Monday, December 26, 2011

Effectiveness of US Ambassador Rapp

How effective has the intervention of Stephen Rapp, the US Ambassador at Large for war crimes, been in 'improving' the standards of the Bangladesh war crimes tribunal?

Following his first visit to Dhaka in January this year, I wrote a pretty positive blog hopeful that his intervention may result in some positive changes to the tribunal:
'The recent visit to Bangladesh of Stephen Rapp, US War Crimes Ambassador-at-large may well turn out to be a game changer in terms of the country's International Crimes Tribunal.

Till now the government has simply been burying its head in the sand in terms of the arguments relating to international standards. Its ministers have claimed countless times that the trials will meet these standards, whilst ignoring patent deficiencies in the law and procedure. Rapp's visit may well have forced the government to take the matter of standards seriously, and make the necessary changes.'
Two months latter, at the end of March, Rapp sent a ten page letter to the government with a list of suggestions for changes to the rules, following which he made a further visit.

The government made some changes to its rules of procedure in June.

In November, Rapp came for a third visit where he made a number of further suggestions. Arguably, since they were made on the cusp of the opening of the first trial, these could be seen as lines in the sand for the US government. It is notable that prior to stating each of the recommendation, Rapp, used the word 'important'.

So how do we judge his intervention over all?

1.  Initially misled
The first thing to say is that on his first visit to Bangladesh, Rapp was misled (outwitted?)  by the Bangladesh government who persuaded him that he should only focus on changes to the rules of procedure, and not to the International Crimes (Tribunal) Act 1973 itself, or indeed to the consitution (and in particular article 47(3) and 47(A))

In his March letter he stated that 'from my discussions with representatives of the Bangladesh government and ICT it was understood that it would be difficult to amend the Act which created the tribunal,' but that the government 'welcomed suggestions for amendments to their Rules of Procedure.'  It is true that the letter went onto state that 'if you conclude that adopting [changes to the rules of procedure] will not be sufficient, I would respectfully urge you to consider appropriate statutory amendments,'  however the whole discussion was about a changes in the rules of procedure.

I should acknowledge that at the time of his January visit, I thought that this was a sensible strategy stating in a post that:
'Rapp has however given wise advice in suggesting that the necessary changes can be made by amending the Rules of Procedure (it is not clear that all the necessary changes can be made by changing just the procedures, but it is a very good idea to try to do so without amending the 1973 Act): the government can continue to claim that the 1973 Act itself was adequate, and it was just the Tribunal's procedures that need changing (important it seems for the government's PR), and also the changes can be made quickly (by the Tribunal members themselves, without any parliamentary or, technically, governmental interference).'
However, Rapp must/should have known that changes to the rules of procedure would alone not lead to the changes that he wanted (in particular to allow appeals against interlocutory orders) and, in hindsight, removing from the debate the need for legislative change effectively let the government off the hook. It was left to Human Rights Watch and Amnesty International to raise these points.

Officials clearly misled Rapp about the government's inability to make changes to the 1973 Act and indeed to the constitution. It was quite clear that it could have done so, since the government, a few months later, enacted the fifteenth amendment of the constitution (which, inter alia, in fact, amended Article 47(3) of the constitution as it relates to the prosecution of alleged war criminal expanding the article's remit so that 'any individual' prosecuted under the Act could now not seek constitutional remedies. So rather than removing the application of article 47 of the constitution, the government in the meantime widened it!)

2.  Incomplete rule changes by the government
A detailed post has been separately written on the extent to which the June 2011 rule changes actually implemented the Rapp proposals. In summary:

The following suggestions were complied with fully (4 out of 12):
- introduction of rules to allow victim protection
- introduction of rules regulating detention and bail (though issues remain about application)
- introduction of rules clarifying presumption of innocence and burden of proof
- allowing tribunal to look to international case law for assessing evidence issues (Tribunal has stated in its 3 October order that it can do this. Whether happens or not have to wait and see.)

The following suggestions were complied with in part (2 out of 12)
- introduction of rules incorporating rights in International Convention on Civil and Political Rights
- introduction of rules relating to alibi

The following suggestions were not complied with at all (6 out of 12)
- introduction of rules allowing motions on jurisdiction;
- introduction of rules allowing appeals on interlocutory orders;
- introduction of rules ensuring definition of offences follows ICC's 'elements of offences';
- introduction of rules providing accused certain specified rights when interrogated;
- introduction of rules ensuring prosecution disclosure of exculpatory evidence;
- introduction of rules ensuring participation of foreign lawyers in court;

However, as set out in the detailed note, not all of these are of equal practical importance; it cannot simply be stated that the failure of the tribunal to implement these recommendations in itself raises significant questions about the fairness of the tribunal.

If we look at those recommendations that have not been complied with:
- the proposal to allow 'motions on jurisdiction'
- allowing 'accused specified rights when interrogated'
- not allowing participation of foreign lawyers in court
are arguably not that (practically) significant in that (a) motions on jurisdictions are very rarely successful in international tribunals, and would not have been successful in Bangladesh and (b) in Bangladesh the evidence obtained during an interrogation is not admissible in court and (c) the clients do have local lawyers of their choice (who can still obtain assistance from the international lawyers even if they are not present) and are themselves able to provide an effective defence.

The other three rule omissions are however arguably more significant, and do raise more pertinent questions about the fairness of the tribunal.

3. Failure to acknowledge domestic context
Since the establishment of the tribunal, there has been a constant tension between the extent to which the tribunal should comply with national standards on the one hand, and international ones on the other. Though the government led everyone to expect that the tribunal would meet international standards, the tribunal soon took to calling itself a 'national tribunal prosecuting international offences' arguing that international standards had no role in the tribunal.

Into this, Rapp has come and tried to argue that certain international practices and standards should be applied. Whilst improved standards is clearly a good thing, perhaps Rapp did not provide a sufficiently strong argument in public as to why this particular trial should match international standards, when all the other trials in Bangladesh also fail to meet these standards. What was different about this tribunal that justified particular attention and improved standards? There are answers to these questions, but Rapp perhaps did not make the argument strongly enough.

Moreover, in calling for these changes, Rapp has perhaps failed to appreciate that because domestic legal practice in Bangladesh in certain respects was so different from international practice, it would either be difficult for the government/tribunal to introduce the new practices or it was not that necessary. This in particular relates to two of his recommendations: the question about the disclosure of exculpatory evidence, and the need to have a lawyer present during interrogations (see discussions about this in linked posts)

At the same time, Rapp perhaps has failed to give sufficient acknowledgment to how the tribunal in certain respects  does provide a better forum and improved rights to the accused than those given to those accused in Bangladesh of normal violent offences. This should particularly have been noted since one of the 'important' things that Rapp said in his statement last month was that these accused' should have the same rights accorded to them 'as are guaranteed to Bangladeshi citizens who are charged with other violent crimes.' Well, in some ways the tribunal is providing better rights than those generally accorded to accused in Bangladesh (in relation for example to remand for interrogation, and health provision). It would have been good for Rapp to have acknowledged that clearly, before he made his point about how the accused do not get the other rights that the accused in Bangladesh generally get.

4. Two good recommendations
Two recommendations made by Rapp in his November statement were appropriate

(a) Defining “crimes against humanity”;
Rapp stated:
First, it is important that the judges, at the first opportunity, define what “crimes against humanity” means. The term "crimes against humanity" has been defined in the statutes and cases of international courts. It has not been defined in Bangladesh. In their charge framing order in the first case, the judges said that they would interpret the statute according to Bangladesh law but look for additional guidance in the decisions of international tribunals. But it is not clear whether the prosecution must prove whether the alleged murders and rapes were committed as part of a widespread and systematic attack against a civilian population; whether they were committed on a racial, religious, or political basis; whether the alleged perpetrators would need to have knowledge of the larger attack. At other courts, the elements of the crimes have been defined by the judges in an early ruling. The same can be done here.
In his March letter to the tribunal, Rapp effectively made the same point when suggesting that a rule should be introduced ensuring that the tribunal follows the ICC 'elements of crimes' document. The need for this is explained in point 3 of this post, but in summary it is because it appears from the definition of the offence of 'crimes against humanity' as set out in the International Crimes (Tribunal) Act 1973 can be committed simply through proof of murder or rape etc,. It is not the international offence of crimes against humanity, as understood in 1971.

It appears, however, that the tribunal has missed its opportunity to do this - at least in relation to Sayedee, the first man on trial. This could well create a problem for the tribunal, since it is difficult to see how those with an understanding of international law would support a conviction for Sayedee for crimes against humanity on the basis simply of proving murder or rape etc (assuming  of course that it is proved that Sayedee has committed that offence). If the intention was to prosecute Sayedee  for murder or rape - and not for the international offence of crimes against humanity - it could have done so under the normal penal code provisions. It did not need to set up a special tribunal simply for this.

(b) Same rights as other Bangladesh accused
Rapp stated:
Second, it is important that the same rights be accorded to these accused as are guaranteed to Bangladeshi citizens who are charged with other violent crimes. The Bangladesh constitution and laws provided that this was to be a special court responsible for its own rules and procedures. As the judges have amended the rules to incorporate concepts like the presumption of innocence and proof beyond a reasonable doubt, it is also important that they conduct these trials to ensure that the accused have the same right to consult with their counsel, the same time and ability to prepare their defense, and the same time and ability to challenge the process as they would have in other cases.
I have already commented earlier that Rapp should have acknowledged how, in certain ways, this tribunal has provided rights additional to those normally accused in Bangladesh.

Yet, Rapp is right to point out that in a number of significant ways the accused do not have the same rights as normal accused - in particular there is no ability to challenge any order pre-trial or trial order however inappropriate or indeed necessary it may be. Effectively this repeats the recommendation that Rapp made in his original letter - though again this time Rapp should have made clear that this would need to be an amendment of the 1973 Act itself, and possibly even of the first amendment of the constitution.

With the government not having made the change at an earlier stage it is difficult to see how it could now make this change. Clearly the government (and tribunal) are concerned that if they were to have allowed appeals to interlocutory orders, this could have led to proceedings being delayed. If that was their concern - a legitimate one in the context of Bangladesh legal system where delays are ubiquitous - a special bench could have been created to ensure that the process was done speedily.

5. Two less than necessary recommendations
(a) Protection of witnesses
Rapp stated:
Third, while the rules amendments provided for the protection of witnesses, it is important that a system of protection of witnesses be developed in practice and available to both sides. In the first trial, witnesses for the prosecution have already been listed. The defense must file a list of witnesses by December 7. Witness protection measures must be in effect to ensure that those willing to come forth and tell the truth will not be subject to threats and intimidation.
There was no reason for Rapp to suggest that the tribunal will not make the same orders of protection in relation to the defence witnesses as it has in relation to the prosecution witnesses. As far as I know the defence have not sought, from the tribunal, protection for their witnesses so the tribunal cannot be criticised for not having acted. Perhaps Rapp was just underlining the importance of witness protection - which is obviously very important and about which the defence have complained - but there is nothing that the tribunal has done or not done on this issue that, as far as I can see, is worthy of implicit criticism.

