Monthly Archives: January 2013

8 January 2013: Daily Sumary Tribunal 1- Golam Azam

The Tribunal heard matters in the following case:

  1. Chief Prosecutor vs Golam Azam – Defence Case-in-Chief

Proceedings focused solely on the Defense’s exhibit of documents that they will rely on for their case:

The defense used the witness to exhibit many books, newspapers and documents, including a photocopy of ‘What happened in 1971 and who were Razakars’; ‘Bangladesh: Unfinished Revolution (Part-2)’; ‘Pakistan Crisis in Leadership’; ‘The Re-trial of East Pakistan’ a book written by General Niazi; ‘The Pakistan Army 1966-71’ written by Mejor General Shawkat Reza (Retired) (Chaper-4,5; page 101-131); ‘Pakistan Crisis in Leadership’ written by Mejor General Fazal Muhim Khan (Retired)(page 115-131; 159-173); ‘Dhaka’s Dibbled’ written by Syed Alamder Raja (page 61-65); ’71: in the eyes of Pakistani’ written by Professor Muntasir Mamun and Mohiuddin Ahmed (page 311-360); ‘Internal Strife and External Intervention’ written by Hasan Azkari Rizvi (page 114-271); ‘The deliberate dib able’ written by Dr Shafder Mahmud (page 55-199); ‘Bangladesh: Victim of Black Propaganda Intrigue and Indian Hegemony’ written by Azammal Hossain (page 32-52); ‘Crisis of East Pakistan’ written by Shoforraz Hossain Mirza (page 59-90); ‘Unprotected Independence is the subordination’ written by Mejor Jalil and edited by Atique Helal; and ‘Detained in an Indian Jail’ written by Muhammad Alamgir (page 11-31).

While Mizanul Islam was exhibiting ‘Documents of the Liberation War in Bangladesh,’ a book written by Hakkani, Prosecutor Zead-al-Malum raised objection alleging that  it is a banned book.

Mizanul Islam exhibited photocopies of two books written by Professor Golam Azam: ‘Aggression of India and Bengali Muslims’; ‘Palashi to Bangladesh’; ‘The Question about the Existence of Independent Bangladesh’.

Mizanul Islam on behalf of Azmi exhibited photocopies of the daily statements about the activity of Razakars in Modoni, Lokhiganj, Chollisha, Rahurhat, Amtola, Jahangirpur in July, 1971. He exhibited the daily statements of Razakars in Netrokona in August and September, 1971.

He exhibited a lot of documents, including the certified copy of a gazette dated 07-09-1971, regarding Razakar Ordinance 1971; Syllabus and Documents on Razakars and their Training and Organizations dated 16-12-1971; a photocopy of a letter written by the Director of Razakars to a Assistant Director of the Razakars; a photocopy of documents about the verification of the Razakars G.S.O-2 dated 08-09-1971 and G.S.O-3 dated 09-09-1971; a list of the armed Razakar dated 22-09-1971; a list of selected Razakar commanders; the Complaint Register No-1 dated July 21, 2010, search list and evidential documents Volume-3,4,5 and 6 from the Investigation Authority, International Criminal Tribunal Bangladesh; Photocopies of the interviews of the Golam Azam published in different medias; Documents of the India-Bangladesh relation (1971-2002) including the speeches of former Prime minister Indira Gandi; Statement of Lokshova dated 27-03-1971; Speech of the Mr Muhammad Ali in the General Assembly of the United Nations  on September 27, 1971 as found in the Bangladesh Document volume-2;  and a whitepaper of the crisis in East Pakistan (page 45-53) as found in Pakistan Horizon, journal volume-xxv no 1, 1972 (page 21).

The Defense then exhibited numberous photocopies newspapers dated from 2008 to 2011 about banning Jamaat-e-Islami, punishment and trial and accused of the war criminals, statements of different Awami-League leaders published in different newspapers, and statements of the current Prime minister about the Razakars as published in Daily Amer Desh dated 22-04-10. While Mizanul Islam was exhibiting different newspapers Prosecutor Zead-al-Malum raised question regarding the relevancy of these documents.

