Saturday, January 4, 2014

The appellate division and Quader Molla’s execution

David Bergman

What was the basis by which the appellate division decided that Abdul Quader Molla should be executed?

In two earlier articles following the decision of the appellate division to impose a death penalty on Molla, I had raised two issues.

The first one was about the sufficiency of evidence in relation to the charge that resulted in Molla being executed.

And the second concerned the decision of the tribunal to limit the numbers of witnesses that Molla was allowed to bring to testify to the court.

These articles were written before the appellate division had published its written judgment.

In early December, the judgment was finally published - with his execution taking place very soon after. Whilst nothing can change the situation for Molla, one at least has a chance to see how the appellate division dealt with these issues?

I write this at a time when the Awami League is using the war crimes trial as part of its justification with proceeding with the 5 January election, and not to have sought an earlier compromise with the BNP. ‘Had Prime Minister Sheikh Hasina stepped down as BNP demanded, Quader Molla would not have been hanged,’ the prime minister’s son recently stated.

Numerous articles have in recent weeks are also being written in the local media in uncritical support of the current tribunal process.

Professor Rafiqul Islam, a professor of law at Macquarie University in Sydney, Australia has argued in an article published in the Daily Star that those convicted by the tribunal was ‘overwhelming’.

Convener of the Canadian Committee for Human Rights and Democracy in Bangladesh has stated in an article in the same newspaper that the tribunal ‘uphold all possible rights of the accused’.

And the founder and executive director of the South Asia Democratic Forum, in another article in the Daily Star has argued that the tribunal, ‘compares favourably with other tribunals being conducted around the world’.

And on Friday, a new poll suggests that around three quarters of the adult population of Bangladesh were 'satisfied' with the tribunal - which if true suggests a big turn around from polls of only a few months ago.

No evidence to charge him
Of course the key issue about Molla was whether on the charge he was executed there was sufficient credible evidence to justify conviction

It was alleged that Molla had been involved in the massacre of a family on 26 March 1971.

This particular allegation has a very strange beginning. It was not amongst the prosecution’s initial charges – and the prosecution applied some time later for it to be added.

Significantly, at the time the court indicted/framed the charge against Molla - claiming that the family was slaughtered in his presence and under his leadership - there was absolutely no evidence of any kind to support the particular allegation.

At that time, on 28 May 2012, the only piece of evidence that the tribunal had in its hand concerning this offence was the statement given to the investigation officer by the massacre’s sole survivor, Momena Begum.

This statement however did not claim that Molla was present at the scene or was in any way involved in the offence.

She blamed it on ‘Biharis’ who ‘entered along with the Pakistani soldiers.’

Momena in fact does specifically tell the officer that one person was present – and it was not Molla. ‘I know all the Biharis. Aktar Gunda was with them. He was known as a Gunda (Criminal) in our locality,’ she stated.

Now, before prosecutors present a case to court, and before a court agrees to charge that person and put him on trial, there has to be evidence that the person committed the crime in question.

Extraordinarily, in relation to this charge there was no evidence. One must wonder whether on this point alone, proceedings on this charge should have been voided.

The majority judgment in the appellate division decision given by Justice Sinha, however, never remarked on this point.

Molla's identification
Now, lets then look at the subsequent trial.

Momena came to court and provided an account different to the one that she had given to the investigation officer (set out above) and stated that Molla was indeed present at the scene and was a leader of the men.

In her testimony she said that she heard her father, as he ran towards the house that day, “Qader Molla will kill me.” In cross examination she then says that after the incident two men (both now apparently dead) told her that it was Molla who was present at the scene.

Both of these are hearsay identifications – that is to say identifications through what other people have told her.

However at the end of her evidence, when asked to identify the man who was present, she herself identified Quader Molla. “He was young and not aged enough then. He used to wear panjabi then,’ she said.

In court she said that she was hiding under the bed at the time of the attack.

Could a 13 year old girl have had a proper look at Molla from under a bed so that 42 years later she could identify him so definitely even making a comment about what clothes he wore?

The appellate division did not look into this issue, simply repeating what the trial judgement had said that, Momena 'is a very natural eye-witness'

In 42 years, no one else told of Molla’s involvement
But there are other good reasons to have serious doubts about her identification.

