Defence Statement: Following the Conclusion of the Appeal Proceedings in the Case of the Chief Prosecutor v. Allama Maulana Delwar Hossain #Sayedee 

On 28 February 2013 the Bangladesh International Crimes Tribunal (“Tribunal”) convicted Maulana Allama Delwar Hossain Sayedee of eight charges of crimes against humanity and imposed a sentence of death by hanging by the neck under for two charges. Like all the cases before the Tribunal, the trial and subsequent judgment were internationally condemned due to the established and widely reported levels of judicial and prosecutorial misconduct and persistent intervention by the Government of Bangladesh to ensure convictions. The Defence argued on appeal that the Tribunal had erred as a matter of law and fact in reaching its judgment and those errors were so fundamental that the only safe conclusion was a complete reversal on appeal. The Defence argued in its appeal that the Tribunal’s findings were so gravely unreasonable that the judgment must be overturned and his conviction be set aside.

It is important to note that the Tribunal stated in its convicting judgment that “Justice in the future cannot be achieved unless injustice of the past is addressed.” This statement is quite right. However, the Tribunal failed to set out the entire quote by the author, J. Peter Pham, in his paper on transitional justice in Africa “Legitimacy, Justice and the Future of Africa”, published in Human Rights and Human Welfare Vol. 5 (2005). 

The quotation is as follows:

“Nonetheless it is clear that the road to a future where the state is not only respectful of its citizens’ basic freedoms and rights and capable of providing them not only security against internal and external threats, but also minimal economic and social entitlements – and, consequently, is accepted by them as legitimate – lies through the past. Justice in the future cannot be achieved unless the injustice of the past…is addressed.”

In its appeal brief, the defence recalled the words of US Chief Prosecutor Robert H. Jackson in his opening address on 20 November 1945 at Nuremberg:
“[…]it [is] hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.”

For the past few months the appeal has been heard before the Appellate Division of the Supreme Court of Bangladesh. The Supreme Court, the highest judicial authority in Bangladesh, was called to rule on a number of contested issues. In particular, the Tribunal, in one of the two charges upon which Sayedee was sentenced to death, found him guilty of abducting and killing Ibrahim Kutti in Parerhat on 8 May 1971.

The Defence appealed Charge 8 on the grounds that the Tribunal failed to consider an important piece of exculpatory evidence, tendered by the Defence during trial, that lends strong support to Sayedee’s contention that he did not commit the crime alleged. This contention is supported by evidence that was disregarded by both the Tribunal and the Supreme Court. This evidence is a certified copy of the initial complaint lodged by Momtaz Begum, the widow of the victim, Ibrahim Kutti, and a certified copy of the charge sheet. This demonstrates that she lodged a petition of complaint before the relevant court in Pirojpur on 8 March 1972. The complaint, in which it is alleged that soldiers of the Pakistani Army and twelve named individuals who were cooperating with the army were responsible for the murder of Ibrahim Kutti, was filed with the Pirojpur Police Station on 16 July 1972. There was even evidence adduced that the Pirojpur police at the time recorded the same in its records as Case No. 9 and on 1 July 1972, it is apparent that the police sent the file to the Court in Pirojpur where it was entered into the court records. Those records were also entered as evidence during the trial.

In the original complaint, Ms. Begum described the incident of killing of her husband Ibrahim Kutti in considerable detail. Not once is Sayedee mentioned and the timeline of the crime according to her complaint is five months later than that alleged by the Prosecution during Sayedee’s trial. While the Prosecution produced live witnesses to prove its case, it is revealing that, despite reports that Ms. Begum is still alive, she was not called as a prosecution witness. It is also critical to recall that there is a substantial time difference between the version of events contained in the initial complaint filed by Ibrahim Kutti’s widow and the case as presented by the prosecution at trial.

The Supreme Court issued an order rejecting the defence application to call for and look into the record of the case filed by Ms. Begum. Insight into the casefile would have undoubtedly demonstrated conclusively that Sayedee had no involvement in the murder of Ibrahim Kutti. It is established practice that the record of the subordinate courts are inspected by the Superior Courts where there are conflicting claims by the parties. The fact that the Appellate Division of the Supreme Court has departed from this time honoured practice regrettably speaks volume.

