Monthly Archives: January 2013

15 Jan 2013: ICT 2 Daily Summary – Qader Molla, Alim, Mujahid

The Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Abdul Quader Molla – Defense closing arguments  (Accused Present)
  2. Chief Prosecutor vs. Abdul Alim– Examination of Prosecution Witness (Accused Present)
  3. Chief Prosecutor vs. Ali Ahsan Muhammad Mujahid – Examination of Prosecution Witness (Accused Present)

In the case of Qader Molla the Defense continued its closing arguments, attacking the prosecution’s evidence in support of charges 5 and 6. In particular they attacked the credibility of witnesses who had testified in support of the charges. The Tribunal urged them to complete their arguments and stated that they would only have one hour during tomorrow’s session to do so.

In the case against Mujahid, the Prosecution conducted its examination-in-chief of their 12th witness, who provided testimony in support of Charge 7, pertaining to the killing of the witness’ brothe,r Biren Shaha, along with 8 to 9 others from the Hindu community on 13 May 1971.

Finally, in the case against A.M.Alim, the Prosecution conducted its examination-in-chief of their 9th witness, Jahidul Islam, who testified in support of Charge 6, pertaining to the killing of Abdus Salam and nine others in early May 1971, as the victims were fleeing the conflict on their way to India.

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15 Jan 2013: ICT 1 Daily Summary – Sayedee,Chowdhury, Gholam Azam, Nizami

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs Gholam Azam (Accused Not Present)
  2. Chief Prosecutor vs Salauddin Qader Chowdhury  (Accused Present)
  3. Chief Prosecutor vs Delwar Hossain Sayedee (Accused Present)
  4. Chief Prosecutor vs Motiur Rahman Nizami  (Accused Not Present)

Today Tribunal 1 passed an order exonerating Sayedee’s Defense Counsel, Tajul Islam, Mizanul Islam and Tanvir Ahmed Al-Amin, from the contempt charge pending against them and withdrew the bar against Tajul Islam’s attendance in Tribunal 1.The Tribunal warned Tajul Islam to maintain the decorum of the Tribunal in future.

The Tribunal rejected an application filed by the Defense counsel on behalf of Gholam Azam on January 10, 2013, seeking to have the alleged skype documents and e-mails admitted as exhibits. The Order stated that in its January 3rd order rejecting the Defense applications for retrial the tribunal had already addressed the issue, stating that those documents are inadmissible as the product of illegal hacking.

On behalf of Chowdhury, Defense counsel Ahsanul Huq Hena continued his submission for removal of the conducting Prosecutor Zead-al-Malum. The Tribunal fixed January 20, 2013 for passing its order on the matter.

The Tribunal began hearing arguments in the Defense’s application for review of their order rejecting their request for retrial. Abdur Razzak completed his arguments on behalf of Gholam Azam, Delwar Hossain Sayedee, and Motiur Rahman Nizami.

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14 Jan 2013: ICT 1 Daily Summary – Sayedee, Chowdhury, Gholam Azam

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs Delwar Hossain Sayedee: Response to Yesterday’s Applications (Accused Present in Court)
  2. Chief Prosecutor vs Salauddin Quader Chowdhury: Contempt Proceedings against Defense Counsel, Hearing of Application for Removal of Prosecutor (Accused Present in Court)
  3. Chief Prosecutor vs Golam Azam: Defence Case-in-Chief  (Accused Not Present)

In the Sayedee case the Tribunal rejected the six applications filed by the Defense yesterday, January 13. The Tribunal stated that it had already given orders pertaining to the issues raised and that it would be redundant to deal with them again.

In the Chowdhury case, the court issued an order to show cause for contempt against Defense counsel Fakhrul Islam. The Tribunal also rejected an application from Defense counsel Ahsanul Huq Hena requesting the adjournment of the tribunal until the contempt proceedings against foreign lawyer Dr. Ziauddin (implicated in the Skype controversy) had been disposed of.

The Tribunal heard joint arguments from the defense for Chowdhury and Golam Azam in favor of their application to remove lead Prosecutor Zead al-Malum.

The Tribunal then heard arguments from the Golam Azam Defense team in favor of their application to allow the skype conversations and emails between the former Chairman Nizamul Hoque and foreign lawyer Dr. Ahmed Ziauddin to be exhibited before the court.

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13 Jan 2013: ICT 1Daily Summary – Golam Azam, Nizami, Sayedee

Today ICT 1 heard matters in the following cases:

  1. Chief Prosecutor vs Golam Azam– Application for Review (Accused Not Present)
  2. Chief Prosecutor vs. Motiur Rahman Nizami – Application for Review (Accused Not Present)
  3. Chief Prosecutor vs Delwar Hossain Sayedee – Application for Review, Contempt Proceedings, Prosecution Closing Arguments (Accused Present)

Defense counsel for  of Golam Azam, Nizami and Sayedee filed applications for Review of the January 3, 2013 order denying retrial. Senior Defense lawyer Razzaq requested that the tribunal halt proceedings until the Review applications have been addressed by the court. Prosecutor Haider Ali argued that the tribunal should reject the applications summarily.

The Chairman of Tribunal-1 stated that the trials would continue as the court considered the Review applications. Razzaq then argued that in the interest of justice the Tribunal should hear the Review application before hearing the summing up of arguments in Sayedee’s case. This request was rejected and the Prosecution began their closing arguments as scheduled for that case.