7 January 2013: Tribunal 1 Daily Summary – Golam Azam and Sayedee

The Tribunal heard matters pertaining to the following cases:

  1. Chief Prosecutor vs Golam Azam – Defens e Case-in-Chief 
  2. Chief Prosecutor vs Delwar Hossain Sayedee  – contempt proceedings brought by Defense

Summary
The Tribunal adjourned Golam Azam’s case for today on the grounds that the Defense will file a review application for the review off the Jan. 3rd order rejecting his request for retrial. They claimed that they did not receive a certified copy of the order and could not file the review application until they did.  Mizanul Islam, senior Defence Counsel, assured the Tribunal that the Defense would produce its witness Abdullahil Aman Azmi, Defense Witness #1m on 8 January 2013.

The Defense Counsels of Sayedee informed the Tribunal that they had filed contempt petitions against Masudur Rahman of  ATN News and against BTV. The Tribunal then fixed 9 January 2013 for the hearing of these applications.

Case: Chief Prosecutor vs Gulam Azam
Defence Witness #1,  Abdullahil Aman Azmi, began providing testimony on November 13, 2012 and has not yet completed. The Defense failed to produce him on a couple of occasions and the Tribunal at one point barred the Defense from producing further Defense Witnesses unless the Defense provided a satisfactory explanation for their failure. Today was fixed for argument in the matter.  Senior Defence Counse, Mizanul Islam, assured the Tribunal that the witness will be produced tomorrow and sought adjournment.

Prosecutor Zead-Al-Malum raised an objection to the Defense’s request and said that the Defense had made similar excuses before and still failed to produce their witness. He asked the Tribunal to begin closing arguments or to impose a fine against the Defense.

The Tribunal then passed a written order stating that for the ends of justice the application filed by the Defence would be scheduled for hearing tomorrow on the ground that the Defense will file a review application of the order dated 03-01-2013. The order noted that Mizanul Islam had assured the Tribunal that the Defense would produce its witness on 8 January 2013.

Outside the Courtroom
Chairman A.T.M Fazle Kabir was absent from the Tribunal as he is on leave. Mizanul Islam informed  the Tribunal that today Defense attorneys were not allowed to take their cars inside the Tribunal gate. Justice Jahangir Hossain told him to wait until Chairman A.T.M Fazle Kabir returned to present the matter. Mizanul Islam further stated that the Defense had been told that only two family members of the accused will be allowed to visit the Tribunal. Accused Golam Azam was brought to the Tribunal but did not appear in the courtroom, reportedly because he was feeling sick.

Tribunal adjourned at 11:45am

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

Today Tribunal 2 Heard the beginning of Defense Closing Arguments in the case of Chief Prosecutor v. Qader Molla:

Application for Review of Sanction Order
The court first heard an Application from the Defense requesting review its January 3, 2013 order imposing a sanction of BDT 10,000 on the Accused for submitting repetitive applications as a delay tactic.

The Defense submitted that its application for review of the order denying the permission to produce additional witness was submitted upon the decision of the lawyer without the express instruction of the Accused, and that therefore the lawyer should be held responsible instead of the client.

The court adjusted its order stating that the counsel of the accused moving the review application should pay the fine out of his own pocket, although the amount is reduced to BDT 5,000. The court stated the fine was for the failure of the counsel to take specific instructions from the client in regards to the course of action and for failing to act accordingly.

Application for Retrial by a New and Reformed Bench
The Defense then addressed its application for retrial in the Case of Qader Molla. It argued that  it had made similar submissions in other cases based on the perception of bias and improper influence by the former chairman who was part of alleged skype conversations with an outside legal expert based in Brussels (Dr. Ziauddin) who also worked closely with the Prosecution.  The Defense argued that the application should be pressed in the instant case so that it to appears on records. The Defense stated that If the application is to be rejected, the court should announce its reasons in respect of arguments made in this particular application.

The Tribunal responded that its order would not be any different from its orders on other retrial applications unless the Defense introduced new or exceptional arguments to convince the court to the contrary.

Defense Closing Arguments for the case against Qader Molla
The Defense then moved to closing arguments. Senior Defense Counsel Abdur Razzaque made the following legal arguments:

  • The International Crimes (Tribunals) Act 1973 was enacted for the purpose of prosecuting the 195 Pakistani Prisoners of War held after independence and is not appropriate for use against citizens of Bangladesh
  • The Bangladesh Collaborators (Special Tribunal) Order of 1972 was designed for the prosecution of the rajakars and other collaborators acting as auxiliary forces for the Pakistani Army.
  • The executive decision not to prosecute the 195 POWs was given in respect for the Tripartite agreement between Bangladesh, India and Pakistan in 1974, and is similar to a judicial discharge of the cases.
  • Where the principal offenders of a crime are not prosecuted, the judiciary cannot prosecute alleged aiders and abettors.
  • There has been a 40 year delay in lodging formal charges against the accused without any reasonable satisfactory explanation.
  • The true purpose of the trial is malafide due to political and executive interference and a perception of bias.

