13 Sept 2011: Sayedee defence documents

This date had been sent by the tribunal for the defence to respond to the prosecution application for charge framing made on 4 September. However tribunal started with a private discussion between the tribunal members for a few minutes and then the tribunal chairman asked the prosecutor to submit a particular application it have given relating to access to defence documents. After that it heard an application for the defence for a further adjournment. See comments at end of blog

Application by prosecution for copies of defence documents
It appears that the prosecution had submitted an application to the tribunal sometime earlier seeking copies of the documents and witnesses as required by section 9(5) of the 1973 Act. This 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.'

Prosecutor Haider Ali submitted that at the time the trial started the prosecutors should get a copy of the list of defence witnesses.

[It was not entirely clear whether Ali was arguing that the trial had now started and that the list should be given now. It was also not clear why this application was taken up today though it may have been because the tribunal wanted to give warning to the defence that they would have to give the list at time of charge-framing which could be soon]

The chairman responded to Ali by saying that according to Section 10(1) of the Act the trial commences at the time of framing of charge. [This provision starts by saying ‘The following procedure shall be followed at a trial before a Tribunal, namely:- (a) the charge shall be read out; (b) the Tribunal shall ask each accused person whether he pleads guilty or not-guilty; …..’ This happens immediately after charge framing]

The chairman went onto say that he would pass necessary direction on the application at the time of commencement of trial.

Defence lawyer Tanvir Ahmed Al-Amin said that though this court was not passing any order on the application, he said he needed to clarify certain points about the prosecution application.

He handed over the response that the defence had prepared opposing the application. He argued that there was uncertainty from the prosecution’s side on the date when the trial commences and the date when the defence would be required to submit their documents and list of witnesses.

The chairman argued that there was no confusion since section 9(5) of the Act provides that the defence was required to submit their documents and list of witnesses on the date of commencement of trial which is the date on which the charge will be framed.

'We are telling you that the trial starts on framing of charges and ends on judgement' the tribunal chaiman said

Amin referred to rule 37 and 38(2) of the Rules. Rule 37 states that: ‘When the accused appears or is brought before the Tribunal, and if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused and record its reasons
for so doing.

Rules 38(2) reads: ‘An accused pleading not guilty will get at least three weeks time for preparing his defence.’

The lawyer argued that the accused could be discharged if the court does not find any prima facie case in the hearing dealing with the framing of charge and that therefore the defence would only start preparing their case after the accused pleas ‘not guilty’ which is on the day of framing of charge.

He argued that it would not possible or practicable for the defence to submit the defence documents or list of witness statements on the day of framing of charge. These documents could only be submitted once the defence has completed its investigation and on the first day of trial which he said was the day for the prosecutor to make opening statements and begin recording evidence.

The chairman then said that if there is any confusion between the Act and the Rules then the Act would prevail. He argued that the defence should be preparing its defence at this stage and that no further time for investigation would be given.

The defence lawyer argued that charge framing was a pre-trial stage and said that he wanted to show some commentary from the international tribunals to support this argument.

The chairman said that there was no need to see this as the tribunal was a domestic tribunal and would run by its own legislation.

Amin said that this was a 'special tribunal. He went onto drew attention again to the minimum tree weeks time that was mentioned for preparation of defence and argued that the defence would only be able to provide information about its witnesses after it had completed its defence preperation.

He said that the defence could only investigate after the charges were framed, so it was not possible for the defence to submit its witness list and documents on the date of framing of charge.

The chairman said that the three week time period given in the rules related to the time that the defense counsel had for preparation of its cross-examination of the witnesses and it was not for the investigation of the defence case. He said that the defence should have started investigation from the date of receipt of formal charge and documents.

Amin responded by saying that if this was the case then the tribunal should immediately adjourn the hearing to allow the defence sufficient time to prepare its defence. He argued that in other international tribunals the defence was given at least 6 months to one year to do this, and that in this tribunal there are as many as 31 counts against the accused amounting to 31 seperate cases and the defence would need at least one year time to prepare for all these counts and then it could submit list of Defence witnesses and documents on the day of framing of charge.

The tribunal chairman said that in its order, the tribunal would include reference to this application from the defence that it had sought an adjournment for one year.

Amin said that you may include this argument but you should place it in the context of this argument

Tajul Islam then got up and said that it was not practicable for the defence to submit defence documents and list of witnesses instantly on the day of framing of charge.

The chairman said that the tribunal would not give any order on this application now and will respond to the application sometimes in the future.

Application to adjourn charge-framing application
The first issue raised by Tajul Islam concerned the failure of the prosecution to have provided the defence copies of video evidence that it had given to the tribunal.
Islam argued that the clips of ATN Bangla and ETV were ‘documents’ within the meaning of the rules and should have been given to the defence by the prosecution at the time of serving other documents as required by the Tribunal’s order of 14 July 2011.

[There was an odd exchange that took place about the defence writen application. In the written application there must have been a quote which ended with a '....'. The tribunal took serious umbrage at this, and said 'What kind of document is this?' It appeared that he though Islam should have put the full quote in and not finished with '...' at the end. The tribunal said that the meaning was not clear, with Islam staing that the meaning of 'the sentence was very clear.' This went on for about five minutes]

The chairman argued that the video recordings were not documents under the tribunal’s rules and as such does not fall under section Rule 18(4) of the Rules. This states: ‘The Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.'

Islam argued that if the tribunal commenced the charge-frame hearing without the defence being able to see these video documents on which the prosecution relies upon, it would be ‘dangerous for the defence’.

The chairman told Islam not to use this kind of language and told him that it was inappropriate to use such words.

Islam said that he use the word dangerous since the defence would be seriously prejudiced if it had to proceed without having copies of the videos.

Islam argued that any evidence relied on by the prosecution should be considered as a document in the context of providing a copy of it to the defence.

Islam said that he wanted to read to the court a High Court decision reported in the Dhaka Law Reports in 1985 which concluded that a video was a document.

Justice Jahir said that that decision concerned the defintion of 'document' in the Evidence Act, legislation which was excluded from the current proceedings by the 1973 International Crimes (Tribunal) Act.

Islam argued that this decision was applicable in the present case even though Evidence Act was excluded as it established a general principal that a video recording was a ‘document’ and that in any case the the 1973 Act did not exclude the General Clauses Act and that this contains a similar definition of document.

There was then an argument between the tribunal and the lawyer about whether the lawyer could read out the judgment. The chairman said that the tribunal judges had read it before, that it was nearly 50 pages long and that that to do so would amount to delaying the proceedings of the tribunal. 'You are wasting the court's time,' the chairman said.

Islam denied that it was a waste of time. 'This is a petition of the defence. This is my right. We are not referring to 400 pages. He said that he only needed to read two pages out and he needed to read it out to assist the court. Islam said that this was a ‘reasonable submission’ to make.

The tribunal chairman said, 'You are saying that a document includes a DVD and CD. We have read the judgement. You do not need to read it.'

Islam said he needed to read it to ensure 'a fair trial'

Eventually the tribunal chairman allowed Islam to read out the relevant part of the order which stated that a video recording equated to a document and that therefore the prosecution videos should have been submitted under Rule 18(4).

The chairman then asked Islam to look at Rule 18(6). The rule states: ‘The defence shall also require to submit three sets of list of witnesses along with the documents which the defence intends to rely upon before the Tribunal in compact disk (CD) or digital versatile disk (DVD) while furnishing the same under section 9(5) of the Act.” [I think the argument here was that CD and DVD were separately used as terms, and so the term ‘document’ in the rules did not necessarily include them]

Islam said that rule 18(6) was not relevant as the CD and DVD mentioned in the rule related to soft copy of the hard documents which the prosecution had submitted. But that if the evidence itself is a video recording then it was document and should be served on the accused before the Charge hearing.

The chairman then asked the lawyer to move onto the next point.

Islam said that despite the court’s earlier order the Jail authority had not allowed the defence counsel to meet the accused on 8th September 2011.

Justice Jahir asked whether the defence had made the application in writing to the jail authority and whether the jail authority had refused in writing. Islam said that the application was made in writing and it was refused orally.

The prosecution was then asked to reply on the adjournment application.

Haider Ali, for the prosecution argued that there was no need for the defence lawyers to consult with the accused which would only be needed after framing of charge at the time of preparation of defence.

He argued that the High Court case on ‘document’ did not apply to the tribunal

He however argued a video may be a document but need not be submitted at this stage and could be served upon the defence after charges were framed in the three weeks time fixed for preparation of the defence.

Islam for the defence then got up and referred to Rule 44 which states: ‘The Tribunal shall be at liberty to admit any evidence oral or documentary, print or electronic including books, reports and photographs published in news papers, periodicals, and magazines, films and tape recoding and other materials as may be tendered before it and it may exclude any evidence which does not inspire any confidence in it, and admission or non-admission of evidence by the Tribunal is final and cannot be challenged..’

He argued that this provision supports the contention that the video is a ‘document’ and the prosecution was required to submit it on the basis of the 14 July order.

Justice Jahir then asked the prosecutor Haider Ali to answer a question. He said that if the prosecution argument is that framing of charge process is part of trial then why would the prosecution not serve all the documents on the defence at this stage?

Ali then referred to a number of sections of the Act and rules of procedure and then submitted that framing of the charge is part and parcel of the trial but not trial itself.

The chairman then asked what was the meaning of ‘commencement of trial’. Ali argued that according to section 10(1) the trial commences on the day on which the charges would be read out to the accused which wsa when he would be asked to plea guilty or not guilty.

Justice Jahir then asked the prosecution what would be the harm of serving the video before the charge-framing took place.

The Chairman then pointed out that if the trial starts when the charge is read out by the court, then this appears to be in contradiction with section 9(1) and (2) which suggests that the charge framing is part of trial.

Ali responded by saying that according to section 10(1), 16 and 17(1) of the Act and relevant provisions of the rules, the charge-frame hearings do not mark the commencement of trial; the trial would commence on the day when the charge be read out to the Accused.

Islam said that he considered that the date of commencement of trial to be the day when the prosecution witnesses are called for evidence. He however submitted that since the Tribunal had made it clear at the beginning of the day that this matter would be decided on a later date, there is no point to make any further submission on that point at that stage.

After a lunch adjournment, Ali for the prosecution summraised his case concluding that the prosecution would provide copies of the videos after charge framing, but would be willing to give them as directed by the court.

