 4 times; not twice. First time I was sent to jail in 1975 just after the assassination of Father of the Nation Bangabondhu Sheikh Mojibur rahman, then second time in 1987 by the autocratic government of General Hossain Mohammad Ershad, then in 1995 before National Parliamentary Election of 1996 and finally in 2008 during the regime of army backed care-taker government. And all of the cases were filed due to my involvement with Awami League’s politics; not for allegation of corruption.

Defence counsel Mizanul Islam then seek the permission from the Tribunal for asking a further question although the cross examination was finished then. He gave the option to the Tribunal to include it in the cross examination if they think that it was relevant. The Tribunal then gave him permission

Defence: Were you a trade union leader?

Witness: No, I was not. I was involved with politics but not under trade union.

24 Jan 2012: Fifteenth witness statement

2012-02-26T09:47:00.000+06:00

Defence counsel Tajul Islam came to the dais and submitted his application seeking a privileged meeting with the accused in the jail [not clear which one] to take place on Saturdays. However, Tribunal Chairman Justice said that this was not possible as the Tribunal has already fixed a privileged meeting with another accused. After a long discussion, the defence finally agreed to hold privileged meetings on 3rd, 10th and 17th February 2012 between 09:30 am to 12:30 pm. Defence counsel then provided the names of 3 counsels who could attend and they were- (1) Farid Uddin Khan, (2) Sajjad Ali Chowdhury and (3) M Tazul Islam.

Tribunal Chairman Justice Nizamul Huq said that they will pass an order with respect to that matter and that the conditions will be same as the previous orders.

The tribunal then turned to the trial against Sayedee, and the Bench clerk called for the next witness to attend.

Cheif Prosecutor Golam Arif Tipu then requested that Tribunal adjourn proceedings until 2pm as the prosecutor Haider Ali was stuck in traffic.

Justice Zaheer said, “Mr. Chief Prosecutor, the prosecution is a team headed by you. Engage another prosecutor to do the examination in chief.”

Chief Prosecutor Golam Arif Tipu replied, “Mr Ali is the most efficient person do it.”

Justice Zaheer then said, “Ask any other prosecutor to at least start the examination in chief. Mr. Ali can continue it as soon as he arrives in the Tribunal”.

In response, Chief Prosecutor Golam Arif Tipu informed the tribunal that the witnesses are too tired as they only reached to Dhaka last night after 10 pm and that is why they have not reached the tribunal yet; they are on the way to the Tribunal now. He then requested again to the Tribunal to fix the time for the examination in chief of the witness from 2 pm.

Tribunal Chairman Justice Nizamul Huq then said, “Last hearing you told us the same thing! Why did the witness came to Dhaka last night knowing he has to be present in the Tribunal today?”

The Defence counsel Tazul Islam then came to the dais and then said, “My Lord, as far as I understand from the prosecution submission, there will be a new witness at 2 pm; not the said Modhu Sudan Ghorami that they told you and us earlier. We do not know who he is as they have not provided the list day before. How shall we do the cross examination without any preparation?”

Tribunal Chairman Justice Nizamul Huq said, “That is another fault. What happened to the witness Madhu Sudan Ghorami Mr. Chief Prosecutor?”

Cheif Prosecutor Golam Arif Tipu replied, “He is in the hospital; suffering from cardiac problems.”

Justice Zaheer then replied, “Why did you no tsupply the defence the names of next possible witness then? Modhu Sudan Ghorami is of 80 years old. He may suffer subsequent physical problems. Shall we then wait for him?”

Chief Prosecutor Golam Arif Tipu admitted that there has been a unfortunate mistake by not providing the defence the information

Tribunal Chairman J ordered the prosecution to give all 15 names of the witness they have given to the bench member. And asked the Chief Prosecutor, “How many witnesses you have now got in Dhaka apart from the Modhu Sudan Ghorami?”

Cheif Prosecutor Golam Arif Tipu replied they got 4 witnesses.

Tribunal Chairman Justice Nizamul Huq then ordered the prosecution to bring all 4 witnesses in the Tribunal at 2 pm and give the names to the defence immediately and other 11 names by the end of the day.

The hearing was adjourned until 2 pm.

When the hearing restarted, the prosecutor Haider Ali called the witness

Prosecution: The witness is Md. Solaiman Hossain. He is from Baghar Para, Jessore. He is the 62th in our witness list. He will be the 15th witness in this case from prosecution.

Defense: My lord, the prosecution submitted four names earlier but the name of this witness is not in the first two.

Justice Chairman: Yes, we were supposed to be hearing from the first two witnesses in this session.

Defense: This is not the first time. They have been doing this the whole time. This is the 8th time in this case, my lord. By doing this, they are putting obstacles in the path of a fair trial.

Chairman: Let’s see what the witness has got to say. We are here for a fair trial and there will be a fair trial.

Defense: How will this happen if they produce every witness in the last minute?

Chairman: Don’t bother with this. Let’s hear the witness first.

Prosecution: Who are you (defense) to express disapproval of us? We are not bound to disclose our witness to the defense counsels according to any law.

Defense: The witnesses who are attending the tribunal, you are

Chairman: Defense, we are wasting time here.

Defence (Mizanul): My lord, they put Abdur Razzaque as witness in the list in the morning. However, his name is not in the witness list given to us by the prosecution.

Prosecution: His name was in the statement and also in the seizure list.

Defence (Mizanul): Why you didn’t let me finish? I wasn’t talking about the statement or the seizure list. I was talking about the list you gave us. It consisted of 68 people but A.Razzaque was not there.

Justice Zaheer: What list are you talking about?

Defence (Mizanul): The prosecution sent us a list of their witnesses which consists of 68 people.

Justice Zaheer: When they gave you the list?

Defence (Mizanul): At the beginning of the proceedings.

Defense counsel Barrister Tanveer Al-Amin then raised a point that the prosecutor Mr. Ali didn’t confirm this witness even last night when he called him for the confirmation.

Prosecution: We are doing everything by the books. Prosecution is not bound to confirm anything regarding witness to the defense.

Defence (Mizanul): My lord, the witness is not from Pirozpur. He has come from another locality and that will affect the continuity of the cross examination.

Prosecution: My lord, they should be prepared. We can produce any witness as we wish. There is no law about this.

Chairman: Well, there isn’t any law but..

Defence (Mizanul): My lord, what about the discussion we had today morning? We were asked by the tribunal to prepare within the lunch period and we did that on previously decided witnesses. Why this now? This is no fair justice!

Defence (Tajul): This is not fair, my lord.

Defence (Mizanul): My lord, how can we cross-exam the witness without any preparation?

Justice Zaheer: We are not pressing you to cross-exam. Maybe, you even don’t need to cross-exam this witness.

Defence (Mizanul): This happened earlier; you enquired with the prosecution about Modhusudhon Ghorami. They didn’t provide any sort of information.

Justice Zaheer: We asked about the health conditions. The witness has to be physically capable for a session. At least we can hear our new witness.

Justice Chairman: according to judicial scope, you will be given every fair chance.

The witness Md. Solaiman Hossain then took the oath. His age is 60.

Prosecutor: What can you tell us about the election of 1970?

Justice Zaheer: Learned prosecutor, you are not cross-examining the witness here. This is your witness. We should remember Adv. Ahsanul Hoq from yesterday. He told us about this situations where a lawyer who usually works as a defense counsel gets mixed up in his role as prosecutor.

Prosecution: My lord, I am aware of that. I was asking questions to get the facts and certification quick and right.

Witness: some days before the 1970 election there was an election meeting in our locality organized by Jamat-I-Islami to support their candidate.

Prosecution: Who were present in that certain meeting?

Witness: MNA candidate from Jamat-I-Islami, Moshiul Azam was present. The accused gave a speech on that meeting. The accused was abusing Awami League and called Jogobondhu instead of Bangabandhu which created a scene. I was not in the meeting but heard the speech because I was nearby. Some people from our locality also told me about this abuse in the meeting and their dissatisfaction regarding it.

Justice Zaheer: Some boys from your locality discussed with you about their dissatisfaction regarding the accused speech and that’s why you know him. Is it right?

Witness: Yes. The liberation war started after the election and the accused lived in Dohakhola at Mr.Rawshan Ali’s house after the war.

Prosecution: Why did the accused live there?

Witness: We came to know that, he had to flee from his home because of his actions against the freedom fighters during the liberation war. This was the cause of his taking refuge in the home of Rawshan Ali. In 2005 or 2006 he came to a religious congregation in Baghar para Pilot School. At that congregation, he spoke of Rawshan Ali and asked if he is still alive or present. The accused told the listeners about Rawshan Ali’s help in his hour of need. Then Rawshan Ali responded among the crowd. Rawshan then requested by the accused to sat on the stage and embrace the accused. At the end of the meeting, the accused went to the house of Mr. Rawshan.

Prosecution: Can you identify the accused?

Witness: Is the accused present here?

Justice Zaheer: The identification isn’t really necessary. Do not waste time.

Prosecution: As you prefer my lord.

Justice Zaheer: Identification is needed in the cases of obscure identities.

The chairman then asked the defense to start their cross-examination.

Defence (Mizanul): My lord, what can I examine? This is about a meeting happened in 1969.

Justice Chairman: in January 1969 to be precise.

Defence (Mizanul): My lord, we need a day to prepare. Please, grant us a day.

Witness: sir, I had some urgent things in my home. Can I get some break to finish those works?

Justice Zaheer: you cannot go to your home before the end of your certification. Make a call and ask your family to postpone it.

Defence (Mizanul): My lord, we have to check the charge sheet and other things. We won’t be taking much time but we have to prepare and need to satisfy us. Without satisfying myself, how can I satisfy my client?

Justice Zaheer: Well, then ask one question.

Defence (Mizanul): Ok, My lord.

Defence (Mizanul): Can you remember the date of that meeting?

Witness: No.

Defence (Mizanul): My lord, I will be asking another one with your permission?

Justice Chairman: Yes.

Defence (Mizanul): Who was conducting that meeting?

Witness: Probably Hossain Munshi.

Justice Zaheer then instructed the prosecution to send a copy of their list of witness to the defense. He scolded the prosecution for their inefficiency in this regard.

Defense counsel Avd. Tajul Islam complained to the tribunal that these documents was not handed to them by prosecution as per the instructions.

Prosecution: You will have them in the morning.

Defence (Tajul): Why tomorrow morning? Give us them today. In that case, we will have at least a night to get preparation.

Justice Zaheer: Well you two solve this problem at Prosecutors office over a cup of coffee.

Defence (Tajul): My lord, I refuse to go there.

Justice Zaheer: why?

Defence (Tajul): The office workers of the prosecutors misbehaved earlier. They kept us waiting intentionally. Moreover, they even abuse us repeatedly.

Chairman: you go there today and report to me if there is any sort of misbehavious happens there.

Defence (Tajul): not me, my lord.

Prosecution: I’m inviting all of the defense counsels to my chamber for tea.

Chairman: Adv. Tajul you must go there.

After this the court was adjourned for the day.

23 Jan 2012: Chowdhury charge framing

2012-02-26T09:44:00.001+06:00

Privileged communication
Before the hearing on the charge-framing of Salauddin Quader Chowdhury started, Justice Nassim asked the Chief Prosecutor to come forward. He said, that 'in respect of Matiur Rahman Nizami’s matter the defence has submitted a petition to review the Tribunal’s decision in respect to ‘privileged communication’ as the Jail Authority did not allow them to consult their client more than 30 minutes. They Jail authority told them as per ‘Jail Code’ the time fixed for privileged communication is limited to 30 minutes. Do you have submission opposing that petition?'

Prosecutor Ziad-al-Malum came forward and tribunal chairman Justice Nassim asked him, “Do you want to submit anything opposing the petition?” Prosecutor Ziad-al-Malum replied, “Yes, my Lord. I want to draw your kind attention to some provisions of Jail Code in this regard.” Then he submitted as follows: “As per sections 682, 683 and 684 of Jail Code privileged communication can be made with an accused once in a week and duration should not be exceeding 1 hour.”

Tribunal Chairman Justice Nassimul Huq then stated, “We should increase the time because it is the privileged communication between client and his counsel. We were not aware that there is such limitation in the Jail Code. Thus, we need to amend the word ‘Jail Code’.”

There was no defence counsel for 5 alleged Jamat-e-Islami leaders present in the courtroom except Barrister Munshi Ahsan Kabir (who is the counsel for Ali Ahsan Mujahid) as the day was fixed for charge hearing of Salauddin Quader Chowdhury. However, Barrister Kabir came to the dais and wanted to submit something in this regard as defence counsel M Tajul Islam (who is dealing with the matter basically) was not present. The Tribunal permitted him and he submitted, “Previously your Lordship had allowed us 10 am to 5 pm for such privileged communication.”

Justice Nassimul Huq replied, “This time we shall not allow that much time, however, we shall increase it surely.”

In response Barrister Kabir submitted, “My Lord, the numbers of volumes of the documents are too big. I shall request you to mindful about the fact.”

Prosecutor Ziad-al-Malum then submitted, “My Lord, may we please know by which mechanism you are going to increase the time ignoring the Jail Code?”

Justice Nassimul Huq replied, “By the Order of the Tribunal.”

He made the following order:

“An application has been filed and we are revising the Order ‘subject to Jail Code’ on 21.01.2012. When the petitioner’s counsel went to Dhaka Central Jail to meet the accused petitioner, after half an hour elapsed, the Deputy Jailer did not allow the meeting to continue as per there is a prescribed duration for such privileged communication for such privileged meeting. Upon hearing the counsel, nobody appear for the petitioner, as such we are in the view that the Jail Authority has not done anything wrong denying the counsel to continue the conversation. This is an offence under International Crimes (Tribunal) Act 1973, it is a new law, as such counsels should be given sufficient time to consult the accused petitioner. We are in the view that they need more time. As such the earlier Order dated 12.01.2012 we are inclined to increase the time. Let the Jail Authority allow 2 of the learned counsels from 10 am to 1 pm on each dates – 28.01.2012 and 11.02.2012.”

Daily Sangram
Justice Nassim then asked whether there was a “Reporter of Daily Sangram, can you please stand up?” The reporter stood up and Justice Nassim said to him, “You had made a report yesterday that the prosecution did not put any page mark in the Golam Azam documents. You should not write everything in the newspaper. Mistakes happen, but that does not mean you can make anything as news.”

The reporter of Daily Sangram begged sincere apology before the Tribunal and thus the matter was resolved.

Salauddin Quader Chowdhury Charge framing
On 15 January, the prosecution presented its application for charge framing, along with a response by a tribunal appointed advocate. He has now appointed his own lawyers. The Tribunal Chairman Justice Nassimul Huq then called the next matter and the accused Salauddin Quader Chowdhury stood up and said:

“Mr. Chairman, I owe you an explanation. You complained on the last day hearing on my matter that I did not meet the lawyer appointed by the Tribunal. However, this was not true. The Jail Authority mistakenly informed Nassimi and he refused. It was not me. In last 13 months I have been transferred to 7 jails. I do not have any complaint about that as it is not barred by law. However, the Jail Authority is asking me to give (bribe) them BDT 3.5 lacs taka (350 thousands) from me to provide me necessary facilities. They also said to my family members that if they want to meet me then they have to give (bribe) them (Jail authority) BDT 10,000 taka each time. They have not given me cloth, saving kit or food. I am surviving on just biscuits for last 3 days! I am now saying same before your Lordship to give it to your knowledge.”

Justice Nassim asked him, “Why did they ask money from you? Did they give you any explanation?

The accused replied, “Yes, they said they need to give the money to the higher authority. Now, I am in your (Tribunal’s) custody and I understand by the term ‘higher authority’ is you (the Tribunal members).”

Justice Zaheer then suggested, “You just ask your counsel to make an application for ‘privileged communication’ and we shall pass order on that. Your family members do not need to give money (bribe) to anyone for meeting you.”

Tribunal Chairman Justice Nassimul Huq then asked the defence counsel to proceed with the charge hearing. There were some applications due to be heard at the Tribunal in respect of Salauddin Quader Chowdhury’s matter, and the chairman further explained, “You please start your charge hearing, we shall hear other applications afterwards. We shall hear everything today.”

At this point defence counsel Ahsanul Haq’s junior (associate) submitted that the volumes are too long and they could not finish reading out the charge and other documents yet. Justice Nassim did not accept it as a ground and asked the defence counsel to make his submission continuing from the submission of the State Defence Counsel M Bodiuzzaman. Defence counsel Ahsanul Haq came to the dais and then submitted in this way:

Today is the day for hearing application on discharge the matter. I shall submit the submission made by the state defence counsel in addition to my submission. My submission is the prosecution has messed up the entire case with that of the accused’s father who was the President and Speaker of the Pakistan. They claimed Good’s Hill was a torture where it was basically a ‘shelter home’ for the elite families of Chittagong. At the time of the incidents the accused petitioner was just 21 or 22 years of age. Goods Hill is his ancestral home where he was brought up with his 3 brothers.

Prosecutor Rana Das Gupta, Justice Kabir and others were the junior (associate) of my father. My house and prosecutor Mr. Rana’s house is very near to accused petitioner’s house. The entire allegation is full of falsehood. The accused petitioner has been elected in each and every parliamentary election since 1979 including the elections under care-taker government when the then Chittagong City Mayor ABM Mohiuddin’s deposit was forfeited. If he was that bad why would have the people elected him as a Member of the Parliament?