The ICT Act of 1973 is not the Appropriate Law under which to Prosecute Collaborators
The Defense argued that the International Crimes (Tribunals) Act of 1973 was enacted with the purpose of prosecuting the then 195 Pakistani Army Prisoners Of War. The law was not envisioned as the basis for prosecuting citizens of Bangladesh. Defense counsel cited the Parliamentary debate on the First Amendment to the Constitution on 3 July 1973, followed by the Parliamentary Debate on the International Crimes (Tribunals) Bill of 1973, on 20 May 1973 as proof that the legislative intent of the ICT Act did not encompass the prosecution of citizens or collaborators.

The Defense asserted that the Bangladesh Collaborators (Special Tribunal) Order of 1972 was the law designated for the prosecution of the rajakars and other collaborators. This law applied only to rajakars over whom the commander of the Pakistan armed forces had full control, similar in degree to that exercised over members of the army. Rajakars who acted under the control of the Pakistani Army would thus be considered auxillary forces.The Defense cited the preamble of the act claiming that it showed it was meant to be used to try those who aided or abetted the Pakistan Armed Forces by contributing to crimes against humanity and genocide.

The judges responded that the Schedule of this President’s Order refers to offences under the Bangladeshi Penal Code and makes no reference to genocide and crime against humanity. Accordingly, it could not act as the complete law to try the Rajakars.

The Defense then argued that the government of Bangladesh issued an executive decision not to prosecute the 195 POWs as part of the Tripartite Agreement between Bangladesh, Pakistan and India. The Defense claimed that the decision not to prosecution is similar to a judicial discharge of the case.

The judges weighed in, stating that the decision not to prosecute was an executive decision, not a discharge in the judicial sense.They stated that the executive decision remains open to challenge.

Where Principal Offenders are not Prosecuted, Abettors Should Not Be Either
The Defense continued its argument, stating that because the governement had made the decision not to try the principal offenders (the POWs), by law, the abettors usually cannot be tried by themselves. They cited to the cases 16 DLR 147, 54 DLR 298, PLD 1961 Lah 212.(WCSC is obtaining the names of these cases and will update).

The judges responded that the facts of these cases distinguish them from the instant case.

40 Year Delay in Prosecution Gives Rise to Perception of Bias and Abuse of Process
The Defense then argued that no explanation has been given as to why there has been a 40 year delay in prosecuting these alleged collaborators. Such absence of explanation gives rise to the question of whether these trials are an abuse of process. Such doubts may be fatal to the prosecution. The Defense cited 44 DLR 492 in support of this argument. (WCSC is obtaining the name of this case and will update).

Furthermore, the Defense argued that the conclusion that the proceedings are being persued with malafide intention and for political purposes may be deduced from the surrounding circumstances and executive interference. Razzaq cited to AIR 1967 SC 483. (WCSC is obtaining the name of this case and will update)

Finally, the Defense argued that the trial should not have taken place in Bangladeshi territory, because of the potential perception of bias and the likely prejudice to the judicial process. Razzaq referred to the Lockerbie Air Disaster case, involving an U.S. plane crash on Scottish territory for which the trial took place in Netherlands.

The Defense will continue its submissions tomorrow.

Dynamics Outside of Court
At the beginning of the court session the Defense Counsel notified the Court of the fact that unlike prosecution lawyers, lawyers representing the defense were not allowed to enter the court premises with their cars, which they claimed to be discriminatory. The Judges aligned themselves against such differing treatment giving assurance that the matter will be looked into immediately upon a brief conference addressing security issues.