(b) Tribunal accessiblity
Rapp stated:
'Finally, and most importantly, the process must be accessible to all. It is not easy for members of the public to attend court sessions. Ideally, the trial sessions should be broadcast on television or radio, or weekly reports be aired that would show key testimony, arguments, and rulings. This is being done now in the trials in Cambodia of those alleged to be responsible for the atrocities committed in that country in the 1970s. If this is not possible in Bangladesh, neutral observers should be permitted to follow the trials and produce daily and weekly reports that would be available through the internet and other media.'
It is not clear why Rapp thought that this was the 'most important' of the issues.  No criminal court in Bangladesh is at present televised. Moreover, in this case, there are legitimate concerns about the protection of witnesses on both sides, with the tribunal at present not allowing either party to provide in court personal details about the prosecution witnesses.

Whilst of course rules could be introduced to ensure that pictures of the witnesses were not televised, one can see why this would just add further complexity for the tribunal to manage. The tribunal is well covered in the newspapers, radio and television at present - so arguably there is no particular need for proceedings to be on television.

As far as I know, there is nothing - and has never been anything - to stop neutral observers coming to the tribunal and taking notes of proceedings.

So in my view this was a rather unnecessary recommendation.

6. In conclusion ....
I had originally thought that Rapp's intervention in Bangladesh could be a 'game changer'. It has been an important intervention in particular since there has been no other kind of formal international engagement with the tribunal. Some important changes were made to the rules of procedure that probably would not have been made without his involvement. However, it is pretty clear that the tribunal and the government are now not listening - and whilst it is a good thing for Rapp and others - to continue to come and assess the tribunal, I would be surprised if they will have much of a positive impact upon the law and rules.

Implementation of Rapp's Suggestions

In his statement on 28 November 2011, at the end of his third visit to Bangladesh, Stephen Rapp, the US Ambassador for War Crimes-at-large said:
'In March, I made a number of suggestions on how the rules for these trials could be amended to ensure fair and transparent proceedings. Some of these suggestions were incorporated in amendments adopted in June. I regret to say that many were not.'
Lets have a look at which of the March recommendations were incorporated and which were not, and what significance one should give to the government/tribunal's failure to implement them.

1. Change to allow parties to file preliminary motions in the ICT raising issues of jurisdiction
In his letter Rapp said that 'A party to a proceedings before the ICT should be able to raise questions as to whether provisions of the 1973 Act and the 2009 amendments violate international or domestic law as to retroactivity as well [as] other jurisdictional matters'

Article 47A of the constitution (which precludes the possibility of an accused person seeking any kind of remedy from the High Court), the exclusion of the Criminal Procedure Code (which through section 435 allows the sessions court to have some kind of supervisory responsibility over criminal courts) and the application of section 24 and 21 of the International Crimes (Tribunal) Act 1973 (which precludes any order other than conviction from being appealed) prevents any kind of challenge of this kind to be made. In addition section 6(8) of the ICTA states that: 'Neither the constitution of a Tribunal nor the appointment of its Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel.' Effectively, there is no possibility of questioning any aspect of the tribunal's jurisidiction or constituionality.

What happened: no change was made

Evaluation: These kinds of challenges to legislation on 'jurisdictional' grounds in international courts rarely result in a positive response for the accused, that is to say that the courts almost always tend to find that the courts have jurisdiction. And were the accused in Bangladesh able to challenge the jurisdiction of the tribunal, one can be very confident that the the Bangladesh courts would have found against them. So, whilst in principle the accused should certainly have had this right, it is arguable that the Bangladesh law's prohibition against these jurisdictional motions were not in reality that significant.

2. Change to allow parties to have a right to interlocutory appeal from adverse decisions
Section 24 of the 1973 Act states that 'No order, judgement or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any Court or other authority in any legal proceedings whatsoever except in the manner provided in section 21.' Section 21 allows appeal only following conviction.

One assumes that Rapp was effectively seeking some kind of amendment to this section (since changing rules of procedure would not have been enough to circumvent the statutory prohibition)  allowing pre-trial and trial orders (known as 'interlocutory' orders) to be appealed before another court. This could have been before the appellate division of the supreme court or a special court established for this purpose.

In the ordinary courts of Bangladesh, section 435 of the Code of Criminal Procedure provides both the High Court and the sessions court to 'call for and examine any proceeding before any inferior criminal court ....for the purpose of satisfying itself or himself to the correctness, legality or propriety of any finding, sentence or order recorded or passed ...'

The right to appeal interlocutory orders is not a requirement of the International Convention on Civil and Political Rights (ICPPR) - which only requires an appeal following a conviction. However it is part of international legal practice as reflected in all the international tribunals though one that is generally restricted to decisions about (a)  the 'jurisdiction' of the tribunal and (b) decisions which involve 'an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which ... an immediate resolution by the Appeals Chamber may materially advance the proceedings.'

What happened: In response, the tribunal introduced a new rule 36(3) which states that:
'The Tribunal, on its own motion or on the application of either party, may review any of its order including the order of framing charge(s) in the interest of justice.' 
No change to the Act was made. No appeal to another court was provided.

The defence has made a number of review applications under this section, all of which were heard by the tribunal, but none of which resulted in any change to the order under review. The prosecution has not made any review applications.

A review application made to the court that issued the very order under challenge is very different from an appeal to a seperate court. In order for the tribunal to reverse one of it orders under review it would have to admit that it made a mistake, and it is difficult to see the tribunal doing in relation to any significant order that it has passed. For a fair review, an independent court must examine the merit of the initial order. Establishing such a system also hs practical advantages, as indeed Rapp mentioned in his letter, by ensuring that all these issues are not raised in appeal following conviction.

Arguably, the failure to introduce an interlocutory appeal process is a significant omission as a number of important tribunal orders have deserved scrutiny by another court.

3. Adoption of a rule requiring the ICT judges to be guided by International Criminal Court document 'Elements of Crimes' when defining offences like genocide or crimes against humanity
Although this was not stated in his letter, one must imagine that the reason for this proposal was particularly due to the manner in which the offence of 'crimes against humanity' was defined in the 1973 Act. This states that crimes against humanity is:
'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'
This definition is based on that the offence given in the London Charter of the International Military Tribunal which formed the basis of the Nuremberg trials in 1946. In the Nuremberg judgement itself, the tribunal stated the following:
'With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organised and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.' (emphasis added)
From this case, international law has developed the offence of 'crimes against humanity' so that a murder or other crime can only be considered a 'crime against humanity' if it can be shown to be part of 'widespread or systematic' attacks with the accused having 'knowledge' of these attacks.

According to a recent decision by the Extraordinary Chambers in the Courts of Cambodia (ECCC),  as of 1974 - 3 years after the 1971 war - the crimes of murder, rape etc could only become a crime of humanity when the following:
'prerequisites are established to the required standard: (i) there must be an attack; (ii) it must be widespread or systematic; (iii) it must be directed against any civilian population; (iv) it must be on national, political, ethnical, racial or religious grounds; (v) there must be a nexus between the acts of the accused and the attack; and (vi) the accused must have the requisite knowledge.'
In the 'Elements of Crimes' document produced by the ICC in 2000, in order for the offence of murder be considered a crime against humanity, the following elements need to be proved:
1. The perpetrator killed one or more persons.
2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.
What happened: No change. In its charge-framing order of 3 October, the tribunal stated:
'The Act was drafted in an era when the crimes enumerated therein were fairly known and understood to the world and were very much part of customary international law. Therefore, we see no reason why should we be trying to find gaps which are not there or try to borrow definitions from fairly recent international tribunals whether the International Crimes Tribunal of Bangladesh not have any such obligations to do so. However the Tribunal may take into account jurisprudential developments from other jurisdictions should it feel so required in the interests of justice.
This ruling seems to suggest that the tribunal will strictly apply the wording of the 1973 Act.

Without the additional elements requiring that the crime of murder or rape be in the context of widespread or sysmatic attacks, it appears that the tribunal can convict a person for the offence of crimes against humanity simply by proving the offence of murder or rape, and nothing else.

Evaluation: There is nothing to stop Bangladesh courts prosecuting any person for murder or rape, but then the offence for which they are prosecuting should not be called 'crimes against humanity, as that is a specifically understood international offence.

Since this is a tribunal prosecuting 'international' crimes, at the very least one would expect the tribunal to use international law definitions.

However, as quoted above, in its 3 October order, it appears that the tribunal does not consider there to be any kind of problem with the current wording of the offence of crimes against humanity as set out in the Act, stating, that the Act was 'drafted in an era when the crimes enumerated therein were fairly known and understood to the world and were very much part of customary international law.' However, the tribunal provided no legal support for this view. Indeed, the tribunal chose to ignore the most relevant recent ruling on this issue relating to the war crimes trials in Cambodia  (see above) though it had been made aware of the decision through an earlier defence application.

It is important to recongise that the call for refining of the offence of crimes against humanity is not concerned with arguing that elements of the crime determined years after the event should be incorporated into the offence; only that the elements of the international offence of crimes against humanity, as it then existed in 1971, should be part of the offence.

If the tribunal does not take these issues into account, it would appear that the court would be in breach of an important element of the International Civil and Political Rights Convention (which Bangladesh is a signatory) which only allows individuals to be prosecuted for international crimes when they are part of 'the general principles of law recognized by the community of nations.' at the time they were committed.

The tribunal has stated (following Bangladesh Supreme Court decisions) that it is not obligated to follow the ICCPR as it has not been incorporated into Bangladesh law. This may well be the correct legal position in Bangladesh; however it does set the court in conflict with a pretty fundamental principle of international law which may well attract criticism from outside the country.

4. A rule stating that those under investigation will be entitled to rights set out in part 3 of the International Covenant on Civil and Political Rights.
These are the rights that are set out in articles 6 to 27, however only section 9, 14 and 15 are particularly relevant. It should be noted that these articles have to be read with the case law of the UN Human Rights Committee which is the monitoring body of this convention.

What happened. The tribunal introduced into the rules of procedure, rules 43(2) to (7) which engage with some of these issues:
(2) A person charged with crimes as described under section 3(2) of the Act shall be presumed innocent until he is found guilty.
(3) No person shall be tried twice for the same offence described under section 3(2) of the Act.
(4) The accused shall be entitled to a fair and public hearing and to engage his counsel at his choice who is legally authorised to appear before this tribunal.
(5) The accused shall be tried without undue delay.
(6) No accused shall be punished without giving him an opportunity of being heard.
(7) No accused shall be compelled to testify against his will or to confess his guilt.
It did also bring in some new bail provisions (see 5 below). And the 1973 Act had already been amended prior to the establishment of the tribunals to include section 6(2)A that states that the tribunal should be 'independent and fair'.