The accused petitioner is the eldest son of the Late AKM Fazlul Quader Chowdhury who fought for the Independence of Pakistan in 1947. When the father of the Pakistan nation Mohammad Ali Zinnah came to Dhaka after the Independence in 1947, he looked for accused petitioner’s father saying that, ‘where’s the naughty boy!’ He was one of the defence lawyers of Sheikh Muzibur Rahman in the Agartola Conspiracy case. The regional politicians did not like him because when he became the acting President of Pakistan, he took/transferred everything to Chittagong which includes transferring a university (University of Chittagong) from Comilla to Chittagong. Even Abul Monem Khan, the then Governor of East Pakistan did not like him because late Fazlul Quader Chawdhury supported the cause of East Pakistan. That is why he was sacked from the post of the Speaker of Pakistan and present cabinet member Rashed Khan Menon’s father replaced his post. General Ayub Khan took away his protocol and everything. In an occasion, when the accused petitioner’s father late Fazlul Quader Chawdhury was his way back to home, Pakistani army opened fire on his car. In Chittagong, peace committee was formed by late Farid Ahmed and Nobin Chowdhury of PDP (Pakistan Democratic Party).

Now let us come to the point of Goods Hill. There was EPR (the then East Pakistan Rifles, now Border Guard Bangladesh) and Pakistani Army everywhere. Prosecution claimed that the accused was a ‘self-proclaimed’ Brigadier. My Lord, he was just 22 years then and it was Pakistani Army, not a guerilla force like in Sierra Leonne or in Congo.

Further, it is evident from the book written by Nokul’s son that Nokul and Profulla of Kundeswari was the friend of late Fazlul Quader Chawdhury and all the elites took shelter in the Goods Hill including them that is why it was called as ‘shelter home’.

At that time, the West Pakistan Police was incorporated with the East Pakistan Police by the Order of Inspector General of Police (IGP) of Pakistan. They just checked/searched the cars and people for ensuring the security of the people in the Good Hill area. There was no army in the Goods Hill area.

Now your Lordship may ask- “where was he then in 1971?” or “what was he doing then?” For your kind information, it is my pleasure to let you know that he left Bangladesh for Karachi (capital of the then West Pakistan) in April, 1971 and stayed at Yousuf Ali’ house.

Further, International Crimes (Tribunal) Act came in force in 1973, before that the law under which such offences were tried was the Collaborator’s Ordinance 1972. I humbly ask your Lordship, what happened to those cases?

I shall also refer to articles 28A, 28B and 28C. My submission is - one cannot be prosecuted twice for the same offence as per the Constitution of Bangladesh. Nokul’s case is pending before the Appellate Division of the Supreme Court Bangladesh as stated in page 86.

At the this stage, the Tribunal members made some queries about that said Nokul Chandra’s case.

Justice Kabir: Is the matter disposed of or not?

Defence: No, My Lord.

Justice Zaheer: As per the witness statement submitted with the formal charge, the witness stated he does not know further. Have you made any enquiry on the status of that case?

Defence: Yes.

Justice Zaheer: Where is the report?

Defence: We have tried our level best to collect that. You know that involves great hassle. We shall submit that in due course.

Then the defence counsel Ahsanul Haq again continued his submission:

Late Fazlul Quader Chowdhury gave shelter to late Ataur Rahman Khan and his family, Nomeni Rakshit s/o Mridul Rakhsit- that is why accused petitioner is submitting that it was shelter home for the elite. Late Fazlul Quader Chowdhury, father of the accused, was great admirer of Netaji Shubash Chandra Bose. Why would he persecute the people of Hindu religion then? How has he become Member of the Parliament (MP) of six consecutive times? He is a MP at present.

Further, Mahatma Gandhi said, ‘If you quarrel with your past, you will lose your future.’ Now we need to move forward. Even Bangabondhu (Sheikh Mujibur Rahman) also said, ‘Bengalis know how to forgive.’ When he (Sheikh Mujibur Rahman) used to go to Chittagong, he never came back to Dhaka without having Shutki (dry fish) curry from the accused petitioner’s ancestral house.”

Justice Nassimul Huq clarified, “There were good relationship among the politicians in those days; it was not like relationship among the present politicians.”

Defence counsel Mr Ahsanul Haq added, “I have personally seen that our great leader (Sheikh Mujibur Rahman) went to accused petitioner’s place to have lunch and dinner.”

However, Justice AKM Zaheer reminded the defence counsel Mr Haq, “Whatever the fact is prosecution submitted formal charge backed by evidence.”

Defence counsel Ahsanul Haq then continued his submission

“A bad guy can be elected once. However, it is impossible for a bad guy to be elected 6 times. Further, the 3rd son of late Fazlul Quader Chowdhury was at Chittagong Cadet College during the war of 1971; he was 1 year junior to me in the Cadet College. The college was open and class was going on then.

The accused petitioner was not a member of the peace committee, rajakar force or its auxiliary force. Even he was not the president, secretary or member of the student wing of Jamat-e-Islam. The history has been fabricated. It is basically an attempt to keep away the accused from the next parliamentary election.

It has been said that the accused petitioner was arrested with one and half mond (60 KGs) gold and BDT 7 lac (700 thousands) taka while he was fleeing to Burma (now Myanmar) after the liberation war. He humbly wants to know, ‘where are those seized gold and money? in whose custody?’ He was basically going to his eldest sister’s in-law’s place in a sampaan (one kind of boat popular in Chittagong region.

It is further stated in the formal charge that there was a grenade attack on the accused petitioner’s car and his driver died. In that case, crime against humanity was done against him.”

Justice AKM Zaheer asked, “Are you saying such incident did not happen?”

Defence cousel Mr Haq replied, “Yes, my Lord. The accused was in Pakistan at that time and then he went to London from there.”

Then he further submitted,

“The then Foreign Minister Dr. Kamal Hossain stated ‘in relation to 195 war prisoner the State Minister for Defence and Foreign Affairs that the Government of Bangladesh do not want to proceed.’ They were the main culprits and they got the indemnity. As per the International Law, abettors cannot be tried in the absence of the principle - it is the universally accepted legal maxim.

Now let us come to the grounds for dismissing the charge:

(a) He was no way connected with the allegation. He has become a victim for political gain;

(b) He is a MP and he is a renowned politician;

(c) He is the member of the Standing Committee of Bangladesh Nationalist Party;

(d) He was Political Advisor of former Prime Minister Khaleda Zia;

(e) He has become MP from 2 seats- Raujan and Rangunia;

(f) He was not a member of Peace Committee or its auxiliary force;

(g) Goods Hill was his father’s residence and his father was the master of the house. It was no way under the control of the accused where his father was speaker and president of Pakistan. He was just living there with his parents and 3 brothers;

(h) No army was invited to set up their camp at Goods Hill. They did not listen to anyone. The army was withdrawn from the Goods Hill and they took over the Circuit House. The accused never been to Circuit house. Thus the allegations against him are false, motivated, fabricated and without any substance;

(i) Basically, he has been charged in this case to prolong his custody because he was arrested in another case;

(j) The law has been enacted in 1973 and lots of governments came to the power in the meantime including current ruling Awami League. Thus, there is an unreal delay in filling the case in 2010. No adequate reason has been explained for this undue delay. The son of Nokul Chandra wrote a book and he did not mention his name then. Now, suddenly they are saying the accused petitioner opened fire on them grabbing rifle from the army. Thus this case has been filed due to political reason. The case has no parentage. The undue delay in filing the case give a serious doubt about the motive of the case;

(k) Goods Hills was in the possession and control of the petitioner’s father, not of the petitioner.

Defence counsel Mr Ahsanul Haq further draw the attention of the Tribunal to the fact that in the formal charge the prosecution has mentioned 5 meetings where they mentioned the name of the Father of the Pakistan Nation Mohammad Ali Zinnah as just ‘Zinnah’; He said, 'it seems that Zinnah was there servant. They could not even put ‘Mr.’ before his name. He is one of the most renowned politicians of this sub-continent. And one of the meeting dates is stated as 1974 when he was not alive even.'

Justice AKM Zaheer and Tribunal Chaiman Justice Nassim agreed on the defence counsel point and they scolded the prosecution for not putting at least ‘Mr.’ before Mohammad Ali Zinnah’s name i.e. not showing proper respect to such a great leader.

The prosecution did not say anything on the ‘Mohammad Ali Zinnah’ issue. However, he explained that 1974 should be 1947; it was just typing mistake.

However, defence counsel Ahsanul Huq however responded by saying that is vitally important for a charge to have correct date. He further argued the video tape of the place of incidents has been captured recently, whereas, there has been a drastic change in the the area, e.g. trees have grown bigger. Thus it cannot be considered as the video of that area. Further, in the formal charge the prosecution has been mentioned that the torture cell was in the 1st floor of the garage. However, there is no stairs in the garage.

Justice AKM Zaheer then argued, “May be it has been changed over 40 years as you have claimed.”

The Tribunal Chairman Justice Nassimul Huq adjourned the hearing until 2 pm.

The afternoon session started without any prosecutor present. Adv. Ahsanul Hoq continued with his submission on behalf of his client Mr. Salahuddin Kader Chowdhury.

The submitted news articles in this tribunal are merely news. They are basically views. They are biased and have hardly any fact or proof. Let me quote Shakespeare here. Shakespeare once quipped that, there is a beginning and an ending but nothing in the middle. I think the great poet used this definition to describe a perfect comedy. This definition can also be used in this case. There were allegations and newspaper articles in 1971 and 2010. All articles were published in a certain newspaper at a time which seems peculiar. There wasn’t single news against my client prior to 2010 after the liberation. What happened in the middle?

All these articles in the advent of this tribunal! That’s quite astonishing. There are two popular newspapers in Chittagong. They are Daily Purbokon and Daily Azadi. Every article enclosed in the charge sheet are from Daily Azadi. There is not a single report published in the Daily purbokon. The editor of the Daily Azadi is a neighbor of my client and he has some land dispute with my client.

We can infer the situation and the intention of publishing these sorts of articles by using simple common sense. These articles were published to humiliate my client.

Justice Chairman: We will see to it when the charges will be finalized.

Defense: My lord, the prosecution put a lot of rubbish in name of a formal charge. However, this case will go on. There are some points in the formal charge sheet. I am not going to say that, there isn’t any case. Prosecution has to prove that their charges are correct and they also have witnesses. The basis of defense counsel depends on the charges placed by the prosecution. Suppose, there is a case filed under the weapons act. Someone finds arms under the bed. The prosecution placed the charge against my client because it is his house.

Justice Zaheer: Well then take the arms to the stable.

Defense: The witness will do that, my lord. A witness will say that, he has seen it. Due to this account, there will be another case. That will be State vs. Cow. As far we can see the prosecution has given account of 8 cases. If we are here to have a fair trial then the prosecution must provide every document they have seized from my clients house to the tribunal.

Their problem is basically that they always think as a defense counsel. Take Adv. Rana Dasgupta; he is a family friend and was like foster son to my father. He never worked as a prosecutor while I was a prosecutor. I can read his strategy whereas he doesn’t understand mine. I can understand who wrote the drafts.

The collaborator act is now revived by the 15th amendment. However, which act [the 1973 Act or the Collaborators Act] is going to suppress the other is the basic question. The 1973 Act and collaborator acts are restraining one another. No one is going to do anything about the 1973 Act. Furthermore, they will use it as a political tool like the current government. There are tribunals legally existing under collaborator act. The cases from Supreme Court cannot be shifted here owing to the status of this court.

Justice Zaheer: There is no way to transfer a case into this tribunal from the Supreme Court.

Defense: There is not any rule in ICTB for that.

Justice Zaheer: Then we must make an enquiry.

Defence: All those tribunals are practically dead.

Justice Chairman: Are they in hibernation?

Defence: They exist legally but they don’t exist practically. Your lordship, this case is void. Why now the government is taking actions? They were in power twice before. They didn’t have done a thing. Why now?

There wasn’t a general diary between 1971 and 2010. However, the police started their investigation suddenly and filed the charges.

My lord, we have filed an application to the tribunal for proper time to prepare the case. Moreover, we need to go to the described localities to prepare our stand. In addition, we need police protection to avoid any type of misunderstanding.

Justice Chairman: If the charges framed, you will be given fair chance. Mr. Hoq, are you satisfied with your submission?

Justice Zaheer: You have given a wonderful submission. We are speechless. Submit your documents and other things as soon as possible.

Defence: I will obey the tribunal wholeheartedly.

At this moment Prosecutor Ziad Al Maloom stands before the tribunal to reply the defense.

My lord, I won’t be taking long. My learned friend Mr. Hoq has raised two questions. They are respectively; question of authority and the aspect of reviving the collaborator act after the 15th amendment. It is true that there are 178 collaborator tribunals under the guidance of Supreme Court but they don’t exist in reality. However, they legally existed. The history of constitutional journey of Bangladesh shows us about the importance of 1st Amendment despite the special act on Collaborators. My lord, under structural procedure, ICTB, 2010 is a part of our constitution. Hence, this case against the accused Mr. SaKa Chowdhury is under the jurisdiction of this tribunal.

Justice Zaheer: Mr. Prosecutor, the accused urged this tribunal to render his full name. You need to do that.

Prosecution: My lord, He calls me Haloom!.

Prosecutor then continued:

Article 35 also points that out to us. There were and will be always talking about the capacity and other things in national and international press. It was in Nuremberg, Tokyo or in Cambodia. Upon hearing from my learned defense counsel, there isn’t sufficient ground to presume that it shall discharge the accused. The accused have committed offense. We will prove that, through our formal charges and statements. It is apparently a case and these charges are according to rules.

My lord, I would raise the final and most important point in my speech. The defense has taken the jurisprudence alibi. If they plea for an alibi then they have to prove it. It’s their job to prove that alibi in this tribunal.

Justice Chairman: Leave that alibi issue.

Justice Zaheer: Defense has brought up this alibi issue.

Prosecution: if they brought up the plea of alibi. This means that, there is a case.

Prosecution: We can show the tribunal about extortions and genocide. There are three charges. We have witnesses. We have already submitted the documents on these charges in page 98, 99 and 100. The tribunal will certainly be satisfied.

Justice Zaheer: Where is Sobhan? Is he dead or alive?

Chairman: Sobhan from page 17.

Justice Zaheer: Is he a witness or not?

Chairman: you have submitted a lot of documentation against Sobhan but nothing against Mr. Chowdhury. Where is Sobhan? If Sobhan is alive then what is Mr. Chowdhury doing here?

Prosecution: The accused and Sobhan collaborated with the occupied forces and helped them to burn the village named Andharmanik. They talked about destroying the house of Anindya Sarkar and converting them. After hearing this, the people of that household ran away and hid in India. The accused and his father were involved in 7 extortions and let one free from their custody. Sobhan did all this under the instruction of the accused. He has done 5 criminal offences under the instruction of the accused.

Chairman: if Sobhan is alive then he must be the accused in this case, where is he?

Prosecution: We have the time and scope to prove Mr. Chowdhury as the mastermind of this crime in this court.

Chairman: Mr. Prosecutor if Sobhan is alive then you has already weakened the case.

Prosecution: We are working on Sobhan’s whereabouts.

Justice Zaheer: I have told you earlier that, you need to find Sobhan. Mr. Chowdhury was not anyhere near the incident.

Prosecution: We have presented documents regarding Dr. Makhan Lal Saha and killings of other Hindus in Raujan at 13/04/1971 in page 19 and 20.

Chairman: It is there.

Prosecution: we have scrutinized 25 cases out of 32. We are trying to help and satisfy the tribunal.

SQC shouted in the tribunal about those charges were not in the list because the prosecution fears him.

Justice Zaheer: Then you place this?

Prosecution: My lord, the idea of placing this sort of charge sheets in these cases are new in our country while we are confident that these 25 cases are confirmed enough to make charge sheets.

Justice Kabir: you still haven’t clarified about Abdus Sobhan.

Justice Zaheer: Even the first one is not properly done!

Prosecution: My lord, your statement will send a wrong message to the journalists.

Chairman: Everyone is doing his best in the tribunal. I think the journalists are doing their job with excellence.

Justice Zaheer: Don’t be afraid of the journalists.

Prosecution: A lot of newspapers are not writing the truth. They are publishing fabricated news.

Chairman: Maybe one or two are writing those articles.

Justice Zaheer: The tribunal is open for all. The journalists should write what they observe here. What about Oli Ahmed of Peace Committee from charge 14?

Prosecution: We will be prepared to meet up all your queries.

Justice Zaheer: There was a murder case under the collaborators act. Maybe, the Notun Kundu case but same case cannot be proceeding in two different courts. If those tribunals revived then it will be very complicated about the fate of that case.

Prosecution: There are seven IF’s in this case. The government has already withdrawn the cases but there is some technical issues regarding this.

Justice Zaheer: If the Notun Kundu case is still pending in the Supreme Court then how this court can proceed on this case?

Prosecution: My lord, what about this applications?

Justice Zaheer: What about them?

Prosecution: The prosecution thinks that, the application of the interviews submitted by defense is not in option. According to the petition…

Chairman: We won’t be checking all those paragraphs. The defense wants to interview and we will look into it.

Prosecution: They should follow the Jail code. There are 26 acts and 66 rules. The tribunal has some limitations in this case too. The same limitation is applicable for the prosecution and the defense.

Justice Zaheer: The defense wanted to secure themselves from being accused of intimidating them

Prosecution: My lord, there is nothing written in the rules.

Defence: My lord, the prosecution took the help of Police and RAB in its investigations. We should be given the same power through the tribunal. The tribunal should write new law.

Chairman: Defense, can you give us specific dates?

Defence: My lord, I will provide the date later.

Chairman: Well, I am giving the order regarding this issue. Submit the date in two days.

Defence: My lord, if the tribunal informs those police stations then it will be easier.

Chairman then passed an order:

An application of four lawyers was placed in the court by the defense counsel about consulting the accused in the jail. It will be privileged to the defense as we have already done in some other cases. Let the jail be directed to allow two counsels from a list of three to meet the accused in jail on 28th January which is Saturday. This consultation is permitted between 10 and 1 in the morning. Then the counsel raised before us about the permission on visiting three police stations namely Raujan, Rangunia and Goalkhali. We direct the O.Cs of those stations to cooperate the counsels. There will be two counsels with three extra men will be permitted to conduct the interviews. In case of any emergency, the police will take other measures.

