Sayedee trial analysis: Safe house register

Delwar Hossain Sayedee at the tribunal

This fourth analytical article considers what is perhaps the most significant issue that has come before the tribunal involving the trial of Delwar Hossain Sayedee.

First analysis: limiting defense witness numbers

Second analysis: defense witness summons refusal

Third analysis: prosecution witness statement admission 

It concerns the defense's application to review the 29 March 2012 order which allowed 15 unsigned statements to be admitted as evidence against Delwar Hossain Sayedee

An analysis of the 29 March order was dealt with in a separate post. There I concluded that though there were reasons to question the Tribunal's decision to admit the statements, it was arguably reasonable within the tribunal's broad discretion. The lack of reasoning in the order was however of concern, as well as the court's failure to provide the defense a copy of an investigation report upon which the tribunal based its decision.

However, the application filed for the review of this order opened up a whole new can of worms, raising very significant issues concerning the very integrity of the investigation and prosecution process.

The tribunal has so far failed to engage with the issues of integrity raised by this. In addition it passed orders that failed to assist the defense lawyers in proving the authenticity of documents that it had ruled the defense should prove

This is what happened.

15 witness statement order: On 29 March 2012 the tribunal passed an order which allowed 15 unsigned statements to be admitted as evidence without the relevant witnesses being brought to court. This order was given on the basis of prosecution arguments that the witnesses were either missing or were in hiding due to threats from armed men on the side of the accused.

Safe house registers: On 10 April 2012, the Amar Desh newspaper, a pro-BNP publication wrote an article alleging that three registers concerning the safe house (the place where prosecution witnesses stayed in Dhaka prior to attending court as a witness) showed that some of the witnesses whom the prosecution said were not available to give evidence (missing or threatened) and whose statement the tribunal had agreed to admit on the basis of the prosecution assertions, had in fact stayed at the safe house in Dhaka at the time when the court was hearing testimony.

As part of their application filed by the defense to 'review' the 29 March order, the defense lawyers initially appended the Amar Desh article and then subsequently on 3 June filed a copy of the actual registers with the court as part of their review application.

The defense lawyers appear to have received the register from the Amar Desh journalist, Oliullah Noman. This journalist has not revealed how he obtained these registers - and it is of course possible that Noman actually received the registers from the defense lawyers (though the defense lawyers deny this).

The registrars are very detailed daily records providing information not just on every entry and every exit of every person from the tribunal, but also administrative details about the house (including the names of all the police offices involved in dealing with the safe house, their mobile numbers, badge numbers, what was purchased etc).

The defense lawyers argued in court that the witnesses whom the register shows had come to Dhaka from Pirojpur, did not wish to give evidence to the tribunal, as they did not want to lie for the prosecution. The register however provides no actual evidence that this was the particular reason behind their non-attendance.

What the registers show: What the registrars do however show is that out of the 15 witnesses whose statements the tribunal agreed could be admitted as evidence without them having to be brought to court, seven had come to Dhaka and were available to give evidence during the period when the tribunal was taking testimony, and either they did not want to give evidence or the prosecution did not in the end for them to give evidence.

In two of the cases, the witnesses were actually brought to the tribunal itself and sat in the prosecution rooms but were not brought to court.

Specifically the registrar shows that, in date order:

- Abdul Latif Howlader was in the safe house between 31 December 2011 and 5th January 2012. During this period the register states that he was taken to the Tribunal consecutively on 2nd, 3rd and 4th January - but was never produced before the court. The register goes onto state that on 5th January along with five other people he went back to his home. 'At 6.30 am [they] started their journey for their house,' it states.  

- Shohidul Islam Khan Selim stayed in the Safe House from 10th to 12th January and was taken to the prosecution room in Tribunal on the 11 and 12 January.

- three witnesses Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mondol were present in the safe house between 31st January and 16th March 2012. On the 16 March the register states that these witnesses at 6.20 am 'started their journey for their own house.’ However on 2 February the prosecution had told the tribunal that these three witnesses had left the house to go to a relative's and had never came back. In their application to admit their statement, the prosecution added that these three people had secretly gone to India 

- Anil Chondro Mondol stayed in the Safe House from 12th to 16th January 2012. 

- Ajit Kumar stayed at the safe house on 10 February and stayed until 13th February.

(I have checked the registers, with the help of an independent translator, and this is exactly what they show)

Defence review application: The defense lawyers first of all made their arguments on 22 May (here and here) on the basis of the Amar Desh article.  [Note: On that same day the defense also showed video broadcast on Diganto and Islamic television in which four other witnesses, also amongst the 15 whose statements were admitted, denied Sayedee's involvement in offenses. This post does not deal with this relevance of the video evidence].

Prosecution response: On the next day, the prosecution responded and said that the information concerning the presence of these witnesses was 'false information'. The tribunal however asked the prosecutor to provide a written response.

In the written response, that came before the court on 3 June, the prosecution denied that such a register was ever kept, and that all the information in the Amar Desh article was false

Defence response: On 3 June in its response to this, the defense then filed a copy of the Attendance Registrar, General Diary Book and the Food Book of the Witness Safe House. The defense lawyer said that that the documents were now in the public domain having been put on the internet.

In camera proceedings: In response to seeing the documents, the tribunal passed the following order:

Upon the perusal of the reply we direct the person-in –charge of the safe house where the prosecution Witness are kept, and all others persons of the safe house to be produced before the Tribunal on 7 June 2012. The investigation officer is directed to inform and bring them to the Tribunal.

On 7 June the safe house officers came to court and were questioned by the tribunal 'in camera' (i.e not in public). It is not known what was stated.

Defence 'prove' authentication: The matter then continued on 11 June. Here the defense went through the registers in detail, and showed how the comings and going of the witnesses to the safe house, as noted down in the registers, matched exactly the attendance of the witnesses in court.

As part of trying to prove the authenticity of the registers, the defense pointed to a number of entries in the registers that the defense could, they say, never have known about. This included:

- An entry numbered 175 on the page dealing with 12 January 2012 which stated that 'S.I. Kalachan has left the safe house to go to the CMM Court Number-31 Dhaka to give a statement on the case of Chawkbazar Police Station containing case no- 41(03)10 GR Case- 102/10 in Metropolitan Magistrate Court No. 31, Dhaka.' The defense said that there was no way the defense could have known about this information and then produced the court documents to prove that in fact the police officer had indeed gone to the court as the register stated. 

- An entry numbered 75 dated 06 February 2012 and Entry No. 175 dated 23 February 2012 which indicated that payment of telephone bills of the Safe Houses telephone numbers 7547810, 7547807 and 7547804 to BTCL needed payment. The November 2011 bill for those three numbers was stated for each of these numbers as 4912 taka, 4114 taka and 4168 taka. It was then written in the register that, 'The bill has been sent to the ICT Head Office.' A further entry numbered 374 stated that the bill had been paid. The defense then showed the tribunal copies of these paid bills; 

- the mobile phone telephone numbers of all the police officers in the safe house;

- an entry numbered 59 dated 22 October 2011 which set out what furniture etc was purchased for the safe house. 

- Entries numbered 115, 116 and 117 on the page dealing with 9 December 2011 which stated that someone had called Mr. Mahabubul Alam Hawladar and threatened him. The note states that: ‘I the In Charge of Safe House, hereby note it down that I have called the Operation Officer Majharul Islam of Jatrabari Police Station to take necessary steps about the GD Entry No- 490, 491, 492, 516 and 534 dated- 08-12-2011 about the threats of the witness of the safe house over telephone. I hereby record the matter for the future reference. Majharul Islam has made a GD Entry No- 516, dated- 9-12-1011 about the above matter.’ Again the defense stated that it could never have known this detail of what happened.

The defense lawyer argued that these registers showed that the investigation officer had committed fraud upon the court and had perverted the course of justice as he failed to inform the court that these witnesses had been present at the safe house.

Prosecution 'concoction' allegation: In the afternoon of 11 June, the prosecution responded by saying that there was no need for the kind of establishment like the safe house to have a register and that it in fact it never had such a register. 'These documents never existed,' the prosecution said. 'These registers are concocted by some one who is expert in doing this. This is like fake currency. General people may not be able to identify it. But it is fake.' He went on:

'And my lord, a document which has been given by the defence these are nothing but fraudulently prepared. They have created these registers within this one month time for filing this review petition. there was fraud – by you have to determine who have committed fraud. The defence prayer for discharge shows that these documents were concocted to substantiate this argument.

Tribunal ruling: Over a month later, on 12 July, the tribunal passed an order on the review application. In relation to these registers, the order stated:

The defence has produced photocopies of documents allegedly of witness safe house, witness and guests register, general dairy book and the food book and annexed as annexure A, B and c respectively. It has not been stated how they have collected these documents when the very existence of those documents are challenged by the prosecution and on that challenged in a camera proceedings in presence of two counsel from the defence and two prosecutors we have examined the persons in charge of the witness safe house and they also denied the existence of the documents. Moreover when the prosecution has denied the existence of the documents, the defence is to prove the same, as they had produced the alleged photocopies of the same. ... 

