Today the Tribunal heard matters in the following case:

1. Chief Prosecutor vs. Motiur Rahman Nizami

In the case of Motiur Rahman Nizami, the Defense placed their submission for the 3rd day. The Defense show the Tribunal inconsistencies found between testimonies of different prosecution witnesses. The Defense made submissions on charge numbers 2, 4, 6, 11, 12, 13 and 14. Thereafter, the Defense prayed for another day and the Tribunal adjourned the proceedings of the case until tomorrow, 19 December 2013.

Closing Arguments of the Defense

The Defense read out the testimony of the Investigation Officer (IO), Abdur Razzak Khan, Prosecution Witness 26. The Defense submitted that the IO testified that from 3 April 2011, the Accused was interrogated for 3 days in the safe house. The Defense asked how the accused could be interrogated for three days when the Tribunal allowed only one day of interrogation. The Defense submitted that according to the Prosecution’s submission, Al-Badr was the auxiliary force of the Pakistani Army, even though the IO, during cross-examination, admitted that in the 9 months of the Liberation War, Nizami was a civilian. The Defense questioned how a civilian could be chief or commander of an auxiliary force. The Defense then stated that the IO testified that a complaint was lodged at Pollobi police station; he registered it as complaint no 1 dated 21-07-2010 and started investigation, but neither visited the alleged place of occurrence mentioned in the complaint nor produced the complainant as witness of this case. The Defense further submitted that, during cross-examination, the IO admitted that Exhibit-4 item no 225 is The Daily Azad dated 11-12-1971 in which there is a photo of a rally and a person is described as Al-Badr leader who is not Nizami. The Defense stated that IO further testified that he submitted the investigation report on 30 October 2011 and after that, he kept trying to collect further evidence against Nizami. The Defense argued that an investigation cannot continue for an uncertain period of time.

Regarding charge no 15, the Prosecution relied on the testimony of Tofazzal Hossain, Prosecution Witness 10. The Defense testified that Tofazzal gave false testimony regarding his study and his profession and further raised questions about the accuracy of his testimony. The Defense submitted that, during his examination-in-chief, Tofazzal Hossain testified that Nizami was his classmate in Boalmari Madrassa and that, during cross-examination, Tofazzal admitted that he passed Dakhil examination in 1954; however, according to the Charge Framing Order, Nizami passed Dakhil examination in 1955. Further, the Defense submitted that Tofazzal is the headmaster of Imam Hossen Academy (known as Upozilla Parishad Primary School) and took the post of acting headmaster two years back at the age of 72, even though the extension retirement age of a teacher is 65. Tofazzal admitted that the retirement age of a teacher is 65 with extension, but denied that he took the job of acting headmaster at the age of 72. Then Tofazzal was asked when he joined Upozilla Parishad Primary School as acting headmaster; Tofazzal replied with October 2012. The Defense added that during the examination-in-chief, Tofazzal testified that he was 74 years old.

Regarding charges no 2 and 15, the Prosecution relied on the testimony of Shamsul Huq alias Nannu, Prosecution Witness 11. The Defense submitted that during the examination-in-chief, Shamsul Huq alias Nannu testified that he is now 60 years old, but it is evident from his testimony that his birth year is 1953. The Defense submitted that during cross-examination, Shamsul Huq alias Nannu replied to a question that Nizami was a student of Boalmari Madrassa when he knew him. The Defense stated that from the Charge Framing Order, it appears that Nizami passed Dakhil examination in 1955. The Defense then submitted that when Nizami left Boalmari Madrassa, the witness was a boy of 2 years and that it is not practically possible for him to have known Nizami at that age. The Defense added that Zahir Uddin Jalal, Prosecution Witness 2, testified that on 11 April 1971, while he was removing writings from the wall, he saw eight to ten people from the Pakistani Army camp enter into the Circuit House; they allegedly went to the flat of SP Azizul Huq Bachu. While these persons were waiting in the corridor, Jalal’s father told him that one of them was Motiur Rahman Nizami. Nannu also testified that on 11 April 1971, members of the Pakistani Army and its associates—including Nizami—entered Pabna and attacked the house of Nannu at Shalgaria; and after looting the house they set it on fire and beat the Nannu’s family members. The Defense asked how Nizami could be in two different places (Dhaka and Pabna) at the same time.

Regarding charge no 6, the Prosecution relied on the testimonies of Prosecution Witness 6, Shahjahan Ali; Prosecution Witness 8, Khalilur Rahman; and Prosecution Witness 17, Jamal Uddin. The Defense submitted that during his examination-in-chief, Shahjahan Ali testified that on 28 November 1971 he was bayoneted, his throat was slit, and thereafter he was treated for 4 years at Dhaka Medical Hospital. However, during cross-examination, Shahjahan Ali testified that he passed SSC from Miapur Haji Joshim Uddin High School in 1972. The Defense questioned how he could have attended SSC examination in 1972 if he received 4 years of treatment at Dhaka Medical Hospital from 1971 onward. The Defense submitted that during cross-examination, Shahjahan Ali stated that he could not remember whether he said to the woman, who came to take an interview on behalf of Sahriar Kabir, that Nizami was present when his throat was slit. The Defense submitted that Sahjahan Ali further stated that he lost memory since he had had two strokes and could not remember what he had said before. The Defense argued that the Accused cannot be convicted on the basis of this type of witness testimony. The Defense further submitted that Sahjahan Ali during cross-examination testified that four freedom fighters were taken into the bank of the river and all of them were killed; however, according to the testimony of Khalilur Rahman, the four freedom fighters did not die that night. The Defense submitted that Khalilur Rahman testified that, at about 3:30 am on 28 November 1971, hearing the sounds of army boots, he opened the window and saw Nizami, other Razakars and members of the Pakistani occupation force coming toward their house, where they took shelter. In answer to a question during cross-examination, Khalil Rahman replied that there was no electricity in the area but he recognized Nizami by moonlight. Referring to Defense Exhibit-G, a calendar which shows when the moon rises and drawn in the Bangla year 1378, the Defense submitted that on that night the moon was drawn at 2:26 am and there was no moonlight at 3:30. The Defense further stated that 28 November was a winter night and the weather was foggy.

