20 January 2013: ICT 1 Daily Summary

  1. Chief Prosecutor vs Salauddin Qader Chowdhury: Defense Application for Removal of Chief Prosecutor; Contempt Proceedings vs. Ziauddin (Accused Not Present)
  2. Chief Prosecutor vs Delwar Hossain Sayedee: Defense Resubmission of Closing Arguments (Accused Present)

The Tribunal passed and order in response to the two defense applications seeking the removal of prosecutor Zead al-Malum. They additionally took note of the request by Chowdhury’s Defense counsel for contempt proceedings against Ziauddin (in connection with the Skype controversy). In the Sayedee case the Defense counsel filed two applications for review of orders rejecting previous applications made regarding 1) opportunity to inspect process and summons orders made for witness statements made under section 19(2) – providing for out-of-court statements made to the Investigating Officer to be admitted into evidence without the live testimony of the witness, and 2) recall of two witnesses. The Defense also noted a lack of access to documents submitted by the Prosecution.Thereafter, Mizanul Islam Defence Counsel of Delwar Hossain Sayedee began placing Closing Arguments for that case.

The Tribunal said that Motiur Rahman Nizami and Salauddin Quader Chowdhury’s cases will be heard before the court on January 23, 2013.

Chief Prosecutor vs. Chowdhury
Application for Removal of Zead-al-Malum
On December 19, 2013 Defense Counsel for Salauddin Qader Chowdhury filed an application for removal of conducting Prosecutor Zead-al-Malum. On January 10, 2013 Defense Counsel for Golam Azam filed a similar application for his removal. The Defense alleged that Zead al-Malum colluded with the former Chairman of Tribunal 1 and foreign legal expert Ziauddin in making decisions regarding the trials, as evidenced by alleged comments made about al-Malum in the Skype conversations. 0n January 14, 2013 Tribunal-1 heard arguments for both applications. On January 20, 2013 the Tribunal passed an order, which was read out by Justice Anwarul Haque. He stated that the Order would be applicable for both the applications filed for the removal of Prosecutor Zead-al-Malum.

In its Order Tribunal stated that Section 7 and 9 (1) of the ICT Act 1973 and Rule 17 of the International Crimes (Tribunal-1) Rules of Procedure 2010 gave only the Chief Prosecutor right to appoint or remove a prosecutor and the Tribunal would leave the decision up to the Chief Prosecutor’s good conscience.

The Tribunal noted the relevant sections of the ICT Act of 1973 and stated that Section 7 of the ICT Act 1973 provides that the Government may appoint one or more persons to conduct the prosecution before a Tribunal on such terms and conditions as may be determined by the Government and every such person shall be deemed to be a Prosecutor for the purpose of this Act. Section 9(1) of the ICT Act 1973 states that the proceedings before the Tribunal shall commence upon submission by the Chief Prosecutor or a Prosecutor authorized by the Chief Prosecutor on his behalf. Rule 17 of the International Crimes (Tribunal-1) Rules of Procedure 2010 states that the Chief Prosecutor or any other Prosecutor authorized by the Chief Prosecutor shall conduct the prosecution of a case or appear before the Tribunal for any matter relating to the case.

Contempt Proceedings Against Ziauddin
Salauddin Quader Chowdhury filed an application to issue a contempt proceeding against Ahmed Ziauddin under section 11(4) of the ICT Act 1973. The Tribunal said the matter would be disposed of in Chambers.

Chief Prosecutor vs. Sayedee
Defense Applications
Mizanul Islam filed a review application to review the order dated 14 January 13 regarding one of six applications filed requesting opportunity to inspect all process and summons orders issued to witnesses whose out-of-court statements were admitted under Section 19(2) (allowing statements made to the investigating officer to be admitted where the witness cannot be procured in court). The Tribunal rejected this application by virtue of Rule 26(4) of the International Crimes (Tribunal-1) Rules of Procedure 2010, describing this application as irrelevant and not fit for hearing.

The Defense also filed a review application for the order dated 14 January 2013 requesting opportunity to recall Prosecution witnesses 28 (Helal Uddin, Investigation Officer) and Defense Witness 13 under Rule 46A of the International Crimes Tribunal Rules of Procedure 2010.

