Saturday, October 10, 2015

Salauddin Quader Chowdhury: The "missing" 26 witnesses

On 30 September 2015, the appellate division made public a copy of its judgment which upheld the death penalty against Salauddin Quader Chowdhury, a former Bangladesh Nationalist Party leader, for the commission of four offenses  committed during the country's 1971 war of independence.

At present there is a hiatus. There are no legal proceedings pending, providing an opportunity to comment on the current situation.

The defense lawyers have a right to lodge an application seeking a review of the appellate division judgement within 15 days of the judgement which was published on 30 September. At the time of writing, they have not done so.

Commentary on any legal proceeding in Bangladesh - and in particular those involving the International Crimes Tribunal - is difficult, as Bangladesh courts take a very expansive view of what is contempt of court through 'scandalization' (unlike for example Indian courts). It has become very difficult for writers in Bangladesh to assess when commentary will be viewed as 'fair criticism', exempt from contempt of court charges, and when it will be viewed as 'scandalization'. As a result, few in Bangladesh dare to write, fearing the consequences.

In relation to the International Crimes Tribunal, about which there is understandably much emotion, this has become even more precarious. Even if one escapes an application for contempt, there is a category of tribunal supporters who refuse to accept that writing about fair trial standards is at all justified. For them, the process should not be subject to any critical commentary, and they will try to label any writer who raises points they do not like as 'pro-jamaat', 'pro-war criminal' and the like - failing to engage at all with the substance of what is being stated. Social ostracism, from otherwise progressive people whose views on most other things one shares, is therefore another risk that people face.

Nonetheless, there are moments when the risk is worth taking - and this is no more so than when someone is on the cusp of being put to death.

This is part-1 of an article  - about which great care has been taken to ensure that it stays the right side of the line of 'fair criticism' - setting out concerns that 26 key defense witnesses were never given an opportunity to testify on behalf of Salauddin Quader Chowdhury. To read part 2, click here

