Sunday, March 6, 2016

The food minister, defamatory allegations, and the International Crimes Tribunal

Qamrul Islam, the Food minister
Is it possible for there to be a conversation about Bangladesh's International Crimes Tribunal without one party making baseless arguments and allegations claiming that another party is (a) pro-Jamaati; or/and (b) a lobbyist for the Jammat;  or/and (c) paid by the Jamaat; or/and (d) someone who supports war criminals; or (e) some other combination of the words 'Jammat', 'war criminal', 'lobbyist', and 'money'? In Bangladesh, when one of those parties is writing critical commentary about the process, the answer  to this question seems to be 'No'.

It is this kind of defamatory 'name calling' that prevents the possibility of a civilised and intelligent debate about the proceedings, and is the reason why there are so few people who dare write at all about the Tribunal proceedings from anything other than an uncritically laudatory perspective.

Defamatory name calling has become a very effective silencing technique.

A few days ago, it was, of all people, Chief Justice Surendra Kumar Sinha who was the subject of defamatory insinuations.

It is of course not just people in Bangladesh who have been subject to these defamatory allegations. Amnesty International, Human Rights Watch, The Economist and the New York Times have also been similarly accused.

I mention this now as at a meeting today at the office of the governing Awami League, the Food minister, Qamrul Islam made defamatory allegations against me involving some of those four words. The minister's comments about me are defamatory as the allegations do not have any factual basis. They are totally untrue. Since there is no evidence of any kind to support the allegation, any media repeating such allegation is also committing defamation - and so they should not publish them.

The Chief Justice, Mir Quasem Ali, contempt and the Nirmul committee

Mir Quasen Ali, Jamaat-e-Islami leader convicted
of war crimes during the 1971 war
The Appellate Division of Bangladesh's Supreme Court will on Tuesday, 8 March give its decision on Mir Quasem Ali's appeal against his conviction and death sentence for crimes committed during the 1971 war.

Yesterday, just three days before the decision that will decide the fate of the Jamaat leader - and when the matter was clearly sub judice with arguments having been heard in court just a few weeks earlier - the Ekattorer Ghatak Dalal Nirmul Committee, held a meeting dealing with the on-going proceedings.


Seeking to interfere with ongoing and sub-judice proceedings is a serious contempt of court. That is why people are not allowed to comment when proceedings are active in a court. The proceedings relating to Mir Quasem Ali's were clearly active with a decision to be made in a few days time.

Moreover, as reported in the media, the food minister made comments that apparently sought to interfere with the judgement of the court. Others including Shahriar Kabir, the executive director of the Nirmul committee, former judge, Shamsuddin Chowdhury Manik, and Mumtassir Mamoon also did not hold back in their criticisms of the chief justice in relation to how he has dealt with these ongoing proceedings.

The meeting was triggered by criticisms made during the appeal hearing by the Chief Justice of those who investigated and prosecuted the case of Mir Quasem Ali in the trial court.

The comments made at the meeting all appear to be contemptuous and so will not at this stage be set out in this blog until the court has given its decision on the appeal on Tuesday. The comments can however be read in the Daily Star and New Age

However, it can be stated that the minister sought a re-hearing of the appeal proceedings without the involvement of the Chief Justice.

It will be interesting to see whether contempt proceedings will be initiated against those who organised the meeting as well as those who arguably made comments that sought to directly interfere with the result of ongoing proceedings.

Thursday, December 3, 2015

"915 men were just slain by a flick of one Pakistan officer’s fingers"



*****


One has to wonder who is guiding Pakistan's Foreign ministry these days? 

On 30 November, the  ministry issued a second controversial press statement about the 1971 war where it stated that the Pakistan government:

"rejected [the Bangladesh government's] insinuation of complicity in committing crimes or war atrocities [during the 1971 war]. Nothing could be further from the truth." 
This second statement came in response to the Bangladesh government's criticism of the Pakistan foreign ministry's first statement where it had criticized the executions of Salahuddin Quader Chowdhury and Ali Ahsan Mujahid for crimes committed during the 1971 war.

Let us, for a moment, put to one side everything Bangladesh and the international community has said about Pakistan's role in committing atrocities during the 1971 war and just consider what Pakistan's own military and civilian officers told the Pakistan government's own  inquiry, which was set up in July 1972 and chaired by the Chief Justice Hamoodor Rahman.