Mizanul Islam also said that Prosecution had submitted some documents on December 5, 2012, just one day before closing the Defence Arguments, underf section 19(4) of the ICT Act 1973. Mizanul Islam argued that the Defense did not get any chance to cross-examine the Investigating Officer regarding those documents. In reply the Tribunal said that they kept these documents on record with prosecution’s objection.

Closing Arguments
Mizanul Islam, Defense Counsel for Delwar Hossain Sayedee, began Closing Arguments on behalf of the Accused. He discussed the testimony of Investigation Officer (IO). In particular he noted that the IO submitted out-of-court statements from 46 witnesses section 19(2) of the ICT Act 1973. He questioned the truth and reliability of these statements, noting that one of these witnesses, Shahriar Kabir, had said that he did not even know that he was a witness against Sayedee.

Mizanul Islam submitted that in terms of evidence, the Prosecution exhibited 259 documents, 15 materials, 28 live witnesses and 16 Witness statements by virtue of 19(2) of the ICT Act 1973, whereas the Defense exhibited 62 documents, 3 materials and 17 live witnesses.

The Defense submitted that the case was filed against Sayedee on the basis of a complaint made by Mahbub Alam Hawladar (PW-1). Mizanul Islam said that in the complaint Hawladar brought allegations against 11 persons, amongst whom 7 are alive. He alleged that Investigation Officer did not carry out an investigation regarding all these named individuals, and only investigated  Sayedee. Mizanul Islam argued that this was a violation of Rule 6 of the Rules of Procedure, as the Investigating Officer had investigated a specific person instead of facts. He further alleged that there was a violation of Rule 36 of the Rules of Procedure as well.

Following the Examination-in-chief and Cross-examination of IO (PW-28), Mizanul Islam tried to establish that the IO started his investigation in March, 29 2010, while he was only appointed on July 8, 2010 and the complaint was filed by Mahbubul Alam Hawlader (PW-1) on July 20, 2010. Mizanul Islam argued that the discrepancies in these dates and the early beginning of the investigation indicated that there were political interests behind the investigation. Mizanul Islam submitted that Mahbubul Alam Hawlader first brought his allegation (Exhibit-F, General Register-93) against Sayedee at the Pirojpur Magistrate Court in 2009, after 40 years of the commission of the alleged crime. He questioned why he would have filed it after so long if not for other influences.

The Defense read out a section of the IO’s testimony where alleging that Sayedee was expelled from Sharshina Madrassa due to his involvement with Jamaat-e-Islami. Mizanul Islam argued that PW-1 failed to provide necessary answers corroborating this information. In particular, the Witness did not say anything about Sharshina Madrassa and was unable to name any students who were at Sharshina Madassa at that relevant time, even though he had claimed that he spoken to Sayedee’s classmates but did not record their statements. Mizanul Islam argued that IO made the comment regarding Sayedee’s alleged expulsion from the madressa solelyt to undermine Sayedee, when in fact he had not conducted such interviews.

Regarding the title of Sayedee, the Investigating Officer (as PW-28) further said that no one may use ‘Allama Moulana’ without a PhD degree. The Defense nosted that on cross-examination the IO failed to provide any clarification in supportthis claim, and that he did not ask any expert authority, e.g. religious leader, about the use of these titles. By giving the example of Allama Iqbal, Allama Shaikhul Hadith, Bhashani and the ex-minister of India, Mizanul Islam argued that anyone can use this title without having any qualification in Arabic studies and stated that the IO raised this issue just to humiliate Sayedee.

The Defense then noted that in his testimony the IO had claimed that Sayedee was in business in trading grocery products. He further claimed that Sayedee lived at his father-in-law’s house. Mizanul Islam noted that during cross-Examination (dated 13-06-12) the IO contradicted himself by saying that Sayedee professionally gave religious speeches in different programs. Mizanul Islam further stated that Gourango Shaha (PW-13) in his testimony said that Sayedee used lived in a rented house just beside his house while Sayedee’s father-in-law’s house was opposite to a canal.

Mizanul Islam noted that in his testimony the IO claimed (on 17.04.12) that the Razakars as a group were constituted by students of Madrassa,  and Muhadesh and Mufasser (interpretors of the Quran and Hadith). In cross examination ( on 17.07.12) the IO admitted that in 1971 Sayedee was not a Muhadesh, Mufasser. Mizanul Islam argued that in another place IO claimed that Sayedee was fluent with Arabic and Urdu, he then questioned how a grocery trader would become fluent in these two languages.

