Today the Tribunal heard matters in the following cases:
- Chief Prosecutor vs. Mubarak Hossain: Report on Progress of Investigation (Accused not Present)
- Chief Prosecutor vs. Delwary Hossain Sayedee: Resubmission of Defense Closing Arguments (Accused Present)
- Chief Prosecutor vs. Salauddin Qader Chowdhury: Application for Contempt Proceedings (Accused not Present)
Tribunal-1 extended the bail period of Mubarak Hossain, whose case is currently in the investigation stage, until February 12, 2013. The Tribunal directed the Prosecution to submit its Progress Report regarding the investigation by February 12, 2013. The Prosecution stated that they received the Investigation Report on January 24, 2013 and need two weeks to submit the Formal Charge.
On January 24, 2013 Mizanul Islam, defense counsel for Delwar Hossain Sayedee completed the Closing Arguments based on the charges and Abdur Razzaq began the defense arguments based on legal points.
The Defense counsel for Salauddin Qader Chowdhury filed an application under section 11(4) of the ICT Act 1973 requesting contempt proceedings be brought against the Daily Jugantor, its editor and publisher Salma Islam, and staff reporter Swapan Dash Gupta.
Chief Prosecutor vs. Delwar Hossain Sayedee
The Defense continued with Closing Arguments for the 5th consecutive day, having begun January 20, 2013. Mizanul Islam concluded arguments on the specific charges against Sayedee, addressing Charges 12, 14, 15, 17, 18 and 19. Senior Defense counsel Abdur Razzaq then presented the Defense arguments on the legal issues of the case.
Charges 12, 14 (in part), 15: killing and damage in Hoglabunia village
The Defense argued that Charges 12, 14, and 15 should not actually be distinct charges as they all deal with alleged events in the same local at the same time. Mizanul Islam submitted that the former Chairman himself had admitted that charges 12 and 15 are the same. Hoglabunia and Parerhat Hindu village, as referred to in t charges, are actually the same place. Mizanul Islam also asserted that the portion of Charge 14 pertaining to damages in Hoglabunia Hindu Village should also be part of a single charge. He asserted that the victims of the alleged incidents are same and that all the charges address one incident in Hoglabunia Village, Parerhat. Charges 12 and 15 allege the killing of 14/15 Hindu civilians as genocide and Charge 14(in part) alleges destruction in that village.
Mizanul Islam alleged that the Prosecution relied on the testimony of prosecution witnesses 1, 3, 4, 5, 6, 9 and 12 to support these charges, but that none of these witnesses provided sufficient evidence of the Accused’s alleged involvement. He stated that Mahbub Alam Hawlader (PW 1) did not clearly identify which Hindu Para he was talking about during his testimony. Mizanur Rahman Talukder (PW-3) did not mention any Hindu Para in his testimony and did not describe the alleged incident of looting. Mizanul Islam alleged Sultan Hawlader (PW-4) described the same incident as occurring on May 7 and 8. He stated that Mahtab Uddin Hawlader (PW-5) described the alleged looting of Charge No 10, but that the prosecution mistakenly tried to establish that he gave testimony regarding Charges 12, 14 and 15. He claimed that Manik Prashari (PW-6) only gave testimony regarding Charge No 8. He further alleged that Altaf Hossain Hawlader did not describe specifically any incident that allegedly occurred at Hindu Para of Parerhat or Hindupara of Hoglabania.
Mizanul Islam stated that Modhushudon Ghorami (PW-23) was arguably the prosecution’s best evidence in terms of these charges, and yet he also did not present any specific allegations against the Accused. His statement is mere hearsay, he claims that he heard that someone took 9 persons from Hoglabania, but he did not specify who took them, or where they were taken.