Defence: We will be two people to do these interviews.

Chairman: The hearing of this charge matters will be in the court on 4th February. Defense, do you have any problem?

Defence: No, My lord.

Chairman: The framing of the charges will be discussed in 13/02/2012. Moreover, the left two charges will be held on the same day.

The tribunal was adjourned for the rest of the day.

22 Jan 2012: Investigation report order

2012-02-26T09:32:00.000+06:00

The day was fixed for the tribunal to pass its order in respect of a defence application seeking a copy of the investigation report prepared by the investigation agency into conduct of Kader Molla during the 1971 war. However, prior to giving its order, the tribunal was due to hear a similiar application relating to Delwar Hossain Sayedee.

Lack of page numbering
At the beginning of the session, Tajul Islam raised two matters with the tribunal. First he told the tribunal that the defence had received 8 volumes of documents from the Prosecution but they contained no page marks. At first the Tribunal Chairman Justice Nizamul Huq suggested that the defence just paginate the documents themselves, but Justice AKM Zaheer argued that this would cause problems for the other parties if the pagination was different. Tribunal Chairman Justice Nizamul Huq then suggested that both prosecution and defence team sit together and put the page marks. It was then agreed that the prosecution paginate the documents first and leave a copy with the Register’s office.

Privileged Communication
Islam then raised a second issue concerning the prison authorities failing to allow adequate time for the defence lawyers to have privileged communication with their client. He said, “Your Lordship has made an order on 12.01.2012 for the lawyers to have privileged communication with Matiur Rahman Nizami regarding his case. In accordance with the Tribunal’s direction, on Saturday the lawyers went to the jail and we met him, however, the jail authority did not allow us to continue the meeting for longer than 30 minutes. The reason they gave was that as per Jail Code, the fixed time for priviledged communication was 30 minutes. However, previously your Lorship allowed us time for such communcation from 10 am to 5 pm.” Tribunal Chairman Justice Nizamul Huq then replied, “We do not understand why Jail authority had done this. We explained in our order that when, how and with whom the ‘privileged communication’ should take place. I believe they do not understand the meaning of ‘privileged communication’ for this matter as we have used the word ‘as per Jail Code’. We shall amend that accordingly.”

Defence application on investigation reports
Then Islam submitted his application relating to seeking the investigation report of Delwar Hossain Sayedee

He said that their submission was similar to that which was argued in relation to Kader Molla’s but that there were two additional grounds. Firstly, he read out section 9 (3) of the International Crimes Tribunal Act 1973. This states: ‘The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges.

He said that the defence is entitled to have these documents which include the investigation report. He then read out section 16(2) of the Act which states: ‘A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial.’ He said that under this statement the defence should have a copy of the investigation report.

He then said that in respect of Delwar Hossain Sayedee’s matter, that the court has framed charge on the basis of the investigation report which was not in the formal charge. ‘Thus, as charges have been framed on the basis of that, we humbly submit that for the fairness it is the right of the accused to see the documents on the basis of what the charges have been framed,’ he said.

In response to that, Justice AKM Zaheer then stated that, the investigation report was not evidence itself, that in the International Crimes Tribunal Act 1973 there was no reference to the investigation report and, and that the investigation report is basically used to link the ‘supporting documents’ with the ‘formal charge’.

In response Islam said that ‘documents’ include the investigation report and he referred to the General Clauses Act which he said was ‘not excluded for this Tribunal’ unlike the Evidence Act and Code of Criminal Procedure, pointing to section 3(16) of the Act which states that the ‘investigation report is a document.” 3(16) states that: "document" shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter:

Tribunal Chairman Justice Nizamul Huq then explained that it is entirely up to the prosecution whether they are going to rely on the investigation report or not. As per the provisions of the International Crimes Tribunal Act 1973, they are bound to provide ONLY those documents they are going to rely. Then he asked the defence counsel whether he believes that prosecution is going to rely on the investigation report.

Defence counsel M Tazul Islam said that he did not know at this stage but that they are submitting those documents they rely upon and so that they are entitled to receive them.

Prosecution response
Prosecutor Haider Ali then submitted on behalf of the prosecution. He said that If the sections 8 and 9 (3) of the International Crimes Act 1973 are read together it is very clear that that the prosecution is no where bound to supply the investigation report to defence. Investigation report is not submitted as a document as per rules 29 and 173 of the International Crimes Tribunal Procedures and Rules 2010.

In relation to section 16 (2) of the International Crimes Act 1973, he said that the prosecution are bound to provide only a copy of formal charge and the copies of each documents to the defence. He said that if this section was read with rule 18 (4) of the International Crimes Tribunal Procedures and Rules 2010 it will be crystal clear. As per rule 18 (4), for the purpose of Act documents means and includes only those documents which the prosecution intends to rely. 18(4) states: ‘The Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.’

As per rule 2 of the International Crimes Tribunal Procedures and Rules 2010, the Investigation Officer (IO) shall submit a report to the Investigating Authority upon completion of the investigation. Now, on in the hearing relating to a similar application is respect to Kader Molla, what the defence counsel Mizanul Islam told about the case diary (C.D.) is not right. C.D. is the property of the prosecution as IO submits CD and all other documents along with his investigation report.

He said that as per rule 29 of the International Crimes Tribunal Procedures and Rules 2010, the defence will get only those documents which are related to the charge against the accused. The investigation report is in no way related to the charge as it is prepared after the completion of the investigation. Thus, as it is not related to the charge, the defence is not entitled to get it.”

Defence counsel response
Defence counsel Tazul Islam then responded and first said that rule 29 of the International Crimes Tribunal Procedures and Rules 2010, does cover the investigation report. He said that as per rule 35 of the International Crimes Tribunal Procedures and Rules 2010, the investigation report is something to be considered and it has been considered accordingly. And finally, we have given reference to section 16 of the International Crimes Tribunal Act 1973 and the International Crimes Tribunal Procedures and Rules 2010 cannot override the International Crimes Tribunal Act 1973.

He then said that the only lame excuses that the prosecution has is the ‘confidentiality’ and the ‘protection of the witness’. ‘it could be argued by the prosecution during the investigation period. However, now the investigation is finished already, therefore, it is not a problem now,’ he stated

He then again referred to the general clauses act to make the same point that he had earlier made.

He then argued that there was specific embargo/prohibition either in the International Crimes Tribunal Act 1973 or in the International Crimes Tribunal Procedures and Rules 2010 to prevent the supply of the investigation report to the defence.

He then said that in the other ordinary and special criminal courts in Bnagldesh, the chargesheet is provided to the defence.

Justice Zaheer interrupted and argued that the chargesheets and investigation reports are not the same things. Tribunal Chairman Justice Nizamul Huq added that in the ICT there is not even First Information Report (FIR) in these matters.

Defence counsel M Tazul Islam however argued, that the complaints that the court received were FIRs.

Prosecutor Haider Ali then argued, “The General Clauses Act does not provide any provision that we need to supply the investigation report to the defence.”

But M Tazul Islam argued, “It says that investigation report is a document and that is enough. And if it is a document then you are bound to provide us the same.”

Then the tribunal, immediately, passed the following order:

Today is fixed for passing an order on an application filed by accused Abdul Kader Molla praying for directing the Registrar to supply a copy of the investigation report to him.

Mr. Tajul Islam with Mr. Mizanul, the learned counsels appeared on behalf of accused petitioner while Mr. Syed Haider Ali and Mr. Mohammad Ali the learned prosecutors appeared for the prosecution.

Mr. Tajul lslam, the learned counsel appearing for the petitioner took us through section 9(3), 16(2) of the International Crimes (Tribunal) Act, 1973 and also referred Rules No. 11, 15, 18, 29, 35, 36, 37 and 38 of procedure and submits that as per provision of Section 9(3) of the Act the prosecution has supplied formal charge statement of witnesses, list of witnesses and other documents which the prosecution intends to rely upon to prove their case but prosecution did not supply the copy of the investigation report.

The learned counsel further submits that the investigation report is very much vital document which contains important information regarding the subject matter of the case as such if the said investigation report is not given to him the accused shall be prejudiced to prepare his defence case. The learned counsel comparing the defence's position with the Tribunal submits that as per provision of Rules 29, 35, 37 and 38 before taking cognizance of offence and framing charge against the accused person the Tribunal uses to go through the formal charge, the investigation report, the papers and documents submitted by the prosecution as such the defence is also entitled to receive all copies of documents including the copy of the investigation report for preparation of his defence case.

He lastly submitted that the defence shall suffer irreparable loss and injury if the investigation report of this case is not supplied to the accused for preparation of his defence case and accordingly the Registrar may kindly be directed to supply the same to the defence lawyer.

Mr. Syed Haider Ali, the learned prosecutor opposed the application filed by accused Abdul Kader Mollah praying for a copy of the investigation report. The learned prosecutor by referring [to] Section 9(3) of the Act and Rule 18(a) of the Rules of procedure submits that law is very much clear in this respect of getting copies of documents by the defence which are legally entitled to get the same. The learned prosecutor by referring Rule 18(4) submits that defence is entitled to get the copy of only those documents which the prosecution intends to rely upon in support of charges brought against the accused.

The learned prosecutor further submits that the defence is not entitled to get the copy of investigation report as it is to some extent secret document of the prosecution considering the nature of crimes of this case.

Mr. Mohammed Ali, the learned prosecutor lastly submits that this Act of 1973 is a special law which does not contain any provision for supplying the copy of the investigation report to the accused as such the application for getting the copy of the investigation report is liable to be rejected.

We have heard the learned prosecutor and the learned counsels for the defence at length and perused the relevant law and Rules as referred by both the parties. It may be mentioned here that Intemational Crimes (Tribunal) Act, 1973 is special law and the Rules of procedure have been prepared by this Tribunal to supplement the provisions of the Act. It is undisputed that at the time of taking cognizance of offence and framing of charge this Tribunal uses to go through the formal charge, investigation report, documents and other materials submitted by the prosecution. The power and jurisdiction of this Tribunal is much higher then that of the defence as well as the prosecution. In the interest of fair justice this Tribunal can call for any document from the custody of any authority for taking its judicial notice or may used such documents in evidence but the defence or the prosecution has got a little chance to exercise such power. This Tribunal is legally entitled to go through all the secrets documents including C.D. in the interest of justice but the defence cannot.

In view of the facts, in no circumstances the power and jurisdiction of this Tribunal cannot be equated with that of the parties of the case. The investigation report submitted in this Tribunal is quite different than that of the ordinary courts which are generally guided by the Code of Criminal Procedure.

As a rule in the case, under this Act, the defence is supplied only the name of the witnesses without supplying the full particulars of witnesses on the ground of safety and security of such witnesses. It may be mentioned that the investigation report of each case of this Tribunal contains full particulars of the witnesses and under such circumstances if the copy of investigation report is supplied to the defence the identity of the witness will be disclosed and the safety and security of those witnesses will be endangered. Moreover, there is a basic difference between the investigation report and the other documents submitted by the prosecution to the Tribunal. The formal charge along with other documents submitted by the prosecution are admissible in evidence while the investigation report is not admissible in evidence as such the defence cannot claim the copy of investigation report as a matter of right in consideration of the nature of this case. To speak the truth, the formal charge prepared by the prosecution is the product of investigation report, statement of witnesses and the vital documents which are intended to be proved by the prosecution before this Tribunal. As such the accused will in no way be prejudiced for went of investigation report as it is not admissible in evidence.

Taking all the above factual and legal positions into consideration, the prayer for supplying a copy of the investigation report to the accused is thus rejected. '

Daily Star's attack on Al Jazeera

2012-02-20T22:26:00.000+06:00

A respected Bangladeshi academic recently said to me that these days in Bangladesh it was not enough to simply voice ones support for the international crimes tribunal. In order to gain the approval of the more ardent ICT campaigners and government supporters, one must use the exact words, language and tone that they themselves use when they talk about it. There is an expected script, he said, and deviation from it invites harsh criticism, ostracism and sometimes worse.

I was reminded of this remark, following the Daily Star's front page article on Friday titled, 'Al Jazeera report draws flak', and its editorial the following day titled, 'Al Jazeera report speculative; provocative and motivated as well.'

The Daily Star article shows how even one of the country's more progressive and liberal newspapers - a paper that I respect (and once worked for) - is playing (at least on this occasion) a very unfortunate role in circumscribing even further what can or cannot be said about the tribunal.

Such an attack is particularly worrying in light of the Bangladesh parliament voting on Thursday last week (a day before the first Daily Star article was published) in favor of a resolution supporting the enactment of 'legal provisions to take action against those obstructing the war crimes trial.' It is close to being a disgrace that the media is itself playing a role in supporting parliament and the government in attacking independent journalism on the ICT.

In Bangladesh, it is now very difficult to write about the international crimes tribunal from a non-partisan independent position without being derided by 'tribunal supporters' as being 'pro-Jamaat', 'pro-war criminal', and much else beside.

Any word formulation, any slight tonal dissonance, that fails to live upto the expectations of the self appointed guardians of the International Crimes Tribunal - some of who now appear to be perched at the Daily Star, of all places - now risks vilification.

No doubt, there are ways the piece could have been more tightly written, but the key point here is that Al Jazeera piece did not criticise the need for holding the tribunal, and provides no solace to the Jamaat or the accused - but nonetheless it is accused of having done so, and is being inappropriately attacked. The local distributor of Al Jazeera in Bangladesh has been contacted by an intelligence agency and two government departments and is being pressured to stop the cable/satellite distribution of the Qatar based station!

The irony of course is that the two articles published in the Daily Star - and similar ones printed elsewhere - actually make the tribunals even more 'controversial', more subject to searching questions from anyone with an independent bent. 'Supporters' of the tribunal seem blind to how their censoring of different perspectives about the tribunal drives away the international community - let alone the independent minded Bangladeshis - from providing support that they would otherwise be willing to give.

Inevitably, such censorship provokes independent people to ask: why are the tribunal supporters going to such lengths to criticise independent journalists, and prohibit any comment about the tribunal that does not fall within the permitted narrow parameters? The hope, that many of us had, of a tribunal that would be perceived favorably around the world appears to be long gone.

The background
It is important to recognise that the Daily Star articles did not come out of the blue. Intelligence agencies had contacted a number of newspapers, including I understand the Daily Star, and told reporters that Al Jazeera had sent a special reporter to Dhaka as part of a Jammaat conspiracy to undermine the war crimes trials. The Daily Star did not take the bait at that time, but other papers did and put a totally fallacious story on its front page.

Papers, however, were it seems primed to find bias and conspiracy in the Al Jazeera news report. And, surprise, surprise, they duly did.

The Al Jazeera Report
What is it about this Al Jazeera 3 minute film - yes it was only 2 minutes 50 second film - which the Daily Star felt deserved a large front page article criticising the report, and then a subsequent editorial describing it as 'provocative and motivated'.

The script of the TV new report - which has now very unfortunately been taken down from the Al Jazeera website - was as follows:

Studio introduction
In Bangladesh, 89 year old Golam Azam the former chief of the Islamist party Jamaat I Islami is to appear in court on charges of crimes against humanity. He is accused of collaborating with the Pakistani army, and ordering the killing of millions during the country’s 1971 war of independence. Nicolas Haque reports.

Commentary (with pictures of Gholam Azam being carried up Tribunal stairs)
He can’t walk, he can’t really see nor can he really hear. Yet he has 10 armed police officers watching him at all times. 89 year old Golam Azam is not like other detainees. Up until 2000, He was the chief of the Islamist party Jamaat-I Islami.

Commentary (with archive footage)
The country’s war crimes tribunal believes he collaborated with Pakistan’s army, orchestrating mass killings during Bangladesh’s 1971 war of independence with Pakistan. Officials say 3 million people died in the 9 month long war.

Commentary (with pictures of Azam's son):
Azam’s son was 12 years-old when the war broke out. He clearly remembers his father’s role in it.

Interview with Azmi Azam, Gholam Azam’s son:
“He has his logics and arguments, which I don’t want to go into, for supporting united Pakistan but as I said he has not committed any crimes against humanity.”

Commentary (with pictures of Azam)
Jamaat was then a small but organized political party. In newspaper clippings, Gholam Azam is shown asking party members to support the Pakistani military forces in the name of Islamic brotherhood.

Commentary (with pictures of political rallies)
After the war ended the constitution declared all religious parties illegal. But 8 years later, this was amended. Jamaat quickly grew into the 3rd largest political party in Bangladesh. Over the years, joining forces with other parties from all sides, including the current ruling party.

Interview with Abdur Razzaq (Defence Lawyer for Jamaat)
“8 people were arrested, all of them are top ranking opposition politicians, 3 of them ministers and a few MPs…strange coincidence. ”

Commentary (with court pictures)
A recent hearing by the United Nations working group on arbitrary detentions concluded the detention of these men as arbitrary and in breach of international law.

Interview with Shafiq Ahmed (Minister of Law)
“This tribunal is not an international war crimes tribunal, this is a domestic tribunal. Those who have been arrested are facing trial, so it’s not an illegal detention.”

Commentary (with pictures of Sheikh Hasina)
Prime Minister Sheikh Hasina has made the prosecution of war criminals part of her election manifesto. Her government is determined to fulfill its pledge.

Commentary (with pictures of Gholam Azam)
This is just the beginning of the trial. If found guilty Gaulam Azam will face the death penalty.

Nicholas Hoque speaking to the Camera
Whatever the decision this court comes to, It will have dramatic consequences. It may bring justice to many but at the price of throwing Bangladesh into further political instability.

