30 May 2013: ICT-2 Daily Summary
Today the Tribunal heard matters in the following cases:
- Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid
Today Defense counsel Abdur Razzak began his portion of the Closing Arguments in the case of Mujahid. Although he had previously been designated to cover only the legal aspects of the case, he also discussed evidentiary and factual issues as well, particularly issues pertaining to documentary evidence.
The Defense also informed the Tribunal that because the senior Defense team is also appearing before the Appellate Division in conjunction with the Qader Molla case appeal, they would need the Tribunal to accommodate the Defense’s schedule (in particular Mr. Razzak’s schedule). He said that he would only be able to present arguments in the Mujahid case in the afternoon. The Tribunal agreed to accommodate the Defense counsel as far as possible.
The Defense noted that the book “Al-Badr” is the primary documentary evidence relied upon by the Prosecution to establish that Mujahid held a leadership position in the Al-Badr forces during the 1971 war period.
The counsel stated that the book refers to the speech of the ’Nezam’ (Head/leader) of Al-Badr, given the night before Pakistan surrendered on 16th December 1971. The counsel submitted that this is the worst possible form of hearsay evidence as there is no reference as to who recalled and reported the meeting, who gave the description of the meeting, when and where such an interview was taken and how the contents of the speech of the ‘Nezam’ could be authenticated. The Defense submitted that without knowing this information, the evidence cannot be relied upon in reaching any conclusion regarding Mujahid’s position within the Al-Badr forces or his alleged guilt. Because the book amounts to anonymous hearsay it cannot be relied upon.
The judges interjected and stated that the translated book does not refer to the original sources of the information, but that the original Urdu version of the book refers to sources in its footnotes.
The counsel stated that even if the Tribunal does treat the text as a reliable source, it does not incriminate Mujahid. The book Al-Badr mentions the name of Ashrafuzzaman, Kamran, Murad and many others. However, Mujahid’s name does not appear anywhere in the book. The Defense argued that if Mujahid was in fact such a key and high ranking person within Al-Badr it is illogical that his name would not appear anywhere in the entire book. Thus the Prosecution failed to provide evidence specifically incriminating Mujahid.
The judge interjected and stated that Mujahid was the president or secretary of Islami Chatra Shangha (ICS), which was later on informally converted into the Al-Badr forces. Unlike the Razakar, who were highly organized and had a specific ordinance, lists and documents of its leadership, Al-Badr was more informal and did not keep lists in which Mujahid’s name would appear.
The Defense next argued that the Investigation Officer also failed to find the name of the Accused in any list of Al-Badr or Rajakar. All that is admitted is that the accused was a student leader of Islami Chatra Shangha (ICS). The Defense argued that the Tribunal cannot construe the ICS to be the same entity as Al-Badr and thereby hold Mujahid accountable for all Al-Badr’s crimes. Such a theory cannot be presumed to be true for the purposes of obtaining a conviction. Law requires hard evidence before convicting a person rather than relying upon logical conclusions based on political theories. In reply to a question from the judges as to how the defense can show that ICS was not the same as Al-Badr, the Defense replied that the Defense does not bear the burden of proving anything. It is for the Prosecution to conclusively prove so, and in this case they have failed to do so.
The Defense next remarked that political propaganda has always influenced the perception of events past and present. Thus the judges should be wary of such propaganda and should not take into account their own general knowledge of facts when deciding the case. A judge asked whether the Tribunal can rely upon common knowledge for establishing facts such as the killing of Bangladesh’s intellectuals. In response Defense stated that the Tribunal may consider facts of common knowledge only so far as they relate the actual occurrence of an event. However, judicial notice cannot be used to evaluate who was responsible for such an event as this is the very dispute of a criminal case.