In its 3 October decision, the tribunal stated: 'Regarding submission on Article 14 and 15 of the ICCPR we are of the view that by and large every aspect of article 14 of the ICCPR is converted by the Act and its Rules of Procedure.'

Evaluation: It is correct to say that many of the rights set out in Article 14 have been introduced into either the Act or rules - though significantly there is no remedy to any court to ensure that they are complied with. However, at the same time a number of the obligations in article 14 have not been included.

One such example is the right for the defence to receive from the prosecution any exculpatory evidence - that is to say evidence that the prosecution may have found which tends to exonerate the accused. The Human Rights Committee has ruled that this is required as part of the obligations in article 14(3)(b) 'To have adequate time and facilities for the preparation of his defence'. This obligation  is not part of the 1973 Act or its rules and the Tribunal has just recently specifically denied that right to the defence.

The fact that the prosecution may have obtained information that would suggest that an accused may not be guilty of a particular offence, and not provided that information to the defence is considered quite a serious defect amongst international lawyers. However, in Bangladesh (if not South Asian) jurisprudence, disclosure by the prosecution of evidence supportive of the defence, is unheard of. Whether or not this is a sufficient excuse for the government/tribunal depends upon ones view of whether common domestic practice trumps international standards.

There is also the issue of the adequacy of time for the preparation of the defence. After Rapp's letter, the tribunal introduced new rule 38(2) which states that, 'An accused pleading not guilty will get at least three weeks time for preparing his defence.' This rule may not directly breach article 14(3)(b) in that the rules allows the tribunal to provide the defence an adequate period of time to prepare itself- but the fact that the rule gives the tribunal the power to only give the defence three weeks is clearly problematic. In the case of Sayedee, the tribunal, was going to start the trial 26 days after Sayedee pleaded (30 October),  and it was only due to very earnest arguing by defence lawyers on a number of different occasions, that the tribunal delayed the start of the hearing of testimony for a further six weeks (7 December). Whether nine weeks would be considered a sufficient period of time of period to allow the defence to prepare itself when the accused is facing 20 counts of crimes against humanity/genocide is very questionable. However, it should be noted that the defence did receive all the prosecution evidence at the end of July, so whilst the defence did not at that stage know all the exact counts that the accused would face, they were able to start preparing their defence to some extent from that time.

5. Introduce new rules regulating detention and bail that reflect those in other international courts.
This rule was suggested as there were no clear rules about the provision of bail.

What happened: The tribunal did make some important changes. It introduced a new rule
as 9(5) and 9(6) stating that:
“(5) If an accused is in custody during investigation period, the investigation officer shall conclude the investigation within one year of his arrest under the Rules. In case of failure to complete the investigation as specified above, the accused may be released on bail subject to fulfillment of some conditions as imposed by Tribunal. But, in exceptional circumstances, the Tribunal by showing reasons to be recorded in writing may extend the period of investigation and also the order detaining the accused in custody for a further period of six months.
(6) After every three months of detention of the accused in custody the investigation officer through prosecutor shall submit a progress report of investigation before the Tribunal on perusal of which it may make a review of its order relating to the detention of the accused.”
It also introduced new rule 34(3):
“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 of such conditions the accused may be taken into custody cancelling his bail.”
Evaluation: The new rules introduced were important as it placed detention and bail on a clear legal footing, and in effect complied with Rapp's suggestions.

The problem however has been although the new rule 9(5) stated that an accused should only be detained after a year of investigation 'in exceptional circumstances', detention has continued after one year without the tribunal providing any reasonable explanation as to why the situation has become 'exceptional'. (see this). This appears to be an example where the tribunal has introduced a new purportedly rule apparently in favour of the defence, but then, arguably, fails to properly apply it.

6. Adoption of rules that would provide suspects being questioned rights similar to those provided at international tribunals.
In his letter Rapp specifically mentioned the following:
'(1) A specific notice of rights to be given to a suspect or accused before questioning in a language the person speaks or understands; 2) for the assistance of counsel unless waived; 3) for the electronic recording of the questions and answers ... 5) and for the exclusion of evidence 'obtained by methods which case substantial doubt on its reliability or its admission is antithetical to and would seriously damage the integrity of the proceedings.'
What happened: The tribunal did not introduce any new rules specifically on the matters proposed by Rapp, but it did create a new rule 56(3) which stated that:
“(3) Any statement made to the investigation officer or to the prosecutor in course of investigation by the accused is not admissible in evidence except that part of the statement which leads to discovery of any incriminating material.”
Evaluation: It is important first to appreciate that in Bangladesh law there is no right for any suspect to be questioned with a lawyer present. Such practice is almost unheard of not only in Bangladesh but also throughout South Asia. It is this practice of course which results in allegations of the widespread use of torture by the police in Bangladesh. However, that being said, it is important to appreciate that the law, at the same time, does not allow any statement made in police custody to be used as evidence in a trial. So statements made to the police are not admissible.

What the tribunal has done is to introduce a number of practices into the process of interrogation which are not ordinarily part of Bangladesh legal practice. These are: A lawyer and doctor are allowed to be in a room next to the place where the interrogation is taking place and are allowed to see the accused midway through the interrogation; and the tribunal is only allowing interrogation to take place one day at a time (between 9 to 5pm). Both of these practices have been introduced to reduce the risk of torture. The tribunal has also ruled that evidence collected during interrogation would not be used as evidence - though it subsequently did state in the rule above, that 'part of the statement which leads to discovery of any incriminating material' can be admissable (though it is not clear how this provision will play itself out.)

Whilst good practice would require a lawyer being present, the absence of a lawyer is much less significant when the evidence collected during it is not admissible.

7. Disclosure by prosecutor of exculpatory evidence to the defence

This has been discussed in point 5 above in relation to the adoption of ICCPR.

Evaluation: This has not been adopted by the tribunal

8. Adoption of rule clarifying presumption of Innocence and need to prove offence 'beyond reasonable doubt'

These have been included in the new rules. See point 5 above.

9. Adoption of new rules relating to dealing with alibis

The tribunal was concerned about rule 51(1) which reverses the burden of proof in relation to alibi evidence. This states that:
'The onus of proof as to the plea of ‘alibi’ or to any particular fact or information which is in the possession or knowledge of the defence shall be upon the defence.'
It proposed that the tribunal should deal with alibi evidence in line with the International Criminal Court.

What happened: the tribunal amended its rule to some extent by creating a new rule 51(3) which states that:
'Mere failure to prove the plea of alibi and or the documents and materials by the defence shall not render the accused guilty.”
Evaluation: We will have to wait to see how trial deals with the issue in the course of the trial.

10. Looking to international case law for assessing reliability of evidence
In his letter Rapp said that section 23 of the 1973 Act which allows any evidence to be admitted as long as the tribunal considers it to have 'probative' value' was reflected in similar legislation. However he stated that different international tribunals had developed principles and made decisions concerning admissibility of evidence that the tribunal could 'look to'.

What happened: Nothing specific but October 3rd charge framing order does gives the tribunal an opportunity to consider this case law.

Evaluation: We will have to wait to see how the trial develops

11. Adoption of Rules allowing witness protection

The tribunal has done this. 

12. Participation of Foreign Counsel
Rapp stated that, 'The field of international crimes is highly specialised and the participation of the foreign counsel particularly those who have litigated in international and hybrid courts and tribunals is very important to ensure that uniform or generally agreed standards are observed in practice.' It also said that visas should be provided to foreign lawyers

The original rule 42 of the ICT rules of procedure states that the tribunal can permit the appearance of foreign counsel but only on condition that the Bangladesh Bar Council permits. Bar Council rules are however interpreted by the Bar Council to mean that only Bangladesh citizens can be heard by the courts.

As the tribunal must have known at the time of drafting it, its won rule was very contradictory - giving the appearance of a right to foreign counsel, but then imposing a condition that could not be met!

What happened: The tribunal did not do anything

Assessment: Whilst the defence should be allowed to use counsel of their choice - this is generally considered to mean counsel within their own bar association rather than international counsel. However, since this is a tribunal dealing with international crimes - and there are no lawyers in Bangladesh with experience of dealing with these crimes - there is an objective basis for arguing that the defence should be able to have foreign counsel appearing for them. It is also the practice in all of the UN sponsored supported war crimes tribunals. However, if the tribunal decided that international lawyers cannot appear before it, one would have hoped that they would be allowed to assist local lawyers in court - but the government has prevented this from happening by refusing them visas, and it is not clear whether the tribunal would have allowed this anyway.

The Bangladesh lawyers continue to be able to work closely with the international lawyers and are clearly are themselves providing an effective defence to their client. So whilst the decisions of the government and tribunal are I would argue highly problematic, at the same time it is is also the cause that the accused continues to be able to get an effective defence - though no doubt they would get a better one if the international lawyers were allowed into the country.

Friday, December 23, 2011

Sayedee first witness summary

This page provides a summary of the main allegations made by Mahbubul Alam Howlader's ‘examination in chief’ and then his cross examination. Howlader was the first witness to give evidence against Delwar Hossain Sayedee charged with crimes against humanity and genocide. (Howlader's evidence is linked to aspects of, at least, the following counts, 6, 8, 10, and 11 and perhaps others.)

At the end of the post, there are also some comments on a number of rulings made by the tribunal during the cross examination.

To see details of what exactly was said in examination-in-chief and then in the cross-examination by the defence:
Examination in chief
Day 1 of cross examination
Day 2 of cross examination
Day 3 of cross examination
Day 4 of cross examination
Day 5 of cross examination

Examination in Chief
In his ‘examination-in chief’ (which was simply a statement he made to the court), the witness made the following key points
  • Sayedee was a member of the peace committee of Parerhat [in Pirojpur] which worked against liberation forces;
  • On 7 May, he went to Parerhat rickshaw stand and saw Pakistan military arrive on rickshaws, where they were greeted by Sayedee;
  • Sayedee ‘pointed out’ to the Pakistani Captain Ijaz houses and shops of members of the hindu community and the Awami League, who then gave the order to his forces to loot;
  • The witness left the area and later came to know that 30-35 houses and shops were looted and loot was ‘distributed under Sayedee’s guidance.’;
  • Sayedee led a looting of Madan Shaha’s shop, and took the loot totalling Tk15 lakh to his in-laws house. He along with other freedom fighters returned the loot after the war;
  • Houses of number of people [whom the prosecution names] who had left for India had their houses looted ‘under Sayedee’s leadership’;
  • Sayedee ‘robbed many people’s wealth and built houses in Khulna and Dhaka for himself’;
  • Sayedee looted and set on fire the houses of Manik Posharia and his brother;
  • Sayedee ‘ransacked’ house of Salim Khan, a freedom fighter;
  • Sayedee ‘had developed an intimate relationship with Captial Ejaz’ because he spoke Urdu;
  • Witness was ‘in charge of collecting intelligence information’ as a spy of freedom fighter camp. As a spy he observed crimes committed by Razaker and Peace committee of raping, looting, arson, ‘across the whole district’ and passed news to the freedom fighters camp;
  • On June 2, a man called Khalilur Rahman came to his house and told him that the peace committee had made a list of pro-independence people and, as a result, he (the witness) then took people to a far away safe place. Subsequently, Parerhat’s peace committee and razaker forces, which included Sayedee led Razaker forces to attack the hindu community in Umedpur village which was next to the witnesses house, and looted and burnt down about 25 to 30 houses;
  • At this place, Bisha Bali, who was sick, was caught and strapped to a coconut tree and beaten, and on the order of Sayedee was shot. The witness came to the area (along with some others) and was present at the shooting of Bisha Bali;
  • On that same day, Peace committee men came to his family house and pressured his brother to bring the witness to them. On refusing to assist, the witness’s brother was tortured and their house was looted, and specified money and objects were taken;
  • In September 2009 he filed a case in Pirojpur court against Sayedee, and in September 2010 submitted an appeal to the war crimes tribunal;
  • The witness vouched that certain evidence was taken from his house by the investigators.
Cross examination
Over five days a lot of questions were asked, and it is not necessarily clear how some of these questions/answers were relevant to Sayedee’s defence, though the lawyers argue that in due course their relevance will become clear.