The defence has not stated from where they have got this photocopies but it appears that in the news report dated 12.04.2012 the materials have been stated. Now defence is to disclose from where they have collected the said photocopies in order to get any benefit out of those documents. However in disposing of this review application we do not want to go further into the question of genuineness of those documents and leave it to the parties to do the needful. We are of the view that on the finding of the genuineness of the claims of the parties, we can finally decide on evidence whether the witness statements received in evidence shall be considered by us or not. But if we get on evidence that either of the party or somebody belonging of them, is responsible for misleading the Tribunal or for forgery then proper action will be taken against the responsible persons for misleading this Tribunal or for committing forgery.

Subsequent applications: On 19 July, the tribunal heard a number of applications relating to this order:
- application that action should be taken against the investigation officer for lyng to the tribunal, and the accused discharged. It was alleged that he had 'perverted the course of justice and wilfully misled the Hon’ble Tribunal when submitting that the remaining 46 Prosecution witnesses were not available when in fact they were in the Prosecution’s custody at the time.' This was rejected by the Tribunal as the issues will be considered 'after taking the evidence'
- application that the exhibit numbers of the 15 witness statements should be removed. This was rejected.

Defense authentication issues: The nub of the 12 July tribunal order rejecting the review application was that the defense had to provide further proof of the genuineness of the registers.

On 19 July, the defense sought an order from the tribunal requiring details of the phone and badge numbers of the relevant officers of the safe house to show that they matched those in the register. It also asked for relevant records of police documents relating to a series of notes contained in the register. It stated:

'That it is stated that the General Diary Book of the Witness Safe House (Annexure B to the Reply) is an hourly record of the Witness Safe House which is maintained under Regulation 377 of the Police Regulation of Bengal (PRB).It contains detail information, including mobile phone numbers and the badge numbers, about the Police Constables and the Officers who were in charge of the Witness Safe House, a list of which is given in Schedule X of this Application. It is submitted that no one other than the concerned Police Constables and the Officers of the Witness Safe House are in a position to know these information. Moreover the General Diary Book (Annexure B to the Reply) also contains diary notes containing information regarding the Witness Safe House which an outsider is not in a position to know. A list of these diary notes have been given in Schedule – Y of this Application. Since the Prosecution has challenged authenticity of Annexure A, B, and C of the Reply, it is now very important to call for the records of the relevant Police Constables and Officers (Schedule – X) and the Office records regarding authenticity of the diary notes (Schedule – Y) to cross check the same with information contained in Annexure A, B, and C of the Reply.' 

The tribunal rejected the application saying that it was the responsibility of the defence to prove the registers.

Ten days later, on 22nd July 2012 the defense filed another application seeking an order by the tribunal to summons the safe custody house police officers. This was heard on 29 July and the tribunal ordered it to be kept on the record. On 8 October, the defense then filed another application - on the basis that the first one was rejected - with the same request. It argued:

'It is further submitted that the persons named in Schedule X are relevant witnesses without whose testimoney the contents of the three registers of the Safe House cannot be proved. They are necessary witnesses who have direct knowledge of the contents of those registers. It is also submitted that without calling those persons as witnessess it will be simply impossible for the Accused-Petitioner to prove the contents of the three registers of the Safe House because they acted as Inspector, Sub-inspectors, constables and perform other duties in the Safe House, as listed in Schedule X of this Application.'

On the following day the tribunal rejected the application, saying that the defense can bring to court as witnesses whoever they wished but the tribunal would not summons then. The tribunal also said that any of those safe custody house witnesses that they did bring had to come within the 20 witness limitation that the tribunal had earlier imposed. The tribunal also suggested that if the defense wanted to bring any police officer from the safe custody house, the permission of the prosecution would be required, as they are technically part of the investigation agency. [The issue of the tribunal refusing to issue summonses for defense witnesses, is discussed here]

On 10 October, the tribunal rejected an application for an adjournment to allow the defense try and bring one or more safe custody house witness to the tribunal. This was not allowed.

On 16 October, the tribunal ruled that the registers could only be admitted as evidence through the journalist who obtained the documents and that he must come as a witness to the court for these documents to be admitted

On 31 October, the defense lawyers filed an application asking that the journalist Oliullah Noman who initially broke the story about the registers be allowed to come to court. An application of this kind had to be made as the tribunal had close the defense case on 23 October (against the wishes of the defense team)

1. That it is stated that the defence has already called 17 DWs out of the 20 DWs limited by the Tribunal. On 15-10-2012 and 16-10-2012 the Hon’ble Tribunal did not allow DW 13 to exhibit (1) PWs’ Attendance Registrar (2) General Diary Book and (3) Food Book maintained in the Safe House from 18.10.2011 to 30.03.2012 (jointly referred to as ‘Safe House documents’) in the 11th Volume of the Defence Document submitted as Annexure A, B and C of the ‘Reply to the Prosecution’s Written Objection on the Application for Review of the Accused-Petitioner against the order under Section 19 (2) IC(T)A’ filed on 3rd June 2012.

2. It is stated that the Tribunal observed on 16.10.2012 that the person from whom DW 13 collected the Safe House documents could only exhibit these documents. It is stated that DW 13 has collected the Safe House Documents from Mr. Oliullah Noman of the Daily Amar Desh.

3. That it is staed that Mr. Oliullah Noman has agreed to give evidence before the Tribunal to exhibit the Safe House documents.

On the 5 November, this application was rejected, and as far as I know, no reasons were given.

Comment
1. On the issue of authenticity of the registrars, it is very difficult to see howt the documents provided to the court are copies of original registers that were filled in by the safe custody house officers. Having seen the documents myself, the details contained in them, it would appear impossible for these documents to have been forged as suggested by the prosecution. It is also clear that there is detailed information within the documents that could only have been written by safe custody officers. The defense allegation of 'concoction' simply is not sustainable - they did not bring any alternative register, and their claim that this safe house had no register is unsustainable.

2. Without making any comment right now on adequacy of the evidence against Sayedee for the substantive offenses of genocide and crimes against humanity, I would suggest that there is far greater evidence to prove that these registers are authentic than any evidence that has been heard that Sayedee has committed an offence of crimes against humanity/genocide. So if the tribunal were  to decide that Sayedee is guilty of one or more of the 1971 offenses, it would be difficult to see how they could not, at the same time, accept that the registers were authentic.

3. It is notable that the tribunal's orders have not made any evaluation of the authenticity of the registers, and in particular did not respond at all to the various points that the defense used to show the authenticity of the registers.

4. On the assumption that these are true documents, it means that there has been, as the defense has in fact alleged, serious deceit on the part of investigators and prosecutors. This would involve:
-  failure of the investigation officer to inform the court that these witness had in fact stayed at the safe house, and therefore had been in a position to give testimony at the tribunal. Had the investigation officer informed the court of this, the tribunal would unlikely to have had the basis for admitting as evidence the 15 witnesses.
- the investigation officer's reports to the tribunal would therefore have been dishonest documents;
- the cover up. The prosecutor did not simply state that these 'registers'  are forgeries but also that the safe house did not have any registers at all. Is it possible to imagine that any so called safe house, would have no record of any kind concerning the entrance and exit of people from it or that it had no administrative documents concerning the way it functioned? If so, what kind of safe house was this, one must ask. This is however what the prosecutor is suggesting by saying that there are no registers - and he has not submitted any other documents relating to the administration of the safe house. One can only speculate why he might have said this; though it should be noted that had he not said there was no registers at the safe house, then he would have had to have brought the actual registers, and since the defense provide registers are the actual registers he would not have been able to do so.
- what the head of the investigation agency and the safe house officers told the tribunal in camera. Whilst it is not known what happened there, it can be assumed that the safe house officers did not state clearly that defence-provided register was a copy of the actual register which they had been involved in filling it up. Since some of these officer's handwriting and signatures are contained in the register, this raises an issue about what they stated to the tribunal. The head of the investigation agency told me on that day that the 'safe-house had no register' and one imagines that is what he told the tribunal.

5. The tribunal's order of 12 July states that the defense must prove the veracity of these registers. This they tried to do by asking the tribunal to issue an order providing them information relating to police safe house officer's mobile numbers and badge numbers (so they could see if they matched with the information in the register) and also documents concerning particular notes made by police officers in the registers, so that they could verify them to be true. This application was rejected

Then the defense asked for the safe house police officers to be summonsed by the tribunal. Again this was refused. Not only that,  the tribunal said that any safe house witness that the tribunal brought had to be within the number of 20 witnesses that the tribunal had allowed the defense to bring to court.

It is difficult to understand why the tribunal would not have wanted to assist the defense in coming to a proper understanding of these registers.

The effect of these decisions was to preclude the possibility of the defense being able to further 'prove' (though as I said they had surely already been proven to be genuine copies) the authenticity of the documents. It would appear that the tribunal had no independent interest in whether these registers were authentic or not.