Before looking at whether the Daily Star has any legitimate arguments to stoke a controversy about this article, a number of points should be made:

this was a news item that was under 3 minutes long - in fact amounting to just 400 words. Subtlety and dense analysis is impossible in that very short time frame, and with so few words to play with
Al Jazeera's Nicholas Hoque has done other news item on the war crimes tribunal, primarily from the victims perspective, starting with an interview and accounts of how a woman's father was killed in 1971
doing a news item around the detention of Gholam Azam, is clearly appropriate. It was big news in Bangladesh. All the international news wires covered it. It was perfectly appropriate to use this as a peg to look at the issue of the war crimes tribunal.
again, there was nothing wrong in interviewing Gholam Azam's son. It is standard practice to interview family member of a person detained in custody - as long as what he or she might say is balanced by commentary or interview.
the film very clearly states twice that Azam is accused of involvement in mass murder: First in the introduction to the film, 'He is accused of collaborating with the Pakistani army, and ordering the killing of millions during the country’s 1971 war of independence' and then within the news piece, '.... he collaborated with Pakistan’s army, orchestrating mass killings during Bangladesh’s 1971 war of independence with Pakistan.' The allegations against him were stated clearly, with no hedging.
the film also states: 'In newspaper clippings, Gholam Azam is shown asking party members to support the Pakistani military forces in the name of Islamic brotherhood.' That is a pretty strong indictment of Gholam Azam.
the film also states: 'Officials say 3 million people died in the 9 month long war.' It did not say, that accounts vary from between 300,000 to 3 million, which would be closer to the truth. Does this make the Al Jazeera report a pro-government one? (I have written a separate post about the issue of numbers who died in the 1971 war).

Just from the above, can anyone credibly say that the Al Jazeera news item was biased? The report basically makes the following points;

Azam is an old man; his health is frail; his security is taken seriously; he was a leader of a major Islamic party; he is accused of collaborating with the Pakistan army and ordering the killing of millions; press clippings show him asking his party members to support Pakistani military; his son thinks he is innocent of violent crimes; his lawyer thinks that there is a political motive behind his arrest; a UN report found that detention of six of the accused was arbitary; the law minister disagrees; the trials were part of the Awami League manifesto; the prime minister is committed to the trials; the trials may bring justice but also create political instablity.

That is a perfectly reasonable summary of the situation of the tribunal, as set out in 2 minutes 50 seconds.

It would be just as easy for those on the other side of the argument to allege that this report was biased in favour of the government: the allegations against Azam was stated twice in graphic terms; a statement about the evidence suggested that he was guilty of the offences; and the piece over-exagerated the number of those who died in the war!

Bur remember what I said above: what Al Jazeera did not do was follow the exact script laid down by the zealous tribunal supporters, and therefore it must be censored!

The Daily Star Articles
Now what does the Daily Star find so problematic about the article. It has actually written two news items and one editorial.

1. First article: Ghulam Azam trial may cause political instability, says Al Jazeera

This article set the scene for the next two by prefacing its description of the Al Jazeera report with the following words: 'In a tone seemingly downplaying the need of the trial ....'.

It was not indicated what part of the Al Jazeera piece in fact 'downplayed' the need for the trial. As discussed, there is no part of the TV piece which in any way downplays the need for a trial.

2. Second, longer article: Al Jazeera report draws flak

Political instability: The article's main concern appears to be the very last phrase of the last sentence: 'Whatever the decision this court comes to, it will have dramatic consequences. It may bring justice to many but at the price of throwing Bangladesh into further political instability.' It quoted three respected people - whom are unlikely to ever had seen the piece prior to commenting.

Sultana Kamal, Executive Director of the human rights organisation, Ain-O-Salish Kendra is said to have told the paper: 'it was rather the failure to bring the war criminals to book that underlay political turmoil in the past. The trial of Ghulam Azam is crucial to establishing stability and the rule of law, she noted.' She is also said to have 'asked how Al Jazeera had concluded that political instability would befall the country if Azam was tried.“They [Al Jazeera] must let us know the basis of their assessment. As a television channel widely viewed across the globe, they must have assessed everything before drawing such a conclusion,” she said.'
MA Hasan, a war crimes researcher is said to have held similar views to Sultana, and is quoted as saying: '“They [Al Jazeera] want to provoke instability in the country,” he observed, adding that the trial would rather bring peace, justice and sanity back to our society.'
National Human Rights Commission Chairman Dr Mizanur Rahman is quoting as saying, “It's audacious and a kind of provocation. This type of conclusion can inspire the opponents of the trial.”

It is perfectly legitimate for Sultana, Hasan, Mizan (all of whom I know and respect) to hold the view that is that the trials will bring greater stability to Bangladesh. But at the same time, they must surely appreciate - as the Daily Star should have before it proactively went out to put this article together - that it is also perfectly reasonable and legitimate to think that convictions of eight opposition leaders (many of whom were elected politicians in Bangladesh just five years ago) for involvement in mass killings with possible sentences involving the death penalty, might actually result in political repercussions in Bangladesh, including possible increased instability. And if, conversely, these men were to be acquitted (another possible conclusion of the trial), is it also not a perfectly reasonable conclusion that this would also have serious political consequences? Does anyone really need to explain that?

And how is Dr Hasan arguing that this comment by Al Jazeera itself will 'provoke instability in the country', when at the same time he is arguing that death penalty sentences for major opposition politicians will not?

Saying the blindingly obvious is now, in the words of Mizanur Rahman 'audacious', a 'provocation' and can inspire the opponents of the tribunal.

The Daily Star tries to suggest in its piece that this comment about instability shows that Al Jazeera is not in favour of the tribunal. However, these are totally unconnected issues. The reason for holding trials is to hold to account those who were involved in war crimes in 1971, to stop impunity. Perhaps the trials might decrease political instability in Bangladesh, but that is certainly not the reason for holding them.

For Al Jazeera to argue that the trials might result in increased political instability is a perfectly legitimate viewpoint, and no way implies a position against the tribunal.

Motivated: The article's next suggestion is that Al Jazeera was 'motivated'.

In the article, Mirzan, the NHRC head, is quoted as describing the story as “ill-motivated”, and that it 'might have been trying to create confusion in the western world about the trial by raising doubts in the name of international law and standards. “Why are they raising questions about the International Crimes Tribunal, which is a domestic court trying only those accused of crimes defined as international crimes?” he asked.' .... “A political game is on here and those who do not want the trial are playing that game,” he said.

It seems from the article that the only reason why Mizan considers the report to be motivated is because it referred to the conclusion of a UN Working Group on Arbitrary Detention (that had just been made public) which criticised the detentions of a number of the accused of being 'arbitrary' and against international law.

Does the Daily Star and Mizan think that when journalists report the conclusions of a UN human rights document, the journalist is 'ill motivated'. Is it now impertinent for journalists to ask the law minister a question about a UN report? The UN report just came out in the week that Al Jazeera's new programme was going out: if the news item had failed to mention that, then that would really have been sloppy!

Azam's health: The third issue relates to the medical condition of Gholam Azam. The Daily Star article questions the accuracy of the reporting on Azam's medical condition. In relation to this, it should first be noted that the Daily Star article misquotes the Al Jazeera report claiming that it stated that Azam “cannot walk, cannot see, nor can he really hear.' This then allowed the Daily Star to quote ABM Abdullah, professor of medicine at Bangabandhu Sheikh Mujib Medical University, as saying that “It's not true that he can't hear, walk or see.”

However the report did not say what is quoted. In fact it staid, 'He can’t walk, he can’t really see nor can he really hear.'

My understanding is that Azam has lost a lot of his sight and hearing. Moreover, Abdullah does not suggest otherwise.

Now then lets take the 'can't walk' comment. It is clear that Azam cant walk up stairs by himself, otherwise I assume he would not be carried up to the tribunal in a wheelchair, which is what the film was showing at the time that these words were stated. The commentary that 'he can't walk' were stated at as Azam was shown to be carried up the stairs. It may well be the case that Azam can walk short distances without aid, and the absolute comment that he 'can't walk' may well be inaccurate to that extent. But in the context of Azam's general inability to walk, this can, I think, be excused.

False implications: The Daily Star article inaccurately implies that Al Jazeera was suggesting Azam's old age should make him immune from prosecution. The article states:

'Queried if Azam's age made him eligible for exoneration, the rights commission chairman said, “No legal system in the world considers the age of an accused as an exonerating factor in prosecution of crimes of humanity.”

And then:

On the former Jamaat supremo's age and health, Jahid Reza Noor said, “Al Jazeera should look at the Nuremberg trials. The age was not a matter there and it should not be so here.”

Well nowhere in Al Jazeera's piece is it argued implicitly or explicitly that because Azam is old and frail he should not be prosecuted. It is a fact that he is old and frail, and Al Jazeera mentioned that. Nothing else.

3. The editorial

This is the key part of the editorial.

Yet we can't but express our consternation over the Al Jazeera television channel broadcasting a report saying that the ongoing war crimes trial in Bangladesh will push the country into political instability. Focused on the trial of Jamaat chief Golam Azam, the report speculated 'dramatic consequences of whatever decision the court comes to'.

The channel report, quite clearly and irresponsibly at that, didn't feel the need to explain the basis for its coming to such an assessment. It therefore comes through as a deliberate and motivated attempt to put a spanner on the works of the trial on crimes against humanity in 1971 Liberation War with which Prof. Golam Azam is charged as one of the major accused, and creates a sense of uncertainty in the public mind.

The report is at best conjectural and at worst tantamount to playing into the hands of a campaign launched by the opponents of the trial to create confusion overseas. Coming from such a widely viewed television channel, Al Jazeera should have been cognizant of the implications of a broadcast like that. In the absence of such sensitivity on the part of the channel, the report exudes provocation and being helpful to those who do not want the trial held.

Actually, the essence of what the trial is all about is lost on the TV channel. It is about upholding the rule of law by bringing to justice the crimes committed against humanity some four decades ago. The sufferers of the heinous crimes have a right to justice. There are international regimes governing trials of similar crimes committed in other parts of the world by upholding the principles of justice and fair play. In Bangladesh, International Crimes Tribunal is operating as a domestic court trying only those accused of crimes defined as international crimes.

It is really difficult believe that the person who wrote this editorial had actually seen the Al Jazerra piece. One has to ask the following question about it

In what way is the Al Jazeera report, 'a deliberate and motivated attempt to put a spanner on the works of the trial on crimes against humanity in 1971 Liberation War with which Prof. Golam Azam is charged as one of the major accused'
In what way does is it 'playing into the hands of a campaign launched by the opponents of the trial to create confusion overseas.'
How is that the report, 'exudes provocation and being helpful to those who do not want the trial held.'
How is 'the essence of what the trial is all about ... lost on the TV channel.'

This editorial has created a fiction of a TV report, an 'Aunt Sally' which it then goes out to destroy. The Al Jazeera piece simply does not justify any of these comments.

And in conclusion ...
Why spend so much time on this, you may be asking. This is because it is important to stop the harmful and dangerous misrepresentation of journalism and journalists which is playing into the hands of those who want the ICT tribunal to be spoken about using a one dimensional script. As stated above, the Al Jazeera piece provided no solace to the Jamaat or the accused - but nonetheless it is accused of doing so. One can only imagine what the Daily Star would had done had Al Jazeera broadcast a piece that was actually critical of the tribunal?

One understands that for many Bangladeshis, the tribunal is an emotional thing. That campaigners feel that they have waited a long time for this trial to take place - and this is their last and only opportunity. Yet. stopping the publication of different perspectives and critical journalism about the Tribunal is NOT in the best interests of this tribunal

19 Jan 2012: New Age contempt case

2012-02-18T16:58:00.000+06:00

This was the last hearing relating to the show cause notice given on 3 October 2011 which required myself (New Age, Editor, Special Reports) Nurul Kabir (New Age, Editor) and Shahidullah Khan (New Age publisher) to explain why proceedings should not be proceeded against us for contempt of court. This related to an opinion piece, ‘A Crucial Period for the International Crimes Tribunal’ that I had written for New Age and was published in the op-ed section of the paper.

The tribunal will give its order on Sunday, 19 February

Prior to this hearing, there had been two previous hearing relating to this case, and you can read about them below:
- 27 Nov 2011
- 1 Dec 2011

(A summary of our arguments which argued in court on the 27 December and 1 December hearings setting out why the article is not in contempt of court and does not justify criticism can be found in this post.)

In this hearing, Nurul Kabir - who was representing himself - completed his arguments. (A full copy of his submission will be available in a seperate posting once the final order has been given.)

When Kabir had finished, my lawyer placed a new application which summarised the arguments that had previously been made in court. It also raised a new point that no other tribunal prosecuting international crimes had criticised journalism that was critical of it

Below is the written application in full. To read the annexure that went with the application (containing of survey of the use of contempt law by other tribunals), click here. At the end of the hearing the tribunal said that the its order would be given on 19 February.

1. This application summarises the arguments made by opposite party no. one in his written and oral submissions to the Hon’ble tribunal. It also mentions one additional legal point relating to the practice of other tribunals dealing with international crimes concerning their application of contempt powers.

Relevant Law
2. The relevant case law in Bangladesh is set out in two recent judgments of the Hon’ble Appellate Division (Contempt Petitions No. 5 and 12 of 2010) and that these hold that:
a. Fair criticism of the judicial process is allowed so as to enable Courts to look inward into the correctness of their own proceedings:
b. As part of determining whether or not an article contains fair criticism, the Court must consider the rationality and soberness of the article as well as whether it is written in good faith and the public interest is served.
c. In determining whether or not something is written in good faith and in the public interest, the interests of justice require consideration of the surrounding circumstances, including the knowledge of the writer in the field and the intended purpose sought to be achieved, and the greater the knowledge that the writer has in the field, the less likely an article that person has written is considered contempt. (see paras 28 to 30 of reply of opposite party)

3. In particular the following comments of Justice Sinha in these two judgments are relevant:
a) ‘A fair criticism of judicial proceedings or courts is no doubt permissible so as to enable the court to look inward into the correctness of the proceedings and the legality of the order…’ (p.30 of judgement in Contempt Petition No. 12)
b) “A fair criticism of the conduct of a Judge may not amount to contempt if it is made in good faith and in public interest. The Courts are required to see the surrounding circumstances to ascertain a good faith and the public interest including the person who is responsible for the comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. If one having sufficient knowledge on the subject, such as a lawyer, a retired Judge, a teacher of law and an academician may make fair criticism and the Court in such case will be able to ascertain a good faith with the comments, …’ (p.75 of judgement in Contempt Petition No. 5)
c) ‘As regards criticism of judiciary, it is to be looked into whether an attack is malicious or ill intention which is always difficult to determine. But the language in which it is made, the fairness, the factual accuracy, the logical soundness of it, the care taken in justly and properly analyzing the materials before the maker of it are important consideration. The Court is not concerned more which reasonable and probable effects of what is said or written than with the motives lying behind what is done. V.R. Krishna Iyer,J. in S. Mulgaokr (ibid) formulated some rules. It is opined, the first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the Judges, where the attack is calculated to obstruct or destroy the judicial process. The Court is willing to ignore, by a majestic liberalism, trifling and venial offenses – the dogs may bark, the caravan will pass. The Court will not be prompted to act as a result of an easy irritability. Much rather, it shall take a noetic look at the conspectus of features and be guided by a constellation of constitutional and other considerations when it chooses to use, or desist from using, its power of contempt.’ (p.93, contempt case no 5) …. [I] have only to add that I fully endorse the opinion expressed by Krishna Lyer,J.’
4. There is nothing stated in these two judgments by Justice Sinha which either contradicts his view that ‘fair criticism’ of court decisions are permissible, or conflicts with his opinion that a court should take into account the factors mentioned above in determining whether or not particular comments by journalists or others is fair criticism. (see paras 25 to 28 of supplementary reply).

5. Whilst the opposite party no 1 relies on Bangladesh law, he would like to bring to the court’s attention the law and practice at other hybrid/ international tribunals dealing with international offences in relation to contempt. A survey of the relevant statutes, rules, and proceedings at four tribunals – the ICT for Former Yugosalvia, ICT for Rwanda, Special Court for Sierra Leone and Extraordinary Chambers in the Court of Cambodia - undertaken by the International Human Rights Law Clinic, University of California, Berkley Law School at the request of the opposite party No. 1 concluded that contempt of court before these tribunals:
‘is only ever charged in the event of witness tampering, violations of court orders, attempts to bribe judges, and other serious, material interferences with the functioning of the Tribunal. Contempt has never yet been charged against a mere critic of the functioning of an international criminal tribunal, however harsh the criticism of the speaker. (see para 2 of annexure 1)
6. In relation to the International Criminal Tribunal for the Former Yugoslavia (ICTY), the memorandum states:
‘At the ICTY, application of contempt, even at its broadest and most indefinite, is limited to cases in which the defendant knowingly and willfully violated an express Chamber Order or manipulated and intimidated witnesses. Despite numerous criticisms, even of its law of contempt, the Tribunal has not held its critics in contempt nor considered these criticisms a threat to its administration of justice.’ (para 5 of annexure 1)
7. In relation to the International Criminal Tribunal for Rwanda (ICTR), the memorandum states:
“the ICTR rulings on contempt demonstrate that the tribunal reserves sanctions for egregious cases – and has not found that speech critical of the tribunal to justify judicial remonstration.” (see para 19 of annexure 1)
8. In relation to the Special Court for Sierra Leone (SCSL), the Memorandum states:
‘The Special Court has been subjected to more or less harsh criticism by NGOs and members of civil society, including a number of complaints similar to those leveled against the ICT. But the SCSL has never responded with threats of legal proceedings, let alone enforced sanctions for such speech.’ (para 23 of annexure 1)
9. In relation to the Extraordinary Chambers in the Courts of Cambodia (ECCC), the memorandum states:
‘the ECCC has not initiated contempt proceedings against any news media outlet or other party on the basis of criticism or fact disagreements.’ (para 28 of annexure 1)
10. It is evident from this survey that these tribunals take a very relaxed attitude to the many harsh criticisms they face and consider such comments as a legitimate part of a democratic system of justice.