In the five days, as far as I could tell, the following key points emerged. It is quite possible that as the trial proceeds, other answers the witness gave will also be seen to be relevant.
  • The witness was unable to answer any of the questions asked by the defence about Shorshina Madrasa. [It appears that the purpose of these questions was to raise questions about the statement the witness made that Sayedee was a student at Shorshina Madrasa from which he ‘had been expelled due to his involved in jamaat politics’]; 
  • The witness admitted that in April 2004 and in January 2005 he had sent a letter to the District Commissioner of Pirojpur asking for aid as a freedom fighter, and that he received aid. The defence suggested that in these letters the witness had not mentioned that his house was destroyed by Razakers and army, but had in fact mentioned that his house had been moved by his family during 1971 war;
  • The witness said that his main income was his allowance for being a ‘Freedom Fighter’;
  • The witness admitted that he had made a mistake and that he was not responsible alone for pirojpur district;
  • The witness was unable to give the names of leaders of freedom fighters in neighboring areas on the one hand and peace committee chairpersons on the other, during the 1971 war;
  • The witness said that he did not know whether Ekram Khalifur Talukder was chairman of a peace committee in neighboring area [Talukder is said to be the father of the present Awami League Member of Parliament];
  • The witness admitted to not knowing all of the witnesses that he had given when he filed a First Information Report in 2009 against Sayedee;
  • It was put to the witness that in a letter which he had sent to the government in February 2011, listing 26 people murdered at a place called Belashwar Bedi, the name of Bisha Bali had been given [The witness alleged in his examination in chief that Bali was killed in Umedpur village]
  • The witnees’s school registration card says that he was born in 1959. The witness said that giving incorrect birth dates for schooling was common. [this would have made the witness 11 in 1971];
  • The witness admitted that although around 50 cases were filed in Pirojpur against ‘collaborators’ after the war, there was no First Information Report (FIR) or GD (General Diary) case filed against Sayedee and he ‘did not complain to any other authority’ since then until 2009;
  • The witness admitted that he had been convicted of a dowry case, which is now under appeal;
  • The witness said that he was only appointed as a spy for the freedom fighters in June 1971 [A number of incidents which he gives evidence about occurred before that date]
  • The witness having said that he visited the freedom fighters camp in Sundarban ‘not less than 50 time approximately’ subsequently said on the following day that he had made a mistake and he had only gone about 15 to 20 times.
  • Witness denied defence claims that (a) freedom fighters of area have submitted an application identifying him as a ‘phony freedom fighter’; (b) that the present Awami League MP Awal ‘issued a verbal order to identify you as a phony freedom fighter and cancel your allowance’, and (c) that in order to ensure continuation of allowance, the witness agreed to say what administration wanted him to say;
  • The witness acknowledged that Sayedee participated in national elections in area and won elections as MP, and received the highest number of votes cast in Umedpur district where Bisah Ali was allegedly killed.
  • The witness denied that a number of freedom fighters, including the commander of Parerhat camp had supported Sayedee in the election. [Parerhat is the place where Sayedee is alleged to have committed his crimes]
  • The witness was unaware that Sayedee was not mentioned in the book written by the wife of Fazlur Rahman who was killed during the war [One of the counts against Sayedee is that he killed Fazlur Rahman];
  • The wtiness also denied that Sayedee conducted prayers in his name after the 1971 war and was not in hiding after the war;
  • The witness denied that as a farmer whose money in 1971 only came trough selling rice, the family could not have had as much money and gold as the witness had claimed was looted during the war;
  • The witness said that he heard from Motahar Ali Muhuri that 30 to 35 shops at Parerhat was looted;
  • The witness said that he heard from ‘other people’ about the amount of gold found under Makhan Saha’s shop, that Capatain Ezahar had called Parherat , ‘Sonar Parerhat’ and that 15 lakhs of gold jewelry was looted;
  • The witness aid that he was not there in person when Selim Khan and Manik Poshan’s houses were burnt down;
  • The witness said that he first heard from others about the pillage at the shops of the Sahas, and later observed it himself;
  • The witness denied that Bisha Beli was captured by the Pakistan army who killed him;
  • When the defence put to the witness that a number of points contained in the statement to the tribunal (set out below in italics) had not been mentioned in previous statements that the witness had made, he gave the following answers (in inverted commas),
    • the subsector commander of sector 9 had appointed him as informer – ‘I cant remember’;
    • that he had collected information from Sundarban camp by travelling across the district – ‘I think I mentioned that’
    • that he was at home on 2 June and on hearing of being listed by peace committee he had helped people to safety – ‘not true’;
    • that Bisha Bali was sick and captured – ‘not true’
    • during Bisha Bali’s attack he had taken shelter with some others – ‘its there’
    • that Sayedee pointed out shops of pro independence people and found 22 seer of gold under Makhan Saha’s shop – ‘didn't mention before’
Right now, it would not be appropriate to make any comment on the nature of the evidence given. However there are a number comments that can be made about the first cross examination.

1. It was a positive sign that the tribunal allowed the defence five days to complete this cross examination. It is true that towards the end, the tribunal members were increasingly raising questions about the length of the cross examination, but at the same time it did allow the defence ample time to ask its questions.

2. However, the tribunal did not allow the defence to cross examine the witness on the content of various documents that the witness himself wrote in the past which the defence claim are directly relevant to the veracity/credibility of the evidence he has given to the tribunal. These documents are:
  • two applications made by the witness in 2004 and 2005 seeking aid as a poor freedom fighter (part of the defence evidence)
  • a First Information Report (FIR) filed by the witness before a magistrate court in 2009 (part of the prosecution evidence);
  • a document sent to the government in February 2011 by the witness (and another person) which set out a list of deaths in Pirojpur in 1971. It was sent to the government following a request (part of the prosecution evidence).
  • the statement given by the witness to the International Crimes Tribunal which started its process of investigation (part of the prosecution evidence).
The defence claim that there are contradictions between what the witness said in these documents and what he is now saying, and therefore wanted to cross examine him on these documents.

The tribunal however did not allow the defence to cross examine the witness on the content of these documents arguing that this could only happen if the documents were first formally admitted as evidence.

In relation to the formal admission of these documents:
  • The tribunal did not allow the defence to formally admit its documents through the  prosecution witness - even though the prosecution witness was their author. 
  • And the prosecution are choosing to admit these documents, though authored by the prosecution witness, through its investigation officer, who will not be giving evidence until near the end of the prosecution case. Since the rules of procedure appear not to allow the defence to recall any witness, it will therefore not be possible in the future for the defence to question the witness on these documents.
In domestic practice, the defence is allowed to use either defence or prosecution documents, whether or not they are formally admitted, to question witnesses in this way. In fact section 145 of the  Evidence Act 1872 is specifically designed to allow statements to be put to a witness to allow him to respond to defence or indeed prosecution claims of contradiction. It states:
'Cross examination as to previous statements in writing: A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.' (emphasis added)
It is also possible in Bangladesh courts for the defence to admit its documents through a prosecution witness.

The tribunal justified its position on the basis that (a) both the evidence act and the code of criminal procedure have been excluded from applying to the tribunal, and (b) that the tribunal's own rules of procedure do not explicitly permit such questioning when a document has not been formally exhibited. 
However the tribunal rules do not prohibit this – in fact they do not mention this at all. It is difficult to see what would be the problem for the tribunal to allow cross examination on these documents to take place, particularly when it is standard practice in Bangladesh courts. The tribunal surely wants the evidence of the prosecution witness to be properly tested, and for this to happen it would seem to be appropriate for the defence to cross examine the witness using these statements.
3. Linked closely to this, the tribunal appears to be suggesting (though it was unclear whether or not this was a definitive position on the part of the tribunal) that it can only take into account inconsistencies made by a witness when these statements have been made to the tribunal itself - i.e by comparing an initial statement the witness may have given to the tribunal with his subsequent oral testimony to the tribunal. The tribunal is suggesting that it cannot take into account any other inconsistencies made by the witness prior to the establishment of the tribunal.

In ordinary domestic proceedings showing contradictions like this is allowed. So for example section 155(3) of the Evidence Act states that:
'The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:- ....
(3)  by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;'
Clearly, it can be an important part of any defence case to show that a particular witness  lacks credibility on the basis that he or she has contradictory statements at different times in the past. To remove the possibility for the defence to use similar arguments would be a serious impediment.

It is upto the tribunal to determine what value to give to any inconsistencies that may be found, but it would certainly be problematic were the tribunal to finally rule that  these kinds of contradictions (were any to be identified) could not be taken into account.

4. Both the concerns set out above, arise from the fact that the Evidence Act does not apply to these proceedings. This provides the tribunal the opportunity to create new procedures and rules of evidence. However in so doing, arguably, it should not be jettisoning ordinary rules of procedure and evidence which provide the defence ways in which to defend their client.

Tuesday, December 20, 2011

15 Dec 2011: Howlader cross-exam day 5

Prior to the fifth (and final) day of cross examination of the first witness, Mahbubul Alam Howlader, who was giving evidence against Delwar Hossain Sayedee, Tajul Islam, a defence lawyer mentioned that he had a small petition [concerning an inclusion of a comment made the previous day by the witness where he mentioned that many fake freedom fighters were put in the list during BNP’s regime which had not been recorded].

The tribunal chairman said that ‘this has been already taken up and rejected.’ Justice Zaheer added, ‘What’s the necessity of bringing political parties into this? He’s volunteered [the information]. But your petition will be recorded.’

The cross examination for the defence was done by Manzurul Ahsan Ansari. Below is an unofficial translation of the cross examination. (Notes and translation undertaken by Onchita Shadman. Every attempt has been made to ensure accuracy, but there may be some small omissions.)

