24 July 2013: ICT-2 Daily Summary – AKM Yusuf Charge Framing Order, Khan and Mueen Uddin PW 5, Alim PW

Today the Tribunal heard matters in the following cases:

  1. Pre-trial Proceedings against AKM Yusuf
  2. Chief Prosecutor vs. Ashrafuzzaman Khan and Chowdhury Mueen Uddin
  3. Chief Prosecutor vs. Abdul Alim 

Today Tribunal began by hearing a bail application on behalf of AKM Yusuf. The Defense presented arguments both regarding the necessity of bail, and the insufficiency of the charges proposed against AKM Yusuf by the Prosecution. They argued that the suspect should be discharged as the allegations against him are malafide and inspired by political motivations. The Tribunal also heard the Prosecution’s response. They  scheduled 1 August for issuing their order regarding bail and the potential framing of charges against the suspect. They instructed the jail authorities to submit a report on the availability of their medical facilities and their ability to meet the needs of the suspect while in custody.

The Tribunal then turned to the case of Ashrafuzzaman Khan and Chowdhury Mueen Uddin in which the Prosecution  called Prosecution witness 5 to testify in support of Charge 6. As the trials are being conducted in absentia,  state appointed Defense counsel Shukur Khan and Tuny will be allowed to conduct the cross examination at a later date on behalf of Ashrafuzzaman Khan and Chowdhury Mueen Uddin respectively.

In the Alim case the Tribunal rejected an application from the Defense requesting additional time due to the illness of senior Defense counsel Ahsanul Huq Hena. A junior Defense attorney stated that Hena is physically unwell and is undergoing treatment at the United Hospital. The Tribunal was critical of the delayed application and stated that it would briefly begin the examination of the Investigation Officer and would continue  it the following day. Thus the tribunal very briefly started recording the examination of the Io, but then fixed 25 July 2013 as the date for recording his entire testimony.

Pre-Trial Proceedings against AKM Yusuf
Bail Application
The Defense submitted various medical reports detailing the health of AKM Yusuf. They argued that Yusuf has a history of cardiac disease and had undergone cardiac bypass surgery in the past. He has other health complication as well. The  Defense stated that Yusuf’s health is comparable to that of Abdul Alim, who has been released on bail on similar grounds. The Defense stated that the decision to grant or deny bail is within the Tribunal’s discretion and thus a conditional bail could be granted, imposing strict conditions as required.

The Prosecution strongly objected to the application for bail. They stated that Yusuf is facing serious allegations for his role in perpetrating wartime atrocities. They also argued that if he were to be released, there is a high risk that he would engage in witness intimidation. The Prosecution further submitted that the Yusuf’s condition has  not deteriorated since the last application for bail was rejected. Thus no new grounds for bail have arisen. The Prosecution emphasized that the jail authorities have adequate medical facilities onsite and there is no allegation of any failure on its part to provide medical and health care facilities as required.

The Tribunal noted the Defense’s position regarding the health of the accused and stated that if the jail is unable to provide adequate medical attention the Tribunal may release the suspect on bail in the interest of justice. The Tribunal instructed the jail authorities to submit a report on the adequacy of facilities in jail for the treatment of the accused in its custody. The report shall be submitted before 1st August, 2013, which is the date fixed for a decision on this bail application.

Submissions Regarding Charge Framing Order and Application for Discharge of Case
Defense Submission
After submitting their arguments regarding the bail application, the argued against the proposed framing of charges against Yusuf. The counsel made two arguments. First, they argued that prosecution 40 years after the alleged events is malafide prosecution. Secondly, the Defense argued that Yusuf is entitled to the protection provided by Sheikh Mujib Rahman in the amnesty he issued after the war.

The counsel submitted that Yusuf was charged and convicted under the Collaborator’s Order directly after Bangladesh’s independence. However, there was not even a single allegation against him for murder, let alone crimes against humanity. The counsel questioned the absence of such allegations at that time given the proximity of the events and the ready availability of evidence and witnesses. The Defense submitted that if there was even a hint of truth in the allegations being brought today after 40 years, Yusuf would have been prosecuted for murder and other grave offences right after the war. The Defense also noted that in 1972 Yusuf was also a prominent figure back in 1972 and the fact that there was no prosecution against him for arson or murder shows that the present allegations are fabricated ones and have been forged with malafide political intentions.