The inquiry committee produced an initial report, and in 1974 after the return of Pakistan military officers who had been held in India, a supplementary report was produced after taking further evidence. It was declassified in 2000

The report is primarily - if not solely - based on evidence from these officers, and therefore its conclusions are naturally limited. However, the statements given by these officers, some of which are extracted in chapter 2 of the supplementary report, make very clear that war crimes and atrocities were committed by the army officers. In summary, Pakistan army and civilian officers told the committee:
"Action was based on use of force primarily, and at many places indiscriminate use of force was resorted to" 
"I addressed a letter to all formations located in the area and insisted that loot, rape, arson, killing of people at random must stop" 
"Excessive force was used on that night [of 25th March 1971]" 
"[Officers] took the law into their own hands to deal with the so called miscreants." 
"Miscreants were killed by firing squads." 
"Two officers and 30 men were disposed of without trial." 
"Innocent people were killed by us during sweep operations" 
"17 Bengali Officers and 915 men were just slain by a flick of one Officer’s fingers."

Saturday, November 28, 2015

And what of the trial of the 195 Pakistani officers

Surrender of the Pakistan military to Indian
forces in December 1971


******

On 22 November, the spokesperson for the Pakistan foreign ministry issued the following statement about the execution of Salauddin Quader Chowhdury and Ali Ahsan Mujahid, leaders of the opposition   Bangladesh Nationalist Party and Jamaat-e-Islami respectively, following their conviction of international crimes during the 1971 war that resulted in the independence of Bangladesh. The Pakistan foreign ministry statement said:
"We have noted with deep concern and anguish the unfortunate executions of the Bangladesh National Party Leader, Mr. Salauddin Quadir Chowdhury and Mr Ali Ahsan Mojaheed. Pakistan is deeply disturbed at this development.

As emphasized earlier, we have also been noting the reaction of the international community on the flawed trials in Bangladesh related to events of 1971.

There is a need for reconciliation in Bangladesh in accordance with the spirit of Pakistan, India, Bangladesh Agreement of 9th April 1974. The Agreement calls for a forward looking approach in matters relating to 1971. This would foster goodwill and harmony."
The inappropriateness of Pakistan issuing such a statement was perhaps best captured in the statement given the eminent Pakistani jurist and human rights campaigner, Asma Jahangir, who said (and I paraphrase) that whilst the trials may have been unfair, it was ridiculous for Pakistan to be so concerned about these executions when the government failed to raise any concerns about Pakistani citizens executed in Saudi Arabia, or about its own trials that result in executions. This is how her remarks, that were given to reporters at court, was reported in Dawn newspaper:
“Equal passion, we hope, will be shown by the government” for the people on death row in Pakistan than being hanged elsewhere in the world by denying due process, she said.
She was of the opinion that the hangings in Bangladesh would further deepen the divide and haunt its politics in future. She said that all human rights activists who monitored these trials agreed that due process had not been given to the two accused. 
“We have condemned the unfortunate developments and even given out urgent appeals to the Amnesty International and other international human rights organisations in this regard,” she added. 
But, Ms Jahangir said, Pakistan should first take up the issue of capital punishment through unfair trials here and of those Pakistanis who were being consistently executed in Saudi Arabia and then show disproportionately high passion for the politicians of Bangladesh.
She said the government was only confirming the fact that two men were political agents and working for the cause of Pakistan. Are these two Bangladeshi more important than the people living in Pakistan, she asked. If the answer is in the affirmative, the government should also explain why and what for. 
Ms Jahangir admitted that the two politicians had been executed without affording due process, but regretted that the same right was being denied to the people facing trial in military courts on terrorism charges. 
“We are against the death penalty and unfair trials whether in Pakistan, Bangladesh or elsewhere,” she said, adding that everybody knew that the trial of the two Bangladeshi politicians was flawed, but the role of Pakistan was something which was not understandable. 
“If they (Pakistan government) are against the death penalty or the undue process, they should look into the trials being conducted by the military courts,” she said.
However, one thing was missing from her statement - which would have been very appropriate for her have commented on - was Pakistan's 'obligation' to put on trial its army officers who committed crimes during the 1971 war.

