Saturday, February 22, 2014

Bangladesh ICT Witness abduction: a rejoinder

David Bergman                                                                    A bangla version of this article can be accessed here

In a judicial system which worked, the article written by Omor Shehab on concerning my blog reports on the alleged abduction by law enforcement officers of a prosecution-turned-defence witness at the international crimes tribunal would have been the source of an apology and a pay out for me in defamation damages.

Unfortunately, in Bangladesh, I don’t think anyone has ever won such a legal action in the courts. So I shall instead respond here to Omor’s article which apart from defaming me through it’s claim that I helped ‘fabricate’ the story of the witness abduction, contains many inaccuracies and omissions and is generally highly misleading.

Omor Shaheb’s basic position is pretty clear. Sukhranjan Bali, a witness in the Delwar Hossain Sayedee trial, was not kidnapped outside the international tribunal from a defence lawyer’s car; the Jamaat-e-Islami was involved in a conspiracy to pretend that he was abducted; and I was a party to that conspiracy.

What does Bali himself say?
Bali has himself stated clearly he was abducted by Bangladesh law enforcement agencies from outside the tribunal.

Fine, don’t believe the allegation made by Jamaat lawyers, and don’t, if you wish, give credibility to my own journalism – but perhaps Omor (and others) might wish to believe Bali himself! Or is there no evidence that they will believe?

Bali first gave the story of his abduction in early 2013, when he provided a detailed statement about his abduction, parts of which were published in New Age.

Bali again said the same thing through his lawyers in the Indian supreme court as part of his claim for asylum which is currently being considered by the Indian government.

One should of course note that at this time, the government was alleged to have been involved in dozens of disappearances of opposition supporters or activists.

Credible evidence
Bali’s own claim that he was abducted from outside the tribunal gates, of course provides further strong confirmation to my initial journalistic instincts which were first written up in my blogpost on this subject five days after the abduction.

I stated on 10 November, ‘Although there remains at present no entirely independent witness to this abduction, this allegation is credible in light of the background circumstances to this incident, the detailed corroborating accounts provided, and the photographs taken of the police vehicle in which the Bali is said to have been taken.’

Omor’s article suggests that I believed the abduction allegation without any thought or consideration to the fact that the only witnesses were the Jamaat lawyers and those working for a newspaper with links to the party. That is far from the truth, as anyone reading the original article can clearly see.

This is what I wrote in that post:

‘The only witnesses available at present are the members of the defense team, one of their drivers, and two journalists of a newspaper sympathetic to the objectives of the defense team. Despite the lack of independent testimony, there is good reason to conclude that the defence witness Shukharanjan Bali was indeed kidnapped by the police outside the International Crimes Tribunal.”

I then went onto explain why I thought so.
‘The photographs are particularly important. (a) In picture 1, the tree in the picture matches with the actual tree outside the gate from which the witnesses said Bali was taken; (b) in both pictures 1 and 2, the police vehicle is pointing in the direction of the road as though it has just come from the Tribunal, as the witnesses testify; (c) there are also two pictures that appear to show that both the two journalists witnesses, Shahidul Islam and Golam Azam, were at the scene of the abduction - an important piece of corroboration.

‘Without independent testimony, there is perhaps no conclusive proof that such an abduction has taken place. It is also of course notable that the only two journalists present at the time were from the Sangram paper. However the detailed testimony, along with the pictures do suggest that the defense witness was abducted by law enforcement personal outside the tribunal gate.’
I said clearly that the lack of independent testimony did not make it possible to be conclusive about the abduction allegation. However, it was my view then and it remains the case now (of course now fully supported by Bali’s own testimony) that the claim of abduction was credible due to the level of detailed information provided in the interviews (all of which were conducted separately) the consistency of the accounts, and the corroboration provided by the photographs.

Bali’s wife testimony
A week later I travelled to Pirojpur, and interviewed Bali’s wife. Omor mentions this, but fails to state that his wife corroborated the claim by the defence lawyers that he had gone to Dhaka to testify at the tribunal.