11. The opposite party number one’s contention is that this Hon’ble tribunal should take this into account this jurisprudence not only in considering how to proceed with its show cause notice but also, if it decided against issuing proceedings, what remarks it might consider appropriate to make in reference to the article.

Factual Aspect
12. It is the contention of the opposite party number one that all the comments made in his article have a strong factual foundation.

13. Cognisance based on 20 witnesses: One element of the article is based around what the tribunal stated in its oral order of 18 August 2011. The article quoted a paragraph from the tribunal’s oral order in which it listed 20 specific witnesses – each specified by a number that had been allocated to them – as being the basis upon which it had given cognisance.

14. This particular quote in the article was taken directly from detailed contemporaneous notes written down in a notebook at the time that the order was slowly read out in court. The relevant pages of this notebook have been given to the Hon’ble tribunal. The relevant notebook has also been made available to the Hon’ble tribunal to scrutinize.

15. The veracity/authenticity of the quote used in the article is further indicated by the fact that New Age’s chief reporter wrote an article the very next day after the order was given which was titled ‘20 witnesses attest Sayedee’s guilt: ICT’.

16. The opposite party is not suggesting that the Hon’ble tribunal failed to read all the witness statements and documents given to it to assess cognisance – only that, in its order of 18 August, in which the tribunal explained the basis upon which it gave cognisance, the tribunal stated in court that cognisance of Sayedee was taken on the basis of 20 witness statements.

17. It is perfectly appropriate for a journalist to rely in his reporting and analysis on an order read out orally in court in circumstances when the tribunal does not make its written order available to the public. (see paras 21 and 22 of reply of opposite party, and paras 2 to 10 of supplementary reply)

18. One witness: Following the hearing of 4 September 2011 where the prosecution provided details of which particular numbered witnesses supported which counts, it was possible for the opposite party number one to assess how many of counts was only supported by one witness. Indeed, irrespective of whether the tribunal took cognisance on the basis of only 20 witnesses or on the basis of all the witnesses, the hearing of 4 September confirmed that there were 7 counts which were only supported by one witness. (para 22 of reply of opposite party)

19. Views of ‘many people’: The two sentences setting out the views of ‘many people’ have a clear factual basis as reflected in many media reports. It is evident that this tribunal is no ordinary trial, and that the people in the country have very strong views about both the accused before it and the trial process. This is not surprising since the alleged crimes relate to the independence war of Bangladesh, in which thousands of people fought, where hundreds of thousands were bereaved by the killings of their family members, and which involve the most serious allegations that have ever come before any court in Bangladesh. In such a situation it would be surprising if such strong feelings, emotions and views were not widely evident. (see paras 16 to 19 of reply of opposite party)

20. Witness statements ‘in hand’: The article raises the question of whether the tribunal had in its hand all the witness statements at the time of taking cognisance – an issue that was itself subject to a hearing at the tribunal - the sequence of events stated in the article is factually correct and includes the statement of the tribunal in its order of 21 September 2011 that it did have in its hand all the statements. (see para 26 and 27 of reply of opposite party)

Context, not personal views
21. The opposite party number one submits that it is important for the tribunal to recognise that the paragraphs which are attributed to ‘many people’ are not his own views, and simply provide context to the reader about the environment in which the tribunal is operating. Since the tribunal has not taken any action against people who have stated those views, it would be wholly inappropriate for the tribunal now to take action against the opposite party in relation to describing the views held by others. (see paras 18 and 19 of the reply of the opposite party).

Views on legal issues
22. It is the opposite party’s contention that his legal views set out in the articles are perfectly reasonable and ones which many other lawyers would share.

23. Difficulty in satisfying prima facie test for offence of crimes against humanity through one witness unless statement extremely strong: The reasonableness of this view is reflected by ordinary criminal practice in Bangladesh, and in the jurisprudence of the international crimes tribunals (see para 23 to 24 of reply of opposite party and para 11 to 18 of supplementary reply)

24. Each offence requires cognisance to be taken separately: It is the contention of the opposite party number one that an ordinary reading of section 29(1) of the International Crimes (Tribunal) Act 1973 would appear to require that the tribunal in relation to each offence find a prima facie case in order to take cognisance (see para 25 of reply of the opposite party and para 22 to 24 of supplementary application).

Effect of the article
25. The tribunal should not be concerned with what people may think after reading the article but with the motives lying behind the writing of the article. This is clear from Justice Sinha’s comment (see above, para 3c) that ‘The Court is not concerned more which reasonable and probable effects of what is said or written than with the motives lying behind what is done.’ The fact that a person reading the article may have a better or worse attitude of the tribunal is not particularly significant to the question of contempt.

Motive and intention
26. It is the opposite party’s contention that it is evident that the opposite party did not write this article with any ill motive or intention. This is clear from the following:
- The language of the article is moderate, analytical and is in no way ‘scandalous’;
- The comments set out in the article have a factual basis;
- The title of the article – ‘A crucial period for the International Crimes Tribunal’ - is neutral in tone;
- The sub-title of the article – ‘The tribunal has itself forcefully argued that it will apply the highest standards of due process and has said clearly that it will abide by its own procedural rules. With the tribunal now assessing evidence and considering defence applications about the nature of the offences, it must be at the top of its game, writes David Bergman – is also neutral in tone.
- The article makes constructive critical comment about certain proceedings, without using that criticism for attacking or questioning the credibility or authority of the Tribunal, but with a view to see the Tribunal successful in its subsequent proceedings.
- The legal views set out in the article are reasonable ones
- The writer has a background of being a supporter of the process of accountability for war crimes in Bangladesh (see para 6 to 10 of reply of opposite pary)
- The writer has a legal background (see para 3 of reply of opposite party)

Tribunal’s response to critical comment
27. The opposite party submits that critical comment is part and parcel of a healthy and democratic society and that the Tribunal should only be concerned with comment which results, in the words of Justice Iyer as quoted by Justice Sinha, ‘justice [being] jeopardized by a gross and/or unfounded attack on the Judges, where the attack is calculated to obstruct or destroy the judicial process,’ and that there is nothing in the article which comes anywhere close to crossing that threshold.

28. It is also important to note that the Tribunal has taken no action in comments from both known critics of the tribunal and also supporters of the tribunal that raise much more serious issues about contempt.

29. So for example, on the one hand, it has taken no action when Barrister Moudud Ahmed stated publicly on 3 December that:
a. ‘without the recommended changes, the Tribunal will NOT be fair, independent and transparent. Instead of delivering justice, the Tribunal has instead emerged as an instrument for eliminating political adversaries’,
b. that Salauddin Quader Chowdhury’s ‘execution by way of an unfair tribunal will be no more than extrajudicial killing,’
c. that ‘participation in the tribunal would be providing legitimacy to an illegal and unconstitutional process for extra-judicial persecution of political opponents.’

30. And on the other hand it has also taken no action against ‘supporters of the tribunal’ who state, when the trials are either ongoing or are have not yet stated that the accused men under trial are ‘war criminals’ and show images of them being hanged.

31. In this context, in addition to the arguments already set out and made before the Tribunal, it is the opposite party’s submission that it would be extraordinarily unfair for the tribunal to criticise, yet alone issue contempt proceedings, against a professional journalist writing an analytical article, when it takes no action against people who are making these kinds of statements.

Malicious journalism against Al Jazeera

2012-02-15T09:23:00.000+06:00

Newspapers in all countries at times deserve serious criticism - look no further than the Leveson inquiry in the UK for examples - but in an article written about Al Jazeera and its correspondent here in Dhaka, a national Bangla language newspaper reached rather close to the bottom as far as journalistic practices are concerned.

In this incident, it is not just the newspaper itself that deserves criticism. Also worthy of censure is the devious role that the Bangladesh 'intelligence' agencies (is there a word less appropriate, I wonder) who intentionally used the newspapers to get published totally untrue and malicious stories. Apparently, journalists from a number of different papers including Daily Star got calls from this agency with this 'story' and ignored them.

It is, though, only Daily Jonokhonto (and Bhorer Kagoj to a lesser extent) that need to hang their heads in shame. Of course, the fact that a number of papers clearly decided not to run the article is a positive sign,

So what is it all about. Here is an approximate translation of part of the front page article in Daily Jonokhonto (original article is here). Do remember as you read it, there is barely a single accurate sentence:

"To stop the trial against the war criminals, Jamaat has taken a new strategy. They have spent a huge amount of money to bring foreign journalists in Dhaka. In the meantime, a journalist of Aljazeera has come to Dhaka to interview top war criminal Golam Azam. That journalist has fixed the time of his interview with Golam Azam. The interview will be taken tomorrow (Wednesday). An influential intelligence agency has confirmed the news.

An official of that influential intelligence agency told that a journalist of Aljazeera television has arrived in Dhaka few days ago. He is here to accomplish a special assignment. His name is Nicolas Haque. After arriving in Bangladesh, he took a mobile phone connection from Grameen Phone. Journalist Nicolas already talked to some of the Jamaat leaders. It is known that, several reports will be made to change public opinion around the world to protect the top war criminals who are also engaged in the crimes against humanity. Interview of Golam Aazam will one of the reports among all. The highest level of the government was also informed about it. But the journalist of Aljazeera has fixed everything to interview Golam Azam. He also talked to arrested Golam Azam in the prison cell of Bangabandhu Sheikh Mujibur Rahman Medical University. An intelligence report has also been submitted to the highest level of the government. Prime minister’s office is also informed about this matter. It is not known yet what steps will be taken from government’s side?

Source said that he would interview Golam Azam in connivance with some officials of Bangabandhu Shiekh Mujibur Rahman medical university and also with some police personnel. If government stops the reporter of Aljazeera, he will broadcast it widely saying that the trial is NOT going on fairly and transparently. Source said that Jamaat would then bring other influential news media of the world in Dhaka by offering huge amount of money. If government allows the interview of Golam Azam, his lies about the trial process of the government will be broadcast all over the world. For that reason, government is confused and facing troubles."

The inaccuracies in this story include:

Nicholas Haque is the Al Jazeera correspondent based in Dhaka, so he certainly cannot be paid to come to Dhaka. He has already been here for a few years.
He has never intended to interview Gholam Azam - but rather his son;
There was nothing secret at all about him setting up or undertaking this interview. It is just part of normal journalism. He was doing a piece on Azam's detention; in such circumstances it is quite reasonable to seek to interview a family member of a detained person.
The reports stated thatL 'It is known that, several reports will be made to change the public opinion of the people around the world to protect the top war criminals who are also engaged in the crimes against humanity.' I am sure the Al Jazeera correspondent is flattered by his potential influence, but doing a report on Gholam Azam's detention is a perfectly newsworthy subject which can be made without having any motivated agenda.
It would be nice also if Jonokhonto understood the concept of innocent until proved guilty, even for those accused of war crimes.

One thing that the article did get right is that he has a Grameen Phone connection. But this is apparently an account he has had since coming to Bangladesh, some years ago!

I have no idea what will be the content of Al Jazeera's piece on Gholam Azam, but I would be pretty certain that it will be a balanced piece of journalism.

Clearly what has happened here is that the agencies tapped the phone of Azam's son, heard Nic trying to make an appointment to meet him, and decided to spin the story of Nic, newly arriving in Dhaka, setting up an illegal interview with Gholam Azam, as part of a Jamaat conspiracy to spend lavish amounts of money to bring in foreign journalists.

Sounds great. Such a pity that there is not an iota of truth to it!

This could be a rather amusing story, perhaps. But there is a serious side to this. It is becoming increasingly difficult for journalists in Bangladesh to undertake independent journalism on the International Crimes Tribunal; journalists who write articles considered 'off message' by the current establishment, are routinely being labelled 'pro-Jamaat' or 'pro-war criminal'.

That is not the right atmosphere to ensure that a fair trial takes place.

And please .... Bangladesh intelligence agencies, stop using the media to plant stories, and newspapers stop printing them.

Govt PR problem on UN detention ruling

2012-02-13T08:30:00.001+06:00

There are a number of points to be made about the opinion of the UN Working Group on Arbitrary Detention which ruled that that the manner in which the International Crimes Tribunal detained without charge one Bangladesh Nationalist Party and five Jamaat-e-Islami leaders was ‘arbitrary’ and a breach of international law. The ruling was adopted in November 2011, but was not put into the public realm until 7 February.

To download the opinion
To read about the UN Working Group

1. Government PR debacle

The opinion by the UN Working Group is simply a PR disaster for the government.

In recent weeks the government - along with a number of its ‘surrogates’ - have been trying to push back against some critical coverage of the International Crimes Tribunal. At recent events both the law minister and the Chair of the National Human Rights Commission have gained headlines in Bangladesh by saying that the due process standards at the ICT are higher than any other international tribunal. Similar comments have been made by the senior lawyer Amirul Islam. And then along comes this opinion.

To me, what is remarkable – putting to one side for now whether one agrees or not with the working group's opinion - is that the government did not respond to the UN Working Group in time, so the group's opinion was reliant primarily on information provided by the defence lawyers; the Working Group could not take into account the Tribunal's view about why it considered its own detention decisions reasonable and within international standards.

One must assume the Bangladesh foreign ministry must know the procedure – indeed it would have been written in the letter that the working group sent to it seeking a response - that if the government does not respond in time then the working group would still make an opinion.

The government says that it sought a time extension. But even assuming that it did, the working group can only provide an extra one month, which would have meant that it had to respond near the end of December. Since the government says that it submitted its response in early February, obtaining a time extension would not have been of much use. It is also questionable whether the government did in fact seek a time extension within due time, since it is clear from the timings the working group did not give the government an additional one month extension, and published its report in December rather than November.

To compound this error of failing to respond, the government has not prepared any public response to the opinion of the working group. When I first contacted the foreign ministry which was perhaps 48 hours after the report was put in the public domain, the ministry appeared not even to have been aware of it.

When, the Ministry under my prodding did find out about the report, they appeared supremely unconcerned that the Working Group had published an opinion without having had the benefit of the government's response. The foreign ministry did not criticise the opinion, it was not clear whether it even had a copy of it. A senior official said that the working group would publish the government's response in due course, and that seemed to be sufficient for them. The official seemed totally unaware of the PR disaster that this report represented for the government. Right now the defence have an independent UN working committee report that says that the Tribunal's detention of six accused was arbitrary and in breach of international law - and the government has done nothing to argue against such an opinion.

What the government could still do is publish its own response to the committee, or a version of it. There is no restriction as far as I can see in them doing this. However the foreign ministry are currently taking a position that it would be wrong for them to do so.

2. Rights and wrong of the decision about detention

The reasoning contained in the UN working group's ruling is not as detailed as one might have hoped. However, my own view on the findings is as follows.

putting to one side whether the detentions were a breach of international law or not there was always a legal problem detaining the men without charge. Although, rule 9(2) of the Rules of Procedure allows the tribunal to detain people for the purposes of investigation, section 11(5) of the International Crimes Tribunal Act 1973 only provides the tribunal the legal power to order their detention once the accused are charged. (NB: The reason why the law may have been drafted in this way – i.e not providing greater powers of detention - is that it was originally drafted to deal with the Pakistani POWs who were being detained in India. There was therefore no need to have a power to detain them during investigation.) The prosecution argued in court that there was no contradiction between section 11(5) of the Act which they said did not relate to a situation when investigation was proceeding, and rule 9(2) which they said only dealt with detention during investigation. Rule 9(2), the prosecution argued, was supplementary to section 11(5) of the Act, not in contradiction to it.

I was never persuaded by that argument nor indeed was one of the countries most senior criminal lawyers who is in charge of prosecuting the BDR mutiny cases on behalf of the government. When the defence raised this issue in court, the Tribunal dismissed this arguments without giving any reasons.

It would have been much better had parliament amended the Act in order to allow these pre-charge detentions to take place. Since it did not, the argument about legality of the detention was bound to be subject to further questions - as indeed it has with the UN working group report.

It should be noted that the UN Working Group states that its ruling on the arbitrariness of the detention is not simply dependent on whether or not detention is lawful, but on a view of 'inappropriateness, injustice and lack of predictability' of the decisions relating to detention. So its opinion does not simply relay on whether or not detention is a violaition of the ICT Act or not.
having detained the men, I have been concerned whether there were good legal reasons for the tribunal to repeatedly refuse bail to the five Jamaat-e-Islami men, whilst investigation into them was continuing. Why do I say that? First, none of the accused were trying to escape jurisdiction prior to their arrest - although they all must have been pretty aware from the media that they were soon to be arrested. Secondly, the defence lawyers argued that they were happy for their clients to abide by any conditions imposed by the tribunal, and suggested to it a number of pretty stringent ones. Thirdly, Md Alim had been given bail, 'on humanitarian grounds' because he was in a wheelchair, and on the basis of these conditions there had been no suggestion that he had tried to interfere with the investigation or otherwise break bail conditions. If he could be given bail on strict conditions, why could the other accused not? Fourthly, they were being required to stay in pre-trial detention for a long time. And fifthly, the tribunal, in all its bail decisions never set out clear reasons why bail should not be given.
However, having said all that, it should be noted that the pre-trial detention of men accused of war crimes is not unusual – and the Bangladesh tribunal is reflecting the practices that have existed elsewhere. Richard Rogers, the former head of the defence office at the Extraordinary Chambers in the Courts of Cambodia provides the following information which is important to note for context:

'At the International Crimes Tribunal in Rwanda, 10-15 accused were held in detention for over 10 years before their guilt or innocence was determined by the trial chamber. Two had to wait for 16 years before a trial judgment was rendered.
At the Extraordinary Chambers of the Courts of Cambodia the first accused, Duch had been held in arbitrary detention for 10 years prior to his transfer to the ECCC. The sentence reduction that the trial court awarded Duch to compensate him for this illegal detention, was reversed last week by the Supreme Court Chamber. Again, this puts the court in breach of international fair trial standards.
Another example from the ECCC is Ieng Thirith. After doctors found that she was unfit to stand trial the trial court it ordered her release. But then the Supreme Court Chamber reversed the order to release on the basis that she might get better. So now a mentally unfit women in her 80s, who is supposedly presumed innocent, must languish in detention for more years. She has already been in detention for 4 years.
And then we have the ICTY – which is another fully-fledged UN court - the court has reversed the burden on the parties so that now the defendants must justify why they should be provisionally released, rather than the prosecutor showing why they should remain detention. Again, this runs contrary to the Working Group's suggestion that detention should be the exception rather than the rule.
At the International Criminal court the first accused, Thomas Lubanga, has waited almost 7 years in detention without been judged. His case had to be halted twice because of breaches of his fair trial rights by the Prosecution. Yet he still remains in prison to this day.''

