Today the Tribunal heard matters in the following cases:

1. Chief Prosecutor vs Gholam Azam: Defense Closing Arguments (Accused Not Present)
2. Chief Prosecutor vs Mubarak Hossain: Pre-Trial Proceedings, Cognizance of Charges to be Announced Tomorrow (Accused Not Present)

On March 11, 2013 Defense counsel Mizanul Islam continued the Closing Arguments for the 2^nd consecutive day. He submitted arguments regarding Prosecution witnesses 16 and 1. Thereafter, Tribunal adjourned the proceedings of the Gholam Azam’s case until tomorrow, 12 March 2013.

The case against Mubarak Hossain was listed in the Cause List as being scheduled for Cognizance. The Chairman of Tribunal 1 asked the Prosecution to provide the Formal Charge, list of witnesses and other relevant documents to Mubarak Hossain’s Defense counsel, as the Prosecution admitted that they have not yet served the documents to the Defense. Prosecutor Haider Ali drew the Tribunal’s attention to the Cause List where the case was listed as a miscellaneous case instead of a separate case. Thereafter the Tribunal decided to give its order tomorrow (12 March 2013) regarding the Tribunal’s cognizance of the charges.

Chief Prosecutor vs. Gholam Azam
Testimony of the Investigating Officer
Regarding Exhibit-519, Mizanul Islam submitted that during cross-examination the Investigation Officer (IO) admitted that the news report which was published in Ekpakho did not mention the name of the reporter. The IO further admitted that he did not submit any documents regarding the reporter of this news item. The IO also admitted that he did not attempt to find out the identity of the reporter. Mizanul Islam submitted that the IO had admitted that the seizure list witness who was called to give testimony regarding this news did not come before the Tribunal to give evidence. Mizanul Islam alleged that the IO did not investigate the case properly.

Mizanul Islam submitted that Rule-18 of the Rules of Procedure stated that the Chief Prosecutor or authorized Prosecutor will prepare the Formal Charge on the basis of the papers and documents and the evidence collected and submitted by the IO. Here the Defense noted that during the IO’s testimony he admitted that he does not know what was in the Formal Charge. The Defense also submitted that Rule-20 states that the Formal Charge must contain the names of witnesses to be called and the date, time and place of occurrence for each alleged charge. Mizanul Islam argued that the Formal Charge did not conform to this rule.

Charge 5 and the Testimony of Prosecution witnesses 1, 2, 3, 13 and 16
The Defense next began their arguments on Charge 5 and addressed the testimony of Prosecution witnesses 1.

Mizanul Islam compared the ICT Act of 1973 with the Collaborators Act of 1972 and argued that under the Collaborators Act anyone who was proved to be a member of the Razakars, Al-Badr, Al-Shams or the Peace Committee could be punished, whereas under the ICT Act the Prosecution must prove that the accused has committed one of the crimes mentioned under 3(2) of the ICT Act 1973. In support of his argument Mizanul Islam cited to the case of 35 DLR [our researcher is searching for the full title of this case].

Prosecution witness 1
Regarding Prosecution witness 1, Mizanul Islam claimed that Gholam Azam had no involvement with the Operation Search Light which was carried out by Pakistani army on 25 March 1971. Mizanul Islam read out the testimony of Prosecution witness 1, Muntasir Mamun. Mizanul Islam submitted that the Prosecution attempted to present Mamun as an ‘expert’ witness by describing him as a ‘policy’ witness. The Defense submitted that Mamun had testified that he researched issues relating the War of Liberation, however, when asked questions about the Liberation war during the cross-examination he answered 213 times that he was unable to answer without going through the books, that he could not remember, could not answer, etc. Mizanul Islam expressed his doubt about PW-1’s claim that he had extensively researched the Liberation War.

Mizanul Islam stated that PW-1 had admitted that he affiliated with the Chhatra Union and was a student of Dhaka University; however, he (PW-1) failed to say when Dhaka University Students Union held elections before the Liberation War.

The Defense submitted that research is always based on documents, however during cross-examination Mamun said that he cannot say when he first heard the news of East Pakistan Restoration Committee and cannot remember whether he heard the news by telegram, letter, radio or by reading newspapers. Mizanul Islam further submitted that Mamun admitted that he had no documentary evidence to establish the formation of East Pakistan Restoration Committee by Gholam Azam and said that he does not know the number of members of the said committee or the name of the secretary of the said committee.

 Mizanul Islam stated that Mamun had referred to a document of General Niazi in which Niazi said that the Pakistani authority should make Bengalis into a minority. He further submitted that during cross-examination Mamun admitted that the document he referred to during the examination-in-chief was a type-written document and does not contain the signature of Niazi. Mizanul Islam questioned the reliability of the document and Mamun’s testimony.

