29 Jan 2013: ICT-1 – Sayedee Prosecution’s Final Reply

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Professor Gholam Azam: Defense request for adjournment (Accused not Present)
  2. Chief Prosecutor vs. Mir Qasem Ali: Announcement of date for submission of formal charges or progress report
  3. Chief Prosecutor vs. Delwar Hossain Sayedee: Prosecution’s Reply to Defense Closing Arguments (Accused Present)
  4. Chief Prosecutor vs. Salauddin Qader Chowdhury: Rejection of review applications and hearing of application to allow Chowdhury to attend Parliament

Today the Defense Counsel for Gholam Azam sought adjournment for the day. The request was allowed and the case was adjourned for the day.

In the case against Mir Qasem Ali, which is still in the investigation stage, the Tribunal fixed March 3, 2013 for the submission of either the Formal Charge or a Progress Report of the investigation.

In the Sayedee case the Prosecution finished its reply to the Defense’s closing arguments and requested the death penalty. Thereafter, Tribunal officially closed the case, announcing that the case would be under consideration until verdict was issued. The Tribunal will give notice to both the Prosecution and Defense as to when the Judgment will be ready.

In the Chowdhury case the Tribunal rejected the Defense’s application, filed January 24, requesting contempt proceedings to be issued against the Daily Jugantor, its editor and publisher Salma Islam, and staff reporter Swapan Dash Gupta.  The Tribunal also summarily rejected two review applications filed by the Defense requesting review of two orders. They reasoned that the applications for review were not filed within 7 days of the orders, dated 3 December 2012 and 14 January 2013 respectively, and were therefore barred. The Defense also filed an application requesting that Chowdhury be allowed to attend a session of Parliament. The Tribunal heard the application and fixed January 30, 2013 for passing its order.

Chief Prosecutor vs. Sayedee
On behalf of the Prosecution, Haider Ali finished the Prosecution’s reply to the Defense’s  closing arguments.

The Prosecution argued that the Collaborators Act was enacted in 1972 and repealed on December 31, 1975 after the death of Seikh Mozibur Rahman (Bongobondhu) and the subsequent change of Government. Haider Ali submitted that the ICT Act of 1973 was enacted in 1973 and existed side by side with the Collaborators Act for 2 years. He argued that the Prosecution had given all of the reasons for the delay in prosecution in the Formal Charge document. He stated that the Prosecution simply did not specifically note these incidents as the reasons for delay in proceedings. The Prosecution argued that delay cannot be a bar to prosecution and cited paragraphs 40, 41, 43 and 62 of the Judgment of Abul Kalam Azad (Tribunal-2).

Malafide Intent
The Prosecution submitted that the Tribunal followed proper procedure in bringing the case against Sayedee. Haider Ali stated that after the formation of the Tribunal, the Investigation Agency and Prosecutors were appointed. To protect the fair trial rights of the accused the ICT Act of 1973 was amended to provide that the Tribunal would take “cognizance” of the charges after the submission of the formal charges by the prosecution. Previously there was no such provision. Haider Ali stated that this case followed proper procedure and cognizance was taken of the case after the Prosecution submitted the Formal Charges. He submitted that the Sayedee received every legal right to which he is entitled under the ICT Act of 1973.

Fairness of Proceedings
Haider Ali submitted that the fairness of the proceedings was duly maintained.

Intention of the  ICT Act of 1973
The Prosecution argued that the ICT Act of 1973 was enacted to try persons who are alleged to have committed crimes outside of the penal code: war crimes, crimes against humanity, and genocide. He submitted that anyone who falls under the purview of this Act may be prosecuted irrespective of his nationality. Furthermore, such persons may be found liable solely for abetting the commission of such a crime, because under the ICT Act of 1973 abetting itself is an offence. He submitted that the only question is whether the requirements of the ICT Act 1973 have been satisfied or not. Haider Ali submitted that the clemency granted under the Tripartite Agreement between Bangladesh, Pakistan and India is not a bar to these prosecutions because it was an executive decision and was never placed before Parliament. He argued that when Bangladesh repatriated the 195 Pakistani Army Prisoners of War, it was with the intent that they would be brought to trial in Pakistan.

Abduction as a Crime under International Customary Law
Haider Ali submitted that abduction is considered a crime within the purview of the ICT Act. He argued that it is not necessary or relevant to look at other laws to see if the crime is similarly codified. He argued that under International Customary Law abduction was in fact a recognized crime, and that it is merely known by a different name, e.g. disappearance.

Sayedee’s Identity as a Razakar
Haider Ali referred to a document from a website (Ehibit-35) and testimony of prosecution witnesses 1,2,3,4,5,6,7,8,9,10,11,12 and 26 in support of his argument that Sayedee was a Razakar. The Judges of the Tribunal raised questions about the date of the document obtained from the website, since it was not it when the documents were uploaded. They suggested that the Prosecution rely on books instead. Thereafter, Haider Ali referred to Exhibits 8, 11 and 46.

Out-of-Court Statements Admitted under Section 19(2)
The prosecution submitted that the Investigating Officer performed his duty as per section 8 and 9 of the ICT Act of 1973. He argued that the Prosecution provided adequate reasoning as to why the witnesses under section 19(2) could not be produce before the Tribunal. He argued that the 19(2) statements did not contradict with live witnesses or documentary evidence and that the Defense received ample opportunity to cross- examine the Investigating Officer to their satisfaction regarding the 19(2) statements.

Regarding the name of Delwar Shikder
The Prosecution asserted that Sayedee is a political leader who is involved with a political party (Jamaat-e-Islami) and discrepancy about his name (the Prosecution alleges that Delwar Shikder- who is named my several witnesses as the perpetrator of a number of the charges – is the same person as Delwar Sayedee) is also found among them. Haider Ali did not make it clear what is meant by ‘among them’.

The Prosecution completed their reply by requesting the most severe punishment available against Sayedee. Under the ICT Act of 973 perpetrators may be sentenced to death.

Defense Response
Thereafter, Defense attorney Mizanul Islam stated that the Defense wished to submit further closing arguments based on factual points. However, the Prosecution objected and Justice Jahangir Hossain instructed the Defense to make any further submissions necessary in written form.

Statement by Sayedee and Related Altercation in the Courtroom
At this point the accused, Delwar Hossain Sayedee, stood up and requested the Tribunal to give him opportunity to speak. He then continued without the Tribunal’s permission and stated that he had only joined Jammat-e-Islami in 1979, and before that was not involved with the party. He denied that he was involved with any of the alleged crimes described in the 19 Charges. He alleged that the government with the help of Prosecutors and investigation officer are trying to punish him for the conduct of Delwar Shikder alias Delu Shikder alias Deulla and denied that he was the same person.

While Sayedee was giving his statement the Prosecution raised objections and tried to verbally argue with Sayedee. This caused the Defense and the family members of the Accused to react with words as well. The senior counsel for both sides sought to calm the situation and were able to return matters to normal.