Original statement of witness
Day one of cross examination
Day two of cross examination
Day three of cross examination
Day four of cross examination 
Defence: Shahidul Islam Selim’s house is in the village of Badura. It’s located at the western end of the village, close to the bridge across the eastern bank of the canal.

Witness: Not too close (to the bridge)

Defence: How far is his house from the eastern bank of the canal?

Witness: could be more than 100 feet.

Defence: Do you know his house?

Witness: yes

Defence: Do you know Abdus Salam Howlader, son of Ashraf Ali Howlader, from that house?

Witness: Yes. They live in Selim Khan’s old house.

Defence: Do you know Mizanur Rahman Howlader?

Witness: Yes.

Defence: Do you know Selim Khan’s paternal cousin Babul Khan?

Witness: Yes.

Defence: at north of Selim Khan’s house is Razzak Ukil’s house.

Witness: It’s known as Ukil house.

Defence: His son Abdul Jalil is alive and he studies in a Madrasa.

Witness: Yes

Defence: Do you know Mannan Ukil, son of late Kafiluddin Ukil?

Witness: I can’t remember. Defence: Do you know ex member Majid Talukder, son of late Nawab Ali Talukder, age 70 from Parerhat Bazaar?

Witness: yes

Defence: Late Abdur Rahman Khalifa had two sons, Mahbub Khalifa and Mohsin Khalifa. Do you know them?

Witness: Yes (Mahbub threatens me sometimes)

Defence: Do you know Narayan Master (Narayan Chandra Sheel), age 70 who was previously a teacher of Parerhat Rajlaxmi High School.

Witness: Yes

Defence: Abdus Salam Poshari, son of late Helaluddin Poshari used to have yarn trade at Parerhat Bazaar

Witness: yes. He is Manik Poshari’s first cousin

Defence: Matiur Rahman Howlader, son of late Forman Ali Howlader had store in Parerhat Bazaar during the war.

Witness: I know Matiur Rahman. He didn’t have any store there during the liberation war. It came about much later.

Defence: During liberation war, Matiur Rahman Howlader had two stores at Parerhat Bazaar. You’ve hidden that fact consciously in your statement.

Witness: Not true

Defence: Late Hasan Chairman and his son Shah Alam Chairman used to visit the Bazaar occasionally on business purpose.

Witness: They lived close by

Defence: Jahangir Alam Pasha, son of late Abdul Amin Howlader had rice trade in Parerhat Bazar.

Witness: don’t know him.

Defence: Altaf Hossain Khan, son of late Akhtaruddin Khan, age around 60. Do you know him?

Witness: Yes

Defence: Doctor Subhash Chandra Roy, age 57-58, son of late /doctor Satish Chandra Roy.

Witness: I know him.

Defence: His younger brother Dulal Kumar Roy is a banker.

Witness: I don’t know his younger brother’s name but know that he is a banker.

Defence: Dulal is the nick name of Dilip from Parerhat port.

Witness: Know him

Defence: Dilip’s age is 52-53

Witness: Could be

Defence: You have three sisters.

Witness: 1 step sister, 2 own sister

Defence: Fatema Begum is of your step sister?

Witness: Fatema

Defence: You own sisters are Matoara and Rokeya

Witness: yes

Defence: Matoara is a bit older than you?

Witness: Yes

Defence: Who did she marry?

Witness: My brother-in-law is Imdadul Haque

Defence: How much did Matoara study?

Witness: Probably up to year five.

Defence: She was born in 19/7/1957.

Witness: not true at all

Defence: Was your father alive in 1971?

Witness: no

Defence: You elder brother Abdul Majid Howlader

Witness: He was alive

Defence: What did he do?

Witness: Farming

Defence: Back then your family had six bighas of land for farming.

Witness: Not true (we had more land)

Witness: These questions are being asked to demean me.

Nizamul Haque: We’ll omit any question we consider to be demeaning.

Defence: You’d said that your house was looted and items worth Tk 40,000 were destroyed. What were the loots?

Witness: I’ve heard that gold jewellery and furniture were looted. I wasn’t there at the time of the pillage. They had destroyed furniture and taken other items I’d mentioned.

Defence: Your brothers farmed the land. How many maunds of rice did you produce?

Witness: 7-8 palas were there. My brother knows better.

Defence: In 1971, one maundof rice cost Tk 15-20

Witness: Was about TK 15-30

Defence: Your family was dependent on farming. Hence it’s not true that you had Tk 20,000 in cash at your house during the loot.

Witness: Not true

Defence: At that time gold’s price was Tk 200-300 per bhori.

Witness: In my description of the looting, I had given value of the looted items at present market rate.

Defence: The value of those doesn’t match with current price. Did you file the case based on presumption?

Witness: I have estimated by looking at current and past prices.

Defence: At present gold costs Tk 60,000 per Bhori

Witness: I’ve heard

Defence: The value of your items doesn’t match with either 1971’s, or present price.

Witness: I have guessed

Defence: You have said in your statement that Khalilur Rahman had given you the news on 2/6/1971. His father’s name is Iman Ali and village is Togra.

Witness: yes

Defence: He was born 13 April, 1972

Witness: not true

Defence: Khalilur Rahman has a case against him. He’s been in hiding after the Supreme Court’s appeal division maintained the order.

Witness: I only know that there was a dispute around land.

Defence: None from your area has been witness to the loot at your house

Witness: not true

Defence: On 7th May , you came to know that Pakistani forces were coming to Parerhat. Who informed you?

Witness: Many people used the road in front of my house. I’d learnt from them.

Defence: Can you name a few of these people?

Witness: Motahar Ali Shareef, Altaf, Matin Howlader, Hemar Ali Sarder.

Defence: From where did they get their information?

Witness: We didn’t go into such details

Defence: What was the time when you learnt these?

Witness: Approximately 7am.

Defence: When did you reach Parerhat rickshaw stand?

Witness: around 9am.

Defence: Who’d accompanied you?

Witness: No one.

Defence: Did you meet any acquaintance at the rickshaw stand?
Witness: Haralal Karmakar, who was shot to death later.

Defence: How did you identify Captain Ejaz?Witness: In Pirojpur it was announced publicly that Captain Ejaz is leading the Pakistani army coming to Pirojpur. People would have to submit their arms. Hence, whoever was the leader that day was considered to be Captain Ejaz.

Defence: you didn’t know him personally?

Witness: no

Defence: What was the time when they reached Parerhat?

Witness: 10 am approximately

Defence: By what time did they set up camp at Rajlaxmi School?

Witness: 11:30 am approximately.

Defence: Did you know any of the rickshaw pullers of the 26 rickshaws carrying the Pakistani army?

Witness: I can’ remember

Defence: From whom did you hear that 30-35 shops at Parerhat Bazaar were looted?

Witness: from Motahar Ali Muhuri

Defence: At what time?

Witness: between 12 and 12:30

Defence: Who’d weighed the 22 seer of gold found underneath Makhan Saha’s shop.

Witness: The shop owner had said so. I wasn’t there at that time.

Defence: How did you come to know that Captain Ejaz had called Parerhat as ‘Sonar Parerhat’?

Witness: Heard from people

Defence: How did you know the figure of Tk 15 lakhs of gold jewellery being looted?Witness: The shopkeepers were big businessmen. I’ve heard it from people that they’ve said Tk 15 lakhs worth of gold jewellery was looted.

Defence: At what time was Madan Saha’s room pillaged?

Witness: That didn’t happen on 7th of May

Defence: When did that happen?

Witness: In the beginning of June. I don’t remember the exact date.

Defence: Were you home on that day (May 7)?

Witness: In the early morning I was. Then I started out towards the bazaar on a boat.

Defence: Were you at home when Selim Khan and Manik Poshari’s houses on the eastern end of the canal were burnt down?

Witness: I wasn’t there in person.

Defence: From where did you hear of the pillage at Nagarbashi Saha, Tarak Saha and Beni Madhab Saha’s stores?

Witness: I’ve heard from others and later on went there and observed myself.
Defence: You’ve said Bisha Bali was sick. But he wasn’t.

Witness: Not true.
Defence: He wasn’t tied to the coconut tree in front of his house and beaten or killed to death

Witness: not true

Defence: Bisha Bali was captured by Pakistani army who killed him at the bedi of Baleshwar River.

Witness: not true that he was killed at Baleshwar River’s bedi. At that time there was an embankment. (After the river had moved, bedi was created)

Defence: Allama Delwar Hossain Sayedee was not present and not associated with arson attack and pillage of Chittaranjan Talukder, Bisha Bali, Aneel Mondol, Jagat Talukder and Sukha Bali’s house.

Witness: not true

Defence: Allama Delwar Hossain Sayedee was not associated with pillage of Makhan Saha’s shop; pillage of Madan Saha’s shop and damage of his house; pillage of 30-35 shops including Nagarbashi Saha, Tarak Saha and Beni Madhab Saha’s stores; looting of items worth Tk 15 lakhs from different shops of Parerhat Bazaar; creation of ‘Panch Tahbil’.

Witness: not true

Defence: Allama Delwar Hossain Sayedee had not been present in Parerhat during the incidences he’s (witness) mentioned

Witness: not true.

Defence: Allama Delwar Hossain Sayedee was not involved in the looting and arson attack of Selim Khan and Manik Poshari’s house.

Witness: not true

Defence: Allama Delwar Hossain Sayedee had not been present in Parerhat during looting and arson attack of Selim Khan and Manik Poshari’s house

Witness: not true

Defence: During loot of your and Bisha Bali’s house, and Bisha Bali’s murder, Allama Delwar Hossain Sayedee had not been present in Parerhat

Witness: not true

Defence: You’ve made false accusation of Allama Delwar Hossain Sayedee’s involvement in incidences (crimes) that had happened in Parerhat, Tengrakhali, Chitalia, Badura, Umedpur and other areas.

Witness: not true

Defence: You haven’t mentioned Bangabondhu’s speech in the case you’d filed at Pirojpur Court on 31/8/2009.

Witness: It wasn’t written exactly in the same way.
There then proceeded to be quite a long legal argument relating to whether the defence could ask questions to show what defence lawyers said were ‘contradiction’ betweens the allegations the witness first made in his First Information Report (FIR) which he had filed in 2009 before the Pirojpur magistrate court, and what he was stating now. Below is a summary of the arguments but is not word for word.

The prosecution argued that the defence could not ask any questions since the FIR had not yet been exhibited. The chairman seemed to agree with this.

The defence lawyers responded by saying that they needed to show the contradiction between the two statement, but the chairman said that it was an ‘early petition filed with another authority’ and that such an application filed elsewhere than the tribunal ‘was not relevant to it’. The defence counsel pointed out that it was their right to show the contradiction between his present statement and previous statement. “He has filed a FIR after 40 years, the record of which has been passed from court to the police station. An investigation was taken based on that record. It is our right to bring the war crime case, that PW1 had filed previously, into record”

The tribunal pointed out that the defence could only ask questions on the contradictions in statements made before this Tribunal and the FIR is not before this tribunal. ‘“There are ways to exhibit your evidence before the court. It’s your skill as a lawyer to do this,” he said.

