28 May 2013: ICT-2 Daily Summary – Mujahid Closing Arguments, Contempt Proceedings vs. PW 2

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid –  Defense Closing Arguments
  2. Contempt Proceedings Against Jahir Uddin Jalal, Prosecution Witness 2

The Defense in the Mujahid case addressed Charge-7, covering its evidentiary aspects before making overall closing statements regarding the investigation process and the case in general. The Closing Arguments were primarily led by Defense counsel Munshi Ahsan Kabir who had been released from the hospital following an alleged assault on him by Jahir Uddin Jalal, Prosecution witness 2.

After lunch, the Tribunal took up the issue of the alleged assault and heard the Defense’s application for contempt proceedings to be brought against the witness Jalal. After hearing the application the court ordered of contempt proceeding against the witness to begin 5 June 2013. They issued a notice that Jalal must submit his written explanation by that date.

Chief Prosecutor vs. Mujahid
Under Charge 7 Mujahid is accused of attempt, abetment or conspiracy to commit murder as a Crime Against Humanity, or in the alternative, attempt, abetment or conspiracy to commit persecution as a Crime Against Humanity, in conjunction with hi alleged role in an attack upon the village of Bakchar and the Hindu community there.

The Defense submitted that Mujahid became the Secretary General of East Pakistan Islami Chatra Shongho (ICS) in August 1971, as stated by the Prosecution. They stated that the crucial question was what Mujahid’s status was in May. They argued that Al-Badr was formed in Sherpur on 21st May 1971 and therefore Mujahid could not have been an Al-Badr leader on 13th May 1971, the alleged date of the attack.

The judges interjected and stated that The Tribunal had already made factual findings regarding Al-Badr in its first judgment and and that it would adhere to that precedent unless the Appellate Division overturned some aspect of the decision.

The counsel submitted that Prosecution witness 12, Chitraranjan Shaha, stated that he saw the bodies of the dead in front of his brother’s home. But soon after, he contradicted himself and said that that the bodies were in Sree Ongon, which was 60 or 70 yards away. The judges asked whether the Defense was disputing the event, to which the Defense replied that he was merely evaluating the credibility of the witness. The counsel then pointed out further discrepancies in the testimony of the witness. The Defense argued that one victim’s body was found in Shunil’s house on his bed, whereas the witness had claimed that all the bodies were in the Sree Ongon.

The counsel then proceeded to outline the discrepancies in the testimony of Prosecution witness 13, Shakti Shaha. The Defense noted  that the witness claimed not to have a passport, yet has been to India several times. They also pointed out that PW-13, now 57 years old, stated that Mujahid formerly studied with the witness’ older brother, who is 20-25 years older than him. The Defense expressed amazement at such a claim, stating that if the witness is correct Mujahid would be nearly 85 years old at this time.

However, the judges interrupted this point and stated that the Defense did not object to this statement and did not contradict PW-13’s statement with that of the Investigation Officer during the cross-examination. Therefore they stated such objections cannot be made during Closing Arguments. The judges also stated that minor discrepancies would not make any significant difference in the findings. Instead, the judges recommended that the counsel should direct submissions toward the presence of Mujahid and his involvement.

The counsel then addressed the investigation process. They argued that the Investigation Officer took a total of 18 months to investigate the case, but during these 18 months he spent only 28 hours and 5 minutes in the locations where the crimes were allegedly committed. The judge stated that there could still be proper investigation without long visits given the crimes occurred more than  40 years ago. The Defense claimed that the investigation was merely a production of paperwork by the Investigation Officer, and that he generated false allegations from his office which he letter provided to the prosecution witnesses. The Defense also argued that because witnesses had to seek out the Investigation Officer at his office in order to provide testimony they had a clear bias in the case. He stated that two such witnesses, Narayan and Malek, among others, waited for hours as late as 11 p.m apparently of their own accord in order to talk to the Investigation Officer. The Defense argued that such behavior was illogical unless such a witness had an interest in the case and in finding the accused guilty by any means.