The order was then given by Mr. Justice Fazle Kabir

This is an application for adjournment filed by the Defence on the ground that the Prosecution did not submit video recording of new clipping of ETV and ATN Bangla upon which the prosecution is relying upon and also that the defence did not get chance to consult with the Accused Delwar Hossain Syaedee in Jail Custody. Mr. Tajul Islam learned counsel appearing for the defence submits that as per Rule 18(4) of the Rules of procedure the Prosecution should have supplied copies of all documents which the Prosecution intend to rely. But the Prosecution did not submit news clippings of ATN Bangla and ETV to the Dfence. The learned advocate further submits that the learned counsel for the defence went to the Dhaka Central Jail when the Central Jail authority refused to allow them to meet with the Accused on 8th September 2011. As a result he could not get proper instruction from his client for charge hearing. On the aforesaid grounds the learned Defence Counsel asked for an adjournment for hearing of the charge matter.

Mr. Sayed Haider Ali the learned prosecutor appearing on behalf of the Prosecution opposed the adjournment petition filed by the Defence. Mr. Sayed Haider Ali, the learned prosecutor submits that the alleged video recording of the news clipping of ETV and ATN Bangla have been submitted to the Tribunal and will be supplied to the Defence when the trial will start. He also submitted that when charge hearing it is not at all necessary to take advise from the client and as such the ground for adjournment are frivolous. But the Porsecution informed that they are ready to supply the video clippings if the tribunal directs so.

We have perused the adjournment application and heard the submissions of both the parties. Considering the submissions made by both the parties we are inclined to allow a short adjournment to the defence lawyer for his defence. The learned prosecutor is directed to supply copies of the news clipping of the ATN Bangla and ETV by 15th September 2011. The Defence lawyer will collect their copies from the office of Registrar on that day. In the matter of meeting with the Accused we direct the Dhaka Central Jail authority to allow Mr. Tajul Islam and Mr. Tanvir Ahmed Al-Amin to meet Delwar Hossain Sayedee on 18th September 2011 insider the jail. Hearing of this case is adjourned today until 20th September 2011 for hearing on charge matter for defence.

Let a copy of order be sent to the Dhaka Central Jail Authority for necessary steps.

Tajul Islam asked for a copy of the order but the chairman told him that the defence first needed to make a written application explaining why they needed it.

Comment
1. The argument about whether or not the defence should provide a copy of its witness statements and other documents was interesting. First of all whatever the Act or rules say, it would have been ridiculous for the defence to have give to the prosecution a copy of the list of witnesses and documents that they are to rely on immediately after charge framing. It is only after charge-framing that the defence actually knows exactly what charges their client has to face, and after than they then need time to prepare their defence. For the defence to have to give the list of documents/witnesses immediately after hearing what charges they would have to face, would be completely ridiculous.

The fact that the tribunal was having to have this argument in the court today is partly because of problems in the 1973 Act and rules, and also partly because of problems of attitude understanding the need for the defence to have a right to prepare its defence. The Act and rules do give a distinct impression that at the time of charge-framing, and having heard the plea from the accused, that the trial has commenced, and so technically this does seem to be the point at which the defence has to provide these documents, according to the rules. However the defence is right that, in order to ensure a fair trial, its documents should be given at a time after its has completed its defence investgations.

The argument by the defence that they should give these documents at the time of the opening statement, which they said was when the trial started, does not seem to be supported in the rules. Moreover, this would actually be a very late stage to give these documents, since the prosecutors would themselves need time to look into them.

The Act and rules therfore ideally need to be amended so that the documents are given after the defence has been given time to undertake its investigations, but before the opening statement.

However it unfortunate that the tribunal and the prosecutors appear to have a minimal understanding about the right of the defence to properly prepare themselves. Could the tribunal really have suggested that the three week minimum period was to prepare themselves for cross examination rather than to prepare their defence? Did the tribunal expect that the defence's period of preparing its defence should start before it knew what the charges would be against him? This seems to be the case.

The tribunal should have recognised that the provisions in the 1973 Act and rules about requiring the defence to give its documents to the defence at the time of charge-framing would go against a 'fair trial' - a requirement in the 1973 Act itself.

2. The second issue that came up was about whether video evidence should or should no be treated in the same way as witness statements and be given to the defence to prepare for charge framing. There was a clear High Court decision, which apparently the tribunal said it was aware of, that stated that video evidence should be treated as a document in terms of disclosure to the defence. The tribunal said that this decision related to the interpretation of the Evidence Act which did not apply to the 1973 Act. The tribunal was correct that the Evidence Act does not apply, but clearly the decision was setting out a principle, and the tribunal had no contending principle explaining why the practice in normal Bangladesh practice should not be adopted. In any case there was clearly an overwhelming principle that all evidence should be provided to the defence - and it is difficult to see how video evidence should be treated differently from witness statements.

The tribunal finally backed down under pressure from the defence and when the prosecution said that it was fine with providing the DVDs. Why this argument was necessary, I have no idea. The tribunal should have realised right from the beginning that the DVDs should have been given at an earlier stage and given that order.

3. The Tribunal's strong position in this hearing on the need for the defence to see their client - despite the prosecution position - was good to see.

4 Sep 2011: Charge framing petition

This is a long post that principally concerns the full application by the prosecution for the court to frame charges against Delwar Hossain Sayedee who was present in court. This hearing has been adjourned a number of times . The prosecution have already set out their charges in an application to the court, providing the evidence upon which they will rely, and on the basis of this the court has given cognisance (see 14 July and 18 August). The process now is 'charge framing' by the tribunal itself, where the court hears both parties and as a result either discharges the accused or alternatively frames charges to which the accused must plead. The prosecution has also submitted a draft set of charges, which one supposes is what they want the court to charge Sayedee with. The hearing is particularly interesting as it allowed the public for the first time to hear in some detail the nature of the charges against Sayedee. See comments at end.

Application for adjournment
The application was made by the defence Tajul Islam. The tribunal chairman asked him him, ‘Why do you always come up with prayer for adjournment? It’s all the same every time. Shall we pass the order now?’

Islam asked the tribunal chair if he could first state the grounds for adjournment.

He said that after the last hearing (24 August) there was Eid vacation and there has been only one available working day, 29 August to work but the office was closed from 26 August. He said that they had only been able to talk with Maulana Delwar Hossain Sayedee on 27 August during the vacation for three hours. ‘Eid is the biggest holiday in Bangladesh and everyone enjoys their vacation. It is humanely impossible for anyone to work at that time. We had to give time to our family and friends,’ he said.

Islam went onto say that, ‘A total of 61 pages were submitted to us on 23 August 2011, and we came to the ICT hearing on 24 August 2011. We also had to attend another tribunal hearing on 25 August. So we have had insufficient time to consult with our client and take his instructions, which is absolutely essential to prepare my arguments.’.

He then read out rule 37 of the rules of procedure which state that: ‘When the accused appears or is brought before the Tribunal, and if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused and record its reasons for so doing.’

‘It is obvious,’ he then said, ‘that first the accused has to know what are the charges against him and to go through the documents. Then the lawyers have to know about them too and prepare their arguments and get the opportunity of being heard.’

The tribunal then stopped Islam and said. ‘Look Mr Tajul, we will hear the prosecution’s case and you will also have your chance of being heard. So, I’m requesting you to sit down.’

Application by Defence to frame the charges
The chief prosecutor stood up. He started by making the following comment: ‘This tribunal is here today to hear charge matters. The fact remains that your lordship are judges of great eminence and greatly experienced. The instant case that has come up before your lordship relates to a case when the nation rose to its feet for their demand of democracy and freedom. Your lordship knows the instant case is about getting justice for the atrocities that was committed against a nation that wanted the right of self determination and freedom. Your lordships also know that the perpetrators took the whole nation to a holocaust. So those are needed to be taken to trial. That’s why the International Crimes Tribunal was formed under the ICT act 1973 passed in the parliament. The prosecution and the investigation agency were formed duly under the act and the investigation agency carried out the investigation process and based on the findings the prosecution pressed the formal charge to the tribunal.

‘After reviewing the investigation report and formal charge your lordships has taken cognizance of the offence, and the tribunal is ready for the charge hearing. The prosecution is glad to inform that we are ready for hearing of the charge matter. But the defence has prayed for time over and over again, and time was given to them. The only thing to consider now is whether the evidence pressed in the investigation report, and witness statements are sufficient enough for framing charges.’

The chief prosecutor then went to the bench of judges and gave a document.

The Tribunal chair said, ‘You have submitted a proposed charge. But is there any argument that you want to place before the tribunal in support of the proposed charge?’

The chief prosecutor then said that Mr Haider Ali will continue with the hearing and place the arguments.

The prosecutor Haider Ali then got up and said that he would present the factual case and then the legal grounds.

He said that the prosecution had two sets of witness statements taken by the investigation agency totaling 68. He then gave two volumes of statements to the tribunal judges who questioned why it was necessary to have another list of witnesses when they already had one.

He then said, ‘First of all we’ll discuss the crimes that took place in 1971 and we’ll provide witness statements and evidences on how the accused was involved.’

He then went through the counts in turn

Count 1: Formation of Pakistani Camp and Rajakar Force camp in Pirojpur by the Accused
Ali said that a total of 18 witnesses have said that Sayedee formed the Razakar force in Pirojpur district including statements of eminent personalities against Sayedee, such as: Shariar Kabir (Writer), Jaglul Haider (Journalist) and Dr Muhammad Zafar Iqbal (Writer, professor).

He asked the tribunal to look at Ruhul Amin Nabi’s statement (Vol 1 witness no 1) and quoted from different parts of the statement:

“Jamaat leader Professor Golam Azam called upon like-minded peoples to form Razakar forces all around Bangladesh. After his call, Maulana Delwar Hossain Sayedee, in Pirojpur, initiated the formation of the Razakar force in Pirojpur. He asked us to join the force of Razakar.’ (3rd paragraph page 1)

“There were Pakistani army in the village. Maulana Delwar Hossain Sayedee was waiting along with his Razakar force and took the army to the Hindu houses and during June 1971 they also captured some Liberation War forces (Mukti forces). They plundered goods from the Hindus and piled the loot. Maulana Delwar Hossain Sayedee passed a religious edict saying that it is Jayez (Arabic, meaning rightful/fair/legitimate) to loot goods from Hindus. Many Hindu women were raped and many of them had fled to India.

Some persons in the village such as Makhon Shaha, Benu Madhab, Ganesh Chandra Roy and others were forcibly converted into Muslims and made to say prayers. Some of them are now dead and some fled to India. (Page 2 3rd paragraph)

The tribunal then interrupted him and said, ‘I think these descriptions are extra and not necessary. Can you skip all the descriptions and long histories? We can’t actually let you go through and read out all the 18 witness statements. You can just name the witnesses and probably state one or two of them in detail, the one’s you think are important.’