The missing 26 witnesses 
When the Bangladesh government decided to hold to account those alleged to have committed international crimes during the country’s independence war in 1971, they did not just pick the suspects up and shoot them.  
Far from it. Following the demands of campaigners who for many years had been demanding justice for Bangladeshis who had collaborated with the Pakistan military, in 2010 the newly elected Awami League government established a special tribunal.  
Allegations were investigated by a dedicated group of police, and prosecutors laid charges against those where they thought there was sufficient evidence. Following a trial, a three-judge tribunal decided on their guilt, following which there was a right for the accused to appeal.  
Therefore, for those seeking justice, ‘process’ – that is to say, the manner in which the guilt of the accused was to be decided  - was a crucial element of their demand. Campaigners did not just want these men – many of whom they hated, despised and considered guilty of heinous crimes – to be just ‘picked up and shot’. 
They wanted them to be proved guilty in a court of law before receiving as they later put it, ‘the highest penalty available’. And they wanted this process to be ‘fair’  
A week ago, the appellate division published its full judgment upholding the death penalty against the Bangladesh Nationalist Party leader, Salauddin Quader Chowdhury for four offences involving crimes against humanity during the 1971 war.  
Assuming he is put to death – and there does remains the option of the defence submitting a review application in the coming week – he will be the third person to suffer the death penalty following conviction at the International Crimes Tribunal.  
However, how fair was the process that has resulted in this conclusion?  
A fair process requires many things, but one crucial element is allowing an accused person a proper opportunity to present his or her case.  
But, in relation to the four offences for which Salauddin has been sentenced to death, there were 26 crucial defence witnesses that were never given an opportunity to testify in court. 
It is the matter of these witnesses, from whom no court has heard, which is the subject of these articles. 
The six foreign witnesses 
Who are these witnesses, and why are they so important?  
Six of the witnesses live outside Bangladesh and include a former US ambassador, a former prime minister, a former member of the Pakistan legislative assembly and the current chairperson of the Dawn media group in Pakistan. 
Their evidence supports Salauddin’s alibi defence, which is that on 29 March 1971 he flew out of Dhaka to Karachi where he stayed for three weeks. After that, he travelled on to Lahore where he studied, until August of that year, for a degree at Punjab University. 
We know what they would have stated in court as the defence obtained sworn statements from them.  
These witnesses include Muhammad Osman Siddique, the former United States ambassador, who stated that he was on the same flight as Salauddin, who was an old school friend of his, when he flew to Karachi on 29 March.  
Karachi-based Muneeb Arjmand Khan, also a friend of the accused since school days, stated that on 29 March he ‘received’ Salauddin from Karachi airport and took him to ‘Mr Yusuf Haroon’s residence, known as Seafield.’ He also said that he was amongst those who took the BNP leader to Karachi airport when after 3 weeks he moved to Lahore so that he could go to Punjab university.  
Amber Haroon Siddiqui, now the chairperson of Dawn media, confirmed that when Salauddin arrived in Karachi, he lived at her family house, (known as ‘Seafield’) for about three weeks. She said, ‘We used to have discussions at the dinner table where [Salauddin Quader Chowdhury] would join me, my sisters and my parents.’  
And then there is Ishaq Khan Khakwani, a former member of the National Assembly of Pakistan, who said that ‘[Salauddin] arrived at Karachi a few days after … 26th March 1971 …. Salauddin was picked up from the airport by our mutual friend Muneeb Khan and I spoke to both of them once they reached Mr Yusuf Haroon’s [father or Amber] residence called Seafield House.’ He then says that when the BNP leader moved to Lahore, and he was admitted in the Punjab university the accused stayed within ‘in our family house … where he stayed with me throughout till we left for London in October 1971.’ He mentions the names of five people who would congregate with the accused ‘almost daily’ in that period, and stated that ‘Shamin Hasnain, who is now a justice of the High Court in Bangladeshi’ would sometimes join them. 
Along with two other witnesses their evidence is that Salauddin was not present in Bangladesh during the war – and specifically he was not present there on 13 and 17 April when he is said to have committed the four offences for which he has been sentenced to death.  
The 20 Bangladesh witnesses 
The other 20 witnesses live in Bangladesh and their evidence – as seen by the affidavits which they drafted - dispute key elements of the prosecution case that claim that Salauddin committed the four offences.  
The first offence on 13 April 1971 involved the murder of Nutun Chowdhury at the Kundeshwari compound in Gohira village. In this case, the Tribunal primarily relied on two ‘eye-witnesses’ - that of Gouranga Singha, who was part of the victim’s extended family and Gopal Chandra, the principal of Kundeshwari Girlís college.  
In its judgment the Tribunal quoted Gopal as stating that he saw the accused shoot Nutun Chandra Singha using ‘his pistol or revolver as he had instruction from his father to kill Nutun Chandra and thereafter, accused Salauddin Quader Chowdhury left the crime site after ensuring death of Nutun Chandra who died onthespot.’  
However seven people gave affidavits which state that Gopal had fled Kundeswari before the offence took place, and six that Gourango was also not present.  
A 78 year old resident of Kundeshwari, for example, said that ‘8 or 10 days before the death of Notun Chandra Singha, myself and my cousin Gorongho Singha and other members of my family all went to India via the Ramgar border. The college principal, Gopal Chandra Das and his family were also with us. When Nutun Chandra died, Goronga Singho and Gopal Chandra Das were not present at Kundeshwari Bhavan. They were with us in India.’  
In addition, three people said that it was the Pakistani soldiers alone that killed Nutun and that the only Bengalis present had their ‘hands tied up’. A 66 year old resident of the village Gohira stated that, ‘At one stage, one soldier shot at Nutun Babu. He fell to the ground at once. After the shooting, within a couple of minutes, the soldiers left the place and took a lot of things with them. With the soldiers, two Bengali men were there with their hands tied up.’  
In the second offence that took place that day, the Tribunal relied on the evidence of Anil Boran Dhor to convict Salauddin of participating in the murder of four men in Bonik Para in Sultanpur. Anil had told the Tribunal that he and his father were picked up from their home by the accused, taken outside and shot along with some other members of the village. He said that he somehow survived, but that his father and two of his uncles died.  
However two people from the village of Sultanpur, said that before the murder Anil had taken refuge in India with them. And another witness, says that soon after the killing he went to the crime scene and heard that only Pakistani soldiers were involved.  
In the third offence, Salauddin was convicted of participating in the killing of 50 people from the village of Unsatturpara. Prosecution witnesses alleged that on the same day as the other two offences, Salauddin had led Pakistan soldiers to the village where they were shot in the BNP leader’s presence. 
Chapala Rani - called a ‘star witness’ in the Tribunal’s judgment had told the court that she was amongst those assembled by the village pond, and that her father and two brother in laws were killed.  
However four people, all residents of Unsatturpara stated that Chapala Rani had taken refuge in India before the incident took place. They also state that Janti Bala Paul, and Sujit Mohafon, whose statements were also relied by the Tribunal, were not present. 
One 66 year old person, for example, stated that on hearing that the Pakistani had set up a camp close to where they lived many people decided to go to India. ‘And with ... Janti Bala Paul, ... Chapala Rani, along with their children,’ the affidavit states, ‘we went on 3 or 4th of April to India by the Ramgar border. Sujit, the younger son of Jogesh Chandra Mohazan, was also with us.’  
In relation to the fourth death sentence offence that took place on the 17 April, involving the abduction and murder of the founder of the Awami League in Chittagong, Sheikh Mozaffor Ahmed and his son Sheikh Alamgir, four people questioned the prosecution evidence given in court.  
One, a 71 year old man who was at that time the ‘linesman’ of the bus-stand, from where Salauddin is supposed to have picked the two men up, said that he had never heard about the incident. Another 65 year old men who ran a tea stall also gave a statement that he had never heard of this incident at the time, ‘The news is totally false .... Because at that time I never saw or heard of any incident like that.’ And two further witnesses, said that the family members of Sheikh Mozaffor Ahmed ó who had testified to the tribunal that Salauddin was present - had never previously claimed that the BNP leader was involved.  
Highly relevant ... but are they true 
So these two categories of witnesses – the six who support the Salauddin’s alibi defence and the twenty that challenge key elements of the prosecution case – are on the face of it highly relevant to the decision on whether the accused is innocent or guilty.  
However, as with any witness, it is possible that these ones are not telling the truth.  
But this can only be determined when they testify in court, and have their evidence tested through cross examination.  
So why were these witnesses never summoned to court to give evidence?  
The short answer is that in relation to 23 separate offences alleged against Salauddin, the Tribunal only allowed the  defence lawyers to call 5 witnesses, subsequently restricted to 4. 
This decision was made after Tribunal had imposed no such limit on the number of witnesses the prosecution could summon. There were in total 41 prosecution witnesses.  
How this happened - the role of the Bangladesh courts as well as that of the defence lawyers - is discussed in the next part of this article.

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