The counsel further submitted that if the accused was such a Razakar “hero” and actually went driving around town in an open jeep while brandishing a sword, the local people should have recognized him and known stories about him. However, the Defense argued that the local people were not questioned at all by the Investigation Officer. Furthermore, the Defense argued that if he Mujahid was truly a well known member of Al-Badr, the father of the nation Bongobondhu Sheikh Mujibur Rahman would have known about him and been critical of him. However, Sheikh Mujibur Rahman actually settled a dispute in favor of Mujahid’s father after independence.

At this point the judge noted that the innocence of the father and the son are two different matters. Just because the Sheikh Mujibur Rahman ruled in favor of Mujahid’s father does not  establish his innocence.

Defense counsel Syed Mizanur Rahman then made some general closing statements. Reiterating his submissions from the previous day, Rahman stressed that the Investigation Officer completed case paperwork from his home instead of conducting a true investigation. The Defense also emphasized that Mujahid’s  case originated with two regular criminal cases filed in Pallabi police station and Keraniganj police station respectively. There were 14 witnesses in those cases in addition to the complainants, yet none of them were questioned by the Investigation Officer. The Defense argued that the Investigation Officer went to Faridpur and returned the same night, without spending adequate time to determine the real facts. He even went to the house of victims but neither talked to their families nor recorded their statements.

The Defense also argued that the Prosecution was further basing its allegations on unreliable documentary evidence. As an example of the quality of such texts, the counsel referred to one of the books that cited another book called “Emergence of Bangladesh and Radical Politics” as “Energy of Bangladesh and Redial Politics”.  The counsel stressed that the judges should be careful about documentary evidences of such quality and also reiterated that newspaper reports should be accepted with great caution. He further submitted that none of the documents submitted, including the book Al-Badr, makes any express reference to Mujahid. Therefore it is unlikely that he could have been the leader of the group. It would not be normal for the author of the book Al-Badr to exclude Mujahid’s name if he was in fact the ‘Nezam’, or chairman, of Al-Badr. Only the two newspaper articles, the Daily Borer Kagoj from the 29th and 30th of October 2007 referred to Mujahid. His name does not appear in any list of Rajjakars or Al-Badr forces and no evidence specifically implicates him.

Finally the Defense concluded by noting that the Defense witnesses are facing severe pressure and were no unwilling to testify due to security concerns. Therefore only the Accused’s son has been called to give testimony because the Defense wants to avoid instances such as that of Bali, a Defense witness in the Sayedee case who was abducted from outside the Tribunal by the Detective Branch and is now in a jail in India.

Finally the Defense stated that the Prosecution has not proved its case against Mujahid and therefore he cannot be found guilty.

Contempt Proceedings Against Jahir Uddin Jalal
The Tribunal next turned to the alleged attack by Prosecution witness 2 against a member of the Defense team. Defense counsel Abdur Razzak began his submission by describing the attack, stating that Jahir Uddin Jalal attacked the Munshi Ahsan Kabir near his chambers in Paltan, Dhaka. The incident is further described in our previous post, here. Mr. Kabir was hospitalized and later released. Mr Razzak stated that the incident has been reported in the Daily Prothom Alo and Desh TV, amongst others, on the following day after the attack.

The Defense argued that the attack was timed to coincide with the Defense Closing Statements in the case. They stated that such an attack clearly prejudices the Accused and amounts to an obstruction of justice. It is a clear violation of two limbs of Section 11(4) of the International Crimes (Tribunals) Act, 1973. Section 11(4) states that the tribunal may punish any person who obstructs or abuses its process or does anything which tends to prejudice the case of a party before it. The counsel cited to a case called Osborne (at this time we do not have the specific citation for the cite) which states that an attack on or insult to counsel amounts to contempt. He also cited AIR 1914 Nagpur 110 and submitted that the law of contempt of court covers the entire ambit of the litigation process. Therefore an attack on Defense counsel amounts to an attack on the judicial process.

Finally, the senior counsel expressed concern that a failure to hold Jalal accountable for his actions would create a risk of a pattern of attacks on counsel. He requested that the Tribunal take action against Jalal and adequately punish him for his actions so as to deter other such attacks in the future.

Tribunal-2 condemned the attack, stating that such incidents not only pose a threat to the counsel but to the entire judicial process. They issued an order directing Jalal to appear before the tribunal on 5 June 2013 and to submit his written explanation for his actions.