The prosecutor agreed and said that the witnesses for this count are:
Ruhul Amin Nabi, Abdul Latif, Shahriar Kabir, Md Zafar Iqbal, Jewel Aich, Tojammel Hossain, Syed Md Sharafat Ali [Vol 2 (16)], Md Soleman Hossain [Vol 2 (32)], Alhaj Md Sadruddin [Vol 2 (33)], Hossain Ali [Vol 2 (34)], Khondker Md Shahidullah [Vol 2 (35)], Zulfikar Ali Manik, Md Mahbubul Howlader, Mokhles Moshari [Vol 1 (15)], AKM Ziauddin Ahmed, AKM Abdul Awal, Md Mizanur Rahman Talukdar

Ali said supporting documents for this count include: National Democratic Commission report, War Crimes facts finding committee report, District commissioner Pirojpur report, reports of the newspapers the Daily Janakantha and Daily Bhorer Kagoj, and Investigative reports of Ekushey TV and ATN Bangla.

The prosecution then read out section 3(2)(a) of the 1973 Act relating to ‘crimes against humanity’

The following acts or any of them are crimes within the jurisdiction of a Tribunal for which there shall be individual responsibility, namely:-
(a) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated;

The prosecutor then said that he will present these charges in the order set out in this definition.

Murder as Crime Against Humanity – Section 3(2)(a) of ICTA
Count 2: One day between 3rd May and 16th December 1971, the killing of Bhagirthi
Ali said that there was one witness for this, Ganesh Chandra Shaha (45), the son of the woman who was killed, (Vol 2 (27)). He then read out part of the statement:

“My name is Ganesh Chandra Shaha, age 45. In 1971 I was 5. My father died before the war in 1971. My mother used to go the Razakar and army camps to wash the utensils and perform other chores. The Razakar told the army that she was passing inside information from the camps to the Mukti force. They killed my mother and threw her in the river. I heard from people that Maulana Delwar Hossain Sayedee helped catch her and gave her in to the Pak army.”

The Daily Azad newspaper also stated the same facts.

The tribunal chairman asked the prosecution, ‘How do you link Mr Sayedee to this allegation?’ The prosecutor responded, ‘Our witness heard it from people, and reports from the Daily Azad also supports this. He will also come to the court when the time comes and we can hear the story from him.’

Count 3: On 8th May 1971, the killing of Md Ibrahim alias Kutti
Al1 said that there are 15 witnesses which include: Matin Howlader, Sultan Abdul, Ayub Ali and Mokhles Moshari (nos, 4, 18, 19, 20, 26, 32, 52, 53, 54, 21, 25, 33, 34, 37, 38). He added that supporting evidence included an ATN Bangla investigative report.

Count 4: One day between 25 May to 31 June, Killing of Shaheb Ali
Prosecutor said that the Pakistani Army reached Pirojpur on 3rd May 1971 and so lots of references start from this date. There are three witnesses to the killing (nos 52, 53, 54)

Count 5: On 2nd June 1971, the killing of Bisha Bali
Ali said that she was tied with a tree and shot from close range. There are three witnesses (nos 28, 24, 17)

Abduction, Extermination, Deportation, Confinement, Torture and other Inhumane Acts as Crimes against Humanity
Count 6: Between 4th May to 16th December 1971, general allegation of abduction, extermination, deportation, confinement, torture
There were six witnesses including Ajit Kumar Singh, Ruhul Amin and Manik Howlader (nos 48, 51, 2, 34, 30, 50). Supported by Report of Daily Janakantha dated 5th March 2001

Count 7: On 4th May 1971 (a) The destruction of many hindu houses in 13 areas of Pirojpur Town and (b) destroying 3 houses and looting valuables of Monindro Nath Mistri. Ali said that there were five witnesses to these incidents including: Advocate Gopal Krishna Mandal and Suresh Chandra Mandal (nos 10, 11, 12, 13, 39) and that there was also a supporting report from The daily Janakantha, 5th March 2001

Count 8: Looting 30/35 shops including Makhon Shaha shop on 7th May 1971
The prosecutor said that there are six witnesses including Ruhul Amin Nabi, Abdul Matin Howlader, Manik Moshari and Shahidul Islam Khan (nos 1, 2, 19, 18, 20, 27, 4, 15, 25, 26) which are supported by reports published in The Daily Janakantha, Shomokal, and ATN Bangla.

Count 9 Destruction and looting of houses and valuables of Nur Khan, Ayub Ai Talukder, Manik Poshari and his brothers, Khan Shaheb, Boijudin company, Moijoddin, Himangshu and other Hindus on 8th May 1971
Alis said that there are 15 witnesses to this (nos 25, 19, 30, 29, 37, 20, 18, 33, 34, 36, 4, 32, 21, 35, 44) and supporting documents from report of Daily Janakantha, Report of Shamakal, Report of ETV, and Report of ATN Bangla TV

Count 10 Torturing Abdul Mannan Talukder and looting and destroying many houses of Charkhali village on 17/18 May 1971
There was one witness to this (no. 3)

Count 11 Between 25 and 31 May, destroying and looting many houses in Hindu areas including house of Bimal Howlader under Nesarabad Police Station
There was one witness to this (41)

Count 12: On 2nd June 1971 (a) Looting and destroying houses of Abdul Halim Babul in Nolbunia village at 9 am and (b) Looting and destroying 25 houses including those of Chittoronjon Talukder, Horen Thakur, Moken Thakur, Anil Mondol, Bishabali, Sukabali, Satish Bali in Umedpur Village at 10 am
There were three witnesses to this (nos 37, 17, 18)

Count 13
One morning between 1st December to 16th December 1971, (a) destroying Hindu Area of Hoglabunia village and (b) Taking control of two rooms of Rojoni Bala of that village
There was one witness to this (no 45)

Count 14: One morning between 25th to 30th November 1971, attacking and looting the house of the Talukders of Indurkani Village.
There are three witnesses to this (nos 56, 55, 57)

Count 15 One Thursday between 15th to 21 June 1971, looting and taking over Modon Shaha’s shop and house
There were nine witnesses to this (nos: 17, 19, 22, 23, 36, 45, 20, 26, 34). Supporting documents include a report from the Daily Janakanths and one from the Daily Shamakal.

Count 16: One morning between 4th May to 14th June 1971, (a) abducting and torturing uncounted men/women of Tona Village in Army camp of Tejoskhathi Govt High School and (b) destroyed Amjad Hossain’s house and (c) looting two bonze plates of Hindu Boshonto and Suren. Boshanta, a Hindu man, who was eating rice on a brass plate. Sayedee came in and kicked the plate and chucked his food away.
There are two witnesses to this (nos: 43, 45). In relation to (a) Ali noted that this count was repeated in Count 20. The tribunal Chairman told him to continue and to consider this later on. In relation to (c) one of the judges interrupted and said, ‘I don’t understand. How do you charge this incident? What is the legal point here?' The prosecutor responded by saying, ‘My lord, it was part of the torture that was carried out at that time. It does not matter how much looting took place for it to be a crime. The tribunal judge said, ‘But still anyone can be subjected to this act, it doesn’t go with the other charges.’

Count 17: On 8th May 1971 between 1.30 pm to 3.30 pm, attacking, looting and destroying household of freedom fighter Shahidul Islam and abducting and torturing his father Nurul Islam of Baduria-Chitholia Village
There were seven witnesses (nos 25, 19, 30, 29, 37, 33, 34)

Count 18: On 17th/18th May 1971 between 6 and 7.pm, torturing and abducting Abdul Mannan Talukder. One witness (no.3). The prosecutor said that he did not want to press this count as according to him the prosecution may not have sufficient evidence. The tribunal chairman said that its removal could be considered later on.

Count 19: On 2nd June 1971, (a) attacking, destroying and looting Khosru and Amir Khan’s house in Shonkor Pasha Villege and physically & mentally tortured people living there; and (b) At about 12 noon attacking, looting and destroying Mahbub Alam Howlader’s house in Tengrakhali villege and physically & mentally tortured his elder brother Abdul Majid Howlader
Three witnesses are available (nos, 1, 21, 37)

Count 20: Abducting and torturing uncounted men and women of Tona Village in Army camp of Tejoskhathi Govt High School.
(This count is repeated in Count – 16(a))Two witnesses are available (nos 43 and 45)

Rape as Crime against Humanity
Count 21 Between 1st Dec to 16th Dec 1971 attacking the houses in the Hindu Area of Hoglabunia and raped Shefali Ghorami
He said that there was one witness to this charge, (no 45)

Count 22: Between 25th June to 30th June 1971, attacking the household of Gourongo Saha and handing over to the Pakistan army the three sisters, Mahamaya, Anna Rani and Komla Rani in Umedpur; and (b) killing Krishno Shaha and then abducted his daughter and numerous out Hindu women and handed them over to Pakistani Army to be raped.
There were seven witnesses to these allegations (nos, 45, 47, 19, 2, 30, 34, 36)

Count 23: One day between 3rd May to 16th December 1971, detained Bhanu Saha of Parerhat Bazar at her home and raped her repeatedly.
There are five witnesses to this (nos 45, 2, 30, 34, 36). Supporting documents include press report of Janakantha, TV report of ETV and Report of ATN Bangla TV

Count 24: One morning between 25th November to 30th November 1971, (a) attacking and looting Talukder Bari (House) of Indurkani and (b) abducting 85 men/women of Talukder Bari and sending five of them to Pirojpur Army Camp who tortured the men and raped the women.
He said that there were three witnesses (nos 56, 55, 57)

Count 25: Converting between 100 and 150 Hindus to Muslims between 3rd May to 16th December 1971
There were five witnesses to this (nos, 45, 48, 2, 30, 47)

Genocide
Count 26: On 4th May 1971, (a) killing 20 people behind Mashimpur Bus stand (b) killing 13 people in Mashimpur Hindu Area and (c) killing 4 Hindus behind LGED
He said that there were five witnesses to this (nos 10, 11, 12, 13, 14). It is supported by a report of Daily Janakantha

Count 27: On 5th May 1971 shooting and killing SDPO Fayzur Rahman, SDO Md Abdur Razzaq, and Deputy Magistrate Mizanur Rahman at the bank of Baleshor River
There were two witnesses to this (nos 8, 9)

Count 28: One day between 25th May to 31st May 1971 capturing Bimol Howlader and his father and bringing another 2500/3000 unarmed Benglai people to Kuriana Guava Garden and killing them
There were four witnesses (nos 40, 41, 42, 43)

Count 29: One day between 25th May and 31st July 1971 killing 10 people (seven were named) and handed them over to Pirojpur Army camp and killing or instructing them to be killed with bodies disposed of in river.
There is one witness to this (no 45). The prosecutor informed the court that there were documents in support of this but did not identify those documents

Count 30: One day between 4th May to 16th December 1971, capturing 14 Hindus and handing them to Pakistan army camp in Pirojpur and killed them and disposed of bodies in river
There was one witness to this (no 38). The prosecutor informed the Court that there were documents in support of this charge did not identify those documents

Abetment and Complicity
Count 31: (a) abatement and complicity in murder, extermination, deportation, abduction, confinement, torture, rape and other Inhumane acts as Crime Against Humanity, (b) abetment and Complicity in killing, causing serious bodily or mental harm to member of the group as genocide
He said that abetment and Complicity will be proved by 18 witnesses, though these were not identified. These are ‘Leadership offences’ and the prosecution do not need to prove commission of the main offence, he said.