Mizanul Islam submitted that Mamun had testified that he does not have any information as to the representation of East Bengal in the Indian Army, Indian Civil Service and Bengal Civil Service. Mizanul Islam alleged that Mamun failed to answer questions regarding the election in 1970 and failed to say who was elected from the Awami League by the Mirpur constituency, despite allegedly residing there at that time. Mizanul Islam submitted that Prosecution witness 1 also failed to answer questions regarding the election in 1946. Mizanul Islam submitted that Mamun failed to say whether A.K Faizul Huq, son of A. K Fazlul Huq, was involved with the Awami League politics in 1970 election, even though A.K Fazlul Huq’s family is one of the ten most prominent families of Bangladesh. He expressed his doubt about Prosecution witness 1’s knowledge of Bangladeshi history.

Mizanul Islam submitted that Mamun was unable to say whether Gholam Azam meet with President Yeahya and Bhutto before Operation Search Light was carried out. Furthermore Mamun could not say whether he found any information regarding this issue during his research. He was unable to say when he had heard about Operation Search Light and despite claiming that he talked with General Raw Farman Ali about Operation Search Light in detail in an interview; he could not say anything about the contents of the interview without looking at his interview. Mamun was unable to say whether any civilians were involved with Operation Search Light. The Defense submitted that during cross-examination Prosecution witness 1 failed to answer 90 percent of the questions relating to history and the Liberation Warm, despite being a teacher of history at Dhaka University and claiming that he had extensively researched the War.

Mizanul Islam also noted that when Mamun was asked whether the Pakistani army was under the control of any civilian, Prosecution witness 1 replied that the army was “influenced” by civilians. Mizanul Islam had then asked whether control and influence are two different words having two different meanings and Mamun replied “yes.” Mizanul Islam submitted that during cross-examination mamun had intentionally tried to evade answering questions despite being required to do so under Section 18 of the ICT Act 1973.  Mizanul Islam submitted that the Tribunal cannot convict the accused on the basis of such witness testimony.

Mizanul Islam noted that Mamun had testified that he could not say without looking at the relevant documents whether the Peace Committee formed under the leadership of Khaja Khairuddin had 140 members or not. However, Mamun claimed that the name of Gholam Azam was into the committee. Mizanul Islam argued that given the witness’ inability to testify as to the number of members in the Peace Committee, he could not be sure that Gholam Azam’s name was in the Committee. He further submitted that given Mamun’s inability to name the members of the Executive Committee, his claim that Gholam Azam was part of that Committee could not be trusted.

The Defense also claimed that Mamun gave false statements before the Tribunal and said that he (PW-1) collected a ‘Dandi card’ from the administration of Pakistan mentioning that he was a technician in 1971 where he was a student of Dhaka University.

Mamun had testified that he cannot say whether any killing, rape or looting was committed in front of him in 1971 while he was in Dhanmondi. Additionally he could not name any person who was killed or raped in the Dhanmondi area, and could not name anyone whose house had been destroyed by arson. Mamun had also said that he doesn’t know how many days he was in Dhanmondi. The Defense questioned the credibility of these statements and described the scenario as impossible. The Defense also noted that Prosecution witness 1 had said that he went to Chittagong to live with his family in the government quarters and that his father was an employee of the Chittagong Port. Mizanul Islam submitted that Mamun had been unable to say whether the administration of Chittagong Port was under the control of Pakistan army or not.

The Defense also noted that Mamun had testified that when he was with his uncle in Mirpur some non-Bengali people looted their house and that he took shelter in another house nearby. However, Mamun could not remember the name of the owner of the house who gave him shelter or admitted that he did not search for him later on. Mizanul Islam made a comment that a person who lacked the humanity to find out about the person who had saved his life could not be trusted to talk about the punishment of Crimes against Humanity.

Mizanul Islam submitted that in Exhibit-FD, a book written by Prosecution witness 1, Pirojpur is described as ‘Mohokuma’ in one place but as a district in other places. The Defense said this was contradictory and impossible. Mizanul Islam questioned the accuracy of Mamun’s his research work.

Regarding the first meeting of executive committee of Peace Committee, Mamun had testified that he couldn’t name who was present at that meeting, and yet confirmed that Gholam Azam was present there. Mamun further said that since Gholam was the first member of the Executive Committee no meeting could take place without him. Mizanul Islam submitted that any meeting could take place without the presence of any member of the committee.

The Defense noted that they had asked Mamun whether the Union Council had any power to issue directions to the Commanding Officer of the Army. In reply Mamun had said that he did not know whether the Union Council had the power to issue the directions to the commanding officer but said that as an auxiliary force they had communication with the army. Mizanul Islam argued that auxiliary forces follow the direction of the authorities and had no power to take action or give direction on their own. He further argued that a civilian cannot have command responsibility.

Finally the Defense noted that Prosecution witnesses 1 and 3 had stated that the Razakars, Al-Badr, and Al-Shams were comprised of students and young members of Jamaat-e-Islami. However, Mizanul Islam submitted that the witnesses could not identify any specific persons and their statements were based on news published in newspapers. Mizanul Islam referred to the gazette notification of Pakistan government (Exhibit-CA) and submitted that the Razakars were considered as auxiliary force beginning September 7, 1971.