As I said in the blog post about the meeting (which contained a transcript of the conversation): 
‘The interview seems to corroborate a number of issues relating to the alleged abduction of Bali. (a) that Bali had gone to Dhaka (b) that he was on his way to the tribunal on the 5th morning when he called her (c) that he was willingly going to give evidence on behalf of Sayedee (d) that he has been missing since then - the family have not received any calls from him since the 5th.’
Background circumstances
Moreover significant in my assessment at the time was the ‘background circumstances to this incident’ which I wrote up in my blog

It is a pity that Omer did not set this out clearly in his article as it shows how the defence had been trying to get Bali to testify at the tribunal for a number of weeks, that it was very much in their interest to get him to come to court, and why the state had such an interest in preventing this happening.

Bali was originally listed as a prosecution witness in relation to the death of his older brother in 1971, and a statement written by the investigation officer purporting to come from Bali had originally been given to the tribunal in which he is said to have alleged that Sayedee ordered his brother’s murder.

Subsequently, however, in around March 2012, a number of video interviews were published on the internet in which Bali states that Sayedee was not involved in his brother’s death and that he never gave a statement to this effect.

The prosecution did not bring Bali to court to testify as a witnesses, stating that he ‘was missing’. At the time the defence denied this was the case.

On 21 October 2012, the defense filed an application asking the tribunal to issue a summons requiring Bali to come to the tribunal as a defense witness.

This application stated: ‘Shukharanjan Bali has direct knowledge of the alleged incidents of the case. He is the brother of the late Bishabali who was allegedly killed at the instruction of the accused as per charge 10 of the instant case. As such it is necessary to issue summons upon Shukharanjan Bali so that he can give evidence as Defence Witness.

This application was heard on the 23 October, and the tribunal ruled that it would not issue a summons, but that the defense could bring any witness that it wanted.

It should be noted that the tribunal had issued summonses for all the prosecution witnesses.

Two days later the tribunal ordered the defense to close its case and fixed 5 November 2012 for the prosecution to sum up its case. On 31 October, the defense made another application asking the tribunal to allow it to bring Bali (and another witness) to testify prior to the beginning of the prosecution summing up.

The tribunal said that it would hear the application on 4 November. According to the defence lawyers, Bali was brought to the tribunal on that day, spending the whole day in the defense room. However the tribunal did not hear the application.

The defence claim that when he was brought to the tribunal the next morning, the only day it would have been possible for him to give his evidence, he was abducted.

It was clearly in the defence interest to bring Bali to court. Going by the video testimony, he would have testified, that Sayedee had not been involved in his brother’s murder, and that the investigation officer’s statement was false. This was something that the prosecution desperately did not want to happen.

CCTV footage
The prosecution, the police and the tribunal authorities all denied the abduction. One of the most notable failures of the part of the authorities was not to allow an inquiry into the court CCTV footage of that and the previous day which would have been able to corroborate certain elements of the abduction allegation – including for example the movement of the police van from inside the court.

As I stated at the time, the failure for the authorities to have made any proper inquiry into this footage was very telling.

Omor argues in his piece that a BBC article exposed my ‘falsehood’ in relation to the article published by New Age. That is not at all the case. Indeed, following a complaint I made about the way in which the BBC article was written, an executive wrote to me and confirmed that, ‘The sources did in fact confirm your report that a message had indeed been sent by Mr Bali to Bangladesh, the difference was in how it had been delivered.’

Of course, in fact the claim made by an unnamed jail official to the BBC, that a ‘message’ was sent by bribing a jail official is totally incorrect. I know exactly who was involved in taking Bali’s statement – it did not involve any prison official, there was no financial transaction and it was done totally lawfully.

It should also be noted that the BBC executive acknowledged that there were problems with the article. ‘I don’t think the BBC Bangla article has been successful in reaching the aims that it set out for itself. … You are right about the absence of context. …. I do find that your complaint is partially upheld, the piece did need considerably more explanation and context to deliver a clear and full picture to the audience.’

Unfortunately, much the same, and more, could be said of Omor’s biased, prejudicial and misleading article.

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