6. The decision by the tribunal not to allow the Amar Desh journalist to come to the court is difficult to explain. Throughout discussion of the issue of the registers the tribunal has raised concerns about where the registers had come from. And here was a chance for the person who initially had obtained the registers to come and give evidence. Moreover, the tribunal had specifically mentioned that this witness should come to the tribunal to allow admission of the registers as evidence.

As of now, as far as I understand the tribunal has not admitted the safe house registers copies as evidence

7. I have asked a number of independent international lawyers about the significance of all this - and they suggest that this level of alleged chicanery on the part of the investigation/prosecution team would have raised, in most courts around the world, serious questions about the integrity of the whole trial process.

Sayedee trial analysis: prosecution statement admission

This third analysis of the Sayedee trial looks at the decision made by the tribunal on 29 March 2012 to admit as evidence 15 unsigned written statements written by the investigation officer.

There are some concerns about this court order (set out at the end of this note). But this tribunal order is considered here not so much because it raises significant concerns in itself (since the tribunal did accept that it would be cautious in dealing with these statements considering they were unsigned and the witnesses could not be cross examined) but it provides the context of a subsequent analysis which looks at issues raised when this decision was subject to a review application. It is how the tribunal dealt with the review application which raises issues of a more serious nature.

First analysis: limiting defense witness numbers

Second analysis: defense witness summons refusal

Background
The prosecution started calling its first witness in December 2011, and by the end of March had called 20 witnesses of fact, about 7 'seizure list' witnesses. On 18 March, the prosecution announced its intention to call the investigation officer. At that hearing the tribunal warned the prosecution that if they called the investigation officer then they could not call any other witness. A few days latter the prosecution filed with the court an application seeking the admission of the statements of 46 witnesses.

Prosecution application
On 27 March 2012, the prosecution argued before the tribunal that the statements of 46 witnesses which had been prepared by the investigation officer should be admitted as evidence. Section 19(2) of the Act states:

“A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable”.

In the application the prosecution listed one witnesses as 'Sick, Lost memory, Death risk in traveling'; 1 as  'Missing for about last 4 months after he went out of his house'; 3 as  'Missing from the first week of February 2012 and secretly gone to India'; 14 as having been threatened by an 'armed terrorist group in Piropur and since they are in fear, they cannot be found;' and the remaining 26 as 'not witnesses of facts. But their statements recorded by the Investigation Officer are important for the case'. The application went onto say:

'The attendance of the said witnesses cannot be procured without an amount of delay and expense and it is not at all possible to bring those witnesses and for that reason it is not logical to try such a thing. ... If the statements of the above witnesses recorded by the Investigation Officer are not admitted as evidence the fair trial will be hampered and the Prosecution will suffer loss ... .'

The application pointed to an investigation report upon which the prosecutor was relying. When the prosecution sought a copy, the tribunal refused to give it saying that the defense have no right to be provided it.

In oral arguments, the prosecutor, Haider Ali made the following further points:

- Sukho Ronjon Bali is not at home. His wife and daughter informed the investigation officer that one day he went to Parerhat Bazar and did not come back. They have video statement of his wife and daughter; Usha Rani Malakar is suffering from old age complications; Asish Kumar and Sumoti Rani, went to India; Suresh Chandra Mondol is at home but threatened by local terrorists; Gonesh is at home but threatened by local terrorists; Ayub Ali - is physically sick. He is also at home but threatened by local terrorists.
- witnesses 6 to 19 in his application were being threatened by armed terrorists in the locality who are known as Shamim; Parvez; and Almas Khan and others
- a report in the newspaper Kalor kantha on 23 March stated that witnesses were being scared away from giving evidence. It said that supporters of Sayedee were publishing rumors that those who are giving testimony against Sayedee are 'falling at the anger of God'. It mentioned that one of the prosecution witnesses Basudev Mistri, prosecution witness no. 10 died from a heart attack, and one police officer died whilst in the process of obtaining witnesses against Sayedee to the tribunal and for this reason local witnesses are frightened. The article alleged that one of the defense witnesses Mr. Mokarrom Hossen Kabir preached such propaganda among the people.
- when asked by the tribunal whether there was 'any value of this type of witness if they are not cross-examined', the prosecutor argued the evidence would be considered as weak evidence.
- when asked about Asish Kumar, Somor Mistri, Usah Rani Malakar whom the prosecution said had been in the investigation officer's custody, the prosecutor said that they left the safe house saying that they were going to visit their relatives but later on they did not come back.

Defence response 
On the following day, 28 March, the defense responded. In their written response they argued that:

It is not correct that the Investigation Officer has recorded statements of the said 46 PWs. In fact the copies of the statements that were served in the names of the PWs are prepared and concocted by the Investigation Officer. The PWs are not ready to support the statements that were served earlier in their names and they are not ready to give false evidence against the Accused and this is why the prosecution is unable to bring those PWs. This was reported on 24th March 2012 in The Daily Sangram, on 25th March 2012 in the Daily Amar Desh and on 27th March 2012 in the Daily Naya Diganta. [NOTE: Daily Sangram and Daily Naya Diganta are pro-Jamaat papers; and Daily Amar Desh is a pro-BNP newspaper]

Not fit section 19(2) criteria: They then argued that the reasons given by the prosecution do not fit into the criteria of section 19(2):

In relation to the Usha Rani Malaker who is said to have lost her memory, the defense argued that: 

'the prosecution failed to produce any supporting document to show that this witness has lost her memory. Moreover there is no evidence as to whether Usha Rani Malakar’s alleged a statement was recorded before or after her mental disorder. It may be noted that a statement made by person with mental disorder does not have any value in the eye of law.' 

In relation to Sukharanjan Bali, the defense stated that:

 'the prosecution failed to produce a single evidence/document to support this claim. If this person was really missing for such a long time then his family members would have filed a general diariy in the local police station reporting the news of his missing. On 27th March 2012 the Daily Naya Diganta reported that this witness is not ready to give any false evidence as concocted by the Investigation Officer in his name. Perhaps, due to this reason the Prosecution cannot bring this person to the tribunal as they cannot rely upon this witness.'

In relation to Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri, the prosecution claimed that they were never missing. 

'It may be recalled that in the January 2012 these witnesses were brought to Dhaka in the secret witness hostel and kept there for more than one month in the said hostel. At one stage the prosecution filed Haziras (Appearance) for these three witnesses. On 2nd of February the prosecution informed the tribunal that these witnesses left witness hostel on the previous day in the name of visiting their families and did not return back. On 27th March 20012 the Daily Naya Diganta reported giving reference to the close relatives of these three persons that in fact these witnesses were in the custody of the Investigation Officer for about 30 to 45 days. It is reported that they were tortured but they denied to give false evidence against the Accused. This is why they were not brought to the tribunal.'

In relation to the 14 witnesses alleged to be in fear of coming to the tribunal, the defense lawyers stated:

'This allegation is already denied as being incorrect, fabricated and false. The prosecution fails to substantiate these allegations and there is no factual basis. It is submitted that the prosecution failed to produce a single evidence/document to support this claim. In fact the Accused has no armed or unarmed terrorist supporter who may have threatened the said PWs. It is not at all possible since the local administration has kept a very sharp eye on the PWs. ... It may be recalled that at the time of hearing of the Application on 27th March 2012 the prosecution submitted a report of the concern Police station (copy of which is not given to the Defence) to show that the witnesses in serial nos. 6 to 19 of the table are missing. But at that time the Prosecution admitted that the report did not contain names of Gopal Krishno Mondol (Sl 10), Bozlur Rahman (Sl 11), Khalilur Rahman Sheikh (Sl 18) and Eshak Ali Khan (Sl 19).

In relation to other 26 witnesses, the defence stated:

'The prosecution failed to provide any reason as to why they are unable to bring them in Tribunal for giving evidence in the instant case. Even the prosecution does not claim that these witnesses are unable to come. It is to be noted that most of these witnesses are well known in the society and some of them regularly address print and electronic Medias of the country. They are very much available.'The defense stated that 'section 19(2) of IC(T)A is applicable only for the statements of a person who is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal consider unreasonable. It may be noted that this does section does not apply for persons who are alleged to have been missing.'

Statements not taken by investigation officer: The defense application then argued that the statements taken are not in fact statements taken by the investigation officer, but are prepared and concocted by the Investigation Officer. There is no proof, they argued, that the 46 witnesses gave any statement to the Investigation Officer at the time of investigation. In support of this claim, the defense stated:

- 'some of the prosecution witnesses who have already given oral evidence before this tribunal did not admit giving evidence to the Investigation Officer at the time of investigation despite the fact that Prosecution has served witness statements in their names claiming them to have been recorded by the Investigation Officer at the time of Investigation. For instance the Complainant, PW 1, Mr. Mahbub Alam Talukder in his cross examination admitted that between the date of filing of the case on 20th July 2012 and giving evidence in tribunal on 7.12.2012 he did not make any statement to anyone. .... Moreover the PW 2, Mr. Ruhul Amin Nobin in his cross examination stated that he as discussion with the Investigation Officer about this case on March 2010 i.e. before comencement of the investigation. But he did not admit giving statement to Investigation Officer after commencement of the inestigation. It is to be noted that the Proseuction has filed statements of these two witnesses alleging them to be recorded by the Investigation Officer during investigation. But from the above statements it is clear that Investigation Officer did not have any opportunity to record the statements of these two witnesses.'