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13 Jan 2013: ICT 2 Daily Summary – Qader Molla Defense Closing Arguments

Today, ICT 2 heard matters in the following cases:

  1. Chief Prosecutor vs. Abdul Quader Molla – Defense Closing Arguments (Accused was Present)

The Defense focused their submissions on the following legal points:

  • The case was brought to the ICT without filing the appropriate legal complaint
  • The transfer of the case from a domestic court to the ICT was improper and did not follow appropriate procedure.
  • The Investigating Officer improperly submitted the Investigation Report before completion of investigation and did not follow procedure in maintaining the Case Diary.
  • The evidence provided by prosecution witnesses 4 and 7 is flawed and contradictory

On behalf of Qader Molla, Defense counsel Tarafdar continued the closing arguments by attacking the instigation of the case and then by analysing the prosecution’s evidence and witness testimony.

The Case Was Not Properly Instigated
The Defense claimed that the case against Qader Molla was improperly instigated because an initial complaint containing the allegations against the Accused was not filed before the ICT. Tarafdar pointed out that the case began after cases pending  against Qader Molla in Pallabi and Keranigonj, based on complaints filed in the respective area’s police stations, were sent from the Dhaka Metropolitan Magistrates’ Court to the Registrar’s office at the ICT. The Defense questioned whether 1) it was appropriate for the records of cases pending before a court to be transferred to the tribunal in this manner and 2)whether the tribunal may proceed with cases that are ongoing under the Penal Code.

The Defense argued that a case must be instituted by filing a complaint against the accused or suspect.  Although the International Crimes (Tribunals) Act 1973 contains no such provision, the Defense argued that the International Crimes (Tribunal-2) Rules of Procedure 2012 implies a similar requirement.  Rule 2(6) defines “complaint” as any information, oral or in writing obtained by the Investigation Agency including its own knowledge relating to the commission of a crime under section 3(2) of the 1973 Act. The Defense claimed that no such information was ever obtained.

The Defense argued that the two cases that were transferred from the Metropolitan Magistrates Court to the ICT (Case No.34 of Keraniganj police station, dated 31 December 2007;  and Case No. 60 of Pollobi police station, dated 25 January 2008)  were based on the Penal Code and so are outside the jurisdiction of the tribunal. The Defense further argued that the 1973 Act and the 2010 Rules of Procedure contain no provision allowing for the transfer of such cases to the ICT. The Defense argued that such transfer is not allowed and that due to these and other procedural improprieties, the investigation and initiation of the case against Qader Molla in the ICT should be nullified.

Irregularities in the Investigation Process
The Defense further alleged that there had been irregularities in the investigation process. They noted that the Investigation Report was submitted by the Investigation Officer (IO) before the completion of the investigation and that the Case Diary in which the investigation progress is recorded was not properly kept afterwards. The Defense noted that the IO, who later gave testimony as prosecution witness 12, only referred to 3 of the 6 charges ultimately brought against Qader Molla during in his examination-in-chief. Therefore the Defense claimed the investigation was flawed and the charges ultimately framed against Qader Molla were similarly flawed.

The Defense stated that the Investigation Officer (IO) began his investigation on 22 July 2010. As per Rule 8(1), the IO is required to maintain a Case Diary until the completion of the investigation and as per Rule 11, he must submit an Investigation Report after the completion of the investigation.The Defense highlighted that the IO admitted during his testimony that he continued his investigation after submitting the investigation report, contrary to Rule 11. The Defense argued that the IO does not have lawful authority to continue investigation in this manner. Furthermore, they argued that Section 8(4) of the 1973 Act provides for only one IO as the wording “any investigation officer” has been used.  The Defense stated that the prosecution team also investigated, and that this duplicated the job of the IO in a way not provided for in the Act. The investigation was thus flawed on the basis of which charges have been brought which were also flawed.

The judges requested the Defense to address the underlying evidential defects in regards to each of the charges, asking Tarafdar to deal with each charge chronologically and separately. The Defense chose to begin with Charge 4 even though the Judges suggested he begin with Charge 1.

Witness Testimony in favor of Charge 4 is Not Credible:
The Defense began criticizing the prosecution’s evidence for charge 4 by attacking the witnesses who testified in support of the charge (PWs 1,7 and 8).

The Defense noted that Prosecution Witness 1, Mr Mozaffar Ali Khan, testified in support of charge 4, alleging that he saw Qader Molla in front of Mirpur Physical Training Centre and that he was armed and accompanied by along with his associates. He neither saw the incident alleged in the charge, nor Quader Molla’s participation in it. The Defense further noted that the withness had previously testified before the Chief Judicial Magistrate pertaining to a case filed in 2007 [CR Case No. 17/2007 in CMM Court, subsequently transformed to GR Case No. 34(12)2007 in Keranigonj Police Station], but did not make any statement implicating Qader Molla.

The Defense additionally noted that Mozaffar Ali Khan had been acquainted with the accused since 1969 due to political rivalry. Yet Mr. Khan did not complain about the accused after the liberation war, which gives rise to further doubt in regards the involvement of the accused.

The Defense then focused on prosecution witness 7, Mr Abdul Majid Paluan. The counsel alleged that the IO recorded this witnesses statement falsified the date when the statement was actually recorded by backdating it. The Defense alleged that prosecution witnesses 7 and 8 were actually only produced later, when the IO found that prosecution witness 1 could not give enough evidence against the accused in support of the charge.

The judges commented that there had been some inconsistencies in the testimony of witness 7, in that he first alleged that he saw the accused participate in the shooting whereas he later said that he heard from others that the accused had been involved.

The tribunal then adjourned for the day. They noted that they had allocated the entire day for the defense counsel’s arguments and asked him to sum up before lunch break tomorrow.

Courtroom Dynamics
The Defense counsel was at times slow and repetitive in his submissions. The judges noted their dissatisfaction with the pace of the arguments and asked the defense to be more expeditious. At some points, a strain between the judges and the counsel was apparent.