Momena had, according to the evidence, not told anybody in the last 42 years that Molla had been present – until she had come to court.

She was asked about that, and said that she had been scared.

Fair enough. But surely it is inconceivable that during the whole of the last 42 years she did not mention to family or to friends that she had seen Molla, a man that subsequently became a well known politician, lead the gang that killed her family?

This was not a matter considered by the appellate division judgment.

Appellate division discards previous contradictory statements
And then there are the two previous statements where she blamed Biharis for the murder – and where she never mentioned Molla as being present or involved in her family’s murder.

One of these has already been mentioned – the statement to the investigation officer in 2010

But in addition to that, in 2007 Momena gave a statement to a liberation war museum researcher where she said was not even present at the time of her family’s massacre, having gone to her father-in-law’s house. Again, she never mentioned Molla’s name, but told the researcher that she had heard about the killings later and was told they were done by ‘Biharis’.

How did the appellate division deal with these previous statements which go directly to the question of the witness’s credibility - one which was to an investigation officer, both of which were inconsistent with each other, and both also inconsistent with her subsequent testimony in court.

It dismissed them.

The appellate division held that it was not ‘evidence’, in effect not worth the paper it was written on.

‘It was not expected from the investigating officer to record the statements of the witnesses,’ Justice Sinha said. Any omissions made in a statement by a witness ‘may best,’ he said, be put down to witnesses ‘omitt[ing] to make some statement before the investigating officer’ (p.198)

In addition, he held that the rules of the tribunal did not allow a witness to be questioned by defence lawyers about anything which the witness did not state in her testimony (examination in chief) in court.

That is to say, he ruled that nothing that Momena had stated prior to the testimony he or she had given in court – including both her statement to the investigation officer and to the liberation war museum - could be used to raise questions about her credibility. He said: 'The rules also do not provide for taking any contradiction of the statement of a witness made before the tribunal with any other statement made elsewhere and no adverse presumption could be drawn therefrom. (p.199)

There is a way of interpreting the ICT rules of procedure to come to Justice Sinha’s conclusion – but it is one that is extremely conservative, and places the ICT outside normal principles of jurisprudence applied in any reasonably developed criminal justice system in the world, including of course in the ordinary criminal courts of Bangladesh.

Any rule of procedure that holds that prior statements given by a crucial witness to an investigation officer or to a researcher cannot be used by a court to consider the credibility of that person’s oral statement obviously creates a serious risk of miscarriage of justice.

Sinha’s ruling allows a person to come to court, make an allegation that he or she had never made before, and which is also entirely contradictory to statements that the person had made in the past, and then be treated by the court as a credible witness, ignoring the contradictory statements.

Sinha’s ruling also appears not to be consistent with other provisions of the International Crimes (Tribunal) Act 1973 which specifically states that there should be no ‘technical rules of evidence’ and directs the court to ‘admit any evidence … which it deems to have probative value.’

In addition, of course, statements given to investigation officers have been at the heart of the tribunal’s decision making on whether a person should be charged with an offence.

If the statements are not ‘evidence’ as Justice Sinha stays, then why are the courts relying on them in the process of charge-framing?

It is important to note that this ruling will effect every other trial at the ICT.

Circumstantial evidence?
Justice Sinha did add in his appellate division judgment that Momena’s statement has been ‘corroborated by the circumstantial evidence’ of 6 other witnesses.

However even assuming that every statement given by these witnesses relating to his activities in 1971 – some of which was hear-say – were considered completely credible, they still do not provide any corroboration of any kind to Momena’s allegation regarding the presence of Molla at the scene of the incident, which is the matter in hand to prove this offence.

Moreover, Justice Sinha has an interesting understanding about the import of so called 'circumstantial evidence' - suggesting that, 'These circumstantial evidence are approximate to truth and be preferred to direct evidence. Circumstantial evidence is the best sort of evidence because, as the saying goes, "men may lie but circumstances will not."' (p.235)

Restricting witness numbers
It is difficult to see how, on the basis of the evidence available, this particular allegation would ever have resulted in most jurisdictions in a prosecution against Molla - yet alone one that went to trial and result in a conviction and then execution.