The defence lawyer pointed out that the FIR had been filed as a defence document, that the witness was a maker of the FIR statement and he was the right person to question on the contradiction. He said that witness had mentioned the FIR in his complaint petition before this tribunal and also in his statement to the tribunal.

The tribunal then pointed out that a previous statement could only used as ‘Previously Inconsistent statement’ if that is made before an ‘authority’. The defence argued that the statement had been made to an authority – in an FIR before the Magistrate of Pirojpur who then passed it on to the police.

The tribunal then argued that the allegations in the FIR concerned war crimes and that the maginstrate did have jurisdiction to try these cases. This tribunal and its investigation agency are the only authority to receive such complaint.

The defence lawyer said that when the FIR was lodged there was no War Crime Tribunal, but the tribunal said we cannot consider the allegation in the FIR as a ‘statement’. It was simply an application.

Haider Ali for the prosecution then stated that only previous statements made before this tribunal itself can be used to show contradictions. This tribunal is to run by its own rules and regulation. There is no provision in the Act or the Rules of Procedure to allow the use of statements like FIRs to show contradiction.

He read out section 19(1) of the Act – which states a 'Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.’ He argued that a statement made before a Magistrate under this provision may be used to show contradiction, but since the FIR was not lodged before competent authority it cannot be used in this way.

The defence lawyer argued that section 19(1) was not relevant to the present issue. ‘Our present purpose is to put his earlier version to him to show contradiction from his present account,’ he said.

The tribunal then pointed to rule 24(1) which states that ‘Any Judicial Magistrate of the first class shall record the confession of an accused and the statement, if any, of a witness as and when he is required to do so by an order of the Tribunal’. The chairman then said to the defence lawyer, ‘If a witness gives his statement before a magistrate, you can show contradiction in the statement before the magistrate. You want to use statement from a case which witness had already filed. You can bring it into record but cannot show contradiction of that process”

Proceedings adjourned for lunch.  On resumption, the defence lawyer argued that in the regular courts the defence was always allowed to ask questions on any previous inconsistent statement made by the accused.

The tribunal chairman said that one has to forget about the Criminal Procedural Code and the Evidence Act which are not applicable in the present proceedings. He said that the tribunal was governed by its own rules and procedure.

The defence lawyer then read out rule 54 and 56 of the tribunal rules of procedure. Rule 54 says: ‘The prosecution may prove a document by the person who was the author of such document or who knows the handwriting or signature of such author, and when any of such persons is dead or not available, the person from whom it was collected or who knows from whose possession it was collected.’ Section 56 (1) states that the ‘Tribunal shall give due weight to the primary and secondary evidence and direct and circumstantial evidence of any fact as the peculiar facts and circumstances of the case demand having regard to the time and place of the occurrence.’

He said that these sections shows that the tribunal has wide power to consider this FIR as primary, secondary, direct or circumstantial evidence. There is no restriction or bar in the Act or the Rules to to allow a question on a previously inconsistent statement.

The prosecutor then read out a number of rules to show what can be used as evidence before this tribunal including rule 2(9) which stated that, “evidence” means all statements which the Tribunal permits or requires to be made before it by witnesses, and it includes all other materials, collected during investigation, placed before the Tribunal in relation to matters of fact.’ And rule 56(3) which states that, ‘Any statement made to the investigation officer or to the prosecutor in investigation by the accused is not admissible in evidence except that part of the statement which leads to discovery of any incriminating material.”

He then read out rule 44. ‘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 then stated that the FIR is not included as a document in the Rule.

He said that fair trail means to act in accordance to law and our laws of the Tribunal doest not provide any provision allowing to ask question on a document which was not made before this tribunal. He said that the defence may bring this FIR through their own witness and it can be exhibited at that time. But before that they cannot ask any question on the FIR.

Justice Zahir then said, ‘The witness has already said in cross-examination that he has corrected some of his mistakes on his previous statements. In this case why you need to cross him on the statement which he himself has said to have corrected it in the present case. You can ask question about the FIR to the Investigation Officer under Rules 40 and 55. The Investigator officer of that particular FIR is also a Prosecution witnesses. You may ask question to that IO also. Why you need to ask question to this PW1 about this FIR?’

The defence laywer said that it was not correct that the witness had said in the cross examination that he has corrected his statement, only that he had corrected the name of the accused in the present Complaint. He said that if you are allowing us to question the Investigation Officers about this FIR then why not the person who made the statements in the FIR

We have every right to question him on his previously inconsistent statement. He then pointed to section 10(h) of the Act which states that: ‘the Tribunal may, in order to discover or obtain proof of relevant facts, ask any witness any question it pleases, in any form and at any time about any fact; and may order production of any document or thing or summon any witness, and neither the prosecution nor the defence shall be entitled either to make any objection to any such question or order or, without the leave of the Tribunal, to cross-examine any witness upon any answer given inreply to any such question.’ He said that in that context why he could not ask the question about FIR to the maker of the FIR.

The tribunal then stated that it could not go beyond the law and the the defence could bring the FIR to the knowledge of the court through their own witnesses.

The defence lawyer said that even though there is no authority, there is no prohibition in the law These types of small matters need not be expressed in the law. For the ends of justice we should be allowed to ask question on this FIR to show contradiction in the PW1’s statements.

The chairman finally said, ‘The document is there. You know how to bring it to court. You are waisting time.'

The defence lawyer then said that he disagreed and asked the tribunal to pass a written order, and the chairman said that for that to happen they had to file a written application.

Cross examination then restarted.
Defence: You haven’t mentioned elsewhere the section of the statement regarding ‘war in 1971 up until formation of Razakar force’ except for the complaint made in this court.

Witness: I can’t remember

Defence: You haven’t mentioned elsewhere section of the statement on ‘Madan Saha’s house was looted, kept in Sayedee’s in-law’s place and returned to him by the freedom fighters’ except for in the complaint made in this tribunal.

Witness: I can’t remember

Defence: Subsector commander of sector 9 had appointed you as informer. You haven’t mentioned that in any previous statement.

Witness: I can’t remember

Defence: You haven’t mentioned before what you’d stated in the witness statement regarding collection of information for Sundarban by travelling all across the district.

Witness: I think I mentioned that.

Defence: The written complaint given to the chief investigating officer on 20/7.2009 didn’t include that you were at home on June 2, 1971 and on learning of being listed by the Peace Committee you’d taken other pro-independence people to safety.

Witness: not true

Defence: The complaint doesn’t include that Bisha Bali was sick and captured.

Witness: not true
The prosecution objected to this question and said that the defence cannot ask a question on the exhibited document since it is already exhibited and proved.

The tribunal chairman said that the court has already said that they can ask a question on any exhibited document.  
Defence: Complaint doesn’t include that during Bisha Bali’s attack you’d taken shelter in the jungle with Mahtab, Altaf and Latif Howlader.

Witness: it’s there

Defence: Complaint doesn’t include that the present government had announced trial of war criminals

Witness: I can’t remember

Defence: Complaint doesn’t include that Delwar Hossain Sayedee pointed out shops of Hindus and pro-independence people to the Pakistani military and 22 seer of gold dug out from underneath Makhan Saha’s shop

Witness: It’s there in my complaint, but didn’t mention before.

Defence: You haven’t mentioned that Delwar Hossain Sayedee was expelled from Madrasa anywhere before making this complaint

Witness: didn’t mention

Defence: Complaint doesn’t include that at Delwar Hossain Sayedee’s command the loots from 30-35 shops were divided.

Witness: not true

Defence: After the liberation, did you inform Major Ziauddin of these complaints?

Witness: I’ve informed him about the main issues of complaint.

Defence: Have you heard of Tetulbuniabad or Tetulbaria?

Witness: yes, my in-laws place

Defence: You haven’t filed case against Captain Ejaz?

Witness: I have accusations against him, but didn’t include him as accused.

Defence: Do you know what operation searchlight is?

Witness: Sudden attack
The chairman then started making comments about the need for the defence to finish its cross examination that day since they had been cross examining this witness for five days. The defence lawyers said that they did not have many more questions and would finish today.
Defence: You were made a witness under instruction from the government.

Witness: not true

Defence: Sayedee was not in Pirojpur or Parerhat in the period between the war had started up until mid July of 1971.

Witness: he was there.

Defence: He lived in Pirojpur from mid July to much later after the liberation.

Witness: not true

Defence: Since you know that investigation is going on to find fake freedom fighters, you, with the intension to keep your name on the list, have made false accusation against Sayedee at Government’s and your local MP Auwal’s command

Witness: not true.
Hearing was adjourned for the day

Monday, December 19, 2011

14 Dec 2011: Howlader cross exam day 4

Before the forth day of cross examination into the first witness,  Mahbubul Alam Howalader, who is giving evidence against Delwar Hossain Sayedee, the Chief Prosecutor asked the tribunal to issue a direction about who from the defence and prosecution could be present at the court. The tribunal chairman said that they will allow anyone as long as there was enough space and no disturbance was created in court’s proceedings.

Original statement of witness
Day one of cross examination
Day two of cross examination
Day three of cross examination 

Below is an unofficial translation of the cross examination that then took place. (Notes and translation undertaken by Onchita Shadman. Every attempt has been made to ensure accuracy, but there may be some small omissions.)

Cross examination continued with Kafiluddin Choudhury as the defence lawyer
Defence: Sundarban area is within Pirojpur

Witness: No

Defence: It is spread around Satkhira, Bagerhat and a large area of India

Witness: Area is huge.

Defence: And do you know how huge it is?

Witness: I can’t tell you exactly.

Witness: Any estimate?

Chairman: Neither you, nor me can estimate the size.

Defence: How far inside Sunderban was Major Zia’s camp?

Witness: I used touch base with with Sharankhola camp. There was a training centre deep inside, but I can’t tell how far that was. Later another camp was made.

Defence: You used to communicate with Sharankhola camp?

Witness: most of the time

Defence: You’ve said in Major Zia’s absence you’d contact with Kalam Saheb. What did Major Zia’s office look like?

Witness: It was set up in the forest office there.

Defence: I am asking about the description of the place inside. Was it an underground bunker or tent, etc?

Witness: It looked like the forest office of that time.

Defence: War commanders have their own (battle) plans. Was there any board inside with names and responsibilities of commanders?

Witness: There was no such discipline.

Ziad-Al-Malum (prosecutor): My lord commanders don’t have any board..

Chairman: It’s his question to verify..

Defence: Did you notice any photo over there?

Witness: No, there was no option for decoration.

Defence: Did he have any typist or PS?

Witness: I haven’t seen.

Defence: Generally, not during war, how long would it take to reach Major Zia’s camp inside Sunderban and what vehicle would you use?

Witness: Normally it will take a day to reach there but due to tide and ebb, it may longer sometimes. Yesterday I’d said I’ve been there 50 times. I’ve made a slight mistake. I’ve been there 15-20 times.