- 'Most of the material PWs who have already given evidence before the tribunal has contradicted their statement made to the Investigation Officer. ... For instance PW 24, Mr. Hosen Ali in his oral evidence before the Tribunal stated that he saw the Accused in the residence of Rawshan Ali in Bagharpara. He stated that he could not remember whether it was before or after the liberation war. This PW did not make any further statement about the case in the Tribunal. But it is to be noted that Investigation Officer prepared a very long statement in the name of this witnesses, which was served upon the defence. There is no similarity in the statement made by this PW in Court and in the statement alleged to have been recorded by the Investigation Officer.

Statements 'copy and paste': As part of proving their claim that the investigation officer made up the statements, they pointed to some of the statements being exactly the same as each other. 'Sometimes it is merely a copy and paste work by the Investigation Officer.' They pointed to the similarities between the statements of

- Sayef Hafizur Rahman (who had already deposed) and that of his younger Sister, Ms. Afroza Parveen; 

- Asish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri;

- Md. Solaiman Hossen and of Hossen Ali, both of whom had already given statements; 

- Khondokar Sohidullah and Julfikar Ali; 

- Md. Mostafa, Rani Begum and Setara Begum.

Securing attendance of the witnesses not ‘unreasonable’: the defense argued that the Prosecution 'has failed to factually establish that an unreasonable amount of delay of expense would be incurred in securing the attendance of the remaining 46 Prosecution Witnesses.' The defense further argued that the Prosecution has failed to 'establish measures taken to secure the attendance of witnesses or proof of expenses incurred or potentially incurred in securing the attendance of such witnesses.'  They also said that in light of the amendments to the Rules of Procedure allowing special protective measures to be implemented, the Prosecution cannot prejudice the Accused if they fail to give protection to the PWs.

Section 161 of the Criminal Procedure Code: The defense argued that was well settled principle of Bangladesh law that the statements recorded by an investigation officer have got no evidential value in the eye of law and that they can only be used to show contradiction of a witness statement made in court. 'Moreover there is no valid reason why a statement alleged to have been recorded by the Investigation Officer should be believed, particularly when there is no proof that the Investigation Officer has actually recorded those statements. This has never been practiced in our legal system.' [NB: CrPC is excluded from the operation of this tribunal]

Prosecution response

The prosecutor responded by showing that the prosecution cannot afford unreasonable delay; that if the tribunal would like them to find the missing witnesses who went to India they would need to scan 150 crores people in India. This is not realistic, he said. 

He said that statement made to the investigation officer was reduced into writing as the investigation officer deemed fit.

Tribunal order

On the following day the Tribunal passed its order. The relevant extract of the decision is set out below:

We have considered the statements made in the petition and also made in the written objection. Rule 19(2) of the Act runs as follows: ‘A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.’ The statements made in the petition supported by the annexures with the petition and the submissions made by the prosecutor in this respect we are satisfied that the prosecution has been successful in making out a case that some of the mentioned witnesses cannot be procured without an amount of delay of expense. In this regard we are of the view that regarding witnesses Usharani Malaker, Sukhraranian Bali, Ashish Kumar Mondal, Sumati Rani Mndal, Somar Mistri, Suresh Chandra Mondal, Ganesh Chadraa Saha, Shahidul Islam Khan Selim, Md Ayub Ali Howlader, Sitara Begum, Rani Begurn, Md Mostafa, Abdul Latif Howlader, Anil Chandra Mondal and Ajit Kurnar Shil, the 15 witnesses, the prosecution has successfully satisfied the requirement of section 19(2) of the Act and regarding those witnesses, we pass the order to receive the statements made by them for the investigation officer in evidence. As regards the prayer for other witnesses, as we are not satisfied, the prayer is rejected. We are cautious about the matter that these witnesses are not being brought and produced before the Tribunal and cross-examined by the defence and no oath is there for consideration of them as evidence. The law will take its own course. These statements will be treated in evidence considering all these aspects. Accordingly the application is allowed in part. After the order was passed Mr. Syed Haider Ali, learned prosecutor informed us that they will produce only investigation officer for recording evidence and no more witness. (emphasis added)

Comment

(This comment is made on the basis of information that was made at the time the tribunal order was made - not in the context of subsequent revelations which are dealt with in the fourth analysis, to be posted shortly.)

It is important to note that the tribunal admitted 15 statements with a 'caveat - specifically stating that it was 'cautious about the matter that these witnesses are not being brought and produced before the Tribunal and cross-examined by the defence and no oath is there for consideration of them as evidence. The law will take its own course. These statements will be treated in evidence considering all these aspects.' This is a significant concession, though we will have to wait until the judgment of the court to see what level of caution the tribunal gave to them.

There may well be criticisms that can be made of this ruling - and the defense certainly have them - but it's basic ruling that the statements are admissible arguably falls within the discretion permitted of a judge in this tribunal. 

However, the concern about this order is the lack of reasons for its decision. 

It states the requirements of section 19(2) have been satisfied, but it does not explain why it is of the view - particularly in light of the defense arguments. The order mentions some of the defense arguments, but it does not respond to them in any way at all. 

With such an important decision as this one - the admission of unsigned statements where the defense have raised some apparently legitimate concerns about their bona fides - one would hope that the tribunal would set out clearly in relation to each of the 15 statements why it was its view that their 'attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.'

However they were entirely absent. A lack of reasoning does provide an opportunity for parties to question the integrity of the decision making process.

Another concern is the decision by the tribunal against allowing the defense to see a copy of the investigation reports submitted of the investigation officer upon which the tribunal based its decision. How can the defense respond if they are not provided a copy of the report - it is a pretty basic issue. 

Sayedee trial analysis: witness summons refusal

Delwar Hossain Sayedee being taken
from court

This is the second analytical article on the Sayedee trial - relating to the general question of whether there has been a fair trial.

The first article dealt with an order by the tribunal to restrict the number of defense witnesses to 20 (from the 48 sought). This one considers a number of decisions by the Tribunal to reject applications on behalf of Delwar Hossain Sayedee's defense lawyers requesting that the tribunal issues a 'summons' for  named witnesses to give evidence at the tribunal.

Summonsing witnesses to a court is a normal judicial process by which magistrates/judges ensure that witnesses come and give evidence. The compulsory nature of a summons provides protection to witnesses who (a) do now want to give evidence or (b) might want to go to provide evidence but are scared of local community or other repercussions; it allows such witnesses to say, 'I had no choice but to go and give evidence.' 

Summary of the facts/concerns

The International Crimes Tribunal Rules of Procedure explicitly gives the tribunal the power to issue a summons 'at any stage of the trial'.  

The tribunal rules do not set out any other arrangements by which witnesses should come to testify to the court.  

A summons imposes a legal obligation upon the person who it is served to attend court on the day stated by the court. It helps ensure that witnesses attend a court to provide it evidence. 

Following applications by the prosecution, this tribunal has issued as many as 29 summonses to ensure the attendance of its witness. 20 prosecution witnesses gave evidence at the tribunal. The tribunal did not reject a single prosecution application (as far as one knows).

Although the defense brought 17 witnesses to the court without seeking a summons, on four occasions the defense lawyers have made an application to the tribunal asking that it summons a total of 43 named people.  

On each of the occasions the tribunal has refused to issue the summons - though there was very good reason to suggest that the evidence that these witnesses would have given would well have been highly relevant to issues directly before the tribunal.

These rejections of defense applications should be seen in the context of the tribunal having earlier agreed to summons about 29 prosecution summons of witnesses.  

On three of the four occasions where the tribunal rejected the application, it simply stated  the the defense team was solely responsible for bringing its own witness. On these three occasions the tribunal did not provide any actual reasons for refusing to issue a summons. 

On the forth occasion, the tribunal refused to issue the summons, as (on 23 October) it had already closed the defense case (though against the defense wishes). The law however specifically says that a summons can be issued 'at any stage of the tribunal'.  

Five of the witnesses which the defense sought to summon had been prosecution witnesses  whose unsigned statements (which incriminated Sayedee) were admitted as evidence. These statements were admitted on the basis of a prosecution claim that they were missing or had been threatened by the armed cadres of the accused which the defense denied. The defense claimed that two of these witnesses were never missing but were in the safe custody house.

The evidence that each of these five witnesses would have given would have been highly relevant to the determination of the guilt/innocence of Sayedee. Their evidence would also have helped determine why they had not turned up in the tribunal as prosecution witnesses. 