This does not necessarily make the Bangladesh tribunal detention decisions 'right', but it certainly does provide an important context to any failings there may be on its part.

3. The decision about legal representation and disclosure
The working group's decision also mentions its concerns about the legal representation of accused (in particular it said in relation to lawyers not being present during interrogation), and disclosure of evidence (in relation to not being able to see the investigation agency's case diaries).

I have discussed elsewhere the issue of the relative lack of importance of legal representation during interrogation here in Bangladesh (see point 6 of this blog). Point 4 of that same blog also deals in general with the issue of disclosure; but the point about the defence not having access to the investigation agency's 'case diaries' - specifically prohibited by the 1973 Act - is a new one. In Bangladesh, investigation case diaries are never disclosed to the defence!

4. Lack of Bangladesh media attention
It is notable how few media outlets covered the UN working group report - and apart from the article in New Age (the paper I work for) and Ittefaq - it has split effectively on 'party' lines. The three opposition papers - Noya Diganta, Sangram, and Amar Desh - did publish details of the UN working group's report. All the other media outlets, who either taken an explicitly supportive position either of the government or at least of the tribunal (including Daily Star, Prothom Alo, Bdnews24.com, Independent and the Sun) did not. How can one explain this?

The report is clearly newsworthy - both the Daily Star and Bdnews24.com have covered opinions of the UN Working Group prior to this one, so it is not as though these news outlets consider the UN working Group irrelevant.

Perhaps they never received the press release issued by Toby Cadman, the defence lawyer with its copy of the ruling. This is possible, I suppose, but I doubt that journalists at these news papers/websites did not receive them. I would assume that the ICT defence team would have sent them out.

Unfortunately, I reckon it is just down to editorial decisions made by journalists/editors at these media outlets who simply do not want to publish anything that could the rock the boat in relation to the tribunal, and are perhaps worried about a government backlash against them.

Whatever ones views about the tribunal, this UN report was clearly newsworthy, and is not good for independent journalism in Bangladesh that so many papers appear to have deliberately ignored it.

18 Jan 2012: Detained researcher

2012-02-04T13:28:00.000+06:00

The day was fixed for taking cognizance of offences alleged against kamaruzzaman and examination in chief of the next prosecution witness, number 15 in the trial of Dewlar Hossain Sayedee.

Before these issues were considered by the tribunal, Tajul Islam brought up what he called an 'unfortunate matter' to the attention of the Tribunal.

“My Lord, I am going to bring a very unfortunate matter before the attention of your Lordship. One of our research associates [his name is Zubaer] has been arrested by the police yesterday at 2 pm when he was photocopying documents in relation to the case Chief Prosecutor vs Golam Azam and others. He was in the police custody for the whole night. All 25,000–page documents have also been seized by the police. He was missing since yesterday and this morning I have come to know about it from one of my colleagues named Shishir Muhammad Munir. The said that the research associate is now detained at the New Market Police Station. He further informed me that he was taken into the custody of the detective branch of the police. I promptly approached the said police station, however, the duty officer said they arrested our research associate with confidential documents. Thus they refused to release him unless the Tribunal make such an order. They did not even give us back those documents as they claimed someone from the Tribunal had called them and gave the police information that such confidential documents were being copied at Nilkhet. Thus, my submission before the Tribunal is to give such an order the Tribunal may think fit in this regard.”

Tribunal Chairman Justice Nassim replied: “Well, in my opinion, the documents should not have been taken to public places like Nilkhet for photocopying as the documents contains severe confidential information. Such documents should be kept secret with utmost sincerity for the protection of the witnesses and victims; a lot of people’s safety depends on that.”

Justice ATM Zaheer then added, “You should buy a photocopier at your chamber for copying such confidential documents as it is the matter of protection of witnesses and victims as well as confidentiality.”

In response, the defence counsel Tajul Islam said that “My Lord, the documents are of 25,000 pages. It is almost impossible to make copies of that without the help of professional photocopiers. And everyone knows that the Nilkhet area is the best place to get such service.”

The Tribunal Chaiman Justice Nassimul Haq then said that they would make an order to the Officer-in-Charge of the concerned police station in this regard.

Prosecutor Ziad al Malum interrupted and said that “The Tribunal should make such order to the Officer-in-Charge of the Newmarket police station to produce the detainee as well as the seized documents before the Tribunal. The Tribunal should seek explanation from the detainee as well as the Officer-in-Charge concerned before passing further orders in this regard. The Tribunal should also check whether any documents in missing or not so that if such documents leaks in future, the Tribunal take appropriate action against concerned person or authority.”

Prosecutor Zial al Malum further submitted that the prosecution should be given a chance to talk with the investigation officer/Officer-in-Charge of the Newmarket Police Station.

Defence counsel Tazul replied that it would be sufficient if the Tribunal summoned the Officer-in-Charge of the Newmarket Police Station.

Tribunal Chairman Justice Nassim then suggested the defence to make an application in this regard and then they will make such an order. One of the defence counsels instantly wrote a short written application and defence counsel Tazul Islam submitted it before the Tribunal. The Tribunal then made the following order in this regard:

“The defence counsel brought the matter before the attention the Tribunal that while one of his researchers of his research team went to photocopy some documents which was supplied by the prosecution as defence documents, the police of the Newmarket Police Station took the said researcher in their custody. The police told that they require an order from the Tribunal to release him as well as seized documents. Upon hearing the counsels, the Tribunal is pleased to make this order to the Officer-in-Charge of the Newmarket Police Station that the detainee and the documents be produced before the Tribunal by 1pm. The Tribunal will hear them afterwards.”

Justice Nassim further added that the order should be despatched to the concerned Officer-in-Charge as soon as possible because as per the Code of Criminal Procedure 1898 the police are duty-bound to produce any detainee before a magistrate within 24 hours of his arrest.

Kamaruzzaman
Chairman Justice Nassimul Haq then ordered the bench clerk to call the next matter which related to the the tribunal taking cognisance of offences relating to Kamaruzzaman’cognisance.

Chairman Justice Nassimul Haq said to the defence lawyers that they were really sorry that they could not finish reading the formal charge and all other documents submitted by the prosecution yet. and that therefore they were giving a new date for the congisance hearing and this will be heard on 31st January 2012.”

Sayedee
Prosecutor Rana Das Gupta came to the dais and told the Tribunal that due to illness of the prosecution witness No. 15 Modhu Shudan Ghorami, the prosecution was unable to produce him before the Tribunal. He further explained that the Mr Ghorami is 80 years old now and he unwell today due to the long journey.

Tribunal Chairman Justice Nassimul Haq then asked whether he would be able to be produced on Sunday (22.01.2012) and the Prosecutor replied that he was not certain

The chairman then told the prosecution that they should bring the witness to Dhaka 7 days before his testimony.

Das Gupta replied that It would be better if you fix the date for producing the witness Rana Das Gupta on Monday instead of Sunday, and the defence counsel Mizanul Islam then suggested, that it would be better if you fix it on Tuesday.”

Tribunal Chairman Justice Nassim then adjourned this matter until Tuesday the 24th January 2012 and asked the prosecution to produce the said witness on that day.

The tribunal was adjourned

Detained researcher
The tribunal then sat again at 12:40.

At 12.30, the New Market Police station produced the detained person with his seized documents before the tirbunal. The name of the detained person was Md. Zobayer Alam. The officer in charge of The New Market Police Station was Mr. Mostafizur Rahman.

Justice N Haq: Mr. OC, tell us about the incident?

OC: We got information that, someone is photocopying the confidential documents regarding the Golam Azam’s case. The shop is under my area. The informant told us that, he was calling from the tribunal.

Justice AKM Zaheer: Maybe the incident happened because the documents are highly sensitive.

Justice N Haq: We won’t be going to that issue now. It was not in our contemplation that it could happen. Mr. Tajul Islam, you could have informed the Tribunal before sending someone to photocopy it in a public place likes Nilkhet. However, the documents are safe and that is the most important thing.

Adv. Tajul Islam: We did not even think that such an incident would happen. Can please tell us from where we can get professional services for photocopying such voluminous documents like that?

Prosecutor Ziad-Al-Malum: Defense could buy a photocopier or set up a photocopy lab in your office or chamber.

Adv. Tajul Islam: That is none of prosecution’s business.

Justice N Haq: The tribunal will be passing an order because the tribunal believes that the detention and the seizure of the documents may have been a misunderstanding. Moreover, the tribunal praises the police as they were just doing their duty.

And, further the tribunal directs the police to release the detained person effective immediately. However, the seized documents should be received by Adv. Tajul Islam.

Then the tribunal adjourned until next day.

17 Jan 2012: Fourteenth witness

2012-02-04T12:53:00.000+06:00

At this hearing involving the trial of Delwar Hossain Sayedee, both the evidence-in-chief and the cross examination was taken of the 14th witness, Abdul Halim Babul.

Evidence in chief

Prosecution: What is your name?

Witness: My name is Abdul Halim Babul.

Prosecution: How old are you?

Witness: I am 55 years old.

Prosecution: Where were you in 1971?Witness: I was at Parerhat on 2nd June 1971. (At first, the witness told that the date was 2nd March 1971 and then he changed the date. The defence raised objection however, the Tribunal ignored it on the ground that witness can change his statement during the examination in chief.)

Prosecution: What happened on that day?

Witness: I was at my home. I heard some chaos outside. I came out of my home and asked a passerby, ‘What happened?’ He replied that the Pakistani occupation force is coming. I was too scared during the war period. I came back home and asked my family members to hide. I also hid myself nearby.

Prosecution: What did you see then?

Witness: I saw Delwar Hossain Saidee, Danesh Molla, Moslem Maulana (all of them were armed) and Pakistani occupation force entered into my house and looted it. And finally they set fire to my house. Then they set fire to the houses of Khosru Mia and Ameer Khan of Shankarpasha village. I heard afterwards that they went to Hindu para (block) of Umedpur village from there, arson their houses and killed people.

Prosecution: Is Mr Delwar Hossain Saidee present here in this room?

Witness: Yes.

Cross-Examination

Defence counsel Mizanul Islam then started the cross examination

Defence: Are you a freedom fighter?

Witness: No.

Defence: When did Pakistani army came to Parerhat?

Witness: I do not know that.

Defence: When did rajakar force formed at Parerhat area?

Witness: I do not know that.

Defence: Can you just tell us whether it was formed before or after the Pakistani occupation force came to Parerhat ?

Witness: May be after the Pakistani occupation force came.

Defence: When was the peace committee formed at Parerhat area- before or after the Pakistani occupation force came there?

Witness: I do not have any idea.

Defence: Can you please tell us the date when did you give your statement to the Chief Investigation Officer Helal Uddin?

Witness: On 27.07.2010.

Defence: On 27.07.2010 did anyone give you the information that Helal Uddin would come to Parerhat?

Witness: We came to know that after going to Parerhat marketplace.

Defence: So when did you meet him?

Witness: Between 12 pm to 1 pm on that day.

Defence: Who were with you at that time?

Witness: People from the investigating office (he said ‘people from the Tribunal’, however, investigating office is not a part of the Tribunal.)

Defence: Was there any other people there from your locality?

Witness: I cannot remember that.

Defence: So where did you give your statement- at Parerhat or outside of Parerhat?

Witness: In Parerhat, at the Raj Laxmi High School.

Defence: Was your statement taken at the Headmaster’s room of that said school?

Witness: No, at the first floor of that school.

Defence: Did Mr Helal Uddin give any announcement using mic (loud speaker)?

Witness: I did not hear that.

Defence: Did you directly go to him and give your statement?

Witness: Yes. I went to the school and said I want to give statement.

Defence: What is your profession?

Witness: I am a village doctor. (Village doctors do not a have a bachelor degree on medicine and/or surgery; normally they do paramedic short course or gain experiences by working as a medical assistant at clinic/hospital under a registered doctor. Normally they have medicine shop in the village marketplaces where they examine their patients and they frequently visit their patient travelling to their house upon calls.)

Defence: Where is your medicine store cum chamber situated?

Witness: At Boudoobi marketplace.

Defence: Chalna Bridge is in between your house and Boudoobi marketplace, right?

Witness: Yes.

Defence: How far Chalna Bridge is from Boudoobi marketplace?

Witness: 2 kilometres.

The defence counsel Haider Ali suggested the Tribunal to take their note as ‘the witness guessed the distance as 2 kilometres’. However, the witness said that the distance is ‘exactly 2 kilometres as there are mileposts on the road’. Justice Fazle Kabir then scolded prosecutor Haider Ali for suggesting the same to the Tribunal.

Defence: When do you go to your medicine store/chamber?

The witness then become angry suddenly and refused to answer the same as there is no fixed time to go his medicine store cum chamber. The Tribunal Chairman Justice Nassim asked him to calm down and defence counsel Mizanul Islam explained him that he just wanted to know when the witness goes to his medicine store/chamber normally; it does not really mean that you need to go there every day at that time mentioned by you. Definitely there are exceptions.

Witness: Between 8 am to 9 am in the morning subject to certain exceptions.

Defence: Do you remember whether 27.07.2010 was haat day or not?

Witness: I cannot remember. I have to go to Parerhat frequently for various purposes including buying medicine etc.

Defence: Do you have any idea about the ‘Gono Adalaat’ (People’s Tribunal) of 1992?

Witness: No. (Later on he admitted he read news about the said tribunal in newspaper i.e. he was aware of that)

Defence: Well, do you have any idea about the ‘Gono Todonto Commission’ (People’s Investigation Commission) formed by Jahanara Imam, Poetess Sufia Kamal and other members of the civil society in 1994?

Witness: I do not have any idea about that.

Defence: Pirojpur ‘Zilla Porishod’ (district council) made advertisements in newspaper to give information about the persons who were for and against the war of liberation and also about their activities in the war of liberation. Do you have any idea about that?

Witness: I do not know about that.

Defence: Well, do know the fact that, after the independence the government took initiative to investigate the war crimes and crimes against humanity?

Witness: No, I do not know that.

Defence: Now, can you please confirm that since 1971 to till this date, apart from giving statements to the CIO Helal Uddin and before this Tribunal, you have not complained to anyone or authority about the fact that your house was looted and arson, right?

Witness: No, I did not.

Defence: Have you given any list of goods looted in 1971 from your house to the investigation officer?

Witness: No.

Defence: Who told you on that day (02.06.1971) that the rajakars and Pakistani occupation force are coming?

Witness: I cannot remember his name.

Justice Zaheer: He has already testified that he came to know that from a passerby.

Defence: On 08.12.1971 Parerhat become enemy free, right?

Witness: I do not remember.

Defence: In your statement you have told that the rajakar and Pakistani occupation force set fire to the house of Khoshru Mia. Do you know him very well?

Witness: Yes.

Defence: Is the said Khoshru Mia freedom fighter?

Witness: Yes, he is. (At first he told that ‘may be he is a freedom fighter’.)

Defence: The freedom fighters made their camp at Parerhat after the independence, right?

Witness: Yes, that is true.

Defence: The said Khoshru Mia was the commander of that camp, is that true?

Witness: No.

Defence: What is you date of birth according to the Secondary School Certificate?

Witness: 06.06.1960.

Defence: Now, Mr Babul I shall ask you some question. Please do not take it personally. I have to ask you the same as a part of my job of the defence lawyer. Is that ok?

Witness: Yes, go on.

Defence: You got a bail in theft case filed by Aklima Khatun wife of Abdus Sobhan from Indurkani village, is that true?

Witness: No. (Later on accepted when the defence provided the case No.)

Defence: Well, we have got the case No. It was CR Case No. 1160/1982. What do have any idea that the case was filed against you?

Witness: My Lord, May I have your permission to say something? (Permission granted by Justice Nassim) It was a false allegation. If you permit me I want to unbutton my shirt and show your Lordship the sign of the grievous bodily harm done to me by the said Aklima Khatun and his family members.

The witness started weeping and became emotional at this point. Then he suggested that the defence should not ask such question to let the witness down. He further made complaint to the Tribunal that the defence people went to house with 200/300 (later on claimed 500/700 people) to take his statement without even informing him which should be consider as a threat to him. He added, they should at least inform him that some lawyers/barristers from Dhaka would come to his place so that he can arrange some refreshment for them.

Chairman Justice Nassim said that that they would shall hear that later on, but that now they should continue with the cross examination.

Defence: Do you know a rajakar named Delwar Shikder s/o Rasul Shikder?

Witness: I do not know him.

There was a change of defence counsel at this stage. Defence counsel Manjur Ahmed Ansari took over:

Defence: Late Mosharrof Hossain lived in the same homestead you live now, right?

Witness: Yes.

Defence: His son’s name is Farooque, right?