This is yet another example in a large catalogue that demonstrates the nature of what independent observers have termed a miscarriage of justice. The Tribunal was provided with evidence that clearly exculpates Sayedee from a charge with which he has now been sentenced to death. At the very least, the mere existence of this evidence (discounting the prosecution’s unsubstantiated accusations that they are forged copies concocted by the Defence) casts doubt on the Tribunal’s conclusion that Mr. Sayedee is responsible for the murder of Ibrahim Kutti. It is deeply regrettable that the Appellate Division of the Supreme Court has refused to enquire further.

The second issue concerns the Defence request to admit evidence of a video interview of the witness Shukharanjan Bali and other documents relating to his well-documented abduction from the Tribunal premises. It will be recalled that Shukharanjan Bali was to be called as a prosecution witness to testify firstly that his brother, Bisha Bali, had been killed by persons other than Sayedee and secondly that members of the Investigative Agency and Prosecution had put forward a false statement thereby perverting course of justice. On 5 November 2012 when Shukharanjan Bali was due to give evidence for the Defence members of the Bangladesh law enforcement agencies abducted him on the grounds of the Tribunal. He was held in custody for several weeks and repeatedly tortured and then thrown over the border into India where he remains to this day. Both the Tribunal and the Supreme Court refused to hear evidence concerning this event that clearly demonstrates the case against Sayedee is fundamentally flawed and that members of the Government have conspired to pervert the course of justice.

It is universally accepted in both national and international law that it is the duty, in any criminal case, of the Prosecutor to not only disclose but actively investigate whether there is any evidence which undermines the prosecution case or assists the Defence case. It has been repeatedly argued that the Prosecutors appearing before the Tribunal, and now the Supreme Court, are incapable of discharging their duties professional and independently in circumstances where they, rather than investigate legitimate lines of inquiry that undermines their case, actively attempt to conceal any exculpatory material. It is unfortunately a practice reflecting what has been the norm during these trials, that with such important evidence presented to the judges at the Tribunal in a case where the accused is on trial for his life, the judges have dismissed these concerns as unworthy even of consideration. Whilst there have been serious criticisms leveled at the Judges and Prosecutors at the Tribunal, one would have expected the Supreme Court Justices to demonstrate a greater desire to inquire into the truth.

While arguably no longer surprising, it remains deeply disturbing, despite the Tribunal being repeatedly exposed as inherently flawed and the accused in each of the trials before it denied any semblance of a fair trial, that such matters are still coming to light. In short, the Government of Bangladesh has not only turned a blind eye to justice and a deaf ear to international condemnation in respect of these trials, it has been instrumental in ensuring that those on trial are convicted and executed. After the infamous change in legislation to allow the Supreme Court to impose a death sentence on appeal in the case of Abul Qader Mollah (who has since been executed), a move which attracted a surge of international outrage, and the unprecedented step of attempting to put on trial a political party under a fallacious doctrine of collective responsibility, one may not hold any high hopes of a just result being delivered by the Supreme Court in circumstances where it has been willfully ignorant of upholding fundamental fair trial rights and refuses to entertain any exculpatory evidence or consider any error by the Tribunal in failing to consider such principles.

Sadly, the lack of any meaningful or effective international intervention means that the trials will continue as they have since the start. As a consequence, the international community’s, and that of the Government of Bangladesh, oft-affirmed commitment to its obligations under international human rights treaties and customary international law is starting to sound increasingly hollow.

This is now an opportunity for the Appellate Division of the Supreme Court, the last bastion of protection, to disregard the pressure of the Government and deliver a just verdict thereby acquitting Sayedee and ordering a retrial before an independent and impartial tribunal of law.

Respectfully submitted

#Toby Cadman
Barrister-at-law
Foreign Counsel for Bangladesh Jamaat-e-Islami