Defence: Did you have to make your own arrangement or was there a special service (to take you there)?

Witness: Secretly we went by boat.

Defence: Who rowed those boats?

Witness: Me, Raisuddin, Shahijuddin.

Defence: At what time did you head out?

Witness: It wasn’t an ordinary journey (meaning they couldn’t keep track of time as such)

Chairman: Leave out this question. Next one.

Defence: Did you often spend the night over there?

Witness: I have stayed there 1 or 2 days due to physical difficulty.

Defence: You’d made acquaintance with many freedom fighters during your stays.

Witness: I’ve seen (many).

Defence: How many camps were there?

Witness: Initially there were three camps. Later more camps came about

Defence: How many more?

Witness: I can’t tell you precisely

Defence: Can you give an estimate?

Murmurs from Prosecution

Defence: It’s been 25 minutes and every question was accompanied by side talk.

Justice Zaheer: Learned Chief Prosecutor, if you have any objection please raise your hand.

Chief Prosecutor: This is general knowledge. The question has to be made clear, the answer understood, only then proceed to the next question.

Sayedee: I would like to say something. My brother wasn’t allowed access inside the court today, even though he took his pass

Chairman: As far as I know Mostafa Sayeed is in the court today.
Sayedee: He wasn’t allowed to come in

Chairman: Those who’d like to come here, should come earlier.

Sayedee: Firstly, he came here before 10 and took his pass at 10:20. Secondly, I hope my lawyers would be able to ask questions in ‘undisturbed way’ and this will ensure dignity of the tribunal.

Chairman: We hope to uphold the dignity of the tribunal.

Defence: How many commanders were there in Major Zia’s camp?

Witness: I don’t know.

Defence: Can you estimate?

Chairman: I didn’t understand your questions. We remember those days. Major Zia himself was a sub-sector commander. There were no area-wise commanders at that time. 

Defence: I am asking every question with prior knowledge.

Prosecution: Our learned friend is asking questions based on contemporary structure of the military.

Defence: Major Zia hails from your area?

Witness: Yes

Defence: How far is your house from his?

Witness: Around 5.5 miles. Could be bit more or less.

Defence: Since when did you know each other.

Witness: He spent his student life in Pirojpur. Since then I’ve known him.

Defence: Is he older or younger?

Witness: We think older.

Defence: How did you address him? By his name or as Major Zia?

Witness: We called him ‘Ustad’ (master).

Defence: Would you know the name of the area where Major Zia’s camp was located inside Sunderban?

Witness: I can’t say.

Defence: You’ve never been attacked while travelling to and from the camp?

Witness: I was careful….Once we faced danger while travelling on a boat.

Defence: Was there any Commando (soldier) to guard Major Zia? Was there any security shield?

Witness: No. But a force did guard the camp.

Defence: Whenever you’d been to his office, who accompanied him all the time.

Prosecution objects that defence is interfering with witness’s answer. Defence was asking questions rapidly

Witness: Mohiuddin Qader.

Defence: Can you give names of any other people?

Witness: Goni Poshari, Chunnu Khan, Goutam Halder, Sudhir Master, Shanker Sen.

Defence: Major Zia had split up his command into different divisions as part of his warfare plan. Can you tell us names of the people responsible for those divisions?

Witness: Advocate Shamsul Haque from Pirojpur.

Defence: Do you know the name of the person in charge of intelligence division?

Witness: I think Mohiuddin Kalam.

Defence: Where was that intelligence command based inside Sunderban?

Prosecution Counsel: It wasn’t a conventional war.

Defence: He is not supposed to answer that.

Witness: There wasn’t any such camp in my knowledge.

Defence: Did you know anyone named Paritosh Kumar Pal?

Witness: I may have known earlier, but can’t remember now.

Defence: Have you heard of Tambalbunia and Pangasia?

Witness: I’ve heard of Pangasia.

Defence: What is it? Is it a mountain, river, what?

Witness: It could be a locality, a village.

Justice Zaheer (to witness): Why are you saying ‘could be’? If you don’t know, admit that. I am reminding you once again that during cross, if you know something, say ‘I know’, if you don’t, say ‘I don’t know’.

Defence: Do you know Tambalbunia?

Witness: I don’t know.

Defence: Do you know of any freedom fighter called Babul Gazi?

Witness: of which area? There’s no Babul Gazi in our area.

Defence: Who was the commander appointed in your area by Major Zia?

Witness: Advocate Shamsul Haque as far as I know.

Defence: Who was the Muktijodhdha commander in your neighbouring police station, Ujirpur?
Witness: I can’t say.

Defence: Who were commanders in Swarupkathi police station, Kaukhali, Bhandaria, Mothbaria…
Witness: Aziz commander in Bhandaria. I can’t remember the rest of them right now

Defence: You didn’t fight the war or taken any training as an informer.

Witness: I’d taken general training on spying.

Defence: When and in which camp?

Witness: In Sunderban at the end of June.

Defence: Who conducted the training?

Witness: Modhu

Defence: Where was that camp located inside of Sunderban?

Witness: I can’t say in which village

Defence: Do you know freedom fighters Abdul Mannan, Habibur Rahman, Azhar, Majid Khan, Jahangir?

Witness: No, not without their address.

Defence: During the liberation war, have you met any freedom fighter of such names?

Witness: There are several people called Habib. I can’t answer without knowing where he is from

Defence: You submitted an application to this tribunal on 20/7/2010, in which you didn’t mention that Auwal Saheb had assigned you (as an informer).

Witness: I haven’t thought that far.

Defence: On December 8, your area had been free of enemies. When and on which day did Major Zia arrive in your area?

Witness: I can’t say, but I was there with him.

Defence: Can you say at time on 8th did he come?

Witness: It was after 8th. I can’t tell you the time.

Defence: Major Zia had written a memoir called “Sunderbaner Ummatal Dinguli”, published in 1993.

Witness: I’ve heard of it, never read it.

Defence: The description…

Justice Zaheer: Since he hasn’t read the book, there is no point in asking him about its content.

Defence: Pirojpur District Council published a book on Pirojpur’s history in 2007.Witness: I don’t know (about it)

Defence: Because the content of the book doesn’t match with your descriptions, you are denying your knowledge of the book to hide the truth.

Witness: Not true

Defence: Poet Hasan Hafizur Rahman edited a factual historical book on Bangladesh’s liberation war which was published by Bangladesh Information Ministry. Have you read it?

Witness: No

Defence: Because the content of the book doesn’t match with your descriptions, you are denying your knowledge of the book to hide the truth.

Witness: Not true.

Defence: After Pirojpur had been enemy-free, on 12, 13, 14, 15 and 16th Major Ziauddin led the capture of Peace Committee, Razakar, anti-independence people of Pirojpur. They (captives) were taken to the Sunderban on steamer and shot dead.

Witness: Not true

Defence: Between 8-16 December, the Razakars you’ve mentioned, Sultan, Sekander Shikder, Sekander Commander, Moslem Maulana, Danesh Molla, Delwar Hossain Mollick, Syed Md Afzal, and other infamous Razakars were arrested.

Witness: not true, only Sekander was arrested, rest are in hiding

Defence: After the liberation war, war criminals were identified by the state and cases were filed against them

Justice Zaheer: You can ask the IO about this

Defence: (to Justice Zaheer) He’s stated historic facts.

Defence: After the liberation war, war criminals were identified by the state and cases were filed against them

Witness: I don’t know about this.

Defence: Citizenship of prominent Razakars, who were in hiding, had been cancelled.

Witness: I’ve heard

Defence: Major Ziauddin wasn’t an army major. Since you did not have acquaintance with Major Ziauddin, you’ve given wrong information

Witness: Not true

Defence: You did not have acquaintance with Major Zia, you were not assigned as an informer in Pirojpur, you were not a freedom fighter and you didn’t go to Sunderban

Witness: Not true at all

Defence: The freedom fighters of your area have submitted an application identifying you as a phony freedom fighter. Witness: Not true

Defence: When were you listed as a freedom fighter?

Witness: During Khaleda Zia’s government.

Defence: In 2004 you’d sent an application addressing PM Khaleda Zia, and in 2005, you’d applied directly to deputy commissioner, having taken recommendation from Allama Delwar Hossain Sayedee.

Witness: He’d given me recommendation as an MP. I didn’t take it from Sayedee as an individual. 
Defence: Because you were listed during Khaleda Zia’s regime and taken Sayedee’s recommendation, your present MP Auwal issued a verbal order to identify you as a phony freedom fighter and cancel your allowance

Witness: Not true

Defence: Following that event, you approached him saying, “I am a distressed, unemployed man. Please help me and restore my allowance. I’ll do as you say.”

Witness: Not true

Defence: My local MP Auwal and other higher authorities have used me to file this false case

Witness: not true

Defence: Like you, there are 32000 fake freedom fighters in this country.

Witness: (Such thing had happened during BNP’s regime.) (This answer to cancelled.)

Hyder Ali tells off the witness for not answering the questions with yes and no. Argument breaks out between Prosecution and Defence.

Witness: I don’t know (in answer to last question)

Justice Zaheer: If anyone passes further comment, I’ll write beside this (witness’s answer), ‘said by prosecution’.

Defence: During BNP’s era..

Chairman: Why should we bring name of a regime into this? He’d given a voluntary answer

Defence: The statement you’ve made against Delwar Hossain Sayedee, you haven’t mentioned it elsewhere.

Witness: true
Cross examination was adjourned and started again at 2.
Defence: Allama Delwar Hossain Sayedee participated in the national election from your area and won

Witness: yes

Defence: And every time he’d put down his name as Allama Delwar Hossain Sayedee and won.

Witness: yes

Defence: His opponent from Bangladesh Awami League Sudhangshu Shekhar Halder had filed a electoral case against him.

Witness: yes

Defence: He’d made many complaints in that but didn’t say anything about Sayedee’s name (change) and that Delwar Hossain Sayedee was against independence.

Witness: It was a case of stealing voter cards.

Defence: The families of people, who you have described as victims of Sayedee, didn’t bring forth any complaint against him during election period.

Witness: I don’t know

Defence: Delwar Hossain Sayedee received the highest no of vote from Umedpur center, the place where Bisha Bali was allegedly killed.

Witness: yes

Defence: In 2001’s election, he’s received the highest amount of votes from every centre of Balipara and Parerhat.

Witness: I don’t know.

Defence: In the election of 1996, he took lead on receiving highest no. of total votes from Parerhat.

Witness: Somewhere (vote was) less, somewhere more.

Defence: In 2001’s general election, Sayedee had received highest amount of vote from Shankarpara union, the area of current Awami League MP Auwal.

Witness: I heard that he got more votes.

Defence: Do you know freedom fighter Shahidul Alam Nilu and from your area Liakot Ali Badsha, Habibur Rahman Bahadur, Abdus Salam Baten and Khashrul Alam.