This was the end of the charges.

The prosecution then stated, ‘My lord all the charges that we are presenting today were reported in different newspaper/publications and media. We tried to collect those reports and evidences and have successfully collected it. The eye-witnesses were direct.. However, there were some problems while collecting the evidences inside the country. Because after 1975, officially and unofficially many evidences were destroyed or there had been many attempts to destroy them. Investigation agency has also found proof to verify this claim.

The tribunal chairman then said, ‘I have a small question. In one of the charges involving Mr Azahar (count 12) I can see two different names for a village. What is the actual name of the village? In one copy I can see that it’s Holbunia and in another Nolbunia. It’s different in the formal charge and in the witness statement. You have to make it clear and be certain. Either it is Holbunia or it is Nolbunia.’

The prosecutor said that he would have a look at it.

He then started on legal submissions.

Haider Ali quoted from the preamble of the International Crimes Tribunal act 1973 which states that it is:

‘An Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law. Whereas it is expedient to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law and for matters connected therewith.’

He then said, ‘My lord, we have in sequence presented the charges that are covered under ICT rules of procedure 3(2)(a) and also the Geneva Convention. The crimes that were committed were devastating and inhuman. These offences we presented are defined under crimes against humanity in specified sections of law. So, it is appropriate now to frame the charges against the accused as there are overwhelming evidences available against him.’

He then quoted from ICT rules of procedure rule 29(1): ‘The Tribunal shall take cognizance of an offence against any accused upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence submitted by a Prosecutor in support thereof, if they disclose a prima facie case for trial of the accused.’

The prosecutor said that this stage above had now been passed. He then quoted from section 9(5) of the 1973 Act: ‘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.’

He said, ‘We have also passed this stage.’ He said that the tribunal was now in between section 10 (1)(a) and (b) of the 1973 Act. He then quoted these two subsections.

10. (1) The following procedure shall be followed at a trial before a Tribunal, namely:-
(a) the charge shall be read out;
(b) the Tribunal shall ask each accused person whether he pleads guilty or not-guilty;

The prosecutor went on and said, ‘If the charge is framed and the accused pleads not guilty he’ll get at least 21 days for preparation of his case.’

He said, that all the crimes were defined in section 3 of the Act – we do not need to look into the definition of Genocide, or Crimes against Humanity etc in other international statutes as some may suggest. Theses crimes are sufficiently defined in our own domestic law i.e. ICTA. 1973. With regard to the violation of Geneva Convention, he said that they may need to look into international laws.

There was a discussion about the meaning of the words ‘other inhumane acts’ in the definition of crimes against humanity. The prosecutor submitted that this includes bodily injury or mutilation of dead bodies but does not include property damage as these are covered by War Crime in section 3(2)(d) of ICTA. The tribunal chairman said that property damage should be included in ‘other inhumane acts’. The prosecutor said he did not agree and that property damage was covered by section 3(2)(d) as destruction of cities, houses etc and we do not need to confuse property damage with CAH.

Ali said ‘there is no difference between ICC and ICTBD statutes except the provisions on constitution of the Tribunal. The other aspects are same.’

In relation to the issue of delay, the prosecutor said that the victims could not ask for justice for a long time due to adverse governments during the past years. The present government is favorable for this trial.

He said that the offences in the 1973 Act are internationally recognised and there is no need to follow other international laws since the Act is sufficient. There is no conflict between ICTA and other International law. Moreover the Tribunal may frame necessary rules to improve our law.

He said that the definitions of offences in Section 3(2)(a) to (h) are all in our Penal Code.

The prosecutor wanted to go through section 4 and 5 of the 1973 Act which deal with joint liability and command-responsibility for offences but the Tribunal chairman said that this was not relevant for this case.

The prosecution said that according to section 9(1) and (2) the proceeding of this case has commenced, and we are now making the case ready for trial. The defence do not need time at this stage for taking instruction from the accused as they would get time for preparation of defence after framing of charge.

The tribunal chairman said if we frame charges then the defence will get at least 3 weeks time and this may be extended for 2/3 months or even 6 months to 1 year if this is really necessary for preparation of defence.

The tribunal was adjourned for a lunch brake.

On resumption, the prosecutor clarified that the village name that the tribunal chairman had asked about was Nolbunia not Holbunia. ‘It was a printing mistake,’ he said.

Justice Jahir then said, ‘We have gone through the charges that you have presented and we have some questions to ask you. First of all, the Ibrahim Kutti killing [count 3]; how is it categorised under crimes against humanity? You took another similar type of killing under genocide category, so why not this one? In the act, murder is stated under crimes against humanity and genocide. How did you differentiate between those two? Genocide has to be murder of members of a group, race, and ethnicity. If he was from Awami Leage or even Hindu that could’ve been genocide. Do you agree? How about you put this under crimes against humanity as they are only killing. You can also have a look at act 3(2).’

He suggested that count 2 and 3 could be changed from crimes against humanity to genocide. The prosecutor agreed.

Tajul Islam then got up and said that the tribunal can’t suggest to the prosecution what to do. ‘You are suggesting to put this charge under crimes against humanity. If they made mistakes that should go in our favour. They shouldn’t get the chance to correct their mistakes.’

The tribunal chairman said, ‘Mr Tajul we are not suggesting anything. We are just stating our observations.’

The prosecutor also responded by saying that If there was any mistake in the indictment it can be amended at any stage, even before judgment. He then read out section 3(2)(a) – murder as crimes against humanity and 3(2)(c) – Genocide. Genocide, he said, must be to eliminate a group.
Islam then said, ‘But my lord, they are getting to know what is correct and what is not. The responsibility should be on their shoulder to make it correct.’

Justice Jahir then said, ‘Mr prosecutor, you have in your submission used two words: “widespread” and “systematic” attack – it was in the formal charge. Why did you include these phrases in formal charge?.’ He said that whilst this element was part of the ICC, it is not an element in the ICTY.

The prosecutor said that, ‘It is up to your lordships whether to accept this or not. The attack that was carried out was systematic and widespread. To explain the nature of attack we used those two words.’

Justice Jahir then asked why the prosecution want to include this element of ‘wide-spread and systematic attack’ as element of crimes against humanity. This is not at all necessary in our statute. It is difficult to prove this element.

Islam objected to this saying that the tribunal cannot give any suggestion to the prosecution to cure their defect/lacuna. If there is any defect in the prosecution case then the Defence should get benefit of this, he said

The chairman said that these are only enquiries and the tribunal is not making any suggestion to the prosecution.

Islam asked that his objection be recorded, and the Chairman responded by saying that ‘we know that you have objection to everything.’

Justice Jahir then asked about the killing of Fayzur Rahman, Mijanur Rahman in count 26. The prosecutor said that it was within the jurisdiction of this Tribunal considering the circumstances revealed from the prosecution witness statements.

Justice Jahir asked the prosecutor to read out witness No 8 and 9

“My name is Abdul Zabbar. I was 15 in 1971. Syed Mizanur Rahman was my brother who studied in Dhaka University. Khan Bahadur Afzal was our father and he was a leader for Narail and Jessore Awami League too. My father had a very good relationship with Sheikh Mujib and so did my brother Mizan. Pirojpur inhabitants loved him.

On 3rd may the Pak army entered Pirojpur. They attacked the villagers, murdered them, and there were rape and mass killing. Maulana Delwar Hossain Sayedee took part in all those crimes along with the Razakar force and the Pak Army. My brother Mizan absconded in the hospital and took shelter. Maulana Sayedee helped the Pak army to catch him by divulging his whereabouts. They took him beside the river and asked him to say “Pakistan zindabad”, he said “Joy Bangla”. Then they charged him with bayonets and killed him.

“My name is Sayedur Rahman Khokan. I was 24 in 1971. After the Pak Army attack there were Shanti committee, Razakar, Al badr, Al shams force everywhere. Syed Mizanur Rahman, was a hardcore Awami League politician. He had good relations with every leader and also the public. Sayedee helped kidnap him and the Pak army took him and shot him after charging bayonets.

Justice jahir said that the evidence does not directly implicate the accused with the incident. What about the accomplices Monnaf and Afzal referred to in the witness statements? Are they Prosecution witness?

Chairman said that both of them are dead. The prosecutor confirmed that this is the only evidence on this count. Monnaf and Afzal are now dead.

The prosecutor then said, ‘We submitted witness statements, Investigation report and we presented the case saying who witnessed what things. We also want to present the murder of Foyzur Rahman, father of eminent writer Humayun Ahmed. The Pakistani army killed him and threw him in the river. He was buried in a grave after that. After independence the grave was excavated and 50,000 people took part in the funeral.’

The tribunal chair said, ‘Look, Mr prosecutor, we have to see how the accused can be tagged with this killing.’ The prosecutor said, My lord, we just wanted to present that as perspective.

The prosecutor then said, ‘My lord these are all the charges and it is really evident that Maulana Delwar Hossain Sayedee played a big part in all the killing, rape, arson, looting and extermination.

These incidents happened 40 years ago and it was really hard to get hold of the evidences. But in Bangladesh every house has a history. Thorough investigation was conducted by investigation agency and they collected all the evidences. If we carefully consider them, there is sufficient material to frame a charge. The liberation war can’t be denied and we have to prove if the accused was involved in the crimes or not. There is compelling evidence that he was involved. We have all the elements now, we have the act 1973 (formed in the parliament), and we have competent judges, so charges can be framed.

