Today the Tribunal heard matters in the following cases:
- Contempt Proceedings Against Selim Uddin
- Syed Md Qaisar: Bail Application
- Chief Prosecutor vs. Md Ashruzzaman Khan and Moinuddin
- Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid – Defense Closing Arguments
- Chief Prosecutor vs. Abdul Alim – Cross-Examination of PW 21
The Tribunal deferred the contempt proceedings against Selim Uddin until 28 May 2013 for further order. It then moved on to hear the bail application filed on behalf of Syed Md Qaisar who is currently under investigation for war crimes and related offences that may have been committed during the 1971 War of Liberation. Mr Qaisar, a former BNP leader and a subsequent policy maker of President HM Ershad’s cabinet was arrested on a warrant issued by Tribunal-2 on 15 May 2013. Upon hearing the bail application, the court took a brief recess of twenty minutes before finally rejecting the application. Mr Qaisar was then sent to jail.
The Prosecution team in the cases against Md Ashrafuzaman Khan alias Nayeb Ali and Moinuddin notified the Tribunal that they had followed its order and published a notification in two widely circulated national dailies asking the two defendants to appear before the Tribunal. The notice was published on 14 May 2013 in the Daily Janakantha and on 15 May in the Daily Star. The notification announced that failure to appear within 10 days of such publication would result in the court ordering trials-in-absentia, as was done in the case of Abul Kalam Azad. The Tribunal stated that they would hear the case next on 27 May 2013.
In the case of Mujahid the Defense began their Closing Arguments. They began with arguments regarding the evidentiary aspects of the case and stated that senior Defense counsel Abdur Razzak will be later address the relevant legal arguments.
Finally, the Defense counsel for Abdul Alim conducted the cross-examination of Prosecution witness 21. They primarily attacked the credibility of the witness and accused him of providing false testimony. The Defense further suggested that the witness provide the same testimony to the Investigation Officer during his original interview.
Syed Md. Qaisar – Bail Application
Counsel for the Mr. Qaisar argued for bail on behalf of his client. He asserted that granting bail is entirely a matter of judicial discretion. Bail may be granted even when an accused is being investigated for the commission of non-bailable offences. He asserted that judicial precedents show instances where bail has been granted even when the alleged offence carries the highest punishment of death penalty.
The counsel for Mr. Qaisar stated that the overall physical condition of the applicant is such that it may be injurious for him if he is kept in custody. He is 73 years of age and is a cardiac patient who underwent massive treatments including implantation of pace maker in past. He is also a patient of hypertension and other age-old complications and has been advised by the doctor not to move without the support and attendance of someone. He has to visit the hospital regularly for follow-ups and periodical check-up. Counsel stated that given his overall health condition, the chance of Mr. Qaisar absconding is minimal.
The counsel finally submitted that there must be substantial evidence against the applicant in order for the Tribunal to deny him bail. The advocate stated that there is no concrete basis for his detention, as shown by the lack of progress from the investigation agency. Therefore he argued that the tribunal should exercise its judicial discretion in favor of the accused and enlarge him on bail. Mr. Qaisar’s lawyer stated that his client would agree to the imposition of any necessary condition for bail.
The Prosecution argued against the bail application. They stated that the investigation into Mr Qaisar began a year ago and is still ongoing. They stated that they only sought his arrest and detention now because it is necessary. The counsel stated that the Investigation Agency has forwarded some documents to the Prosecution showing how potential witnesses have been threatened and even abducted. They argued that Qaisar, as an influential figure from an elite political family background, is in a position to effectively intimidate witnesses if left free. They additionally stated that copies of the General Diary (GD) of police further show that evidence of mass graves has been destroyed and therefore there is also concen about tampering with evidence.
In relation to the health condition of Mr Qaisar is concerned, the counsel submitted that there is no individual in Bangladesh who is not suffering from some sort of medical condition. His medical condition is in no way fatal and the nature of his illness is not such that poses immediate risk of death. Further, old age complication will be there given the fact that the age of war crimes convicts, accused and suspects are quite high after the expiry of forty years of the war of liberation. However, age is not a factor the court should take into its regards while considering bail application because had it been so, then Golam Azam would have been enlarged on bail. The condition of Mr Qaisar is completely different from that of Mr Alim who was granted bail.