To its credit, in its rebuke to the Pakistan ministry statement, the Bangladesh government did make this very point. According to the government's press statement, the Pakistan government was:
"[R]eminded that it was Pakistan that has systematically failed in its obligation to bring to justice those of its nationals identified and held responsible for committing mass atrocity crimes in 1971, and Pakistan could not escape the historic obligation it owed to the people of Bangladesh as well as to the international community."
What does one mean by Pakistan's obligation to bring to account its officers accused of crimes during the 1971 war?

After the surrender of the Pakistan government's authorities, the Bangladesh government identified 195 Pakistani army officers, then in the custody of the Indian government, who it claimed were involved in war crimes and wanted brought back to Bangladesh for prosecution. There followed desperate attempts by the Pakistan government to prevent this happening - including arresting over 200 Bengalis in West Pakistan who they claimed had acted as spies during the war and announcing that they would be prosecuted and, along with China's assistance, preventing the country's recognition at the United Nations.

In addition in May 1973, Pakistan applied to to the International Court of Justice seeking to prevent the Indian government sending an order from it prohibiting the Indian government handing these officers over to Bangladesh for trial.

So far so good. But what is particularly significant is that during this period, the Pakistan government accepted that they would prosecute the men themselves with trials involving international supervision. So in March 1973, the Pakistan government issued a statement stating that:
"Pakistani government rejects the right of the authorities in Dacca to try any among the prisoners of war on criminal charges, because the alleged criminal acts were committed in a part of Pakistan by citizens of Pakistan. But Pakistan expresses its readiness to constitute a judicial tribunal of such character and composition as will inspire international confidence to try the persons charged with offenses." (emphasis added)
In addition, in its application to the International Court of Justice, the Pakistan government argued:
(1) That Pakistan has an exclusive right to exercise jurisdiction over the one hundred and ninety-five Pakistani nationals or any other number, now in Indian custody, and accused of committing acts of genocide in Pakistani territory by virtue of the application of the Convention on the Prevention and Punishment of the crime of Genocide of 9 December 1948, and that no other Government or authority is competent to exercise such jurisdiction.  ...

(3) That there can be no ground whatever in international law, justifying the transfer of custody of these one hundred and ninety-five or any other number of prisoners of war to "Bangla Desh" for trial in the face of Pakistan's exclusive right to exercise jurisdiction over its nationals accused of committing offences in Pakistan territory, and that India would act illegally in transferring such persons to "Bangla Desh" for trials.

(4) That a "Competent Tribunal" within the meaning of Article VI of the Genocide Convention means a Tribunal of impartial judges, applying international law, and permitting the accused to be defended hy counsel of their choice. The Tribunal cannot base itself on ex-post facto laws nor violate any provisions of the Declaration of Human Rights. In view of these and other requirements of a "Competent Tribunal", even if India could legally transfer Pakistani Prisoners of War to "Bangla Desh" for trial, which is not admitted, it would be divested of that freedom since in the atmosphere of hatred that prevails in "Bangla Desh", such a "Competent Tribunal" cannot be created in practice nor can it be expected to perform in accordance with accepted international standards of justice. (emphasis added)
These are clear commitments on the part of the Pakistan government that it would take the same steps that the Bangladesh government - their  prosecution for genocide. Moreover, they committed to doing so through international standard trials.

In 1974, the Tripartite agreement between India, Bangladesh and Pakistan was signed, in which it was agreed that the 195 Pakistani POWs would be returned to Pakistan, as part of an overall agreement between the three countries. The relevant part of the document reads:
13. The question of 195 Pakistani prisoners of war was discussed by the three Ministers, in the context of the earnest desire of the Governments for reconciliation, peace and friendship in the sub-continent. The Foreign Minister of Bangladesh stated that the excesses and manifold crimes committed by these prisoners of war constituted, according to the relevant provisions of the U.N. General Assembly Resolutions and International Law, war crimes, crimes against humanity and genocide, and that there was universal consensus that persons charged with such crimes as the 195 Pakistani prisoners of war should be held to account and subjected to the due process of law. The Minister of State for Defense and Foreign Affairs of the Government of Pakistan said that his Government condemned and deeply regretted any crimes that may have been committed.