Witness: Abdus Salam Baten was not a freedom fighter. I don’t know whether the rest were freedom fighters or not. I don’t know Khashrul. I know Habibur Rahman, but not as Habibur Rahman Bahadur.

Defence: Khashrul Alam was the commander of Parerhat Muktijidhdha camp.

Witness: I haven’t seen him.

Defence: Those aforementioned freedom fighters had supported Delwar Hossain Sayedee in the election and didn’t lodge any case of war crime against him.

Witness: Not true

Defence: During the war, the SDPO of your area, Faizur Rahman was martyred. After liberation, his wife Ayesha Foiz had filed murder case at Pirojpur court accusing people who were involved in his (SDPO’s) murder.

Witness: Don’t know

Defence: She had written a memoir titled, “Jibon Jerokom”, which was published in 2008.

Witness: Don’t know

Defence: Since Delwar Hossain Sayedee’s name is not mentioned in that book, you are denying having knowledge of it (the book) to hide the truth

Witness: Not true

Defence: Delwar Hossain Sayedee had been organising Waaz Mahfil in his name since the liberation war. He’d never change his name and had never been in hiding.

Chief Prosecutor Tipu objects saying defence has already asked too many questions regarding Sayedee’s name.

Defence: Did he organise Waaz Mahfil in that area as Allama Delwar Hossain Sayedee?

Witness: No, he was in hiding until 76-77.

Defence: When did you become Muktijodhdha commander?

Witness: Most likely in June I’ve been elected as Zianagar Sangsad’s commander.

Defence: Can you give names of your former commanders? When was Zianagar Sangsad formed?

Witness: Abdul Latif has been commander since after the war. I was deputy commander. Latif Saheb and Belayat Hossain were commander before me.

Defence: How often do you have election for your Muktijodhdha Sangsad?

Witness: It used to be every two years. But after the last parliamentary election, this changed and a new circular came out. We are yet to receive those papers.

Defence: When was Zianagar Sangsad formed?

Witness: Probably in ’74.

Defence: What did you do during the war?

Prosecution side objects saying this is repetition.

Witness: Before the war had started I was a student, until ’70.

Defence: See if you know these freedom fighters, Shamsul Alam Talukder, Habilder Shahid Alauddin, Syed Shamsul Haque, Habilder Habib, Syed Abu, Captain Altaf, Dr. Jahangir, Md. Afzal, Hemayetuddin Badsha, Nurul Islam, Mojibul Haque Mojnu, Shahid Asad, Md Helal, Tipu Sultan, Kamaluddin Ahmed, Habibur Rahman Shikder, Habilder Hye, Subedar Latif, Md Habib, Subedar Gaffar, Subedar Fulu, Md Shahid Khandaker, Shahidul Alam Badal, Habilder Fazlul Haque. Prosecution raises the point that the localities of these freedom fighters were not cited. There could be many people with similar names..

Witness: I know Habilder Shamsul Haque who now is an advocate. I know Habilder Habib as Habib Shikder. I know Abu, Shahid Asad, Tipu Sultan, Kamaluddin. Unless I know localities/address of Habibur Rahman Shikder and others, I can’t distinguish them.

Defence: I suggest that Habilder Shamsul Haque and Advocate Shamsul Haque are different persons.

Witness: As far as I know, Habilder Shamsul Haque is Advocate Shamsul Haque.

Defence: How many children do you have?

Witness: I had six, but now four are there (eldest son had passed away).

Defence: How old is your existing eldest son

Witness: 15/16. Youngest son is four.

Kafiluddin Choudhury says his questioning is finished and he would pass this on to his colleague, Manzur Ahmed Ansari.

Judges say that defence still hasn’t come to the 18 counts.

Tajul Islam: Every question we have asked is relevant. They (prosecution) had made him (witness) memorise his statement and so he was able to finish it in one day. But we have to find contradiction of each of those points during cross examination.

Chairman: It takes you three days to come to the point!

Defence: Your home at Tengrakhali is west of Parerhat port. You have to move along the road that comes away from Parerhat Bazaar and leads towards Rajlaxmi High School.

Witness: right 
Defence: What is the estimated distance? At north there is the rickshaw stand, at south Kocha River. Is it 2.5 mile long?

Witness: yes

Defence: There are three alleys in that Bazaar?

Witness: yes

Defence: Parerhat Bazaar had 1200 shops in 1971?

Witness: No, had around 500-700

Defence: The path from your house to Parerhat Bazaar was a dirt road.

Witness: yes

Defence: How far is your house from the rickshaw stand?

Witness: Roughly 1.5 km

Defence: My suggestion is, it’s roughly 3km.

Witness: No, it won’t be 3km.

Defence: You have two brothers

Witness: yes

Defence: Your brother Baten Howlader lives in your ancestral house?

Witness: yes

Defence: Your brother Mafiz Howlader has passed away.

Witness: yes

Defence: He has four sons did he have?

Witness: yes

Defence: In 1971 your brother Baten Howlader lived in your house.

Witness: In the same house, but in different rooms.

Defence: Adul Hye, son of late Mobarak Ali, lives in your house?

Witness: yes

Defence: The other two sons of that Mobarak, Jabbar and Auwal also lives in the same house, but in separate rooms. How old was Abdul Hye in 1971.

Witness: We are of same age.

Defence: At present Jabbar is 52, Auwal 57.

Witness: Auwal is around 50. Jabbar’s age wil be 38-40

Defence: Jahangir, son of Lala Shikder belongs to your house (family?). How old is he?

Witness: He is 2-3 years younger than Auwal.

Defence: Mohsin from the same house is 53 years old.

Witness: possibly

Defence: The people I have mentioned so far belong to your house (family) and all of you lived together in your old house in 1971.

Witness: yes

Defence: At north of your old house is Jakir Bari (Jakir family’s house).

Witness: At north of ours is Sarder Bari (Sarder family’s house).

Defence: How many rooms did Sarder Bari have in 1971?

Witness: one

Defence: Who lives there?

Witness: The children. Abdul Latif Howlader is the eldest son

Defence: Did you know deceased Mobarak Jakir?

Witness: yes

Defence: Two of his sons are Ruhul Amin Fakir and Goni Amin Fakir. Did you know Jinnat Ali Fakir from that house?

Witness: yes

Defence: His eldest son’s name is Abul Hasan Fakir; another son’s name is Jalil Fakir.

Witness: Yes

Defence: Sekander Ali Fakir?

Witness: Passed away

Defence: Do you know Yusuf Choukidar from that house?

Witness: Yes

Defence: He is 75 years old?

Witness: Yes

Defence: His son is also Choukidar (village police). Could you say his name?

Witness: Kalam Choukidar.

Defence: Do you know Hemayat Sharif, son of late Motahar Sharif, of that house?

Witness: Yes

Defence: Hemayat Sharif’s age is 52.

Witness: He should be of my age.

Defence: Do you know Salek Sharif of that house?

Witness: Yes

Defence: His age is 66.

Witness: He is much younger than me, will be 52-55

Defence: Do you know Moslem from the house, west of yours?

Witness: yes

Defence: His age is 65

Witness: Could be more.

Defence: Daliluddin’s son Salam from that house?

Witness: Know him. He is my cousin and brother of my first wife.

Defence: Further on south-west lives Md Hanif.

Witness: know him

Defence: His age?

Witness: around 50.

Defence: From same house hails Abul Choukidar. Is Abdul Aziz his son?

Witness: Yes

Defence: Had he been Choukidar (village cop) as well?

Witness: Yes

Defence: Later he’d been in Police and at present is a retiree.

Witness: Yes

Defence: Anis belongs to the same house (family)

Witness: Yes

Defence: Moinuddin is Anis’s father

Witness: He isn’t there (died)

Defence: Do you know Belayat from that house?

Witness: Yes

Defence: From you house, Char Tengrakhali village is 3 km on the south-west.

Witness: Less than that, half km

Defence: Along the road?

Witness: not more than 1km.

Defence: Late Bisha Bali’s house in Umedpur village was east of your house.

Witness: Yes

Defence: Hasan Chairman’s house is south of the road emerging from Bisha Bali’s house.

Witness: Yes

Defence: What’s the distance in between (the two houses)? 150 Gauze?

Witness: May be

Defence: Hasan Chairman’s son Shah Alam is the present chairman.

Witness: Yes. Hasan was chairman of the Peace Committee.

Defence: His brother’s name is Abdus Salam Howlader.

Witness: Yes

Defence: One of his brothers is Abdus Salam Howlader, another one is Najem Howlader. Do you know in which direction is their house?

Witness: East of mine, west of Bisha Bali’s.

Defence: Late Kashem Howlader’s house is also there.

Witness: It’s the same house (Najem’s and Kashem’s)

Defence: Kashem Howlader’s sons are Latif and Afzal. Do you know them?

Witness: Yes

Defence: To same house belongs Nurul Islam Howlader, son of Hossain Howlader.

Witness: Know him

Defence: Due to dirt roads in 1971, rickshaws rarely moved about your area.

Witness: Yes

Defence: Parerhat Bazaar is divided into two by a canal. There are bridges on the western and the eastern sides. The main bazaar is on the west end.

Witness: It is west of the big canal on the east.

Defence: What was on the east side in 1971?

Witness: Houses. The bazaar wasn’t there.

Defence: Going south of the east bank of the big canal, and turning east, then south from there, again turning to west and moving along the bank of Kocha River will lead to Manik Poshari’s house

Witness: Can’t go until the bank of Kocha River.

Defence: Manik Poshari’s house is 4 km from your house.

Witness: Not more than 3 km.

Defence: My suggestion is considering the dirt roads, this will be 5km.

Witness: Not true.

Defence: Manik Poshari’s village is Chitalia.

Witness: It’s between Badura and Chitalia (villages).

Defence: Badura is on east of the bridge in the middle of Parerhat Bazaar.

Witness: Yes

Defence: At present, Chitalia is densely populated.

Witness: It wasn’t like this before.

Defence: How far is Manik Poshari’s house from the river bank?

Witness: Before it was 1-2 miles away, but now the bank has moved closer.

Defence: Halim Talukder’s house is east of Manik Poshari’s house.

Witness: I can’t remember.

Defence: At east is Tota Howlader’s house and at west is Moslemuddin Poga’s house.

Witness: I don’t know.

Defence: Late Abdul Alim Khan’s son, Barek Khan’s house is also west of Manik Poshari’s house. Ismail Forazi’s son Anwar Forazi’s house is also there.

Witness: Could be

Chairman: For how long would you question a witness? (He mentions the fatigue the witness may be experiencing and points out that defence counsels had taken turns to question him)

Defence: He is the applicant of this case. He has stated Bisha Bali’s murder. I have to expose the contradictions in his statement by questioning him. 
Chairman: We haven’t asked you regarding the intention of your examination. But you have to come to the point. You are examining a witness for three days and now saying you are coming to the point!

Tajul Islam: This won’t happen in case of other witnesses. He is the main witness.
Hearing finished for the day