The other 38 witnesses for which the defense sought a summons were responsible for the security and running of the safe witness house. The tribunal had repeatedly told the defense legal team that it must prove 'in evidence' the authenticity of the safe house registrars (which appeared to show that some witnesses were not missing but were present in the house). 

However, when the tribunal was given an opportunity for this to happen, the tribunal refused to assist.  

The non-issuance of summonses to these 38 witnesses, all of them government employees and most of them police, made it extremely difficult for the defense (if not impossible) to obtain their  attendance at the tribunal as witnesses. 

This failure to issue all of these summonses should be seen also in the context of the tribunal's decision made in August 2012 to refuse to allow the defense to bring 28 witnesses. 

The defense lawyers claim that the tribunal has not provided it copies of any its orders which rejects the summonses. As a result these orders could not be subject to a review application - a right given under the tribunal rules.

The law

Bangladesh: In the normal Bangladesh courts, the magistrate will issue summons on behalf of the prosecution to bring the state's witnesses to court. After the prosecution witnesses have deposed, and if the defense seeks to call witnesses, a defense lawyer can either bring his own witnesses to court without a summons or s/he can request that the court issue a summons. A failure to comply with a summons can result in criminal sanctions.

International Courts: In the international courts, the issuing of summons is the normal means by which prosecution and defense witnesses are called to testify (though the process which this is done is complicated by the involvement of the witness and victims support units which are present in these courts)

Bangladesh International Crimes Tribunal: The International Crimes (Tribunal) Act 1973 and the rules of procedure refer on a number of occasion to the process of issuing summons.

Section 11(1)(a) of the Act gives the tribunal the power to summons witnesses. It says:

“A Tribunal shall have power-
(a) to summon witnesses to the trial and to require their attendance and testimony and to put questions to them;”

This is reflected in rule 48 of the Rules of Procedure (in the section  on 'Evidence') the tribunal is given wide powers to issue summons. It states:

(1) The Tribunal may, at any stage of trial of a case, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined.
(2) The Tribunal shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case.

Rule 60 of the rules (in the section on Powers and function of registrar) makes it clear that the registrar is responsible for issuing summons, on the instruction of the tribunal.

The registrar shall: …..(7) be responsible for issuing summons or warrant of arrest under his signature for securing attendance of the accused or the witness or search warrant etc. from the Office as required by the Tribunal, bearing its seal, and be responsible also for maintaining a Process Register in this regard;

The schedule to the rules, contains a form, ICT-BD Form No. 02 which should be used when issuing a summons.

Summons to Witness
In the International Crimes Tribunal, Dhaka
ICT-BD Case No.------------------
To------------------------------------------------
of-------------------------------------------------
Police Station-----------------------------------
District-------------------------------------------
WHEREAS complaint has been lodged before the Tribunal that---------------------
----------------------------- has or is suspected to have committed the offence
punishable under section 3 of the International Crimes (Tribunals) Act, 1973 and
it appears to the Tribunal that you are likely to testify or give material evidence
for the prosecution.
You are hereby summoned to appear before this Tribunal on the ----------day of --
------------(month) of ---------(year) at 10:00 A.M to disclose what you know
concerning the above offence. If you neglect or refuse to appear before the
Tribunal on the said date, a warrant will be issued to compel your attendance.
Given under my hand and the seal of the Tribunal as directed, this the ----------
day of----------of (year).
By Order of the Tribunal
Registrar
Report of Service
Endorsed to ----------------------------------------------for service
Served by me
on----------------
Signature of the accused Serving Officer
Returned to

Therefore, the legal position at the ICT seems to be as follows: there is nothing laid down in the Act or the rules to require that witnesses should be summonsed to court. However, the Act and the Rules explicitly provide wide powers to the Tribunal to issues summons to witnesses.

How the tribunal has acted

1. Prosecution witnesses: The investigation officer has acknowledged in his evidence that the tribunal issued 29 summonses for prosecution witnesses following applications by the prosecution lawyers. This apparently was done in three different phases - first for nine witnesses, then for eleven witnesses, then for another nine witnesses. The investigation officer also said that some witnesses came to the tribunal without receiving a summons - though it is not clear how many or which ones (see below). One assumes - though this can't be said with certainty - that all of the prosecution applications for summonses resulted in a summons being issued

2. Overall situation with defense witnesses: The defense have mostly brought their witnesses to the tribunal without summons, but on four occasions it has applied to the tribune for a summons to be issued by the court. These 4 summonses involve a total of 43 witnesses (set out in detail below) On each occasion the tribunal has refused.

3. The first application - Safe house custody witnesses: The first request for a summons involves those who worked at the safe custody house. This is a complicated story that will be dealt with be explain in detail in a later post. But for the purposes of this note, one needs only to know that the tribunal had ruled that the defense lawyers must show 'in evidence' that registers of the safe house (that they had obtained and which appeared to show that prosecutors were lying about witnesses) were authentic.

In response to this order, the defense filed an application on 22 July in which it requested the tribunal to summons 38 witnesses connected to the safe house (police officers responsible for it, drivers or providers of services to it.) This application was heard on 29 July, but the tribunal did not make an order and ruled that it should be 'kept on the record'.

On 8 October, the defense lawyer then resubmitted the application to summons the witnesses - on the assumption that their first application had been rejected. On the following day the tribunal disposed of the application but it made 4 observations. These were (in summary form)

i. The defense is authorized to bring witnesses as they wish. They can bring those witnesses (mentioned in the Application) but it must be within the limit of 20 defense witnesses [limit of 20 witnesses refers to the limit placed place by the tribunal on numbers of witnesses it could bring to the tribunal] 

ii. The Tribunal will not issue summons upon those witnesses. If the defence wants to bring any of those witnesses then it is upto them to arrange attendance of those witnesses in the Tribunal. 

iii. According to Section 8 (1) of the 1973 Act the members of the investigation agencies are to assist the prosecution in the trial. So the defence cannot bring any of the persons of the Investigation Agencies persons as defense witness if objected to by the Prosecution. 

iv. The defense may bring the person as defense witness from whom these documents were collected.

[Section 8(1) states: "The Government may establish an Agency for the purposes of investigation into crimes specified in section 3; and any officer belonging to the Agency shall have the right to assist the prosecution during the trial."]

[It remain unclear whether the reference to requiring the permission of the prosecution before bringing any of the persons of the investigation agency refers only to the head of the Investigation Agency, Mr Hannan, or to all the other police officers on the defense list. If it is the latter, the tribunal was not just refusing to issue a summons, but effectively putting an impossible obstacle before the defense lawyers.]

The tribunal has, according to the defence lawyers not released a written copy of the order, so it is not clear whether any further reasons were given - though it appears not.

So in relation to this application, the situation about the summons can be summarized as follows:

The court told the defense lawyers to prove the authenticity of the safe house registers 'by evidence'; when the defense lawyers asked the tribunal to summons witnesses from the safe house so that it could do just that, the tribunal refused to issue an application; it did not provide any reasons for this refusal; it has not released a copy of the order; the tribunal must have known that police officers and other people employed by the government would  not voluntarily come to court on this matter, and that a summons would be necessary to get them to come to the tribunal; as a result the refusal to issue summons in effect meant that the defense was being prevented from doing what the court had earlier required it to do - to prove the authenticity of the registers through evidence.

4. Second application for summons - Gonesh Chondro Shaha:  Gonesh Chondro Shaha was originally a witness for the prosecution. In an application argued on 27 March 2012, seeking to allow the introduction of an unsigned statement that he purportedly gave to the investigation officer, the prosecution alleged that he was one of 14 witnesses who were threatened by:

 'the armed terrorist group in Pirojpur in favour of the accused ... [and] as such they are in fear and have concealed themselves and therefore they could not be found.'

The tribunal in in its order of 29 March, allowed the statement of Gonesh (and 14 other witnesses) to be introduced as evidence.

His written statement which has been introduced as evidence states (approximate translation):

My name is Gonesh Chondro Shaha; my age is around 45 years. According to your inquiries I am giving you the statement that during the liberation war of Bangladesh I was 3/4 years old. My father had died before the liberation war. During the liberation war my mother worked as a dishwasher of the Pakistani soldiers in a school near Majhighat. My mother used to inform the freedom fighters about the routes by which Pakistani soldiers will go to their operation. According to her information the freedom fighters used to attack and kill them. My mother gave information to many freedom fighters including freedom fighter Motiur Rahman Shordar who is now Upozilla (Sub district) Chairman. My elder brother Kartik Chondro Shaha asked Uncle Motiur Rahman Shordar one day, “Where you have sent my mother?” Then uncle replied, “We have sent him to collect information, you will get your mother after the liberation of Bangladesh.”  

