5 August 2013: ICT-1 Daily Summary – Chowdhury Defense Closing Arguments

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs. Salauddin Qader Chowdhury

Today in the Salauddin Qader Chowdhury case the Defense continued presenting its Closing Arguments for the third day. The Tribunal then adjourned the proceedings of the case until 7 August 2013. Tomorrow, 6 August is a government holiday.

Statements under section 19(2)
The Defense argued that Section 19(2) of the ICT Act 1973 can be used arbitrarily due to its construction. Section 19(2) of the ICT Act 1973 states that the Tribunal may receive in evidence any statement recorded by a Magistrate or Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable. The Defense argued that the word used in this section is ‘may’ which means this section is discretionary and there may be some exceptions. The section also used the words ‘any person’ and is not specific about the maker of the statement. The Defense remarked that where the statement is recorded by a Magistrate the statement is to be signed by the declarant and accompanied by a memorandum, similarly to Bangladesh’s Criminal Procedure Code. However, Section 19(2) allows for statement made to the Investigation Officer to be admitted into evidence, despite the fact that these statements are not signed by the declarant. The Defense argued that, under Bangladeshi law, statements made to the police, and therefore to the Investigation Officer, carry no value and should not be admitted into evidence.  The Defense therefore asserted that the open ended nature of Section 19(2) shows that there is scope for its misuse.  

The Defense noted that the Prosecution relied on the Section 19(2) witness statement of Josna Bala, Exhibit 95, in support of Charge 4. Josna gave a statement to the Investigation Officer on 24 September 2010 and he died on 10 February 2013. Prosecution witness 12, Aurunangso Bimol Chowdhury, testified before the Tribunal on 16 September 2012 and Prosecution witness 13, Asish Chowdhury, testified before the Tribunal on 24 September 2012. The Defense questioned why Josna Bala was not produced before the Tribunal while Aurunangso and Asish testified. The Defense noted that on 16 April 2012 Josna Bala gave a statement before the Chief Judicial Magistrate of Chittagong under section 44 of the Criminal Procedure Code stating that she was threatened in order to testify.

The Defense also noted that Prosecution relied on the Section 19(2) witness statement of Badol Biswas, Exhibit- 96, in support of Charge 5. The Prosecution alleged that the witness is now in India and therefore could not be produced before the Tribunal. The Defense submitted that during cross-examination the Investigation Officer admitted that he did not inquire how Badol Biswas left Bangladesh, did not inquire to get the passport number which he (Badol Biswas) carried when he left for India, and did not even check the on-line visa information of Indian High Commission office of Chittagong to confirm that he had left. The Defense informed the Tribunal that two types of passports are used to go to India and if a visitor does not use an international passport he is given a limited passport in which the visitor has to mention the point/ post which he will use during his entry or exit. The Defense argued that only business visas are available for three month. Tourist visas are available only for a month. The Defense argued that the Investigation Officer failed to provide specific information about the type of visa and purpose of Badol Biswas’s visit to India. The Defense then argued that Badol Biswas’ statement  contradicts the testimony of Onil Boron Dhar, Prosecution witness 22. During cross-examination the Investigation Officer admitted that in the case filed by Onil Boron Dhar Salauddin Qader Chowdhury is one of many accused, but the Investigation Officer admitted that he did not investigate any of the other suspects. The Defense also noted that the case (Exhibit-32/4), which was filed by Onil in 1972, was termed as ‘not sent up.’

The Prosecution relied on the Section 19(2) statement of Janoti Bala, Exhibit-96, in support of charge 6. Defense submitted that Janoti Bala Paul gave her statement to the Investigation Officer on 28 September 2010 and she died on 31 July 2012. The Defense again questioned why the Prosecution failed to produce her between 14 May 2012 and  31 July 2012 when the Prosecution claimed that she ultimately was shot.

The Defense noted that the Prosecution relied on the statement of Badsha Mia, Exhibit-97, in support of charge 20. The Defense submitted that the witness statement of Badsha Mia contradicted that of Mahmud Ali, Prosecution witness 33. Mahmud Ali during cross-examination stated that Akhlas was 16  or 17 years old when he died and at that time he was a student of matriculation, whereas in Badsha Mia’s statement he said that Akhlas was 18 or 19 years old and a student at Kanungo college. The Defense claimed that Abul Bashor, Prosecution witness 21, issued a certificate no 135426, Muktibarta No 0202030209 dated 23 February 2011 allowing for the use of the word ‘martyr’ instead of ‘late’ before the name of Akhlas. The Defense counsel read out the certificate. The Certificate stated that Akhlas is a martyr who was killed due to the grenade attack by the Pakistani Army while Akhlas was a student of class 10. However Abul Bashor, Prosecution witness 21, testified before the Tribunal that the Razakars held a freedom fighter named Akhlas in front of a shop in Khoka and then took him to Goods Hill. Bashor further alleged that Akhlas’s father was a member of the Muslim League who went to Goods Hill after three days with other Muslim League activists and recovered the body of Akhlas from Goods Hill. The Defense submitted that Abul Bashor’s testimony is contradictory and no one can be convicted based on contradictory evidence.

The Defense also questioned the credibility of the Investigation Officer. They argued that he himself admitted that he did not scrutinize the cases and General Diaries from cases filed in 1971 in Rawzan, Boalkhali, Hathazari, Kotoali and Patchlaish police stations. Additionally he did not interview any officer from these stations as part of his investigation. The Defense argued that the Pakistani Army and the police had their own chain of command and that 24 cases were filed against the Pakistani Army in 1971.