The Prosecution argued that Mr Qaisar’s hospitalization on the same day that the Tribunal issued a warrant for his arrest is suspicious and shows that he rushed into the hospital, not because of his physical condition, but in order to avoid arrest. They asserted that his physical condition is not serious, as shown by the fact that he was discharged from the hospital after observation. Therefore, for the interest of justice and proper investigation, the applicant should be rejected bail.
The judges began by expressing their dissatisfaction in the procedure of the Investigation Agency. They stated that the Investigation Agency is often ignorant about the Rules of Procedure and the judges instructed the agencies to submit progress reports from time to time in order to ensure prompt investigation.
The judges were critical of the fact that Mr Qaisar was admitted in the hospital the same day the warrant for his arrest was issued. Furthermore, the registered suspicion that his physical condition poses an immediate risk and noted that he would not have been released form the hospital if this were the case. Tribunal stated that responsibility for war crimes or any other offence does not diminish with age and that ensuring justice requires due investigation without any interruption. The onus lies on the Defense to show that bail is necessary. Here, the Defendant failed to do so. The application for bail was therefore rejected. However, the judges noted that the applicant shall be entitled to ongoing medical treatment as and when required.
Chief Prosecutor vs. Ali Ahsan Muhammad Mujahid
The Defense began their Closing Arguments in the Mujahid case. They addressed the following in today’s arguments:
- Presumption of innocence and the burden of proof.
- Evidentiary aspects of Charges 1.
The Defense began by stressing on four legal aspects of the case. Firstly, he stated that the accused Mujahid is presumed innocent in the eyes of the law until he is conclusively proven to be guilty. Secondly, the burden of proof lies on the Prosecution to prove the guilt of the accused. Thirdly, the Defense does not have to disprove anything until the Prosecution has proved its case. Finally, the Defense stated that the Accused is ‘the favorite child’ of the law and is entitled to its privileges and protections until his guilt is proven beyond a reasonable doubt.
Charge 1: Abduction as a Crime Against Humanity; or in the alternative, Murder as a Crime Against Humanity
The Accused is charged under Section 3(2)(a)(g) with “abetting, facilitating and contributing [sic] the actual commission of offence of ‘abduction as crime against humanity’ or in the alternative, for abetting facilitating and contributing the actual commission of offence of ‘murder as crime against humanity.” (Mujahid, Charge Framing Order). The Prosecution alleges that Mujahid wrote an article that was published on 16 September 1971 in the Daily Shongram. The article was allegedly written to counter an article written by then Executive Editor of the Daily Ittefaq, Seraj Uddin Hossain portraying the sufferings of unarmed civilians caused by the collaborators of the Pakistani Army. Seraj Uddin Hossain was later abducted from his home on 10 December 1971. He never returned and his body was never found The Prosecution alleges that Mujahid’s publication led Jamaat-e-Islami and Al-Badr to target Seraj Uddin Hossain and that he is therefore responsible.
The Defense argued that the charge is supported only by the testimony of Prosecution witness 4, Shahin Reza Nur, who described the chain of events including the abduction of his father. However, nothing in the witness’ testimony shows that Mujahid wrote the article ‘Otoeb Thok baazi’, published in the Daily Shongram in September 1971. The witness stated that the article called his father an Indian agent and also threatened him. But on cross-examination, the witness admitted that the article neither stated his father’s name or nor any name that he was known by. The Defense argued that unclear whether the Shiraj Uddin actually wrote the article ‘Thok Baazi te gaa ujar.’ He stated that the victim used to write under three names: his own name, an anonymous “pen name” and as a political commentator. However the article ‘Thok Baazi te gaa ujar’ that led the Al-Badr to kill the victim as alleged by the prosecution was written by a staff reporter of the Daily Ittefaq.
Finally, the Defense argued that Charge 1 has not been proven as there is no evidence that Mujahid wrote the counter article or that the article was a but-for-cause leading to the abduction and killing of Seraj Uddin Hossain in December 1971. The counsel stated that the guilt of the Accused cannot be presumed even if the Prosecution successfully proves that he was a member of Al-Badr because no causal link has not been established.
Closing arguments are scheduled to continue tomorrow.