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.

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