The Defense also noted that the IO had alleged that Sayedee joined to the Peace Committee and then formed Razakar Bahini. He further alleged that Sayedee had good communication with Captain Azhar who was from Pakistan Army and Sayedee was involved with all crimes committed on that locality directly and indirectly.

Mizanul Islam then read out Defense’s version of events. He said that after the Liberation War in 1971 Sayedee joined Jammat-e-Islami. He used to live in Jessore. In the middle of Liberation War he went to his home village and then went to Khulna. He made his passport using his own name.

Mizanul Islam then claimed that the Defense only became aware of key documents (volumes 11,12, 13 and 14) relied on by the Prosecution on 07-05-12, while IO (PW-28) was exhibiting these documents. The Defense argued that the Prosecution therefore violated Sections 9(3) and 16(2)of the ICT Act 1973 and Rule 18 of the Rules of Procedure. He submitted that it is evident from the testimony of IO dated 24-04-12 that prosecution relied on a lot of books but alleged that the Prosecution did not disclose these documents and did not provide copies to the Defence.

Mizanul Islam submitted that Prosecution witnesses 1, 2, 3, 4, 6, 7, 8, 9, 10, 11 and 28 had all alleged that Sayedee was a Razakar. In support of this allegation Prosecution submitted a list of names downloaded from a website (Exhibit-35), where Sayedee was listed as number 16.

Regarding the formation of Peace Committee and Razakar Bahini, Awal (PW-12) stated that they were formed in May of 1971, after Pakistani occupying forces entered into Pirojpur. A copy of the Daily Azad dated 22 May 1971 (Exhibit-219, exhibited by IO on 11-04-12) stated that Peace Committee was formed by the leadership of Afzal on May 7, 1971. Mizanul Islam argued that Charges 1 through 6 were committed before the formation of the Peace Committee. According to the Prosecution’s version of events, the Razakar Bvahini group was not formed until a few days after the formation of Peace Committee Razakar Bahini; therefore, the Defense claimed Sayedee could not have committed the alleged crimes under Charges No 1 to 7 as a Razakar as the group did not yet exist. As additional support the Defense noted that the Razakar Ordinance of 1971 shows that the Razakar force was formed on August 2, 1971 (Exhibit- 252) and declared an auxiliary force on September 7, 1971.

Building on the implication that the Razakar forces could not have been constitued as early as may, The Defense then sought to discredit the testimony of various witnesses. They noted that in Gourango’s testimony (Prosecution witness-13) he stated that the Razakar force was formed on April 9, 1971; and in later testimony on 07 April 12 he claimed he did not know any other Razakars except Sayedee. Additionally, Manik Proshari (PW-6) and Mostofa (PW-8) stated that they had seen uniformed Razakars in April and May of 1971.

The Defense also noted that on June 3, 2012, during Cross-examination, the IO (PW-28) said that the list of Razakars submitted as Exhibit-35 was prepared by MA Hasan and admitted that never spoke with Hasan during the investigation. The Defense further claimed that the IO failed to provide any information regarding the War Crime Facts Finding Committee and Truth Commission’s visit to Pirojpur to assist in the preparation of the list. Mizanul Islam argued that the name of the Razakar Chaiman of Pirojpur was not in the list, and alleged that the Prosecution concocted documents to show Sayedee as a Razakar. The Defense pointed out that the IO originally claimed that he verified the report on 17 August 2010 through an unnamed person, and on cross-examination he admitted that he only went to Pirojpur for the first time on 18 August 2010.

Mizanul Islam argued that the out-of-court witness statements submitted by the  Prosecution under Section 19(2) did not support Charges No 1 through 4. Regarding Charges No 1 through 4, the documents of the Prosecution make it evident that the Pakistani occupying force only came to Parerhat on May 7, 1971. However the charges against Sayedee allege that he committed crimes with the Pakistani Army on May 4. The Defense stated that the facts make such a crime impossible.

Regarding Charge No 1, in which allegedly 20 anonymous civilians were killed, the Defense noted that during cross-examination the IO (PW_28) admitted he did not receive any information about any missing persons from 1971 in Mashimpur or the adjacent areas. The IO exhibited a map (Marked-II) showing 27 Mass graves in Pirojpur, but on cross-examination (dated 06 Auguest 2012) he admitted that Government documents only mention about 4 Mass graves in Pirojpur.

The Tribunal then adjourned for the day.