Tuesday, September 27, 2011

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)

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.

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)

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