14. In this connection the three Ministers noted that the matter should be viewed in the context of the determination of the three countries to continue resolutely to work for reconciliation. The Ministers further noted that following recognition; the Prime Minister of Pakistan had declared that he would visit Bangladesh in response to the invitation of the Prime Minister of Bangladesh and appeal to the people of Bangladesh to forgive and forget the mistakes of the, past, in order to promote reconciliation. Similarly, the Prime Minister of Bangladesh had declared with regard to the atrocities and destruction committed in Bangladesh in 1971 that he wanted the people to forget the past and to make a fresh start, stating that the people or Bangladesh knew how to forgive. 
15. In the light of the foregoing and, in particular, having regard to the appeal of the Prime Minister of Pakistan to the people of Bangladesh to forgive and forget the mistakes of the past, the Foreign Minister of Bangladesh stated that the Government of Bangladesh had decided not to proceed with the trials as an act of clemency. It was agreed that the 195 prisoners of war may be repatriated to Pakistan along with the other prisoners of war now in the process of repatriation under the Delhi Agreement.
Whilst the terms of the agreement did not state that Pakistan would follow through with its earlier commitments to prosecute these men, it certainly did not preclude the possibility - and it is reasonable to assume that it would do so. As this blog has already noted, the highly respected international lawyer Geofrey Robertson has written about this issue in his recent report on the Bangladesh trials. He states that:
"Notwithstanding the agreements between India and Pakistan in 1972-3, and the Delhi Tripartite Agreement in 1974, and the devious dealings after Mujibur was killed, I can find no evidence in these events that any amnesty binding in law was offered or granted for crimes against humanity committed during the civil war. 
….. Although the Tripartite Agreement made in Delhi in 1974 is often described as an “amnesty”, at least for the Pakistani suspects, it is no such thing. It has been described by historians as “implicitly recognising” that none of the 195 “would ever be tried or held accountable,” but any binding amnesty must be clearly expressed and not merely “implicit”. True it is that Bangladesh agreed to abandon its demand for the 195 prisoners in Indian custody, but it did not thereby abandon the idea of putting them, or others, on trial at some time in the future. There can, in any case, be no amnesty for an international crime like genocide. The deal in Delhi was not a bar to prosecutions, however many years later, under ICTA." (p.47)
In the conclusion of the report Robertson says that Pakistan officers should be amongst those whom a an ad hoc international criminal Tribunal, established by the United Nations, should investigate and prosecute and he goes onto say that
"Perhaps it is time for Bangladesh to seek reparations, in the same or some other forum, for the Pakistan army crimes of genocide that so blighted its birth and its future as a nation."
Whilst there are delicate diplomatic issues that need to be taken into account, the failure of the Pakistan government to re-initiate investigations and commence (if appropriate) criminal proceedings (in a trial involving international involving judges) against those of the 195 army officers who are still alive, remains a huge justice gap in relation to the 1971 war.


Friday, November 27, 2015

Bangladesh government hits back at UN criticism

The Bangladesh government has responded to a statement by the United Nations High Commissioner for Human Rights. Below are both the statements of the UN, and that of the Bangladesh government.

The Bangladesh government in its statement focuses on the adequacy of the International Crimes (Tribunal) Act 1973, as amended in 2009 (rather than the practice of the trials) and refers to an International Bar Association review of the 1973 Act. In 2010, the Daily Star, wrote an article about this. and you can download the whole report here, which is rather more critical of the law than the government statement suggests, though it does indeed contain the sentence quoted by the government: "The 1973 Legislation together with the 2009 amending text, provides a system which is broadly compatible with current international standard”

(You can read more about these issues here and here.)

Here is the UN statement:
The execution in Bangladesh on Sunday of Salauddin Quader Chowdhury and Ali Ahsan Mohammad Mujahid brings to four the number of people hanged following convictions by the Bangladesh International Crimes Tribunal. Mujahid, leader of Jamat-e-Islami and Chowdhury, of the Bangladesh National Party, were sentenced to death by the Bangladesh International Crimes Tribunal on charges of war crimes and genocide. The Supreme Court rejected their appeals on 18 November 2015. 

Saturday, November 21, 2015

10 key concerns about the Salauddin Quader Chowdhury trial process

Wife of Chowdhury visits him in Jail after
appellate court review decision

Post script: Please note that Chowdhury was executed just after midnight on 22 November 2015.
--------------------


This article set out some key points on why Salauddin Quader Chowdhury did not receive a fair trial, and why there are serious questions as to whether he actually committed the crimes for which he now faces execution.


However, before setting these points out, some background is important. 