My mother used to give information to the freedom fighters regularly. Many days later the Rajakars informed Pakistani soldiers that Vagirothi is giving information to the freedom fighters about Pakistani soldiers. The freedom fighters were prepared when Pakistani soldiers were going to the Bagmara operation. The freedom fighters attacked the Pakistani army. The battle started and in this battle 50/60 Pakistani soldiers died. After this incident when my mother went to the camp they tied her to a motor cycle and dragged her along the all roads of the city. After that they took her to the wharf of the Boleshshor River and shot her. Then they threw my mother’s dead body into the river. 

Bangladesh became free from the occupation army. I grew up in the independent Bangladesh. I have heard many stories from other people's mouths. I didn’t see with my own eyes either the truth or otherwise. Many people have told me that Delwar Hossain Sayeedi was directly involved in the execution of my mother. (emphasis added)

Six months later, in October 2012, the defense then applied to the tribunal for the issuance of a summons for him to attend court as one of their witnesses. In the application, argued on 22 October, the prosecution stated:

That it is averred, contrary to prosecution suggestion, that the prosecution witnesses were in fact available and that the prosecution deliberately chose not to call them before the tribunal given their refusal to testify against the accused. Gonesh Chondro Shaha of the prosecution’s list of 68 witnesses is ready and willing to give evidence before the Tribunal. Since the prosecution did not to call him, the defence applies to call him on behalf of the accused. 

That it is stated that Gonesh Chondro Shaha has direct knowledge of the alleged incidents of the case. He is son of Bhagirothi who was allegedly killed at the instruction of the accused as per charge 18 of the instant case. As such it is necessary to issue summon upon Gonesh Chondro Shaha so that he can give evidence as Defence Witness. 

That it is submitted that Gonesh Chondro Shaha is a material witnesses in the instant case. His testimony will assist the Hon’ble Tribunal to come to adjudicate on Charges 18. As such this Hon’ble Tribunal may kindly issue summon upon Gonesh Chondro Shaha so that he can give evidence as defence witness. Otherwise the Accused Petitioner will be highly prejudiced to produce him as Defence witness. Now, it is the responsibility of the defence to produce anyone as their witness. So we will not issue any Summons thereby.

The chairman ruled that it is the responsibility of the defence to produce anyone as their witness, so the court would not issue any summons.

No written copy of this order has been made available by the tribunal, so it is not clear whether any additional reasons have been provided - but from notes taken in the proceedings, it appears not.

What is particularly odd about this situation, is that one would imagine that the tribunal would really want to hear what this witness had to say. He was originally a prosecution witness who  says in the statement that he purportedly gave the investigation officer (admitted as evidence) that 'Many people have told me that Delwar Hossain Sayeedi was directly involved in the execution of my mother'. The prosecution also alleged that he had been threatened by Sayedee's violent supporters, and therefore could not come to the tribunal. Surely the tribunal would want to go to great lengths for a witness of this kind to come to court so they can hear his evidence? However, instead the tribunal - while not refusing to allow him to be brought by the defense as their witness - refused to do what was necessary to make it more likely that he would come.

It remains baffling why the tribunal would not agree to issue a summons to hear his evidence. If the prosecution or indeed the court consider that Gonesh was only now coming to the tribunal as he has been threatened or brought off by Sayedee's supporters, then they can cross examine him about those issues.

What is certainly clear, however, is that the prosecution potentially had a lot to lose from him coming as a witness as, one assumes since the defense have sought him as their witness, he would have (a) denied that he told the investigation officer that he had heard Sayedee was involved with his mother's death and (b) denied that he did not came to court because he was threatened. If he gave evidence on (b) this would have raised further issues about the integrity of prosecution statements to the court about the other allegedly 'missing' witnesses.

5. Third application for summons - Sukhoranjan Bali: He is the witness who was subsequently alleged to have been abducted by the law enforcement agencies. His background as a witness is set out on this page. In summary, he was a prosecution witness, whose statement was accepted as evidence in the tribunal's order of 29 March along with that of Gonesh Chanda Shoha (above). His statement is even more accusatory of Sayedee.

On 22 October, along with the application relating to Gonesh, the defense also filed an application seeking a summons for Bali. As with the application relating to Gonesh, the tribunal also refused to issue a summons for him.

Again, it is notable the tribunal did not take the necessary steps to assist with getting a witness like Bali to come to the tribunal to give evidence.

6. Forth application for summons - Chan Mia Poshari, Sumati Rani Mondal and Ashish Kumar Mondal. All three of these witnesses originally were prosecution witnesses (just like Bali and Gonesh, above) and they were also subject to an application argued on 27 March 2012, seeking to allow the introduction of their unsigned statement that they purportedly gave to the investigation officer. In the application, the prosecution alleged that the three were:

 'Missing from the first week of February 2012. We came to know that they secretly went to India.'

The tribunal in in its order of 29 March, allowed their statements to be introduced as evidence.

Ashish's written statement which has been introduced as evidence states (approximate translation): 

My name is Ashish Kumar Mondol. I am 52 years old. Upon your questioning I hereby state that I was about 12 years old during the war in 1971. The Pakistani armed force invaded our village on the 4th of May 1971. 19/20 people from different areas gathered behind the Middle Masimpur bus stand to join in the liberation war with Sub sector commander Major Zia. Aider of the Pakistani army Delwar Hossain Sayeedee and his armed force the Razakar informed the army of this and took them to Middle Masimpur bus stand where the freedom fighters were waiting. The Pakistani army shot and killed them. On the same day the Pakistani army set fire to the house of Monindro Nath Mistri according to Sayeedee’s information. People panicked and started to run. The army fired on the crowd and killed 13 people. When the Pakistani force and the armed Razakar force left the people went to the Middle Masimpur and saw the dead bodies being eaten by fox and dogs. The situation was so bad that everyone went to a safe place and stayed there. Some of the people that died that day were: 1. Bijoy Krishno Mistri, 2. Upendronath, 3. Jogendronath Mistri, 4. Shurendronath Mistri, 5. Motilal Mistri, 6. Jogeshchor Mondol, 7. Shuren Mondol and 6 other people who could not be identified. (emphasis added)

His mother, Shumoti Rani Mondal's s written statement which has been introduced as evidence states (approximate translation): 

My name is Shumoti Rani Mondol. I am currently 76 years old. Upon your questioning I hereby state that I was about 36 years old during the war in 1971. The Pakistani armed force, The Peace Committee, and Armed Razakar force attacked our village on the 4th of May 1971. 20 people from different areas gathered behind the Middle Masimpur bus stand to join in the liberation war with Sub sector commander Major Zia. Upon hearing this news the aider of the Pakistani army and member of the Peace Committee and the Razakar Delwar Hossain Sayeedee and others arrived at the Middle Masimpur bus stand. The armed Pakistani military and the armed Razakar force shot and killed the waiting unarmed and innocent men who wanted to join the freedom fighters. On the same day the Pakistani army torched the house of Monindro Nath Mistri according to Sayeedee’s information. People panicked and started to flee. The army fired on the crowd and killed 13 people. When the Pakistani force and the armed Razakar force left, the people went to the Middle Masimpur and saw the dead bodies being eaten by foxes and dogs. Everyone was afraid of the torture and killing of innocent, unarmed people by the Pakistani army and the Razakar force. So they fled to safe places to survive the torture and killing. Some of the people that died that day were: 1. Bijoy Krishno Mistri, 2. Upendronath, 3. Jogendronath Mistri, 4. Shurendronath Mistri, 5. Motilal Mistri, 6. Jogeshchor Mondol, 7. Shuren Mondol and 6 other people who could not be identified. (emphasis added)

Chan Mia's written statement which has been introduced as evidence states (approximate translation): 

... In 1971, I was 18 years old. On 1971, during the liberation war, Pakistani army established camp in Pirojpur. They also established a camp in Parerhat school. To identify and kill the freedom fighters, their families, leaders and workers of Awami League and the Hindus Pakistani army formed the Peace Committee at first afterwords they formed the Rajakar, Al Badr and Al Shams by recruiting the local people. Jamaat e Islami leader of Parerhat Sekendar Shikdar (now expired) and Danesh Molla (now expired) formed Rajakar force under the leadership of Delwar Hossain Sayeedi @ Delu. They recruited students of various madrasas and workers and supporters of local Jamaat e Islam and other liberation-opposing organisations in the Rajakar force as the auxiliary force of Pakistan occupation army. Though Danesh Molla and Sekendar Shikdar were in the leadership, all activities and communications with Pakistani Army were done according to the command and directions of Delwar Hossain Sayeedi @Delu as he was eloquent and could speak in Urdu. Within a few days, Delwar Hossain Sayeedi made a cordial friendship with Captain Ezaz. Shanti(Peace) Committee along with Rajakar force gave pledge to Pakistan Occupation Army to provide all kinds of support for protecting Pakistan. They stood firmly against the liberation of Bangladesh and they killed hundreds of freedom fighters and their supporters, workers and leaders of Awami league, innocent Hindu people. They also burnt the houses of those people, raped women and kidnapped women for Pakistani Army for abusing.