The chairman then asked the defence lawyers whether they can you commence their hearing on charges the next day. Tajul Islam got up and said, ‘ATN Bangla and Ekushey TV investigative reports were cited as evidence. If we don’t get the copy of those how can we argue?’

The tribunal chairman said, ‘They don’t have to give it to you. The rules only require giving copies of the documents and it does not require them giving copies of the CD or DVD of the video recording. Sit down.’

Islam responded by saying, ‘My lord, it would be like keeping us in the dark. At least the transcript could be given in CD. If it is not in the Rules then the Rules should be amended requiring the prosecution to give copies of these video recordings to the defence for ends of justice. The prosecution must serve all materials on defence upon which they will rely.

The tribunal passed its order.

"Charge hearing of the prosecution is completed. An application for adjournment has been filed by the defence. It appears that the application has been signed by Mr Tanvir Ahmed Al Amin. It appears that he has got no power in this case.

Tanvir then got up and said, ‘Objection my lord, of course I have the power in this case. I can give 100 per cent guarantee. We have submitted the documents long ago in this court. ‘

‘It appears that no power of Mr Tanvir Ahmed Al Amin was available with the tribunal. But Mr Tanvir Ahmed Al Amin said that he has filed this in the court. His submission is accepted. The adjournment prayer is allowed as a last chance to 13/9/2011 for hearing charge matters of the defence.

The defence lawyer argued, ‘Why it would be the last chance?’

The tribunal chairman said, ‘Yes, it is the last chance. But if you face any problem and need time and ask for it, we will consider it. But, normally this is the last chance. ‘

Press Briefing by defence lawyer, Tajul Islam
"We filed petition praying for more time. We decided not to take part in the hearing and accordingly we did not participate in the hearing. The only two time I stood up and protested/objected was because the tribunal members and even the honourable chairman of the tribunal were asking [as the prosecution were presenting their case] the prosecution why they wrote something in a certain way in the formal charge and instead of that they should’ve written it in such and such way. They were saying to them that they should do this instead of that.

For example, Mr Chairman said to the prosecution, “You have put crimes against this person under ‘crimes against humanity’ and for the same crime done to another person you included that under ‘genocide’. You should’ve put that under ‘crimes against humanity’ rather than putting that as ‘genocide’.” Then I protested that whatever they did, however they did it -- if it was done in the wrong way it is a weakness of the prosecution and the accused/defence will enjoy the benefit of this. The tribunal can enquire about it. But they can’t suggest writing something in certain way. This “suggestion-making” and to correct the mistake or giving the prosecution to redeem their weaknesses is not the tribunal’s responsibility, the onus is not on them to correct the prosecution’s mistakes. The accused will be prejudiced if things go like this. So, I only attracted the tribunal’s attention to express my objection. There was another member of the tribunal who similarly asked the prosecution why they wrote “systematic attack” in the formal charge, why they included that phrasing, and told them to strike that off. I also protested at that time too. Whatever they have written they have to bear the responsibility for it. If they have written something wrong, if they have committed mistakes, the accused will get the benefit. But the tribunal can’t ever suggest them to write this instead of that. That was my objection.

Journo: There were 18 witnesses...What’s your position about them?

There were actually 38 witnesses. We were provided with the statements of 38 witness statements. You know that we couldn’t go through them during the vacation. It’s also not only about reading those documents; you have to keep that in mind that it is a special tribunal. This trial should ensure that the accused is informed about everything; his lawyers are getting his instructions and statements, according to which the lawyer will argue and present the case. Till now we haven’t been able to show the 38 witness statements to our client. There was only one working day. It was not possible to tell him all about it in one meeting. So we always said that we need time.

There’s another striking thing that happened today: the prosecution was saying that they have such and such witnesses for such and such cases, and there are also investigative reports from ATN Bangla and Ekushey TV to support their cases. We said that we haven’t received the copies of those television reports. They said that we will not be provided with video CD. I said if you don’t want to give us CDs that’s ok but at least give us the proceedings of what was said and claimed there in those reports. No fair trial and justice can be done if I can’t see, hear and don’t have rights to get the things that will be used to frame charges against me, the things that will be used as evidences against me. So we prayed to the tribunal to give us the copies for the sake of justice. They said the rules don’t mention that we should be provided with CDs. I said the rules were framed by the tribunal itself, so they can change the rules if necessary. For the sake of fair trial and justice the accused should be given these facilities – to inspect, scrutinise the charges, get legal help and have the copies – otherwise justice will not be delivered.

Journo: The tribunal said you were given time for the last time – what do you say about this?

We also protested against this too. Allowed time for the last time – what is that? It’s only today that any order was passed on our time-seeking application. Last time when they extended the time was based on the prosecution’s statement, not us. That day Mr Tipu said that we should be given time, and actually we saw that the prosecution was not even prepared themselves; rather they turned the liability on us and said that we could be allowed time. So it can’t be said the order was given in reply to our prayer. Today is the first time when there has been a written order on allowing more time. They said this is the last time they are allowing it. I protested saying that it is not appropriate to say that this is the last time as it is only the first time they are allowing it. Then the tribunal said there’s nothing called the last time in these courts and if we apply for time again, they’ll consider it and give us more time.

Journo: What happened with Mr Tanvir Ahmed Al Amin’s signature?

When we included Mr Tanvir in this case we submitted the forms regarding his power to represent in the open court. That gave him full authorisation to represent Mr Sayedee and the application also had my signature as I was the first one to represent him from the beginning. The application was submitted with both of our signatures. Somehow that probably went missing from the files and the judge said to Tanvir that he doesn’t have power to represent the accused. He was even passing an order saying that. We said that we have filed the documents giving him the power, if it would be wrong for the tribunal to say that we didn’t. He accepted our submission and said that he has the power. Probably at that moment that was missing, but we have submitted it. The document containing Mr Tanvir’s signature is probably missing and the judges thought that he doesn’t have the power. But he does.

Journo: Will you be presenting the case from now on?

I’m here and Mr Tanvir is here too. When we will prepare for the case, we will both prepare and any of us can present the case. It is not something definite.

Journo: Will the defence start arguments on 13 August?

13 August is the date fixed for placing our arguments. Obviously we are supposed to start on that day. If there is no exceptional problem we will be placing our arguments on that day.

Prosecution press briefing

"Today was the day fixed for the charge hearing on the case against Delwar Hossain Sayedee. Today our turn came first and the tribunal called us to present our case. I gave an introductory speech and my friend Syed Haider Ali then followed it with detailed statements. The next date for the defence to place their arguments is fixed on 13 August.

Mr Haider Ali started the charge hearing for this case on 24 August and he continued that today. On our proposed charged we stated the crimes and statements of the witnesses and the details of how the crimes took place. The tribunal heard us and our hearing is now finished and the next hearing date is 13 August when the defence will come up with their arguments.

Journo: What were the charges (what are the crimes) that you presented today?

We pressed a total of 33 charges and we presented them in detail. These charges include: Murder, genocide, arson, looting, rape, crimes against humanity etc.

Journo: What about the 18 witnesses and Deloar Hossain Sayedee forming Razakar force?

Yes, there were 18 witnesses who clearly described how Maolana Deloar Hossain Sayedee aka Delu aka Deliya formed the Razakar force and gave detail descriptions about it.

Journo: What are the documents from media that you submitted?

There were many reports, photos, videos, documents published in print and electronic media after 1971 and we presented those.

Comment
1. It is notable that five of the counts (2, 10, 11, 21, 29, 30) are supported by just one witness. It is difficult to see how one witness is going to be sufficient to allow any tribunal to convict a person for an offence that allegedly took place 40 years ago.
2. The witness statements are all understood to be pretty short - sometimes just one and a half pages, even when the witness is alleging numerous crimes alleged to be committed by Sayedee.
3. Many people are given as witnesess to multiple counts. Six witnesses give evidence in relation to five or more counts (2, 13, 19, 34, and 45). Witness no. 45 gives evidence in relation to 9 offences!
4. The strength of the witness statements are not known since they have not been made public. However, it is notable for example when statements were read out, it was clear that they were not actual eye-witnesses. So in count 2, in relation to the killing of Vagirothi, the only witness is his son, and he was five years old when the incident happened. It is difficult to see how the testimony of a five year old is going to be sufficient to substantiate the allegation.
5. It was rather odd, how the tribunal, out of the blue raised an issue about the lawyer Tanvir Al-Amin. He has many times argued before the court and the tribunal has never questioned him about whether he had proper authority to act on behalf of Sayedee. Anyway, it was positive that the tribunal backed down quickly on this.
6. Note that the application made by the defence at this hearing brings into questions certain elements of the decision by the tribunal to take congisance of the offences (see comment at end of 18 August hearing blog)

24 Aug 2011: Sayedee adjournment

Sayedee was present in court again.

The hearing started with the chairman asking Tajul Islam, the defence prosecutor, why the defence were again seeking an adjournment, and telling him that in any case there was an outstanding application that the tribunal has not yet ruled on.

He said that after the hearing today the court will next sit on 4 September when the defence will be able to present their argument.

Tajul Islam, the defence lawyer asked how the charge hearing could go on, if the defence was not prepared? They had only just received 38 additional witness statements and had not been able to seek instruction from the client.

The tribunal chairman again told the Islam that the defence would get their time and everything will go on according to the rules. ‘So, you should sit down, listen to their arguments and take notes.’

Mr. Islam replied that this also amounted to taking part in the proceedings. ‘Without knowing about the additional documents the Defence was not in a position to take part in the hearing,’ he said. He then said, ‘My lord, we want to humbly submit that the prosecution is deliberately trying to obstruct a fair trial. They have submitted illegible documents, which they are using as vital evidences such as statement of witnesses. They repeatedly asked for more and more time without citing any good reasons. I would say they did it on purpose. The prosecution impeded fair trial by taking time deliberately.’

The tribunal chairman replied, ‘Look Mr Tajul, I could say so many things now but I’m not going to. I would just ask you to sit down and listen to their argument. About the illegible documents, we passed the order saying that illegible documents will not be considered as evidence by the Tribunal. After this order how can there be any question about illegible documents? Nothing more is required. So, you sit down, take notes on what they submit and prepare yourself. But please don’t waste time by submitting adjournment petitions.

Islam said, 'My lord, we got the copy of witness statement only yesterday at 3pm. It is not possible to go through this overnight. We will be prejudiced if we take part in the charge hearing now. Without reading the documents thoroughly how can we take notes? Moreover there are illegible documents. You are asking us to do something that is impossible.