First it is notable that unlike the Jamaat leaders who have been executed or face execution for similar crimes committed during 1971, Chowdhury comes from a well established elite family, which is extremely well connected, with many family members within the current governing party. So, for example, his second (but very close) cousin is Salman Rahman, the chairperson of one of the large corporate conglomerates in Bangladesh, and an adviser to Sheikh Hasina, the country's current prime minister. In addition Chowdhury is the cousin of Awami League MP, Saber Hossain Chowdhury, though apparently they are not on good terms. Moreover, Salauddin Quader Chowdhury's immediate family has been, and remains, acquainted with the prime minister Sheikh Hasina and her family. 

Second, Salauddin Quader Chowdhury, who had been elected six times as a member of parliament, is a controversial figure in Bangladesh politics. Putting to one side his alleged involvement in crimes during the 1971 war, there are many people who argue that he is a communal figure and that after 1975 committed other crimes for which he should be held to account. He is also known as a rather arrogant and over bearing person, characteristics which were evident at certain points during the trial where he harangued the Tribunal, and sacked his lawyers multiple times. Other than his family and friends, and no doubt a core of supporters, even within the Bangladesh Nationalist Party, where he was a member of the party's Standing Committee, there are likely to be few who will shed many tears.

Third, according to multiple well placed sources, at some point after 1975, he became a key agent in Bangladesh for Pakistan's intelligence agency, ISI (Inter Service Intelligence). During the last BNP/Jamaat government (2001-2006), where he held the position as adviser of parliamentary affairs to the then prime minister, it is also said that he was a key person blocking the Bangladesh government from facilitating Indian companies investing in Bangladesh, including a $3 billion Tata group project. As a result of his ISI role, Indian intelligence agencies are said to be  keen that Chowdhury be executed for the crimes which the Bangladesh courts say he committed during the country's independence war.

Fourthly, there are many people in Bangladesh who are absolutely convinced that Chowdhury committed the crimes for which he has been convicted and sentenced to death. I have heard people, whose opinion one should respect, state adamantly that they 'know' Chowdhury was in Chittagong during the 1971 war and 'know' people who saw him commit these crimes. Nonetheless, I have also heard the exact opposite from other equally respectable people.

So, returning to the main purpose of this article, whilst many people have different opinions about Chowdhury, it is at a criminal trial where one expects to be able to determine the truth about the allegations that he committed serious crimes during the 1971 war. Of course, this can only happen if certain basic standards of fairness exist - and in particular this requires that the defense be provided every opportunity to present its case, allowing witnesses to be summoned and cross-examined.

However there are real concerns about the trial. Although the prosecutors continue to argue that the trial  process was fair, there are the key reasons for arguing that Chowdhury did not get a fair trial and why his conviction are unsafe. It would be interesting for the two prosecutors to respond to the ten points below.

Chowdhury was charged with 20 separate offenses involving crimes against humanity and genocide which took place on multiple dates during the 1971 war. He was convicted of 9 offenses between April and July 1971, and sentenced to death for four offenses which took place on 13 and 17th April, within three weeks of the war.

1. Severe restriction on witnesses
The Tribunal did not impose any restriction on the number of witnesses that the prosecution could summon, and the prosecutors called 41 witnesses. However, the Tribunal only allowed the defense lawyers to summon 5 witnesses, and then it subsequently restricted the defense lawyers to summoning only 4 witnesses. There are two points here. First it is practically impossible for an accused to defende himself against 20 offenses with only 4 witnesses. Secondly, it is clearly totally imbalanced, with the prosecution allowed 41 witnesses, and the defense only 4.
(To read more detail about this, see 'Explaining the missing witnesses')

2. Restricted time provided to make defense case, compared to time provided to the prosecution
Although the Tribunal had allowed the defense 5 witness, the judges stopped the defense from presenting its fifth witness arguing that the lawyers were wasting time. However, whilst the prosecution presented its case over a period of 13 months, the defense were only allowed a total of 28 working days, at which point the Tribunal stopped the defense lawyers calling a final witness. Whilst some of the 13 months involved various defense applications, the Tribunal gave the prosecution over ten times the amount of time to present its case. (To read more about this, see link above: 'Explaining the misses witnesses')

3. Defence unable to summon 8 key alibi witnesses
As a result of the restriction in the witness numbers, the defense were unable to summon 8 witnesses (5 of whom were from Pakistan) - who the defense lawyers were intending to call to support its alibi that Chowdhury was not in Bangladesh at the time the offenses were committed. Even though during the trial, copies of affidavits from these witnesses were submitted to the Tribunal - and so the court would have been aware of the relevance of the evidence that these witnesses would have given had they testified in court - the court did not reconsider its earlier restriction of the number of witnesses.
(To read what these witnesses would have said, read this 'The missing 26 witnesses')