3 January 2012: Tribunal 1 Daily Summary – Rejects Application for Retrial in Sayedee, Golam Azam and Nizami Cases

The Tribunal Issued Its Order on the Application for Retrial in the Sayedee, Golam Azam and Nizami Cases:

The Tribunal read out its order rejecting the retrial application of Golam Azam and said the same order would apply for the retrial applications of Motiur Rahman Nizami and Delwar Hossain Sayedee since the facts and legal points were same. The Tribunal stipulated separately for Sayedee’s case that it would rehear the closing arguments from both the Prosecution and Defense as Tribunal-1 had been reconstituted after former Chairman Justice Nizamul Huq’s resignation and therefore the current Chairman had not heard closing arguments. The Tribunal fixed 13-14 January for the Prosecution to present its arguments and 15-17 January for the Defense.

For a more detailed examination of the order and a copy of the order itself, please see here.

Case: Chief Prosecutor vs Salauddin Quader Chowdhury
On 1 January 2013, Fakhrul Islam filed three applications on behalf of Chowdhury, including one asking the Tribunal for an order clarifying that its judges were not party to any of the skype or email conversations that took place between the former Chairman Nizamul Hoque and Dr. Ziauddin. Other applications included initiating contempt proceedings against the Law Minister for influencing the proceedings and summoning the former Chairman of the Tribunal 1 to testify. To avoid contempt proceedings Ahsanul Huq, Defence counsel of Salauddin Quader Chowdhury prayed to consider them as ‘not pressed’ and offered unconditional apology.

The Tribunal said it needed further time to consider the application regarding the question of their involvement in the skype conversations and fixed January 10 for issuing an order. The Tribunal allowed the prayer of ‘not pressed’ on two other applications.

Observations Outside the Court
At the lunch break some High Court lawyers, supporters of Salauddin Quader Chowdhury, were seen in front of the Tribunal. They were attempting to obtain a pass for entry into the Tribunal. The Tribunal authority refused to give them pass, which made them angry. They were shouting some slogans and engaged in an altercation with the registrar. After a short time they departed.

3 January 2013: Tribunal 2 Daily Summary

Tribunal 2 heard matters in the following cases:

  1. Chief Prosecutor vs. Qader Molla -Defense petition for review of order dying permission to produce additional witnesses
  2. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid – Cross examination of Prosecution Witness #11 [See here for more detail]
  3. Chief Prosecutor vs. Muhammad Kamaruzzaman – application for retrial hearing [see here for more detail]
  • The Counsel for Defense made request for a later hearing date of the review application filed a for reconsideration of the tribunal’s decision denying the permission to produce additional defense witnesses. The request was immediately denied orally, along with the request for two hours of time for enabling the Senior Defense Counsel to appear. The Tribunal required the Counsel for Defense to make submissions instantaneously. The Tribunal rejected the review application reasoning that the ICT rules of procedure contain no provision allowing the defense to call additional witnesses and noting that only the prosecution may do so. The Tribunal further stated that the application was virtually identical to one rejected earlier, and that it must have been submitted in order to cause delay in the proceedings. The rejection was accompanied by a sanction of 10,000 BDT imposed on the Defense for submitting repetitive applications.
  • The court then moved to Mujahid’s case wherein the prosecution witness PW-11, Mr Foyez Uddin Ahmad, was cross examined by the defense counsel. The core line of questioning was aimed at attacking the reliability and credibility of the witness’s testimony, suggesting that the testimony is fabricated and based on the coaching of the Prosecution, and that the witness neither knew the accused, nor was he capable of recognizing him.
  • Finally, the Court heard at length the application filed on behalf of Muhammad Kamaruzzam for the recall of the order by which the Tribunal took cognizance of the charges against him and for a full and complete retrial. The Defense argued that the perception of bias created by the leaked Skype and email conversations between the former ICT 1 Chairman and outside legal expert Dr. Ziauddin prejudiced the Accused’s right to fair trial and therefore necessitate a retrial. They supported these arguments with international legal precedents.  The court denied the application, firmly rejecting any such possibility of bias and condemning the content of Skype conversation. They stated that the statements in the Skype conversations were at all true, they reflected only on the former Chairman and Dr. Ziauddin. The Tribunal then passed  a suo moto order requiring Mr Ziaduddin, the Brussels based Bangladeshi international law expert, to explain, within 30 days from the receipt of this order, why contempt proceedings shall not be commence for his Skype conversations with the retired chairman of ICT-1 and the appearance that he was attempting to interfere with the independence of the tribunal. Prosecution witness PW-16 who was present expressed his inability to give testimony on that day due to his sudden illness.