The Defense then stated that aside from witness testimony the Prosecution relied upon the out-of-court statements of Usha Rani Malakar (Ex 263), Anil Chandra Mondon (259) and Ajit Kumar Sheel (264), which would be discredited by Razzaq’s upcoming arguments. The Defense further argued that the newspaper reports relied on did not describe the alleged incidents and that exhibits of maps and an index of the place of occurrence had already been discredited during the cross examination of the Investigating Officer. The exhibits of pictures of the places of the alleged incident also do not incriminate the accused.
Mizanul Islam concluded that the Prosecution had failed to give sufficient evidence to support Charges 12, 14 (part) and 15.
Charge 19: Forcible Conversion of Hindus to Islam
Regarding Charge No 19, Mizanul Islam began by stating that two of the alleged victims (Narayan Shaha and Fakir Dash) could not have actually been forcibly converted as they had left for India prior to the Liberation War. Additionally, he argued that Modhushudon Ghorami (PW-23) failed to provide necessary detail to establish the charges. Mizanul Islam noted that he had talked about three victims including himself, but claimed that one (Gonesh Saha) left for India and the other (Krishno Saha) died. Mizanul Islam questioned how it was that the witness only remembered two others, who are now unavailable, when so many Hindus were involved.
The Defense additionally stated that Ghorami had admitted in cross-examination that he hadn’t told the Investigation Officer about his alleged forced conversion. The Defense questioned why he spontaneously disclosed this before the court after 41 years. They reminded the tribunal that PW 23 was in the custody of the Prosecution custody for 18 days and therefore cannot be considered reliable.
Victim Gourango (PW 13) and family – credibility of this PW was discussed in Charge – 16. No need to repeat. Not reliable. He admitted that he did not know any other rajakar than the Accused, cannot remember the names of the Imam and Muezzin of the mosque where he claimed to have been converted. His age is disputed. The document shows that he was only 9 years old in 1971 [unclear whether this was a mistake by the Defense as they had previously claimed the document showed him being 7 years old at the time], but he claimed to be of 27 at that time. Additionally Mizanul Islam noted that the Witness Safe House documents showed that he was asking for sweet and new clothes from the Investigation Officer after giving evidence before this Tribunal. Mizanul Islam asked how an individual who is expects to be reimbursed for his testimony can be relied on.
The Defense also commented that victim Bipod Shaha and his family are still living in Pirojpur. Mizanul Islam asked why they were not called to testify in support of this charge. He claimed that the Investigating Officer even admitted that he now wanted to call these persons.
The Defense concluded that the Prosecution had failed to establish these charges beyond a reasonable doubt.
Regarding Charge No 17: Rape of Vanu Shaha
Turning to Charge 17, Mizanul Islam addressed the testimony of prosecution witnesses 2, 3, 4 and 5. The Defense stated that while the Prosecution claims that the testimony of these witnesses support this charge, they merely provide general allegations against the accused and other rajakars for being involved in raping many women. He said that the Investigation Officer (PW 28 himself has admitted that none of these witnesses provided specific allegations of rape against the accused during his investigation. Mizanul Islam also stated that there were some statements from 19(2 witnesses, but that these would be addressed separately as a legal issue.
The Defense called attention to the testimony of Ruhul Amin Nobin (PW-2) who stated that the Pakistani Army raped women including Sobi Roy and Vanu Shaha, daughter of Bipod Shaha, with the help of Peace Committee members and members of the Razakar Bahini. As he was finishing his testimony he said that the Pakistani occupying force kept Vanu Saha confined for couple of months during which she was raped. Mizanul Islam alleged that this testimony contradicts the Prosecution’s case which is that Sayedee and other Razakars are the ones who held her captive. He stated that PW 2 is the only witness who was a neighbor to the victim and yet he never named the Accused in his testimony. His testimony does not support the charges against the Accused, they only show that the Pakistani Army was involved.