On 8th May, 1971 Sekendar Shikdar, Danesh Molla, Delwar Hossain Sayeedi @ Delu and many other Rajakars came to our village with the Pakistani soldiers and armed Rajakars. No sooner had we seen their coming, that we fled from our home and took shelter in the nearest forest. At first they broke into the residence of Selim Khan. After looting they burnt the house. While burning the houses, Delu arrested Kutti @ Ibrahim who was in my house and my brother Mofizuddin Poshari with the help of Pakistani soldiers. After crossing the Parerhat Bridge, on the bank of the canal they shot Kutti and left his dead body there. They took Mofiz to their camp and tortured him. At night Mofiz escaped from the camp. After burning our house my father Soijuddin took us to the Shundorbon. There we ferried the refugees to India by boat. ... (emphasis added)

It should be clear that their statements are all very incriminating of Sayedee. 

In relation to Ashish Kumar and Sumoti Rani Mondal, there is also another sperate issue:  On 1 February 2012 the prosecution filed a notice of their appearance at the Tribunal but that on 2nd of February 2012  the prosecutors informed the tribunal that these witnesses had left the witness safe house on the previous day in order to visit their families and did not return back. However, the defense claimed that the register of the safe house shows that these two witnesses were in the Safe House in the control of the Prosecution until 16th March 2012. 

On 5 November, the defense applied to the tribunal asking it to issue a summons. The application stated: 

2. That it is stated that at the time of commencement of trial the prosecution submitted a list of 68 prosecution witnesses. But during the trial the prosecution called just 20 PWs from the list as witnesses of fact. The prosecution called 8 other witnesses who are seizure list witnesses and the Investigation Officer.

3. That it is stated that the prosecution did not call 48 of its list of 68 PWs during its case.

4. On 20th March 2012 the prosecution filed an application under section 19(2) of the 1973 Act for the admission of the statements of the 46 witnesses alleged to have been recorded by the Investigation Officer. The prosecution claimed each of these witnesses was unavailable and that it was not possible to bring them before the Tribunal. On 29th March 2012 the application was allowed in respect of 15 witnesses, the Tribunal being satisfied that their attendance could not be secured without unreasonable delay and/or expense. The 15 witnesses included Sumati Rani Mondal and Ashish Kumar Mondal.

5. It may be recalled that in respect of Sumati Rani Mondal and Ashish Kumar Mondal on 01st February 2012 the Prosecution filed their Hazira (Appearance) in the Tribunal. Thereafter on 2nd of February 2012 one of the prosecutors informed the tribunal that these witnesses left witness Safe House (hereinafter ‘Safe House’) on the previous day in the name of visiting their families and did not return back. But the PWs’ Attendance Register, General Diary and the Food Book of the Safe House showed that these witnesses were in the Safe House in the control of the Prosecution until 16th March 2012. This was also reported on 12th April 2012 in the Daily Amardesh. 

6. That it is averred, contrary to prosecution suggestion, that the prosecution witnesses were in fact available and that the prosecution deliberately chose not to call them before the tribunal given their refusal to testify against the accused. Chan Mia Poshari, Sumati Rani Mondal and Ashish Kumar Mondal of the prosecution’s list of 68 witnesses are ready and willing to give evidence before the Tribunal. Since the prosecution did not to call them, the defence applies to call them on behalf of the accused.

7. That it is stated that Chan Mia Poshari is brother of PW 6 Manik Poshari has direct knowledge of the alleged incidents of the case and more particularly charge No. 8.

8. That it is submitted that (1) Chan Mia Poshari, (2) Sumati Rani Mondal and (3) Ashish Kumar Mondal are a material witnesses in the instant case. Their testimonies will assist the Hon’ble Tribunal to come to adjudicate on the Safe House Registers and many charges of the case. As such this Hon’ble Tribunal may kindly issue summon upon these witnesses so that they can give evidence as defence witnesses. Otherwise the Accused Petitioner will be highly prejudiced.

9. In the above circumstances it is therefore submitted that for ends of justice it is necessary to issue summon upon (1) Chan Mia Poshari, (2) Sumati Rani Mondal and (3) Ashish Kumar Mondal so that they can give evidence as Defence Witnesses.

Again the tribunal refused to issue a summons. On this occasion they stated that since the tribunal had closed the defense case on 23 October, no summons would be issued.

It is difficult to exaggerate the importance of the testimony of these witnesses. Not only did their written statements seriously incriminate Sayedee and so had they come to court they could provide testimony about this, but Ashish Kumar and Sumoti Rani Mondal would have clarified whether they actually were at the safe custody house in the period when the prosecutors claimed that they had left.

It is therefore, again, very difficult to explain why the tribunal did not issue a summons. Although this application took place after the tribunal truncated the defense case, rule 48 of the rules of procedure states that 'The Tribunal may, at any stage of trial of a case, summon any person as a witness ...'

One would have imagined that the importance of these witnesses would have been sufficiently significant for the tribunal to want to ensure they were called to the tribunal - and therefore to issue a summons.

Sayedee trial analysis: limiting defense witnesses

This is a first of a series of posts looking at some of the issues relating to whether or not Delwar Hossain Sayedee, a Jamaat-e-Islami leader accused of genocide and crimes against humanity during the 1971 War of Independence, is receiving a fair trial.

Whilst the daily newspapers in Bangladesh provide reports of some of what goes on at the tribunal, they provide very limited analysis. This and a number of subsequent posts are intended to help provide a better understanding of the trial process. The focus on his trial - rather than any of the others taking place in the two tribunals in Dhaka - is because it is the most advanced; if press reports and rumors are to be believed the verdict will be given just before or after 16 December 2012, a day known in Bangaladesh as 'victory day', the 41 years ago when the Pakistan military surrendered and Bangladesh became independent.

In the past I have written about the issue of national vs international standards and about a number of legislative and procedural weaknesses in the tribunal (these are all listed here). What I am writing about in these series of posts is more fundamental; decisions made by the tribunal that go to the heart of whether or not Sayedee has/had a fair trial (irrespective of whether the tribunal was aspiring to national or international standards).

The 20 witness order

This first analytical post looks at an order made by the tribunal on 14 August 2012 in which it ruled that Sayedee's defense lawyers could present a maximum of 20 witnesses in court.

Summary of facts and concerns
The summary of the facts and concerns are as follows:

In July 2011, the prosecution gave the tribunal 138 names of witnesses it wished would testify before the tribunal to substantiate 20 counts (involving 35 separate offenses) involving crimes against humanity/genocide. 

The defense in December 2011 then gave a list of 48 names of witness it wished to call to the tribunal. This is one third of the prosecution number and was at the time accepted by the tribunal. 

When the trial started, the prosecution were only able to summon a total of 28 witnesses - 20 of which were witnesses of fact - to the tribunal. The tribunal accepted
as evidence a further 16 written statements from witnesses of fact. Substantive statements of 36 people were admitted as evidence

In August 2012, when the prosecution finished its case, the tribunal - without having any knowledge about what evidence any of the defense witnesses were going to give - passed an order saying that the defense could only call 20 out of their 48 witnesses.  

In its order, the tribunal explained why 28 witnesses could not be called by saying that  48 witnesses was 'given with the intention to delay the trial.' 

The tribunal did not have in its hand any information to suggest that any of these witnesses were not relevant to Sayedee's defense, and so how calling them would inappropriately delay the trial

It cannot be suggested that 48 witnesses to defend 20 counts of crimes against humanity/genocide - when conviction for any of them could result in the death penalty - is excessive.  

The tribunal did not deal substantively with the application to review the order - simply saying that the review application of the order was itself also intended to delay the tribunal.

The ability of the accused person like Sayedee to call relevant witnesses is crucial to a fair trial. Cutting by more than half the number of witness that an accused can call to the court, without evidence that these witnesses are unnecessary, is a serious matter, going to the heart of the integrity to the process. One would have expected that the tribunal would have wanted to hear all relevant evidence before making coming to judgement.  

Background
The law: Section 9(5) of the International Crimes (Tribunal) Act 1973 requires that at the beginning of the trial, before any prosecution testimony is heard in court, the defense provide to the court (and the prosecution) a list of the witnesses it wishes to rely on. It states:

'A list of witnesses for the defence, if any, along with the documents or copies thereof, which the defence intends to rely upon, shall be furnished to the Tribunal and the prosecution at the time of the commencement of the trial.'

[As an aside, this provision itself is very unusual - and is one example of the many problems in the International Crimes (Tribunal) Act 1973. Such a provision is not part of Bangladesh law where the practice is for the defense to provide the magistrate with details of any witnesses it may wish to call after the prosecution has presented its case. It is also unheard of in any international tribunal for the defense to have to inform the court which witnesses it will call prior to the prosecution case. There is good reason why the defense should not be required to provide details of their witnesses at such an early stage; the defense needs to hear exactly the nature of the evidence against them before deciding which particular witnesses should be called. It makes no sense to have the Defense be required to form a witness list before they have heard the Prosecution case]

Prosecution provides witness list/statement: In July 2011, at the time of taking cognizance for offences against Sayedee the prosecution team provided to the tribunal and the defense statements of 60 witnesses (30 of which were witnesses of fact)  that it hoped would testify before the tribunal. Subsequently it gave a further 78 witnesses (of which 35 were witnesses of fact, making a total of 65 witnesses of fact with the remaining as seizure list witnesses).

