AKM Sirajul Arifin-India
In the second part of the article we will figure out the gross flaws in trial and appeal process and the case study of Maulana Nizami’s trial and appeal which was marred by blatant violations and contraventions.
‘FLAWED’ TRIAL AND APPEALS PROCESS
With the impending executions, Amnesty International issued a statement claiming that the “trial and appeals process of two men Salauddin Quader Choudhury and Ali Ahsan Mohammad Mujahid were clearly flawed”.
Mr. Chowdhury, a national leader of the Bangladesh Nationalist Party (BNP), who had been convicted of nine offences and sentenced to death in relation to four of them. The Supreme Court failed to dismiss the statement of a witness known as ‘PW6’. The witness testified that a person who could corroborate his statement was dead when in fact the individual was very much alive and had even submitted a signed affidavit to the court to prove it. But the Supreme Court did not accept it while PW6 was the only eyewitness to Chowdhury’s presence at the scene of an offence for which he had given a life sentence.
As to Ali Ahsan Muhammad Mujahid, Secretary General, Bangladesh Jamaat-e-Islami, sentenced to death for orchestrating the killing of intellectuals in the final days of the 1971 war, Amnesty’s statement stated: “The Supreme Court failed to dismiss the prosecution’s claim that he had instigated his subordinates to commit human rights abuses, when no subordinates had either been identified or testified on record”.
The criticisms did not go down well with war crimes trial campaigners including Prime Minister Sk Hasina in Bangladesh who mostly support executions and claim the process is fair.
“Amnesty International is an anti-humanity organization.” Imran (H) Sarkar, the head of the one fraction of Gonojagoron Moncho (meaning Mass awakening forum), mainly a group of anti–Islamic atheist, told a public meeting in Dhaka.
Prime Minister Sheikh Hasina suggested that Amnesty had been corrupted. “Surely it got a hefty amount of something for writing such reports. Or else, why they would do this?” she said. She also slammed Amnesty’s comment that “[s]erious crimes were also committed by the pro-independence forces, but no one has been investigated or brought to justice for them”. “This is not acceptable to us that they will [speak] against our freedom fighters,” Hasina stated.
The most significant problem with the Mr. Chowdhury’s trial is the number of witnesses that the defence was allowed to call and the limited time it was given to present its case. After the prosecution had summoned 41 witnesses to prove the 20 offences charged against Mr. Chowdhury, the tribunal allowed defence lawyers to summon only five witnesses. The court stated that this number would be “sufficient to prove the defence plea”. The ICT did not, though, wait until all five witnesses had testified. Rather, it concluded the case after the defence lawyers had called only four of its permitted witnesses, arguing that the defence had failed to bring their witnesses quickly enough to the court. As a result, the defence could not present eight key witnesses, five of whom lived in Pakistan, to support Chowdhury’s alibi. The accused has submitted the evidences that during the 1971 war, he was not in Chittagong, but in Karachi and then Lahore of Pakistan.
The ICT’s restriction on how many defence witnesses can be called is infamous. In the case of Abdul Alim, the prosecution summoned 35 witnesses, but the defence was restricted to three witnesses to disprove 17 offences. Four witnesses were permitted in the case of Motiur Rahman Nizami’s defence relating to 16 charges; Five witnesses were allowed in the trial of Muhammad Kamaruzzaman involving seven offences and six in the case of Abdul Quader Molla in defence of six offences.
RIDICULOUS TRIAL OF MAULANA NIZAMI
Among 16 charges against Maulana Nizami filed by Bangladesh police after 40 years of the incident, the first one was Maulana Kachimuddin murder case. In this charge he has been given life imprisonment based on absolute false charge and more absolute fabricated evidences and false witnesses which had been submitted to the so-called Bangladesh ICT.
The eldest son of slain Maulana Kachimuddin, G.S.M.A Chisti, Habibur Rahman Habib, Mukti Yudha (Freedom Fighter) Commander, Pabna District and Habib’s brother Shahidullah were mentioned as key witnesses of the incident in the charge sheets where Mr. Chisti was mentioned as the eye-witness. But mysteriously the government prosecution did not present him in the court. Only Habibur Rahman was called for witness. In his witness Habib claimed that all the family members of Maulana Kachimuddin, including his elder son Mr. Chisti, had left the country 15 years ago and presently live in the United States. He also claimed that Kachimuddin’s another son and his close friend Mr. Shibli told him about Maulana Nizami’s physical involvement in his father’s murder.
But the truth tells us another story. The eye-witness, as mentioned in the charge sheet, Mr. Chisti lives at his native village where his father was killed in Pabna district till now. Why he was not presented in the tribunal for witness in spite of mentioning him as eye-witness in the charge sheet? The reason is clear that the government was not able to manage Mr. Chisti to speak their own version against Maulana Nizami. Later on in a video interview, Mr. Chisti exposed the truth. “Maulana Nizami was not involved in my father’s murder in any way even though they implicated him falsely. He was not involved,” said Mr. Chisti.
On the other hand, after knowing that Habibur Rahman Habib had given witness in the so-called ICT claiming him as a close friend, Mr. Shibli, another son of slain Maulana Kachimuddin denied any friendship with Habibur Rahman and he also claimed that he never met with him. “Habibur Rahman is five years younger than me and the incident of meeting with him in 1971, as Habib claimed during his witness in the Tribunal is absolutely false. I never met with him.” Mr. Shibli said in a statement published in a newspaper (The Weekly Bangla Patrika) of New York.
Another eye-witness and freedom fighter, Shahid Ali was allegedly offered bribe for giving false witness but he rejected it due to fear of Allah. “They (Investigators) asked me, how many people came to kill Maulana Kachimuddin? I replied two but I did not recognise them. Then the Investigating Officer Abdur Razzak Khan requested me that you just have to tell one lie that Maulana Nizami was present during the killing. But I denied doing so. After knowing that I am a small wood trader, he offered me money for my business but I never agreed. Whatever the investigators wrote in the report referring to me is absolutely false,” Shahid Ali said frankly in a video interview
IS THE TRIBUNAL INDEPENDENT?
As for the trial itself, is it independent when, from bottom to up, all actors were appointed by the government? The investigators, the prosecutors and the judges, all were appointed by the government. Is it right that the judges have an unfettered right to question witnesses and the defence with no right of re-examination after that questioning takes place? Is it right that the tribunal or the act should deny defendants any chance of challenging or making interlocutory challenges to other courts? How is it possible that the defence should be called to prove beyond reasonable doubt the existence of an alibi or any other specific fact in the course of their defence?
Güncelleme Tarihi: 13 Eylül 2016, 14:41
How is it possible that the traditional rules of evidence should be specifically ruled out from the trial that, as stated in the act, the judges may take judicial notice of what is contained in magazines, press reports, newspaper cuttings, and television reports as the evidences? It becomes trial by rumour rather than trial on evidence. And is it right that the prosecution can get away with serving their case papers on the court just three weeks before the trial. So, the fairness of the Bangladesh International War Crimes Tribunals is under a big question mark.