4. Defence unable to summon 20 Bangladeshi witnesses
In addition, the defense were also unable to summon Bangladeshi witnesses. For example, in relation to the four offenses for which Chowdhury was sentenced to death, there were 20 witnesses whom they would have summoned had they been able to do so - each of whom would have provided evidence that questioned key elements of the prosecution case for all four of these death sentence offenses. Again, at the time that the affidavits were submitted to the Tribunal, the court would have been aware of the relevance of the evidence that these witnesses would have given had they been allowed to testify in court, but the court did not reconsider its earlier restriction of the number of witnesses. (To read more about this, see link above: 'The missing 26 witnesses')

5. Tribunal judgement not refer to the affidavits submitted
In the judgement of the trial court, the Tribunal did not mention the 'affidavits'* at all.
See judgement

6. Without evidence, Appellate Division ruled that defense lawyer manufactured six affidavits
Unlike the Tribunal, the appellate division did consider the affidavits during the appeal. However, in its judgement the court ruled that a UK lawyer representing Chowdhury had 'beyond doubt ..... manufactured’ six affidavits ‘to save his client Salauddin Quader Chowdhury’ though it provided no evidence to support such a conclusion. The lawyer himself stated that he rejected the allegations 'in their entirety. They are unwarranted and unsupported by any credible facts.' He went onto say that, ‘If the Court was concerned as to veracity or legitimacy of the statements they could have easily called any of the witnesses to give live evidence where their statements could have been tested in an open adversarial process.’

7. Appellate Division rules affidavits inadmissible on technical grounds, though law specifically states that the Tribunal shall 'not be bound by technical rules of evidencd'
The appellate judgement also ruled that there were a number of technical problems with the affidavits - in how they were notarized, in that they did not have a seal of a Bangladeshi counsel etc - which meant that they could not be considered by the court. However, the court did not consider section 19(1) of the International Crimes (Tribunal) Act 1973 which states that "A Tribunal shall not be bound by technical rules of evidence." Moreover, if the appellate division had doubts about the technical aspects of the affidavits, the witnesses themselves could have been summoned to the court.

8. Appellate Division refuses to call 8 alibi witnesses on basis of incorrect rationale
As part of its subsequent application seeking a review of the appellate division's decision (which had upheld the trial court decision), the defense asked that 8 alibi witnesses, who had not be able to testify earlier, be summoned to the court, or that if the court would not agree to summon the witnesses, then it would admit as evidence the videos of the witnesses reading out their affidavits which it had submitted.  

The court however declined to do this, stating that 'if [Chowdhury] had at all underwent education in Punjab University, he could have produced authentic documents from the University concerned.'

However, the offenses for which he was sentenced to death took place in mid-April, at which time Chowdhury claims he was in Karachi, not at Punjab university in Lahore. He has only claimed to have been at Punjab University between May and August 197.  So the issue of the certificate is not relevant to these offenses.

However, most of the witnesses which the defense had wanted to summon were specifically relevant to Chowdhury's presence in Karachi during the days when he is said to have committed the four death penalty offenses. It is therefore not clear why the Appellate Division refused to call these witnesses on the basis that he had not been able to get a copy of his certificate - as the witnesses and the certificate relate to different parts of Chowdhury's alibi in 1971.

9. Non-admission of university certificate, without seeking clarification from university authorities.
The defense, finally, filed a duplicate copy of Punjab university certificate, with the court. In addition, the lawyers filed (a) a copy of the certificate attested by the chancellor of the university, its registrar, and the head of the department of political science; (b) an attested statement written by the registrar about the genuineness of the statement, along with an offers to provide any other assistance and (c) a video of the registrar reading out the statement.

The court however claimed that the certificate was 'forged' - though this would have required a conspiracy involving senior members of the university who had attested the certificate, and there was no evidence that they were involved in such a forgery. The appellate division did also raise some other issues about the certificates which they argued suggested that the certificate was a forgery - but the court came to this conclusion without seeking any clarification from the university authorities who would have been the right people to clarify their concerns.
To read more about this, click here: 'Was the certificate forged?'