Regarding charge 4, the Prosecution relied on the testimonies of Prosecution Witness 5, Nazim Uddin Khattab. The Defense submitted that Nazim Uddin Khattab claimed that he was a freedom fighter even though he admitted that his name was not found in the freedom fighters list.

Submission Regarding Incitement (charges 11- 14)

Thereafter, the Defense Counsel placed their submission on charges no 11 to 14. The Defense Counsel submitted that all of these charges fall under the head of any other crimes under international law, section 3(2)(f) of the ICT Act 1973. The Defense submitted that incitement itself was not a crime in 1971 under international customary law. Incitement to commit genocide was a crime in 1971 under customary international law. The Defense further submitted that the language of the charges (charge 11 to 14) is vague. The Defense also stated that the Prosecution did not rely on any Prosecution Witness in support of these charges. The Defense argued that to prove incitement to commit genocide, the Prosecution has to prove that Nizami incited to destroy in whole or in part a national, ethnic, racial or political group. The Defense further submitted that incitement can be said to have been committed if Nizami provided a hate speech.

Regarding charge no 11, the Defense submitted that the Prosecution alleged that on August 3, 1971, in a meeting at the Muslim Institute of Chittagong, Nizami stated that Pakistan is the house of Allah, that Allah had protected Pakistan repeatedly and would do so in the future as well. The Prosecution further alleged that Nizami stated that there is no power on earth that could destroy Pakistan and stated that Allah had taken custody of Pakistan through the Pakistani Army. The Prosecution relied on Exhibit 2/5, The Daily Sangram dated 5 August 1971, which is a report of 3 August 1971. The Defense noted that the report of 3 August 1971 stated that a meeting had taken place the day before. The Defense further submitted that while Exhibit 2/5 discussed a meeting that took place on 2 August 1971, charge no 11 actually talked about a meeting that took place on 3 August 1971. The Defense raised questions about the authenticity of this exhibit and claimed that the date of the newspaper is not original; it had been typed later. The Defense submitted that the Prosecution did not submit any other documents to confirm the authenticity of the exhibit. The Defense further submitted that Exhibit-35, a book, described Nizami as Al-Badr commander and used The Daily Sangram from 2 August 1971 as a source when The Daily Sangram did not actually describe Nizami as Al-Badr command. The Prosecution also referred to a book titled Bangladesher Sadhinota Juddher Dalilpotro, vol-8, written by Hasan Hafizur Rahman (which is not exhibited). The Defense submitted that in 1971, there was censorship on newspapers, and that the alleged documents relied on by the Prosecution are twisted documents and not genuine. The Defense submitted that the documents did not even describe Nizami as Al-Badr member or chief. The Defense submitted that even if Nizami gave the alleged speech, the documents show that he only expressed his emotion toward his country and compared Pakistan with the house of Allah, which there is nothing wrong with it. The Defense argued that there is no incitement in this. The Defense further submitted that the Accused did not say anything against any particular group.

Regarding charge no 12, the Prosecution relied on Exhibit 2/10, The Daily Sangram, dated 23 August 1971. The Prosecution alleged that Nizami incited the audience in saying that by killing enemies of Islam, they could avenge the death of Al-Madani. However, the Defense argued that Exhibit- 2/10 is an incomplete document and that the Prosecution did not submit any document to clarify who Al-Madani was, whether he supported the Liberation War in 1971, who killed Al-Madani, or against whom Nizami asked to take revenge. The Defense submitted that the Prosecution failed to clarify these basic elements to accuse Nizami for incitement.

Regarding charge no 13, the Prosecution relied on Exhibit 2/15, The Daily Sangram, dated 9 September 1971. The Prosecution alleged that Nizami stated in a meeting that all members of Islami Chhatra Sangho were fully committed to protecting every inch of their country. It is alleged that Nizami further stated that members of Islami Chhatra Sangho were even prepared to strike on the main land of India to protect Pakistan and urged the authorities to grant permission to the members of Islami Chhatra Sangha in this regard. The Defense argued that there is nothing wrong with these statements and raised questions on how these statements could constitute a charge.

Regarding charge no 14, the Prosecution relied on Exhibit 2/16, The Daily Sangram, dated 15 September 1971. The Prosecution submitted that Nizami urged the Razakars to be fully aware of their holy duties at this time of national crisis by emphasizing verses 111 and 112 of Surah Touba of the Holy Quran. The Defense submitted that Nizami as a Moulana recited verses 111 and 112 of Surah Touba and there is nothing wrong with simply reciting a Surah. The Defense further argued that Nizami did not incite anyone to commit any crime.