The tribunal chairman asked Islam to please sit down and let the prosecution place their arguments.

Islam then said that they could not take part in the hearing, and all the defence lawyers get up from seats and about to leave.

The Tribunal chairman said, ‘What’s going on? Please take your seats. Sit there, listen to their arguments and take notes.’

Islam responded, ‘My lord, my client doesn’t even know what the allegations are. There is no way that we can take part in the proceedings.’

The tribunal chairman said, ‘Mr Tajul, you have said too much. You say something inside the court, and outside you say something else. It’s the modern age, we get all the information, we read stuff on the internet, and we hear and know all the things you said.’ You have said more that what you needed to say. You have crossed your line.’

Islam responded by saying that what he says outside the court is the same as what he says inside. ‘I never say anything other than that. I can’t do if anything if the newspaper misquotes me. Furthermore, I didn’t even have time to look at the newspaper these days. But I never say something else outside the court that doesn’t happen inside the court.’

‘My lord, the prosecution only supplied us the documents yesterday that they were supposed to submit on 19 July 2011. I would say that they are being indulged as they are getting time whenever they want and they are getting away with all the anomalies. Where is the justice? How can it be possible for us to prepare for the charge hearing overnight where there are 68 witness’ statements to read through? I haven’t heard any cases like this where the defence has to prepare and take part in the charge hearing the next day after getting statement of witnesses. The prosecution, by not submitting those witness statements earlier, has violated court orders, the act and the rules. But they are getting away with it pretty easily.'

The chairman said, ‘Look, we are going to take tough stance with the prosecution. But please sit down and take part. The charge hearing has started yesterday, you were there too. You can submit your petition on 04 September 2011.’

Islam said, ‘My lord, during Eid vacation it is not possible for us to go through all those documents. I’m not even sure we can get back to Dhaka on 4 September. You have to consider that although we are lawyers, at the same time we are human beings.’

The chairman again asked Islam to please sit down and take notes.

Islam said, ‘My lord we have to say we can’t take part in the charge hearing like this.’

The tribunal chairman asked the Chief prosecutor whether he was ready, and was told that he was.

The chairman then said, ‘First of all, I also caution your side for the mistake that you made. Your side is making mistakes over and over again. Be careful about these things.’

The prosecutor said that they would be careful so that this doesn’t happen again. ‘It was an inadvertent mistake’

The chairman said, ‘Allah has bestowed us with a great responsibility and we want carry out this responsibility and do it fairly. We are for both sides. But it is us who are being questioned for the mistakes your side is making.’

The prosecutor said, ‘My lord, this will not happen again.’ He then asked Haider Ali to start. There was a short conversation between the two and the chief prosecutor then said, ‘We also have no objection if you consider the adjournment petition, if this is acceptable to your lordship.’

The tribunal then passed the order.

‘

This is an application for adjournment filed by the defence. Mr Tajul Islam, learned counsel, appearing for the accused petitioner, submitted that they have received part of the witness statements from the prosecution just yesterday. As such they couldn’t peruse the documents in this short time. He also submitted that the defence is not prepared to take part in the hearing. Learned chief prosecutor, appearing for the prosecution, does not oppose this prayer for adjournment of the charge hearing. Considering their submission we adjourn the hearing until 04/09/2011. The court will sit for further hearing of charges on the day.

Defence press briefing with Tajul Islam
Journo: (Jokingly) Remember to say exactly what you said inside the courtroom.
Tajul Islam: Now I’m sort of nervous to say anything in front you! You all know that the charge hearing was adjourned yesterday. It was found by the court yesterday that the prosecution did not submit part of some documents. The Tribunal ordered prosecution to submit the rest of the documents yesterday. We received those copies yesterday at 3pm from the prosecution. Obviously, we couldn’t prepare ourselves on this. The documents consist of almost 70 pages and there is statement of 38 new witnesses. The earlier copy that we received had statements from 30 witnesses and we received extra 38 witness statement yesterday. Naturally it was impossible for us to read those extra 38 statements meticulously. So, we prayed for further time today. But the Tribunal, without passing any order on our petition, told us to sit down there and listen to prosecution’s argument. We argued that if prosecution is allowed to go on that means that the charge hearing is continuing. If one side is allowed to place their argument having another side completely unprepared that cannot be called justice. In spite of that the Tribunal asked the prosecution to go on. At this stage, the chief prosecutor said if the tribunal allows the time-extension petition they won’t have any objection against it. After his statement, the tribunal said that they are allowing our petition for more time and the next date for charge hearing is fixed on 4 September 2011.

Journo: Is this enough for you? Would you take part in the hearing that day?

Tajul – Of course you all understand that we just received the documents. The Eid vacation will start very soon. We have to come back and sit for the charge hearing just one day after the vacation will have ended. In light of the present socio-economic scenario in Bangladesh, all of us who reside in Dhaka go to our village or home town to celebrate Eid with our parents, family and relatives. You all also know the condition of the highways and roads very well. So you can tell me well about how realistic it is or is not for us to get back on the 4th September in Dhaka. Under the prevailing circumstances I wouldn’t be surprised if we can’t even reach Dhaka on the day. But yet the Tribunal set the date and of course, the order of the Tribunal is to be complied with. If we face any problem, we will come and explain that to the Tribunal. We are not sure if we can even be physically present and say something. Let us see what happens, time will say.

Journo: If you can come, then...

Tajul – It depends on if we can fully prepare in the meantime. If we can’t, obviously we will ask for more time that day.

Journo: Tell us about the documents.

Tajul – The prosecution provided us the first set of documents on 27 July 2011 that they were supposed to submit on 19 July 2011. In those documents 97 pages were illegible. We applied for new set of documents, and when we got those, 72 pages were still unreadable. Finally, on 16 August we got the first chance to show those documents to our client. Then the charge hearing started. We said it time and again that if we are not given adequate time, it is impossible for the defence to prepare for such a case like this. It will be impossible for us to ensure justice for the client under these circumstances. For this reason, we appealed for reasonable time to the court, especially for the documents supplied to us yesterday containing 38 new witness statements. It is not possible to finish reading these documents and prepare for argument overnight. This trial is not something that has to be rushed. So, we said if this reasonable time is not allowed, we are unable to take part in the hearing and we will not participate. We said all these things to the court. You know, we are not supercomputers that we can go beyond our human limitation and magically prepare the arguments only after getting them on yesterday at 3pm. So, we will not be able to participate in the hearing if we don’t get at least the logical time that is needed as a human.

Journo: Are you apprehensive about getting justice?

Tajul – It is hard to comment on this now right away. If we don’t get what is reasonable you will see what will understandably follow. But at this moment it is hard to comment on this.

23 Aug 2011: Sayedee bail

Sayedee was again present at this hearing, which had been set to deal with the 18 August adjourned application relating to charge framing. Instead, the court first dealt with a bail application. See comments at end.

Bail Application
He said that on 14th July 2011 the prosecution raised the following objections against the bail application of the accused: (i) the accused is an influential character and likely to interfere and influence witnesses and hamper the trial process; (ii) there is a prima facie case of allegations of Crime against Humanity and genocide against the accused; and (iii) considering the brutality of 1971 there was no ground to release the accused on bail.

He argued that by order dated 14 July 2011, the tribunal denied bail to the accused holding that cognizance of offence under section 3(2) of the International Crimes Tribunal Act 1973 had been taken against the accused and that this was a case where detention of 8 or 9 months could not be termed as a long detention in either Bangladesh's national law or international law.

That rule 34(3) now provides that “At any stage of the proceedings, the Tribunal may release an accused on bail subject to fulfillment of some conditions as imposed by it, and in the interest of justice, may modify any of such conditions on its own motion or on the prayer of either party. In case of violation of any such conditions the accused may be taken into custody cancelling his bail”.

He then set out the reasons why bail should be given

First, the accused is unlikely to tamper with witnesses or evidence or interfere with trial proceedings. He said that the prosecution has already admitted that the accused is not named in the 6 General Diaries filed in Pirojpur Sadar and Zianagar (Indurkani) Police Stations alleging that witness intimidation had occurred.

He said that on 31 May 2011, the full investigation report had been handed to the prosecution and that under Rule 11, this indicates the completion of all investigations: “After completion of investigation, the Investigation Officer shall submit an Investigation Report together with all the documents, papers and the evidence collected during investigation of offence(s) as specified in the Act committed by a person(s) before the Chief Prosecutor (emphasis added)”.

He said that under the newly inserted Chapter VIA of the Rules of Procedure, a number of measures can be ordered by the tribunal to ensure witness protection and prevent witness intimidation or interference. He added that the accused’s residence is in Dhaka and that the alleged crime bases concern the Pirojpur District nearly 300km away in the south-western region of Bangladesh.

He also argued that:
- he is a religious scholar and a man of good character. - the accused is willing to surrender his passport before the competent authorities and to undertake that he will not apply for travel documents without prior permission from the tribunal. - he is also willing to comply with a residence condition to reside at his address at 914, Shahidbagh, Dhaka 1217 whereby his presence can be regularly checked and monitored. He is willing to report to this Tribunal on an agreed regular basis. - the accused is willing to undertake that he will not travel to any crime-base areas without prior permission from the tribunal. He is also willing to undertake not to contact any prosecution witnesses or to interfere with the trial proceedings.

In conclusion on this point he said that here is a lack of evidence connecting the accused to any claims of witness intimidation as well as the imposition of several factors safeguarding the trial process and witnesses. This includes the:
i. conclusion of the investigation report;
ii. the newly inserted witness protections provisions; and
iii. the bail conditions volunteered by the accused as an additional guarantee.
And therefore the tribunal should recognise that it is unlikely that the accused will tamper with witnesses or evidence or interfere with trial proceedings.

2. He argued that bail can be granted to an individual even when he is accused of serious crimes. He said that on 14 July 2011 the prosecution opposed bail on the basis that there was a prima facie case establishing allegations of crimes against humanity and genocide against the accused. The prosecution also submitted that there was allegation of killing more than 50 persons against the accused and considering brutality committed in 1971 the application for bail of the Accused should be refused.

He argued that the jurisdiction of the tribunal under section 3 (2) of the International Crimes (Tribunal) Act 1973 as amended 2009 solely concerns crimes of a serious and grave nature including crimes against humanity, genocide and war crimes and that as under Rule 9 (5) and 34 (3) of the Rules of Procedure, the tribunal provides for two manners in which bail can be granted both throughout the investigation and proceedings, it isy submitted that the tribunal envisages that bail can be granted regardless of the nature of allegations formed.