Sultan Ahmed Hawlader (PW-4) in his testimony stated that Delwar Hossain Shikder and Moslem Mawlana used to rape Vanu Shaha, and that subsequently she went to India. However, the Defense noted that his testimony was entirely hearsay and that his credibility had been discredited by the fact of his being a convicted thief. Additionally they pointed out that during cross examination Mahbub Uddin Hawlader (PW-5) admitted that Moslem Mawlana lived in the house of Bipod Saha with her daughter Vanu Shaha and could not deny that Moslem may have been married to Vanu Saha and looking after the property. A possible marriage between Moslem and Shah was further supported by the testimony of Defense witnesses 5 and 10. They said that Moslem Mowana used to claim that he married Vanu Shaha.
Mizanul Islam argued that in the Charge Framing Order it was stated that ‘you and other armed Razakars’ were responsible for the rape.He questioned why these armed Razakars were not present in the dock and why the allegation was brought against Sayedee only.
The Defense further argued that Exhibit 35 shows that PW 1 reported in 2009 that there were no rape victims in the Zia Nagar area (all the rape victims in this case are alleged to be from this area). Therefore he stated the alleged rape of Vanu Shaha is contradicted by the Prosecution’s Exhibit 35.
Additionally, the Defense noted that on cross examination the Investigating Officer admitted that he went to India for investigation of this case. It is alleged by the prosecution that all the rape victims of this case went to India after the liberation war. But the IO admitted that he did not try to find any of the rape victims in India.
In conclusion Mizanul Islam stated that there were clear doubts about the allegations of Charge 17 and that the charge had not been established.
Charge 18: Killing of Vagirothi
Turning to Charge 18, a junior defense Counsel read out Exhibit-48, the Daily Azad dated 03 February 1972 which was exhibited by both Defense and Prosecution. Mizanul Islam argued that the report did not incriminate Sayedee for the killing of Bhagirothi. He sought to show the Tribunal contradictions between the report published in Daily Azad and Exhibit-268 of statements from a (19(2) witness) who provided testimony to the Investigating Officer.
The Defense noted that the out-of-court statement of Gonesh Chondro Shaha (Vagirothi’s Son), made to the Investigating officer and accepted into evidence as Ex 268 under section 19(2), alleged that Vagirothi was tied behind a motorcycle and dragged through the town of Pirojpur before being shot to death. It was alleged that Gonesh heard of the accused being involved with that killing.
However, Gonesh later appeared in the Tribunal as Defense witness 17. He testified that the Accused was not involved in killing of his mother. Mizanul Islam asked why it was that the Defense was able to procure him as a witness when the Prosecution claimed that he was unavailable. [The unavailability of the witness is a requirement for allowing a out-of-court statement to be admitted under 19(2).] In their application for the acceptance of his out of court statement the Prosecution had stated that he could appear due intimidation from the Accused’s supporters. But then he willingly appeared before the Defense. Mizanul Islam said that the real reason the prosecution did not produce Gonesh as a live witness was that he would not support the prosecution’s false allegation against Sayedee.
The Defense also pointed out contradictions in the Prosecution’s case regarding Charge 18. They noted that in Exhibit 48, a newspaper report of Daily Azad dated 3 February 1972, it is reported that Vagirothi was dragged behind a jeep by the Pakistani Army and then killed by them. It did not mention the ccused. Mizanul Islam argued that the Prosecution could not produce a single witness to prove dharge 18. He claimed that if in fact Vagirothi was dragged through the town of Pirojpur during day for several miles then hundreds of people should have seen the incident and be available to testify. Yet the Prosecution did not produce any eye witnesses.
Arguments Regarding Sayedee’s Alleged Alias of “Shikder”
Mizanul Islam alleged that all of the prosecution witnesses gave testimony incriminating an individual by the name of “Shikder.” However, only the Investigating Officer testified that Shikder became Sayedee after the Liberation War. He further submitted that the Investigating Officer failed to provide any documents in support of his allegation that the previous name of Sayedee was Shikder. He argued that the IO exhibited a document belonging to a Eusuf Shikder and alleged that it belonged to Sayedee. He further argued that Prosecution originally submitted the exhibit of ‘Associates of Pakistan’ but ultimately did not rely on it as it contradicts the testimony of the Investigating Officer. Mizanul Islam argued that it is evident from this book that Saydee came back from Saudi Arab after 1985.