The Defense noted that after being charged and convicted under the Collaborator’s Order Yusuf was sent to jail where he served his term of imprisonment until 15 December 1973, when he received amnesty. Therefore, being a person who fell within the perameter of the amnesty, the accused is now entitled to rely upon its protection. Therefore the Defense argued that the charges against the suspect should not be framed and the case should be dismissed.

Response of the Judges
The judges responded by stating that there is no bar to prosecuting the accused for crimes against humanity, so long as adequate evidence supports the charges, given the fact that he was never prosecuted or convicted of such offences. Moreover, the Tribunal stated that crimes against humanity and even murder were not covered by the general amnesty declared in 1973. The Tribunal also noted that the prosecution of collaborators  under Collaborators’ Order in 1972 and 1973 did not involve  common citizens in the  process of identifying appropriate charges or giving testimony, unlike in the instant case. The Tribunal stated that such testimony must be heard in order to provide justice. The Tribunal scheduled 1 August for issuing its decision on whether or not to frame charges against AKM Yusuf.

Chief Prosecutor vs. Ashrafuzzaman Khan and Chowdhury Mueen Uddin
Prosecution Witness 5
Prosecution witness 5, Dr. Syed Anwar Husain, is the former colleague of victim Professor Gias Uddin who was murdered during the massacre of the Bangladeshi intellectual community on 15 December 1971. The witness stated that he joined Dhaka University as a Lecturer on the 3rd August, 1970. He said that he witnessed the atrocities on the night of 15 March 1971 when he lived at Mohsin Hall and was an employed as an assistant house tutor. The witness referred to Arnold Toyenbi who said that creative minority leads to the upbringing of a nation. He stated that he believed the Bangladeshi intellectuals had been targeted because they were the creative minority who would bring up the Bangladeshi nation.

The witness stated that Dhaka University opened in the beginning of July 1971 but that there were no students attending and therefore no classes took place. Nevertheless, he stated that faculty members and staff were required to be present at the office from 9 a.m. until 1 p.m each weekday.

The witness testified that on 27th of March the ongoing curfew was withdrawn for 2 hours. He said that on his way to the market he came across Prof. Gias Uddin and they walked together towards the market. He said they were also joined by Shontosh. Dr. Husain said that as they were coming out of Kola Bhaban Prof Gias Uddin caught sight of Dr Mostafizur Rahman who was the professor of Arabic department and yelled out “Bastard” towards him. Dr. Husain stated that Mostafizur was the king of Razakars at Dhaka University.

On 14th December 1971, there was no water service and so Dr. Husain said he went to the water pump house. He found no one there. After some time Prof. Zahurul Huq and then Gias Uddin sir came to the water pump house for the same reason. Gias Uddin sir switched on the water pump. As they all prepared to leave, one person wearing an ash color uniform came and obstructed the gate. The witness said this person had his face covered. He asked the ultimate victim if his name was Gias Uddin, to which Gias Uddin replied affirmatively. The man then instructed him in Urdu to follow him and blindfolded him. Another uniformed person joined them as they exited the building. Dr. Husain testified that one non-Bengali Dhaka University guard named Rahim was standing there as a bystander. The witness said that he later was told by other Bengali guards that Gias Uddin was taken away in a mud covered jeep. The witness went to Gias Uddin’s home and learned that the same men had been there earlier and forced Gias Uddin’s cousin to tell them where Gias Uddin could be found.

The witness testified that he knew that many others were also abducted in similar fashion. He said he later read in the newspapers that one Ashrafuzzaman Khan and Chowdhury Mueen Uddin lead the Al-Badr teams. He referred to an article in the New York Times, issue of 3 January 1972 as having published news to this effect. He stated that by January 1972 many decomposed bodies of those abducted had been recovered.