He said, that other international tribunals all have jurisdiction over crime against humanity and genocide and further all of the tribunals provide for the right to provisional release, and in the case of Prosecutor v Hadizihasanovic at the ICTY, it was held that the rule regarding provisional release/bail must be interpreted in light of the ICCPR and that in this regard, no distinction should be made between domestic criminal and international criminal proceedings.

He referred to the case of Prosecutor v Stanisic, where he said both the Trial Chamber and Appeals Chamber at the ICTY held that: “the gravity of charges cannot by itself serve to justify long periods of detention on remand” and that the ICTY has on a number of occasions provided provisional release to accused persons formally charged with crime against humanity and genocide.

He finally submitted that the nature of any potential charges to be brought against the accused does not prevent the Tribunal from granting bail.

3. He argued that bail is a right and not a privilege - that the amended Rules of Procedure provide for the right to be presumed innocent under Rule 43 (2) and the presumption of innocence is also enshrined in Article 14 (2) ICCPR: “Everyone charged with a criminal offence shall have the right to be presumed innocent until guilty according to law”.

He argued that following this guarantee under Article 14 (2) ICCPR, Article 9 (3) ICCPR provides that “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.”

He submitted that the presumption of innocence enshrined in Rule 43 (2) of 2010 Rules and Article 14 (2) ICCPR is a fundamental principle and as a result the provision for bail is a right and not a privilege under domestic and international law. Following Rules, 9(5), 33 and 34(3) of the 2010 Rules (as amended on 28 June 2011) and Article 9 (3) of the ICCPR, this right arises at any stage of judicial proceedings and in particular the right to bail is fundamentally upheld during pre-trial proceedings.

He finally argued on this point that that under Article 9 (1) ICCPR: ‘No one shall be subjected to arbitrary arrest or detention". that the Human Rights Committee’s constant jurisprudence has defined the notion of “arbitrariness” as being broadly interpreted and “to include elements of inappropriateness, injustice, lack of predictability and due process of law. This means that remand in custody must not only be lawful but reasonable and necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime."

As a result, it submitted, the prosecution erred in its opposition to bail on the grounds that victims suffered atrocities in 1971. This illustrates that bail is being refused as a point of retribution and not because it is both reasonable and necessary as required under the ICCPR. An attempt to punish the accused for events suffered in 1971 before any finding of guilt is contrary to the accused right to be presumed innocence.

4. He argued that the accused should be granted bail to seek full-time medical attention as he suffers from a number of ailments including diabetes, cardiac disease and chronic arthritis in the neck, upper limbs, waist and knees. Considering the acute health conditions of the accused on 26th May 2011 the Jail Authority had to admit him in Ibrahim Cardiac Hospital and Research Institute (‘ICHRI’), and that although on 11th June 2011 he was taken back to the Dhaka Central Jail, t accused is still very sick and is of very old age requiring full-time treatment in specialised medical hospital and care of his family members.

He finally set out the conditions that the defence proposed could be imposed upon Sayedee if the tribunal were to give him bail:
i. surrenders his passport before this tribunal;
ii. does not apply for any travel documents without the prior permission from the tribunal;
iii. resides at 914, Shahidbagh, Dhaka - 1217;
iv. reports to this tribunal on an agreed regular basis;
v. does not travel to any crime-base areas without prior permission from the tribunal;
vi. does not contact any of the prosecution witnesses; and
vii. does not interfere with any part of the trial proceedings.

He added that a family friend of the accused would be willing to grant surety.

The chief prosecutor Golam Arif (Tipu) responded on behalf of the prosecution. He said, these points for bail petition are presented by the defence over and over again. He said that old age is a common problem for this trial, as the crimes happened 40 years ago and the accused are all over 60 or 65.

He argued that the accused should not be granted bail because he can interfere with fair trial and it will be an impediment for the trial process. He also argued that the offences are also so grave and the trial is of such magnitude that the accused can not be granted bail.

Tajul Islam responded by saying that. ‘Today, prosecution’s only objection is that he will interfere with the trial. We would ask my lordship to at least grant the accused bail once for now. He will surrender his passport to the Tribunal so there is no chance of absconding. If, after granted bail, prosecution says it once that he impeded the trial just take him into custody again. We will have no problem with that. But we pray for the bail because the accused has no intention to interfere with the trial nor will he abscond.'

The prosecution responded by saying that Sayedee is a man of tremendous influence and it is likely that he will interfere with the trial. He also said that the tribunal has already taken cognizance against the accused petition and today is fixed for charge hearing. So the bail prayer may be rejected.

The tribunal then passed its order

"This is an application for bail against the accused petitioner Delawar Hossain Sayedee. Mr Tanvir Ahmed Al Amin, learned counsel, appearing for the accused petitioner, submits that the accused petitioner has been detained for a long time without trial and there is no chance of tampering with evidence and interfering with trial if he is granted bail by this tribunal. "Learned counsel further submits that there is no chance of interference as the investigation process is now over and we are waiting for the charge hearing to take place. If the bail petition is granted the accused is ready to comply with any condition imposed by the Tribunal. The learned counsel also submits that the accused petitioner is innocent until proven guilty. So the accused petitioner may be granted bail on that ground. The prosecution opposed the bail prayer by submitting that the accused petitioner is a very influential person in the society and have influence over his locality. If such influential person is granted bail by the Tribunal there is a chance of tampering with the witnesses and there is a chance of impeding the trial. Learned prosecutor also submitted that the defence is presenting the same grounds and the Tribunal has rejected those before and new grounds have to be considered. As such the bail prayer should be rejected. "We have considered all the submission from the defence and the prosecution and earlier we also perused the formal charge and the applications forwarded by both parties. The tribunal has taken cognizance of the offence and the charge hearing will now take place. The submissions made by the learned counsel were previously made before the tribunal. So we find no ground to reconsider the bail petition. Therefore the bail application filed the defence is thus rejected."

Adjournment petition and illegible documents.
The tribunal chairman told Tajul Islam, the defence lawyer, that, ‘we considered the prayer regarding illegible documents and passed an order last time that those will not be admissible as evidence in court.’

Tajul said, ‘My lord before proceeding I would like to share a joke with everyone. “The king asked his minister, “Why did the cannon not fire?” The minister said, “There are 101 reasons and the first one is that the gunpowder was wet. The king said, “There is no need to explain the other 100 reasons.” My lord, we didn’t have enough time to prepare for the charge hearing, we couldn’t meet the client and take his instruction. As we are not ready, we don’t see any point in going for the next step, just like the failed cannon and gunpowder story.

He was about to discuss the issue of the illegible documents, when the tribunal chairman said, ‘We already said that those will not be admissible.’ Islam said that, ‘in the Tribunal’s order there is a provision that new evidence can be submitted. These 72 pages that are illegible, was relied upon by the prosecution. The formal charge was a reflection of all those documents. If they couldn’t even read them themselves how they could consider this for the formal charge.’

The tribunal chairman said, ‘But we said that they will not be considered. We cannot instruct anyone to submit or not submit evidences. It is up to them and we decided that we will not consider the illegible ones.’

Islam said, ‘My lord, there could be some documents of our interest in those illegible documents. We might find something that could go against their arguments.

He added that the defence had still not received the copy of the 10 August hearing.

He said, the tribunal took cognizance of the offence on 14 July 2011. The prosecution took 42 days to submit the formal charge. But we are not even getting one tenth of the time that they got. As a state party of ICCPR we have the obligation to follow the international rules which require proper access to documents. 'We humbly submit that the prosecution can benefit from the illegible documents. The prosecution also did submit that it is not their duty to supply all the documents. ICT rules of procedure 18 (4) provide that ‘the Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.’

So, it is a duty of the prosecution under rule 18 (4) that submit legible copies of document for defence preparation, he said.

Islam then discussed the issue of privileged communication. The Bengal Jail court rule 683 and 687 provides that the accused is entitled to have privileged communication with suitable room where the lawyer and the client can have private and confidential meeting. 'We only could consult with our client on one day, which was not privileged at all. 22 August 2011 was a holiday and we didn’t receive the order copy which requires the jail authority to give privileged communication.'

The tribunal chairman said, ‘We know that you didn’t receive the order copy. You will get it soon’.

Islam went onto say that ‘our submission is that there is a violation of article 14 (3) (b) of ICCPR rules. We should be allowed more time for preparation.

'Finally we want to submit', Islam said, 'that if we can’t take instructions from our client we can place no arguments at all. This trial is a very complex one and I’m still finding it hard to understand so many aspects of it. Such as, I still don’t understand what crimes against humanity is/ how it is defined. We also submit that Eid vacation is coming and it will be hard for us to go through the documents. So we pray for adjournment at least till Eid vacation.' The tribunal chairman asked the prosecution whether they were ready?

One prosecutor said, ‘Yes, my lord. What we want to say is that we are hearing the same arguments over and over again. Maulana Deloar Hossain Sayedee is a great philosopher and a great orator. The trial should start quickly other wise he can influence the trial. The law gives them three weeks and they got their three weeks’.

Islam said ‘My lord, the prosecution should see their own face in the mirror. There had been numerous times that they asked for more time, over and over again. They took 42 days to submit the formal charge. I humbly submit that we will be prejudiced if this goes on, but the prosecution will not be prejudiced. Furthermore, one minister was reported in the media saying that the charge hearing will surely start from August. Public will think that there is a connection between this remark and the rush to start the charge hearing.'

The tribunal chairman said, 'Look, ministers say so many things. If the charge hearing doesn’t take place in August, in September they are going to say that the charge hearing will take place in September surely. There is no escaping from those.'

Islam said, ‘But we feel that such remarks should be cautioned by the Tribunal. The tribunal has criticised earlier comments that it didn’t like. If the tribunal can take judicial notice of what [Toby Cadman] said then why it cannot take such notice for the comments of the Ministers on the trial process.’ It should be the same case. There is no rush to start the charge hearing my lord. Justice hurried is justice buried.

'Maulana Delwar Hossain Sayedee is a good orator, of course, but for good cause. He used his oratory power all his life to call people toward the good path, path of religion. He never used his power to influence people in the wrong direction. So, how his oratory power is now a threat? It seems that my client is being prejudiced because he is a good orator. Since when having a good quality became a thorn for someone? He always led people to good path with his power, why would he do otherwise now?’ Islam said

The tribunal chairman then told the prosecutor that he may start his argument and we will pass the order for the adjournment petition later.