Arguments on Legal Issue
After lunch break Abdur Razzak presented the Defense’s closing arguments on substantive legal issues.
Legislative Intent of the ICT Act of 1973
Abdur Razzak first brought the court’s attention to the intention behind the passage of the International Crimes (Tribunals) Act ot 1973. He presented a Press Release from the Government of Bangladesh dated 17 April 1973 as well as a copy of the Daily Bangla dated 18 April 1973, both of which he said show that the Parliament passed the act with the intention that it to be used against the identified 195 Pakistani perpetrators only.
Abdur Razzak then stated that when the First Amendment of the Constitution of Bangladesh was debated it was clear that it was only applied to the 195 Pakistani War Criminals and that it specifically excluded general civilians. Razzaq stated that the intention behind passing this act is also evident from the debate in parliament during which legislators stated that if they had wanted to take revenge they could have tried more people, but that they were not willing to do so for sake of Justice. He said there was no discussion of including individuals in the language of the act.
Chairman interjected that section 3(1) of the ICT Act 1973 provides the Tribunal to try any persons. In reply Razzak said that Parliamentary history can be used to interpret a statute to find out the intention behind passing an Act. He cited a case called Papper vs Hart.
Collaborator’s Ordinance of 1972
Abdur Razzak submitted that the Collaborator’s Ordinance of 1972 was enacted to try the civilians for aiding and abetting the Pakistani Occupying Force. He noted that this act still provided accused individuals the due process protections provided to all citizens under the Constitution. Razzak said at that time many civilians were prosecuted under 1972 Ordinance and that the Charges brought against Sayedee under ICT Act 1973 fall under the criteria of 1972 Ordinance. He noted however that no allegation was brought against Sayedee under this Ordinance at the time that it was used.
Accomplice Liability where the Principal has been Granted Clemency
Abdur Razzak then submitted that the 195 Pakistani War Criminal were the principal offenders of war crimes but that they were not being tried under these proceeding. Only alleged secondary offenders charged with aiding and abetting were brought to trial in this Tribunal. Razzaq claimed that it was inappropriate to try individuals for accomplice liablity where the principal offendors had been given clemency. In support of this point Razzaq cited different cases of Bangladesh. In 16 DLR 145 the court concluded that it tdepends upon the facts and circumstances of each case whether the accomplice may be tried without the principal. In 54 DLR 298 he stated that the court concluded that if the principal offender was acquitted then there is no scope to find liability for the offence of abetment. He further argued that through the Tri-party Agreement the 195 Pakistani offenders received clemency. He said clemency is entirely distinguishable from an executive pardon under the Constitution. He argued that it is against the interest to try someone as an aider and abettor where the principal offendors have been given clemency.
Abdur Razzaq then argued for the Defense on the point of delay in the commencement of the proceedings. He argued that the Prosecution did not even attempt to give a sufficient explanation for this delay. He pointed out that the Prosecution has taken 40 years to bring a case against Sayedee and that this is suspect given he is a well known public figure and has been residing in the same country where the alleged offense took place. Arguing that the delay has prejudiced the Accused, the defense counsel cited cases where even a few hours delay was considered unsatisfactory; 44 DLR 492. In 10 BLC 1975 the High Court Division found a case to be unsatisfactory where, due to delay of one day in lodging the First Information Report. They additionally cited an English case that found unjustified delay to be an abuse of judicial process. Razzaq argued that in this case the delay produces a high possibility that the Defense’s case will be prejudiced.
Thereafter, the Chairman of the Tribunal said that they hoped the defense will complete their arguments on January 27, 2013.