Witness: Yes.

Defence: How old is he?

Witness: 60 years old.

Defence: Late Abdul Hakim belonged to the same homestead of yours, is that true?

Witness: No. He lived in the homestead of that Aklima Begum who filed false case against me. The homestead is about ¼ kilometres (250 metres) far from my house.

Defence: His son’s name is Joynal, right?

Witness: Yes.

Defence: How old is Joynal?

Witness: Around 25-30 years old.

Defence: I am saying he is from your age level.

Witness: No, that is not true.

Defence: Yakub Master lived in the same homestead of yours, right?

Witness: Yes.

Defence: His son’s name is Rafiqul, right?

Witness: Yes.

Defence: He is 52/53 years old, right?

Witness: No, he is 60 years old.

Defence: The adjacent house in the southern of your house belongs to Ishaq Fakir, right?

Witness: Not exactly. There is empty block in between his house and my house.

Defence: I see. He has got 2 sons, is that true?

Witness: Yes, that is true.

Defence: His elder son’s name is Khaleq and younger son’s name is Rashid, right?

Witness: Yes.

Defence: Khaleq is 60 years, is that true?

Witness: Yes.

Defence: And Rashid is 58 years old, right?

Witness: Not really. He is of my age. (55 years)

Defence: Mr Tawfiq lives in the same homestead, right?

Witness: Yes.

Defence: His son’s name is Kawsar, right?

Witness: Yes, that is true.

Defence: How old is he?

Witness: 42/43 years old.

Defence: There is a mosque at the entrance of your house. The mosque was established before 1971 and the mosque was there during the war time, right?

Witness: Yes.

Defence: Who was the Imam (muslim religious post) in that mosque then?

Witness: Hafez Abdul Khaleq.

Defence: Your younger brother is the central leader of the Jatiya Party (Monju) {National Party (Monju)}, is that true?

Witness: Yes.

Defence: Your another younger brother has passed Master of Arts (M.A.), right?

Witness: Yes.

Defence: What is his profession?

Witness: Business. He is a contractor.

Defence: You have not told to the Investigation Officer that on that day (02.06.1971) you heard some chaos outside then you came out of your home and asked a passerby, ‘What happened?’ He then replied to you that the Pakistani occupation force was coming.

Witness: No, I told him that.

Defence: You have not even told him that you came back home and asked your family members to hide and also hid nearby.

Witness: No, I told him the same.

Prosecution: And I am saying you did not tell the CIO, “I saw Delwar Hossain Saidee, Danesh Molla, Moslem Maulana (all of them were armed) and Pakistani occupation force entered into my house and looted it. And finally they set fire to my house. Then they set fire to the houses of Khosru Mia and Ameer Khan of Shankarpasha village. I heard afterwards that they went to Hindu para (block) of Umedpur village from there, arson their houses and killed people.”

Witness: That is not true. I told him.

Defence: You are an Awami League activist, right?

Witness: Yes.

Defence: Is that true that your mom and brothers cut of their relationships with you because you have given false statement against the accused Delwar Hossain Saidee even though your house was not set fire in 1971?

Witness: It is not true at all.

Defence: You are an Awami League activist and just because of that your giving false statement in a case filed on false allegations against a central leader of your rival party, is that true?

Witness: That is not true.

Thus the cross examination of prosecution witness No. 14 was finished the Tribunal then asked the prosecution to produce their next witness.

Prosecutor Haider Ali said the witness No. 15, Modhu Sudan Ghorami, was not yet ready to be produced before the Tribunal. He was 80 years old. He further submitted that he had not yet examined the witness yet and asked for an adjournment until the next day.

Tribunal Chairman Justice Nassim: This is unfortunate. Still we have got 4 hours to continue the hearing for today. Anyway, have you brought him to Dhaka already?

Prosecution: Yes, My Lord.

Tribunal Chairman Justice Nassim: Can you produce him before the Tribunal tomorrow?

Prosecution: I shall try.

Tribunal Chairman Justice Nassim: Have you served the notice to him?

Prosecution: No, my Lord.

Tribunal Chairman Justice Nassim: Then serve the notice on him today and let see what happens tomorrow.

Justice Zaheer: Now you (prosecution) are delaying the trial. We will take note tomorrow if you fail to produce him tomorrow as well.

Tribunal Chairman Justice Nassim adjourned the hearing for that day.

16 Jan 2012: Alim bail

2012-02-03T23:41:00.002+06:00

Abdul Alim is the only one of the accused who has been given bail. The prosecutors have received an investigation report from the investigation agency but no formal charge has been submitted. The question of whether his bail should be extended came up before the tribunal. Alim was in court in his wheelchair.

(Also on the this day the 13th witness in the trial of Delwar Hossain Sayedee gave evidence, the defence lawyer Mizanul Islam undertook his cross examination, and there was an application for investigation report to be given to the defence)

Prosecutor Haider Ali came to the dais and before he started his submission that bail should not be granted, Tribunal Chairman Justice Nassim asked him some questions.

Chairman Justice Nassim: Is there is misuse of the privileges of bail by the accused petitioner?

Prosecution: I have to find that out.

Chairman Justice Nassim: That means there is no such misuse of privileges. Then what is your ground for protesting the extension of the bail of the accused?

Prosecution: Whether the circumstances while your Lordship allowed the bail of the accused petitioner has been changed or not?

Justice Zaheer: What do you mean? There are 2 screws in the back of the accused petitioner and he is using the wheelchair. Do you want to say that the screws have been removed from his back?

Prosecution: No, my Lord.

Chairman Justice Nassim: Mr. Prosecutor, can you please confirm that the interrogation of the accused has been done (at his place)?

Prosecution: Yes, my Lord.

The Tribunal Chairman Justice Nassim then made the following order in this matter:

In compliance with the order the accused petitioner has surrendered before the Tribunal and he has not misused the privileges of the bail. Thus the Tribunal is pleased to enlarge the bail granted to the accused or further time i.e. he will be on bail as before. Prosecution has confirmed that the interrogation of the accused has been done. The accused need to be present on the day (15.03.2012) fixed for submission of the formal charge.

16 Jan 2012: Shaha cross examination

2012-02-03T23:27:00.000+06:00

After Gauranga Chandra Shaha, the 13th witness in the trial of Delwar Hossain Sayedee gave evidence, the defence lawyer Mizanul Islam undertook his cross examination. (See other posts for application for investigation report and Alim's bail which also took place on same day)

Defence: Do you know Mahabubul Alam Hawlader of Tengrakhali?

Witness: Yes.

Defence: Do you know him for long?

Witness: Yes.

Defence: Please tell us since when you know him? (before/after the independence war)

Witness: Since he was studying at school i.e. before the independence war of 1971 I got to know him.

Defence: At which school he was a student then?

Witness: At Parerhat Raj Laxmi High School.

Defence: Did you meet him during the war?

Witness: No. Everyone was hiding here and there then.

Defence: When did you got to know him very well I mean when since when you are in a good terms?

Witness: After the war of independence. His father was a regular customer of our shop.

Defence: They incident (of raping your sisters) you have told before the Tribunal today, did you tell to Mahabub Alam about that?

Witness: Why should I tell him the same? This is not something to tell everyone. I did not tell the incident to him.

Defence: Can please just confirm us, whether he had come to know about that incident from any other person/source?

Witness: Yes, he came to know that.

Defence: Do you know whether your local Member of the Parliament AKMA Awal was aware that incident?

Witness: I do not know.

Defence: Do you know Ruhul Amin Nabin?

Witness: Yes.

Defence: What did he do before 1971?

Witness: I do not know.

Defence: Did Ruhul Amin Nabin know the facts that your sisters were taken by Delwar Hossain Saidee to the Pakistani Army’s camp in Pirojpur, they were raped over there and the again sent back to home by them?

Witness: I do not know that.

Defence: Do you know the ‘chola-muri’ seller Mostafa Hawlader of Parerhat?

Witness: Yes.

Defence: Did he know about that incident (of raping of your sisters)?

Witness: I do not know that. How do I know whether he knew about that or not?

Defence: Well, do you know Sultan Ahmed Hawlader who is also a witness in this case?

Witness: Yes, I know him. However, during the war in 1971 I was busy in hiding myself here and there. Thus, I cannot even remember whether I met him then or not.

Defence: Now, can you please confirm us whether he knew about the incident of raping and persecution?

Witness: I do not know that.

Defence: Do you know Mizanur Rahman Talukder?

Witness: Yes.

Defence: Do you used to know him before 1971?

Witness: Yes.

Defence: Did he know about that incident?

Witness: I do not know.

Defence: Do you know Mahtab Ali Hawlader?

Witness: Yes.

Defence: Do you know Manik Poshari s/o Shohid Uddin Poshari, Basu Deb Mistri & Jalil Sheikh from the village Chithulia?

Witness: Yes.

Defence: Did they know about that incident?

Witness: I do not know.

Hearing adjourned for lunch

Defence: Mr. Gourango, we will be checking some names… Do you know Altaf Hossain Hawlader?

Witness: I have known him for a long time.

Defence: Does he know anything about your conversion and the rape of your sisters?

Witness: Not that I know of.

Defence: We have discussed some names earlier. Mahbub Alam Hawlader and Manik Posari are known to you. Did they communicate with you before they file the case?

Witness: no.

Defence: Do you know the Investigation Officer Helaluddin?

Witness: He picked me from my shop to Razlaxmi High School to testify.

Defence: Who else were with you on the way to the school?

Witness: I cannot recall them now.

Defence: Was that a market day on that day?

Witness: Yes

Defence: What was the day? Was it Thursday or Sunday?

Witness: I don’t remember.

Defence: Is the house of Ruhul Amin is situated by the path leads to the school from the market place?

Witness: Yes.

Defence: Can you remember the date?

Witness: No. I cannot.

Defence: Can you remember about how many days ago you testified?

Witness: I think, I did that more than a year ago.

Defence: Where did you give your certification?
Witness: In a classroom of Razlaxmi High School.

Defence: Was that a school day?

Witness: I didn’t check that.

Defence: who else were there?

Witness: I didn’t know.

Defence: Was Mahbub Alam Howlader present?

Witness: I didn’t know.

Defence: do you know about the Mass court (gono-adalat) which started in 1992?

Witness: I do not remember.

Defence: Did you testify on that court?

Witness: I have only come to this tribunal to testify. Beside this one, I have never appeared in any sort of court to testify.

Defence: Did anyone from the Mass Enquiry Commission (which started its proceedings in 1994) ever question you? Like poet Sufia Kamal?

Witness: No.

Defence: In between 2001 and 2007, the district council of Pirozpur issued a public notice about the publication of a book on the liberation war. Do you know about that issue?

Witness: No.

Defence: Did anyone interview you on behalf of Pirozpur District Council about the book?

Witness: Nobody has ever come to me and I never talked about this anywhere else.

Defence: Was the accused only a tenant of a house situated in Parerhat? Did he move to his then house on July?

Witness: The house belongs to his brother in law. I can’t remember the month. I am clueless about the Gregorian calendar.

Defence: What is your educational background?

Witness: I have studied to class three.

Defence: In which school?

Witness: Pre-primary Model School.

Defence: Your all three sisters are younger than you?

Witness: Yes.

Defence: Have you heard about the arms robbery of Pirozpur treasury in 1971?

Witness: Yes.

Defence: When?

Witness: After a few days.

Defence: How many days?

Witness: Approximately about a month later.

Defence: Did the razakar and the peace committee members start torture and suppression just after they got formed?

Witness: Yes.

Defence: Was there any mugging before the occupied forces entered Parerhat?

Witness: Yes.

Defence: Whose houses were broken-into?

Witness: In market places.

Defence: Name them?

Witness: Our house, Bimol Saha’s house and many more.

Defence: Have you submitted any list of robbed items?

Witness: What list! They even took our broomsticks.

Defence: Were your sisters abducted from your home after three or four days after the Pakistani forces camped in Parerhat?

Witness: Approximately 10/15 days later.

Defence: Were you forced to convert to Islam; before or after the Pakistani army entered Parerhat?

Witness: Two months after they entered in the locality.

Defence: Can you recall the names of the Imam and the muajjin of the mosque where you forced to pray (the namaz)?

Witness: I don’t remember.

Defence: Did you later repent (Prayshchitta) for converting back to your previous religion?

Witness: Why should I repent? I had to convert to save my life.

Defence: Do you know Pir Yasin Mawlana of Charkhali? His khankah was situated in Parerhat?

Witness: Yes. I knew him.

Defence: Were you married in 1971?

Witness: I got married just after the liberation.

Defence: What was your occupation during the liberation war?

Witness: I was a shop-keeper. It is my ancestral profession.

Defence: What do you do now?

Witness: I am still a shopkeeper.

Defence: Do you have a shop? Or you do your trading on footpath?

Witness: I had a shop once but now I trade on the footpath.

Defence: Do you have any assistant?

Witness: No.

Defence: Do you keep your books by yourself?

Witness: Who else will?

Defence: How many offspring do you have?

Witness: Three daughters and a son.

Defence: What is your son?

Witness: Over the last ten years, he has been living in Chittagong and I do not know anything about his profession.

Defence: According to your testimony, the rest of your family took refuge in India during the liberation war. When did they go?

Witness: Some days after their forced conversion to Islam.

Defence: Do you know Laxmikant Poddar, the son of Atul Poddar from Parerhat market?

Witness: No.

Defence: In this case, any one of your sisters was married in 1971?

Witness: No.

Defence: I am talking about your sisters who reside in India now. Are they married now?

Witness: I don’t know their whereabouts.

Defence: Where are your parents?

Witness: Both of them are passed away. I got the information through telegram.

Defence: Who sent you the telegram?

Witness: My elder brother.

Defence: Who transported them to India?

Witness: Through Roizuddin Naiar (Boatman).

Defence: Do you have any other correspondence with them apart the death telegram?

Witness: No. I do not have any other news.

Defence: Was Roizuddin Posari (Naiar) in the trade of bidi (handmade cigarette )?

Witness: He was.

Defence: Many years after the liberation, one of your sisters were married to Laxmikant Poddar (son of Atul Poddar) in Parerhat market?

Witness: Certainly not.

Defence: Do you know Narayan Saha, Uttam Paal,Delwar Hossain Fakir from Parerhat?

Witness: Yes

Defence: You bought the goods you trade in loan from these three businessmen and didn’t pay them off?

Witness: No. My boat wrecked and later I was looted. I gave up my shop because of the loot I had to face in Chillahari.

Defence: You told us about Danesh Mollah and the accused name as the member of Razakar troops. Can you recall any one else from that troops?

Witness: No. I don’t know.

Defence: Do you know the names of the president, secretary or any other member of the peace committee?

Witness: I do not remember. I can recall one. His name was Razzaque and he was killed later.

Defence: Do you know Moslem Moulana?

Witness: Maybe I know him by face. I cannot remember his name.

Defence: You knew the accused how many years prior the liberation war?

Witness: More than a year.

Defence: Did he have any offspring on that time?

Witness: I don’t remember anything about his children.

Defence: What was the distance between your house and the accused rented house?

Witness: Not much. There were a few houses in the middle.

Defence: Can you recall the patriarchs of your common neighborhood?

Witness: The households were respectively, Bindu Babu’s ,Sadhu Charan’s, Keshto Saha’s and finally Mozahar Mollick’s.

Defence: Can you tell us when was the accused got married?

Witness: Two years prior the Liberation war.

Defence: What was his profession prior the liberation war?

Witness: He sold goods on the pavement.

Defence: What sort of goods?

Witness: Onions, Gerlics and other staffs.

Defence: Hence you keep your own books, did you became a voter?

Witness: Yes

Defence: Did you receive your national identification card?

Witness: Yes. I did.

Defence: They asked you a few questions about yourself on that time. Didn’t they?

Witness: I do not remember about the questioning.

Defence: You wrote your date of birth on that form as 8th July, 1963. Did you write that?

Witness: I may have wronged or they might put it wrong.

Defence: Have you applied for the correction of your national identification card?

Witness: No, I haven’t.

Defence: All three of your sisters were children during the liberation war. Were they not?

Witness: No. This is not true.

Defence: Is your home located in Zianagar Upazilla?

Witness: Yes, it is.

Defence: During the war, no women of Zianagar Upazilla got raped including your three sisters?

Witness: My three sisters were raped.

Defense counsel Adv. Ansari then took over the cross examination.

Adv. Ansari: Do you still live in the Parerhat Market?

Witness: Yes. I do.

Defence: Do you know Doctor Satindra Babu Alias Satish Babu?

Witness: Yes.

Defence: Do you know his two sons? Dr. Shubhash Chandra Roy and Dilip Kumar Roy Alias dulal who is a banker?

Witness: Yes.

Defence: Is the wife of Satish Babu still alive?

Witness: I do not know that.

Defence: Is Satish Babu’s house situated in Parerhaat Port?

Witness: Yes.

Defence: Do you know Majid Member (Majid Talukder) of Parerhaat Port?

Witness: Yes.

Defence: How old is he? Seventy?

Witness: Yes, Maybe.

Defence: Do you know Late Abdur Rahman Khalifa and his three sons (they are Mujtaba Khalifa, Muhsin Khalifa and Mahbub Khalifa)?

Witness: Yes.

Defence: Do you know Narayan Bhushon Shil who is a teacher of Razlaxmi School?

Witness: Yes.

Defence: Do you know Motiur Rahman Hawlader (son of Forman Ali Hawlader)?

Witness: Maybe I know him by face.

Defence: Do you know Badsha (son of Late Abdul Hamid Shikder)?

Witness: Yes.

Defence: Do you know Akhter Hossain Khan (son of Ataf Hossain Khan) of Badura?

Witness: No.

Defence: You testified to the Investigation Officer Helaluddin?

Witness: Yes.