Tajul asked how that was possible? ‘If we don’t get the reasonable time we can’t take part in the hearing.’

The tribunal chairman asked him to sit down. ‘We will pass the order later,’ he said. The chief prosecutor started the application for charge hearing. ‘The papers that we have submitted today contain material for your lordship to consider. Based on our formal charge your lordship has taken cognizance of the offence on 14 July 2011. Along with the formal charge we have submitted the investigation report containing witness statements, newspaper cuttings and other documents. The materials justify the framing of charges against Maolana Delowar Hossain Sayedee." After a few minutes he then called Mr Haider Ali to proceed with the charge hearing.

Haider Ali then got and spoke. He said that ‘Pirojpur district in Barisal Division is one of the places where some of the atrocious incidents took place that happened between 25 March 1971 and 16 December 1971. They are all stated in the formal charge. An Investigation agency was formed according to ICT act section 8, and the investigation officials thus appointed carried out the investigation and prepared the investigation report. The official investigation started on 21.07.2010.’

The tribunal chairman interrupted him and said, ‘You should better go straight to your argument rather than citing history. No need for all the explanations.’

The prosecution said that he thought there should be at least a little bit of explanation.

‘On 23 June 1756,’ he continued’ ‘the British rule had started in the subcontinent and after almost 200 years of colonisation Pakistan and India were born in 1947. Pakistan was divided in two states East and West Pakistan, which were 1200 km apart (2400 km in seaway). There were also difference in language and culture. West Pakistan started hitting at East’s culture over and over again. They deprived East of equal rights and economic development. They also came down on the language of the then East Pakistan, Bangla, which ended up in Language movement in 1952. In 1970 6-point movement happened and East Pakistan won the election and was on its way to form the government. But West Pakistan was not willing to do so. Then the West Pakistan force attacked the East on 25 March 1971. It was not a sudden attack, the build up was going on since 1948. The incidents that took place in Pirojpur were just a part of the whole massacre of the country. '

'In 1971, almost 98-99 per cent of Bangladeshis were united and fought against the Pakistani force. But there were some others who joined hands with the Pakistani force and in collaboration were involved in all crimes such as murder, rape, looting, arson etc. They formed groups such as ShantiBahini, Razakar, Al Badr, Al Shams to carry out their operations. How these groups were formed is stated in the formal charge.

'The accused was also engaged in murder, rape and loot during that time and the investigation officers went to Pirojpur and took statement from the tortured. They also found one mass grave. As Pirojpur is a coastal area and has a lot of rivers, most of the dead bodies were thrown away in the river. There is a detailed description in the 11-14 volume.

'There are also the copies of statements from the witnesses in front of you.

'These incidents happened 40 years ago. The defence is saying that it is a problem for them, but in the meantime it is a big problem faced by the prosecution too. We have also seized some documents but it is not presented here as it is very delicate and may get destroyed if moved to frequently. Now we are going to go through the statement of the witnesses. We also submitted a proposed copy of the charge.

The accused is Maulana Delwar Hossain Sayedee aka Delu aka Deliya born on 1/2/1940. Permanent address Pirojpur and present address Shahidbag, Dhaka.

In his educational certificate his name is stated as Abu Nayeem Md Delwar Hossain Sayedee. We came to know that he does not have the educational qualification to put the title “Allama” that he uses before his name. Sharsheena Madrasa also told us that he does not have the educational qualification to write “Allama”.'

He then started to go through the charges.

Charge 1 he said involved the allegation that turing the period 3 May 2011 and 16 December 1971 he was involved in murder, rape and forcefully converting Hindus to Muslims. He initiated the Razakar group in his area and set up torture camps. This was all part of the planned Pakistani annihilation of Bangladeshis who were the majority in whole Pakistan.

He mentioned two witness statements in support of this Abdul Latif (witness no 18) and Mokhles Moshari (witness no 15). Their statement says he helped establish the Razakar camps and murdered people there. He was also involved in the killing of a girl who helped the Muktibahini (Liberation force).

He then moved onto count 2, and referred to witness No. 45 in volume 2 of the witness statements.

The tribunal chairman then said that ‘We can’t find the witness statement copy? Where is it?’

The prosecutor said, ‘You will find it in Part 2, there is a second part of the witness statements.’

The tribunal informed the prosecution they only had one volume of witnesses and the defence was also served with one volume. If there was another volume then it should be submitted first to the tribunal and the defence.

After searching through the tribunal documents, the chairman said that they couldn’t seem to find it.

The prosecution then found the copies, ‘We have found three copies. Here they are my lord.’

The tribunal says, ‘No, we cannot let you continue, because the rule says you have to submit four copies – three for the judges and one for the defence.‘

The tribunal passed the following order:

'Application praying for reasonable adjournment and submission of legible documents was taken up for hearing. At the outset, Mr Tajul Islam, learned counsel, appearing for the accused petitioner pressed arguments regarding illegible documents. The Tribunal has already passed the last order regarding illegible documents and Mr Tajul also did not deny that. Regarding the petition for reasonable adjournment Mr Tajul strongly argued on the factual point that they could not prepare themselves for the charge hearing. The prosecution opposed the prayer for adjournment saying that they were ready. However, we, not passing order regarding the adjournment, asked the prosecution to start the hearing of charges. During the hearing, it was revealed that there are some anomalies in service of copies of documents regarding some statement of witnesses to the tribunal and the accused. The prosecution is thus directed to submit the missing copies regarding statement of witnesses in this tribunal and to the defence today. Let the hearing of the charge matter be adjourned till tomorrow.'

Press briefing by defence given by Tajul Islam
Tajul - You all know today was the date fixed for hearing of charges against Maulana Sayedee. We filed a petition asking for more time. We had few key points in our petition for adjournment. We didn’t receive legible copy of all the documents that we were supposed to get. We didn’t get the opportunity to consult with our client because we didn’t have the certified copy of the Tribunal order and without that the jail authority will not let us have the privileged communication. So we couldn’t take the instruction from the client. We also submitted that we didn’t have the opportunity to adequately prepare for such special case and we couldn’t take instructions from the client. We didn’t get the documents in time and whatever was provided after that had illegible documents. So we prayed for a reasonable time and wanted the hearing to start after Eid vacation. The Tribunal, after hearing our petition, didn’t even pass any order on that and asked the prosecution to start the charge hearing. They started the hearing and then it was found out that they didn’t submit some documents to the court and also to us, which they were supposed to give us on 19 July 2011 after the Tribunal passed the order on 14 July; we received the documents on 27 July 2011. So, you can easily see that they didn’t even submit all the documents till today that they were supposed to provide on 19 July 2011. Time and again we are asking for more time and the court is refusing. But we haven’t got all the documents yet. In these circumstances it is impossible for us to continue with the hearing of this complex trial as a defence lawyer. After seeing all these, the tribunal fixed tomorrow for the hearing again, I don’t know why. Because we haven’t got the document yet, whereas the tribunal also said that for preparation we will get at least three weeks after getting the documents. Probably prosecution will give us the documents today or tomorrow. Let’s see what order the tribunal gives tomorrow. We also asked why there is such a rush to start the hearing so quickly while we didn’t get the documents, we didn’t have privileged communication and we couldn’t consult the client. Why is there a need to quickly frame the charge and forcing it upon us? There is no need to haste as the client is in custody already. We also reminded the court that the law minister said that the charge hearing of Maolana Sayedee’s case will start within August. When the tribunal gives us this scanty amount of time, and when they don’t want to give orders on our adjournment petition, very reasonably there would be doubt in public’s mind that probably this court is following the dictation of the minister. So, we think that public confidence will take a hit and there would be doubts about this Tribunal. The Tribunal said that they are not taking minister’s remarks in consideration. I said if the Tribunal can be so critical about what Mr Cadman said in the press conference why won’t they take the minister’s remark into consideration or be critical about it. After saying all these, they still proceeded with the hearing but we said we will not take part in the charge hearing under the circumstances. Now the hearing is adjourned till tomorrow only.

Journo: There was another argument from your side that the allegations against Sayedee are new...

D – Yes, before 2008 there were no allegations against him. There was no question against him raised by any newspaper or in any history books that he was involved in those crimes happened 40 years ago. But when he became active in politics, when he is about to contribute greatly in politics and when he became a threat for his political rivals then recently just to harass him these allegations were raised. So, we said he is a victim of political vendetta. There is no proof that he was involved in all these war crimes, millions of inhabitants of Pirojpur will testify that. What happened against him was the greatest lying of the century. We have said this before and saying it today. We said that it is possible to prove him innocent if there is a fair trial. Journo: Will you take part in tomorrow’s hearing?

D – If we are not granted reasonable time we can not take part in the hearing. We might come tomorrow but we don’t even have enough materials to take preparations. Prosecution hasn’t still provided us the documents, so there is no question of being totally prepared by tomorrow.

Journo: What happened to the bail petition?

D – The bail petition was rejected for the sixth time today. The prosecution couldn’t answer to any of our arguments, so to speak. The Tribunal also didn’t mention that the Prosecution couldn’t oppose any of our grounds/arguments, they only said similar prayers were rejected before and there is nothing new. Our stance here is that there is new ground created everyday. My client is in custody one more day today than yesterday. As time goes by, new grounds for bail petition will be created. It’s been so long that he is detained, so we can always seek bail.

Prosecution press briefing
"Today was the day fixed for hearing of framing of charges against Maulana Delwar Hossain Sayedee. The defence prayed for more time and petitioned for an adjournment. The Tribunal said they want to continue with the hearing as the prosecution is ready. During the charge hearing we started to read the statement of some witnesses. Then it was found that there are little anomalies with the documents. The list of witnesses was a bit incorrect. One of the copies of statements was not there. We found three copies in our files. But the Tribunal said we have to provide four – three to the judges and one to the defence. As we had three copies, the Tribunal adjourned the hearing till tomorrow. Journo: Do you think your side was not adequately prepared?

P – This didn’t happen because of inadequate preparation. Some documents were missing only.

Comment
1. It is difficult to see what can be the justification for continue to keep Sayedee any longer in detention - other than for political considerations, which of course is not what the court is supposed to be about. The tribunal gave no substantive justification for denying bail and did not engage with ANY of the arguments made by the defence. It is really quite something how the tribunal does not feel it needs to engage with any of the defence's arguments. There is no evidence that he will flee, and as the defence said, if there remains some kind of concern about interference with witnesses, though it appears rather difficult to see how this could happen under the conditions proposed by the defence, why not give him bail and see whether the risks claimed by the prosecution arise.