However, there is another important issue relating to Molla’s ability to defend himself – which has affected all the other cases before the tribunal.

A number of articles written about the tribunal assert that the accused have all the rights available in any other court and in any other international tribunal. A look at the issue of witness numbers is just one reason why this is such a big lie.

Both of the tribunals has restricted the number of defence witnesses in most of the trials to between three and six, even though they trials involved as many as 23 separate charges and when the prosecution had no restrictions on witness numbers

In the Salauddin Quader Chowdhury trial, the prosecution brought 41 witnesses to the tribunal to prove 23 offences. the defence was restricted to only calling five witnesses.

In the case of Abdul Alim the prosecution was allowed 35 witnesses, but the defence was restricted to three witnesses to disprove 17 offences.

And four witnesses were permitted in Motiur Rahman Nizami’s defence relating to 16 charges.

In the Molla case, the tribunal restricted the number to 6. In effect one witness for each offense.

This restriction is significant as the most obvious characteristic of a fair trial is allowing an accused person to present his or her case - and limiting witnesses inevitably precludes the ability of the accused to do just that.

Courts around the world do have the power to restrict the number of defence and indeed prosecution witness – but this would in general terms only happen when the statements were not considered ‘relevant’.

The Bangladesh tribunal, however restricted the defence witnesses to a particular number, without even knowing what witnesses the defence wanted to bring.

The reason the tribunal gave for this restriction was because in its view the accused lawyers only had a right to bring ‘alibi’ witnesses (i.e witnesses who claim that the accused was not present at the time) and had no right to bring any others witnesses that could disprove the prosecution case.

‘In a criminal trial, defence may examine witnesses in support of his defence and not to disprove prosecution case… [W]e are constrained to reiterate that the defence is to prove nothing and the burden squarely lies upon the prosecution to prove the charges beyond reasonable doubt,’ the judges in the Molla case stated when restricting the witnesses he could bring to six.

Yes, the burden is on the prosecution to prove its case ‘beyond reasonable doubt’, but this principle has never meant – and Bangladesh law has never stated otherwise - that the defence cannot bring witnesses to discredit different elements of the prosecution case, and show, for example, unreliability of prosecution witnesses or raise any other kind of relevant defence.

Doing so is a completely standard defence practice in just about any country around the world – including in Bangladesh. And preventing an accused from doing so, is stopping an accused from properly defending himself.

It is as simple as that.

As far as I can see from the judgment, the appellate division is entirely silent on this issue, which seems to suggest that the most senior court in Bangladesh approves not only of the restriction in witness numbers but the tribunal’s rationale – which applies to all other accused.

It is of course true that the initial submission by Molla’s defence of a long list of witnesses names, close to 1000, was ridiculous – but when this matter actually came before the court, the defence sought to call a reasonable number of 20 witnesses. This was however rejected by the tribunal.

We don’t know what Molla’s other 15 witnesses – assuming he was allowed to have had 20 - would have stated, but prohibiting them from giving evidence cuts across his right to put forward his defence.

In conclusion
So, we have a situation where Molla was put to death on the basis of a witness who claimed in court that the accused was present, but who had in the last 42 years, as far as we know, never made such a an earlier claim, and who had also previously given two statements both of which did not mention that Molla was present at the crime scene and one of which stated that she was not even present at the time of the incident – and  the appellate division not allowing these statements to be taken into account by a court.

And then we have a tribunal which precluded Molla from calling witnesses to present his defence and an appellate division apparently accepting this restriction, along with the reasons given for the restriction which cuts across the basic principle of defence lawyering.

Supporters of the tribunal point to the legal rights given to the accused including that of having a lawyer to defend themselves, with all the rights of cross examination of prosecution witnesses.

However, these rights mean nothing in practice if the accused is not allowed to bring witnesses to the court defend himself, he has no right to cross examine a witness on previous statements which go to the heart of a witnesses’s credibility, and, of course, if the court has no right to take previous contradictory statements of witnesses into account in its assessment of the evidence.

And those commentators mentioned at the top of this article should actually find out a bit more about the working of the tribunal before writing ideologically driven articles about 'overwhelming evidence' and 'appropriate procedures.'

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