Defence: You told him about the lootings?

Witness: Yes.

Defence: You testified that your family was forced to convert to Islam after your sisters came back from the camp?

Witness: It is not true.

Defence: You told the court that 100/150 Hindu were forced to convert. You named a few but you didn’t named them in your testimony such as Nitin Paul,Gourango Paul, Sunil Paul & Haran Bhowmik. Is it true?

Witness: It is not true.

Defence: Did you got a house in Parerhaat Asroyon Prokolpo? How many years ago?

Witness: Yes. Three years ago.

Defence: In 1971, the looting of your house by the accused and his troops and afterward the abduction of my three sisters by the razakars, followed by their in captivity planned by the accused and getting raped by the Pakistan army and finally sending them back to home after three days. It is not true, is it?

Witness: It is true.

Defence: What you said, ‘After the previous incidents, the accused forced us to convert into Islam. The accused made us to follow the customs of a Muslim (such as praying in a mosque, reciting qualima and others) ,taking refuge in India, changing your name to Abdul Gani and also converting other hundred and maybe more people and returning home after the liberation’ is not true?

Witness: It is true.

Defence: Pir Yasin Mawlana of Charkhali converted a lot of people in Parerhaat Market. Is it true?

Witness: It is not true.

Defence: You are harassing your money owners in the name of police and the ruling party to continue your debt schemes after becoming a witness of this case?

Witness: That is not true

Defence: You came to testify against the accused on the charge of putting your three sisters in the hand of the Pakistani army in order to achieve future benefits and present supports facilitated by the ruling party?

Witness: It is not true.

Defence: The accused was not present in Pirozpur before July, 1971?

Witness: He was present in Pirozpur.

16 Jan 2012: Thirteenth witness

2012-02-03T23:09:00.001+06:00

After the defence had made its application seeking a copy of the investigation report, the 13th witness in the trial of Delwar Hossain Sayedee was called to give evidence. (Also see this post about cross examination and about Alim's bail extension which also took place on the same day)

Prosecution: What is your name?

Witness: My name is Gauranga Chandra Shaha.

At this stage the Prosecutor made the Tribunal aware that 3 confidential names would be disclosed by way of the examination. He requested the Tribunal to make an order to the journalist present in the court not to mention the 3 names in the news. The Tribunal replied that if it had been informed earlier, they would have arranged a closed door trial on the ground of confidentiality of the victim. Now, after making such order, if anyone even makes news disclosing the same, they cannot do anything. The prosecutor argued it will be all right if the Tribunal makes an informal order to the press not to disclose those 3 names and the Tribunal went on to keep Prosecutors request.

Prosecution: How old are you?

Witness: I am 67 years old. I was 27 in 1971.

Prosecution: Can you please tell us what happened in 1971?

Witness: In 1971, Delwar Hossain Saidee went to our house with some rajakars. They looted our house and then he took away my 3 sisters. (he started weeping)

Prosecution: What are their names?

Witness: ********* eldest sister, ********** and ********** younger sister.

Prosecution: Where did they take away your sisters?

Witness: They took them to Pirojpur Pakistani army camp.

Prosecution: What happened then?

Witness: They raped my sisters forcefully there and then sent them back to our house after 3 days.

Prosecution: What happened then?

Witness: After some days my sisters came back, Delwar (Hossain) Saidee persecuted us and made us bound to read out Kalema (sacred verse) and to say prayers in the mosque.

Prosecution: What happened then?

Witness: Due to this, being ashamed, my father, mother, sisters and brothers left the country for India. Only I did not leave the country. (He started crying loudly and then he said) Almost 100-150 Hindus were persecuted to become Muslim then. I want justice for that my Lord.

Prosecution: Did he give you any (Islamic) name?

Witness: Yes, after persecution my name was Abdul Gani.

Prosecution: Did he give you anything to go the mosque?

Witness: Yes, he gave me tasbeeh and cap.

The defence counsel raised an objection on the ground that the former question was a ‘leading question’. However, Tribunal Chairman Justice Nassim rejected it.

Prosecution: So when did you go back to Gauranga Shaha again?

Witness: After the independence.

Prosecution: Anything else you want to say before this Tribunal?

Witness: No. Lots of things happened before 40 years ago. I could not remember them all.

Prosecution: Can you please confirm whether the accused Delwar Hossain Saidee is present here or not?

Witness: Yes, there is he. I know him very well. He used to live in a rented house near my house and his father-in-laws’ house was just other side of the canal.

Prosecution: I see. Now can you please name some of the Hindus who were persecuted to Muslim by Delwar Hossain Saidee?

Witness: Narayan Shaha, Nikhil Pal, Gauranga Pal, Sunil Pal, Haran Bhawmik...how many names I would say? Some of them went to India and some of them already died.

Prosecution: Have you told the same thing to the Investigating Officer of the case?

Witness: Yes.

Defence counsel Mizanul Islam objected that the Prosecution cannot ask such leading question. Tribunal Chairman Justice NIzam accepting the same decided that the prosecution that they cannot ask that question. The question was not included in the witness statement.

16 Jan 2012: Investigation report sought

2012-02-03T22:58:00.000+06:00

At the beginning of proceedings, the tribunal asked the prosecution whether it had submitted the formal charge against Ali Ahsan Muzahid’s, and they said that they had. The chairman then passed an order.

“In compliance of the order dated 28.12.2011, the prosecution has resubmitted the formal charge in the Office of the Register today. Let the formal charge be accepted. The Tribunal will pass order in relation to taking cognizance on this matter on 26.012012.”

Mr Munshi, lawyer acting for Abdul Qader Molla, asked about his application for a date to obtain privileged communcation with his client. Nassim stated that the order previously made by this Tribunal applies to any similar matter. The lawyer then asked whether he could meet his client for 5 minutes downstairs? The tribunal said that he could have more than five minutes.

Investigation report application
Then the application by the Defence lawyers seeking a copy of the investigation report relating to Abdul Qader Molla was taken up by the tribunal. (See subsequent post relating to the evidence given by witness number 13 and his examination chief which was given after this application)

In its written application, parts of which it read out to the tribunal, it stated:

3. That the Tribunal fixed 18.12.2011 for submitting petition of formal charge in relation to the Accused Petitioner and accordingly, the learned Prosecutor submitted the formal charge, the statements of witnesses, Investigation Report and other documents regarding Abdul Qader Mollah. Thereafter, the Tribunal fixed 28.12.2011as the date for passing an order as to cognizance of offences against the Accused Petitioner

4. That on 28.12.201, the Hon’ble Tribunal took cognizance of caseagainst the Accused-Petitioner after perusal of all documents submitted by the Prosecution, including the Investigation Report. The relevant portion of the order is quoted below for ready reference: “We have perused the formal charge, the statement of witness’s investigation report and other materials submitted therewith by the prosecution. We are of the view that Prima facie case under section 3(2) of the International Crime Tribunal Act, 1973 is available in the materials submitted by the prosecution. As such we take cognizance of the offence under section 3(2) of the International Crimes Tribunal Act against accused Abdul Kader Molla”

5. That Section 9(3) of the International Crimes Tribunal Act1973states as follows: “The Chief Prosecutor shall, at least three weeks before thecommencement of the trial, furnish to the Tribunal a list ofwitnesses intended to be produced along with the recordedstatement of such witnesses or copies thereof and copies ofdocuments which the prosecution intends to rely upon in support of such charges.”

6 That Rule 18 of the International Crimes Tribunal Rules of Procedure, 2010 provides as follows: “Upon receipt of report of investigation of offence(s), the Chief Prosecutor or any other Prosecutor authorized by him shall prepare a formalcharge in the form of a petition on the basis of the papers and documents and the evidences collected and submitted by the Investigation Officer and shall submit the same before the Tribunal.”

7. That section 16(2) of The International Crimes Tribunal Act1973 provides as follows: “A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial; and in case of any difficulty in furnishing copies of the documents, reasonable opportunity for inspection shall be given to the accused person in such manner as the Tribunal may decide.”

8. That Rules 11 and 15 of the International Crimes Tribunal Rules of Procedure, 2010 provide the definition of ‘formal charge’ and‘Investigation Report’ as follows: “(11). “formal charge” means accusation of crimes against the accused in the form of a petition lodged by the Prosecutor with the Tribunal on receipt of the Investigation Report; (15). “Investigation Report” refers to the report submitted by the Investigation Agency after completion of investigation in a case under the Act;”

9. That it is stated that by its Order dated 28.12.2011, the Hon’ble Tribunal directed the prosecution submit all documents within Sunday, 1st January 2012 in the office of the Registrar so that they may be supplied to the Accused Petitioner. The relevant portion of the order is quoted below for ready reference: “The prosecution is directed to submit the relevant documents within Sunday next, so that this can be served upon the accused by Monday, 02.01.2012 for preparing of defense. To 29.01.2012 for hearing charge matter”

The application then sets out the sequence of events relating to the attempts by the defence lawyers to collect document from the registrar and how they were unable to get a copy of the investigation report.

It then goes onto state that the learned defense counsel engaged by Saluadduin Quder Chowdhury had received the investigation reportfrom the office of Registrar, which was submitted by theInvestigation Agency. The application went onto say:

16. That the investigation report is a vital document which contains important information regarding the subject matter of the instant proceedings. It is necessary to go through the investigation report in order to understand the nature of the allegations against the Accused Petitioner. In the absence of the Investigation Report, it will be impossible for the Accused Petitioner to prepare his defence and he will be seriously prejudiced. As such, this Hon’ble Tribunal may be pleased to direct the Registrar to supply the Petitioner’s counsels with a copy of the Investigation Report

The application then deals with some international law arguments - that were not stated in court - as to why they should have access to the investigation document It then went onto state:

21. That it is stated that, the petition of formal charge containing theallegations of commission of crimes by the Accused Petitioner have been prepared and submitted on the basis of the Investigation Report.

22. That furthermore in its order dated 28.12.2011, Hon’ble Tribunal clearly referred to the Investigation Report upon which it placed reliance in order to take the cognizance against the accused –petitioner.

In his oral arguments Defence counsel Tazul also read out rules 29, 35, 37 & 38 of the International Crimes Tribunal Procedure & Rules 2010.

29. (1) The Tribunal shall take cognizance of an offence against any accused upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence submitted by a Prosecutor in support thereof, if they disclose a prima facie case for trial of the accused.

35. When the case is ready for trial, the Tribunal shall proceed to hear the case in accordance with the procedure of trial under section 10 of the Act on the basis of a charge to be framed considering the formal charge, Investigation Report together with the documents and materials produced and submitted in support of such report.

37. When the accused appears or is brought before the Tribunal, and if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused and record its reasons for so doing.

38. If, after consideration and hearing under rule 37, the Tribunal is of opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offences of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.

He then said that from the 4 rules I have just read out before your Lordship, it is clear that ‘investigation reports’ by the Chief Investigating Officer and/or other Investigating Officers is important in making the formal charge by the prosecution and in the taking cognizance by the Tribunal. He said that Section 9 (3) (see above) of the International Crimes Tribunal Act 1973 also show this.

He said that the Tribunal considered the ‘investigation report’ like other documents which were relied by the prosecution while preparing the formal charge, and it was considered by the Tribunal in taking congisance and framing the charge. Despite that, however, he said that the defence had received the said ‘investigation report’.

He then quoted section 16(2) of the Act and argued that meant that the defence was entitled to have a copy of the formal charge and other supporting documents relied on to prepare it. As the investigation report was considered by the both prosecution and the Tribunal members, we believe the investigation report is also a part of those supporting documents.

He said that since the accused petitioner has not got a copy he will suffer irreparable loss and there may be a miscarriage of justice.

He added that though he understood that the Code of Criminal Procedure 1898 (CrPC) is not applicable in a matter before this Tribunal, however, it is the common practice and right of the accused under it and other criminal laws of Bangladesh to get the ‘charge sheet’ by the Investigating Officer. 'Anyone can have a copy of the First Information Report (FIR) filed against an accused. We do not want the FIR, however, at least we should be allowed to have a copy of the investigation report. Otherwise, it is a bar to a fair trial.'

He added that if the investigation report was provided to us, there is no chance that the prosecution will be prejudiced as the formal charge is already prepared and produced before the Tribunal.

Prosecution response
Tribunal Chairman Justice Nassim then invited the prosecution to make their submission against defence submission.

Mohammed Ali then made the following submissions on behalf of the prosecution. He said that the defence counsel had misled his Lordship as the CrPC 1898 and ICT Act 1973 are not the same. Further, in the Memorandum of the Application, the defence has written ‘Prayer for supplying the Investigation Report’. However, they have not mentioned under which law they have made the application because they know very well that there is no law to provide the same.

He then said that although the defence counsel read out rule 29 of ICT Procedure & Rules 2010 before this Tribunal, it does not say anything about supplying investigation report to the accused.

He added that rule 35 of ICT Procedure & Rules 2010 before this Tribunal also does not provide room to require that the investigation report be given to the defence.

He said that although the defence read out rules 37 & 38 of ICT Procedure & Rules 2010 before this Tribunal and claimed that these rules supported his submission for supplying the investigation report, it was the prosecution’s submission that they are premature submission as both of the rules are related to the procedure ‘after framing of charge’. He added that there was no provision in either of the rules to provide investigation report to the accused/defence.

He also stated that nowhere in section 9 has it been written that investigation report to be supplied to the defence.

He also said that the defence counsel had mentioned the CrPC 1898 and the Evidence Act 1872. However, the trial is not being conducted under the CrPC 1898 or the Evidence Act 1872; both of the laws are excluded for this trial. And the trial is being conducted under ICT Act 1973 and ICT Procedure & Rules 2010 which is not the same as the CrPC 1898 or the Evidence Act 1872.

He then said that there is a lot of confidential information in the investigation report, so it cannot be provided to the defence to ensure the protection of the witness. ‘There is a Witness Protection law made by this Tribunal for protecting the interest of the witness. Even then the witnesses are getting threats from the accused/defence. However, still we are providing him the list of the witnesses and other documents we are relying on while preparing the formal charge,’ he said.

‘Further, at page 9 of the memorandum of the application, my learned friend has mentioned article 13 of the International Covenant on Civil and Political Rights 1966 (ICCPR) and at page 10 he has mentioned the Rome Statute and Human Rights Commission Report dated 13.04.1984. All of those contain the same provision i.e. an accused to be informed promptly and it has been done in this case. The accused has been informed 3 weeks before. However, nowhere in those instruments it has been written that the accused has to be provided the investigation report. Now, my submission is, the accused has no right to go through the Investigation Report anyway; the investigation report is the property of the prosecution,' he said.

Justice Zaheer: You have not addressed section 16(2) of the ICT Act 1973 which was mentioned by the defence counsel in his submission.

Prosecutor Haider Ali then got and argued in response to this question.

“Section 16 (2) of the ICT Act 1973 should be read alongside rules 18 & 29 of the ICT Procedure and Rules 2010. My learned friend has submitted that the Investigation Report is a part of the ‘document’ to be provided with the formal charge. However, as per rule 29 of the ICT Procedure and Rules 2010, it is not the same thing because it has been mentioned separately in that rule. Now the only issue is, if the investigation report is not provided to the defence, whether it is a bar to the fair trial. And my submission is there is no scope to go beyond rule 29 of the ICT Procedure and Rules 2010.”

Chairman Justice Nassim then asked the defence counsel Tazul to give reply to the above submission of defence. However, Mr. Tajul informed the Tribunal, that the defence counsel Mizanul Islam would reply.

He said that it was true that there is no provision in either in the ICT Act 1973 and ICT Proecdure and Rules 2010 to provide the investigation report to the accused. However, there is no prohibition even in this regard. Further, it is not written anywhere in the ICT Act 1973 and ICT Procedure and Rules 2010 that investigation report should be provided to your Lordship by the prosecution, however, they are providing the same to you as a ‘privileged communication’ between you and the prosecution. In the other criminal laws even in special criminal laws, documents includeing FIR, investigation report etc. are provided, then why not here? Furthermore, there might be lot of issues not dealt with in the ICT Act 1973 and ICT Procedure and Rules 2010 but the defence lawyers are still getting the same. For example, we are getting the certified copy of the witness statement everyday which is not in the ICT Procedure and Rules 2010. Therefore, my submission is- as it is not barred by the ICT Act 1973 and the ICT Procedure and Rules 2010, we can surely get it as it is being considered by the Tribunal and the Tribunal is relying on that until framing the charge.”

Justice Nassim: Mr Islam, can you please clarify, whether case diary (CD) can be considered by the Tribunal?

Defence: No, my Lord. The tribunal says that only the tribunal peruse the case diary; but it cannot be considered by you. But the investigation report is not specifically prohibited in the same say that the case diary is.

The prosecutor wanted to say something about the further submission by the defence. However, Justice Zaheer asked told him that before that he needs to be clear on one matter i.e. ‘what is the problem if the investigation report is provided to the defence?’ the Defence counsel Mizanul Islam then added, ‘in the matter of Delwar Hossain Saidee the Tribunal has framed charge on the basis of investigation report when one of the charges was not in the formal charge that had been made by the prosecution; thus, the investigation report should be provided to them’.

The prosecution replied to the judges in the following way “My Lord, if the investigation report is provided to the defence, the problem arises under rule 14 of the ICT Procedure and Rules 2010 on the ground of confidentiality of information and the protection of witnesses and victims. The ongoing situation of the country is very bad. The updates of the hearing are coming on the newspaper regularly. Some of the witnesses have already been threatened. We cannot allow the accused to go to the witnesses’ house and let them down for being witness in this case.”

Defence counsel Tazul then told the tribunal that, “In that case, it can be provided to us omitting the names and addresses and other confidential matters. We do not have any problem with that”

Chairman Justice Nassim then said that they would give the order on this matter on Sunday (22.01.2012).