Trial starts: The prosecution started calling witnesses on 7 December 2011. Prior to starting, the tribunal made no comment or passed no order limiting the number of witnesses that the prosecution could bring, or making any other negative comment. There was no assertion by the tribunal that seeking to bring 138 witnesses as a delaying tactic.

Defence provides list: Seven days later on 14 December 2011 the defense provided the tribunal and the prosecution with a list of its own 48 witnesses. This is a third of the number of prosecution witnesses which the

Prosecution calls 20 witness: The prosecution case lasted between December 2011 and August 2012 (9 months). 28 out of the 138 prosecution witnesses testified at the tribunal - 20 of which were witnesses of fact. In addition, following an application to the tribunal, the judges ruled that the unsigned statements of 15 additional witnesses could be admitted as evidence. [It should be noted that the 1973 Act does not appear to allow the defense to seek the admission of written statements*] An additional statement was also admitted when one witness died. This made the total number of witnesses whose oral or written statements have been admitted to be 44 (36 of which were witnesses of fact). At no point during the prosecution case did the tribunal try to limit the number of prosecution witnesses.

The 14 August Order
On 14 August, just after the prosecution had completed its case, the tribunal passed an order limiting the defense witnesses to 20. A full transcript of this order can be found here. The pertinent part is below:

"It appears that the recording of prosecution witnesses has been completed. Now the next step according to the Act is fixing a date for defence witness. It appears that the defence has submitted list of witnesses and also materials upon which they want to rely with. This case involves 20 charges against the accused Person The witness produced in this Tribunal by the prosecution is number 28 including the Investigation Officer. Upon eye view of them, we find that that out of 28 witnesses the Investigation Officer is witness Nos 28 and there are 27 witnesses more who have been produced in this Tribunal by the prosecution Among them, we find 20 witnesses made statements regarding occurrence and there are more witnesses who have produced documents and are seizure list witnesses. We now find that 20 witnesses have been produced by the prosecution in support of the 20 charges brought against the accused' We have also examined section 11 (3) (a) and (b) of the Act and Rule 51(A)(1)(2) and 53(3) of the Rules. We have given our anxious thought as to the number of defence witnesses to be allowed to be produced. The defence has submitted list of 48 witnesses and we find that this is excessive. There is no reason to allow 48 witnesses to be produced by the defence Rather it has been given with the intention to delay the trial. After due consideration of the fact and laws, we are of the view that the accused may be allowed to produce 20 witnesses in his favour and in that case, ends of justice will be met. As such the defence is directed to submit the list of those 20 witnesses along with particulars of the points and the charges on which the witnesses will adduce their evidence by 23.08.2012 positively' To 28.08.2012 for defense witness."

Section 11(3)(a) and (b) of the Act states:

A Tribunal shall-(a) confine the trial to an expeditious hearing of the issues raised by the charges;
(b) take measures to prevent any action which may cause unreasonable delay, and rule out irrelevant issues and statements.

Rule 53(3) states that the tribunal the right to:

‘regulate the matter of time management as and when it deems necessary, for ensuring effective and expeditious trial’.

Recall and review application
The defense sought to recall the order and, once it received a copy of the written order, sought to review it. (These are detailed arguments in the defense applications can be seen at these links)

In its order of 28 August 2012 rejecting the recall application the tribunal stated:

"In the second application they have prayed for recalling the order dated 14.08.2012, on the ground that limiting the number of Defence witnesses to 20 has been done by the Tribunal without any support of Law and Rules even it violates the principle of equality of arms because of the fact that the prosecution examined 28 witnesses and 16 more statements made before the Investigation Officer has been accepted by the Tribunal as evidence that means they have produced evidence of 44 witnesses. As such equality of arms having been denied, the order is liable to be recalled. He further submitted that the moot question of criminal justice is this that no party should be prejudiced and if the order dated 14.08.2012 is not recalled then the accused will be seriously prejudiced. 

Mr. Syed Haider Ali, the learned prosecutor opposed the petitions, by submitting that they were to submit list of 20 witnesses by 23.08.2012 and that having not been done the order of the Tribunal has been violated and as such the accused should be barred from producing any witness in their favour. 

We have heard Mr. Abdur Razzaq the learned counsel and Mr. Syed Haider AIi, the learned prosecutor. We have found that the petitioner has not submitted the list of witnesses on 23.08.2012 but they have come with the petition mentioning only five witnesses and the particular of charges upon which they will give evidence today and prayed for time to submit the remaining list with a further prayer to recall the order dated 14.08.2012 and in the order passed by this Tribunal on 23.08.201.2 the order dated 14.08.201.2 was considered and found valid, and as such there is no reason to recall that order, and the recall prayer stands rejected." (emphasis added)

This order refers back to an earlier order given on 23 August 2012. In that order (which dealt primarily with an application for adjournment of the trial) the tribunal stated that the review application, which had not yet been filed, would be rejected because it was only being filed for the purpose of delay. It stated:

"It appears that in the Act there is no provision for review application; only to correct mistakes and to give a chance to either parties we introduced review in the rules framed by us. It now appears that this has become a frank stain and is being used for the prayers for adjournment and delay the trial which cannot be done. We do not find any reason to consider the review application if filed as such for preferring review application we are not included to allow any adjournment." (emphasis added)

This 23rd August order does not, actually explain why the order was 'considered and found valid'

When the review application was filed (which happened after the tribunal had given the defense a certified copy of the order) the tribunal dismissed it referring back to these orders. At not time therefore, does it appear that the Tribunal gave a substantive response to the detailed defense application questioning the lawfulness of the 14 August order. Instead the tribunal simply said that the review application was undertaken to waste time.

Safe house witnesses - no flexibility on 20 witnesses
There will be a separate post on this issue, but at one point during the trial the genuineness of a register of the 'witness safe house' became an issue, and the tribunal in an order given on 9 October said that the defense had to prove its genuineness through 'evidence'. However the tribunal subsequently ruled that if the defense lawyers wanted to bring any witness to help provide the authenticity of the register it would have to be within the 20 witnesses. Any witnesses on this issue could not be additional to the 20 permitted witnesses.

Comment
In the context of a fair trial, the August 14th order is significant. Sayedee has to defend himself in relation to 35 offenses. In that context 48 defense witnesses do not appear in any way excessive, in particular when the prosecution had originally hoped to bring 138 witnesses to court. The prosecution's inability to call more than 20 oral witnesses, should not limit the number of defense witnesses. In any case the prosecution is also relying on a further 16 written statements, so if it was parity that the tribunal sought (though parity on number of witnesses should not be the logic that is operating) the tribunal should have allowed 36 defense witnesses - particularly in the context that the the 1973 Act does not allow witness statements to be admitted as evidence.

It is not uncommon for international tribunals to rule that a particular witness should not be brought to court court - but any decisions of the kind taken had an objective basis. The relevant international tribunal will having looked at a summary of the evidence which the particular witness is likely to give, and determined that it was either redundant (since similar evidence has already been given) or because it is not legally relevant; if the tribunal considered that a witness should not be called, then it will pass an order about that particular witness providing reasons.

In the Bangladesh tribunal however: (a) the judges could not assess these issues as they did not have any details about what the witnesses would say; (b) did not make an assessment witness by witness (c) instead it made a decision to reject hearing the evidence of 28 witnesses (why 28?) (d) provided no reasons for this decision other than the defense was trying to waste time (e) provided no evidence to suggest that bringing these witnesses were part of a defense strategy of delay.

Effectively the tribunal appears to be saying to Sayedee; bringing witnesses (other than the number that we allow you) to provide evidence to substantiate your claim of innocence is wasting time. However, one must ask: what is the purpose of the tribunal other than to hear relevant witnesses?

It is also worth nothing how the prosecution and the defense have on this issue been treated differently:
(a) the tribunal was not critical of the prosecution seeking to call 138 witnesses, but it was critical of the defense calling 48 witnesses;
(b) allowed the prosecution to admit evidence of 36 substantive witnesses, but only allowed the defense to admit 20 witness (in fact it only allowed 17 witnesses - a matter that I will come to in a different post.

A further disconcerting matter is the fact that the Tribunal rejected the recall/ review application because the tribunal thought that they were filed in order to waste time. So one has the rather bizarre situation that the tribunal first decides to reduce the number of witnesses of the defense, arguing that the defense is trying to 'delay the trial' by seeking to bring 48 witnesses. And then when this order was challenged, judging the 'review' application itself called a delay strategy.






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* Section 19(2) of the Act states:  A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.' The reference to 'magistrate' and 'investigation officer' seems to suggest that only the prosecution have access to this opportunity - another problem with the 1973 Act  of course.