10. The accused must prove his innocence
For the defense of alibi in relation to international crimes, the law as decided at the international tribunals is that there is no burden upon the defense to prove the alibi, but rather the prosecution must 'eliminate the reasonable possibility that the alibi is true'. This reflects the general criminal law principle that the prosecution must prove its case beyond reasonable doubt. However, the Tribunal judgement (para 247) stated that in relation to Chowdhury: 
'(1) Onus is entirely on the accused to prove the plea of alibi.
(2) The defence is to prove affirmatively that during the War of Liberation in 1971 the accused was continuously staying in West Pakistan since 29 March to 16 December,1971.
(3) The defence is to prove that the accused was not present in Bangladesh in 1971, at the time when the occurrences took place in Chittagong.
This principle was affirmed by the appellate division, when it stated 
"The plea of accused’s undergoing educational study in West Pakistan during the relevant times in 1971 being the sheet anchor of the case must be proved beyond doubt."
In effect this required Chowdhury to prove that he was innocent - which is against the very basic principles of criminal law. In fact not that he must prove that he was innocent, but do so 'beyond doubt' which is an even stricter test than the burden on the prosecution to prove its case, which is 'beyond reasonable doubt'

------
* The judgement does refer to 'documents', though not clear whether this also meant to include 'affidavits'. If so, the judgement stated that affidavits not properly admitted as evidence

Friday, November 20, 2015

Was the court right to rule that Chowdhury's university certificate was a forgery?

On Wednesday, November 18, the appellate division declined applications made by Salauddin Quader Chowdhury and Ali Hasan Mohammed Mujahid to review the court's earlier decision to uphold the sentence of death originally imposed by the International Crimes Tribunal.

There are no more legal avenues available for the two men, and unless they seek presidential clemency - which is highly unlikely - the timing of their execution now depends only upon the government and the jail authorities.

In recent days, former US Ambassador for Global Justice and human rights watch have both strongly criticized Bangladesh courts in the way that they have dealt with these two cases, in particular in dealing with Salauddin Quader Chowdhury.




This is the first of a number of articles about the trial and that appeal process that resulted finally in the courts decision yesterday.

This particular article considers the issue of the court's decision on Wednesday to rule that a certificate of graduation from the University of Punjab, filed by the defense, was a 'forgery'

1. How does the university certificate fit into the trial?

Chowdhury's key defense was that he was not in Chittagong during the whole of the 1971 war. He had sought to prove this in two ways.

First through eye witness testimony of those who took him to the airport at the end of March 1971,  people who met him in Karachi in the first few weeks of April 1971 including the person in whose house he stayed, and then witnesses who met him in Lahore during from the end of April to August 1971 again including the person in whose house he stayed.

Secondly through proof that he studied at Punjab university, that he took an exam at the university in August 1971 and obtained a degree certificate.

2. What happened to the defense witnesses?

As has been written previously in this blog, the Tribunal restricted the number of witnesses the defense could summon to five, and then to only four. So whilst the accused was able to summon three witnesses that supported his alibi testimony (the fourth witness was Chowdhury himself), he was not able to summon eight specific witnesses who could have provided further testimony in support. (To access the evidence of the three witnesses that did give evidence, read this article) It should be noted that Chowdhury was accused of 20 separate offenses, and the prosecution had called 41 witnesses.

3. And what about documentary evidence that he had been admitted at the university? 

In relation to the certificate, during the trial, the defense submitted (along with other affidavits) a letter dated 24 January 2011 from the  Department of Political Science of Punjab university, and signed by its chairperson, Dr Umbraid Javeed (download here). It stated:
"This is to certify that Salauddin Quader Chowdhury s/o AKM Fazlul Quader Chowdhury, class roll no 172 remained a student of (BA Hon) (Political Science) who secured 233/500 for the academic session 1970/71. He appeared in BA (Hons) Final Examination in August 1971."
Following the submission, the Tribunal passed an order which stated:
'It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial. Despite of this fact, for the ends of justice, we are inclined to give permission to the defence to submit additional documents and accordingly the defence is permitted to submit the additional documents as mentioned in the application and those documents be kept with the documents filed earlier by the defence.’
It is not entirely clear what the Tribunal meant by this - other than simply stating that it had received the documents. In its actual judgement the Tribunal dismissed the documentary evidence:
‘The defence in violation of the provision of section 9(5) of the Act submitted some documents before the Tribunal at the fag end of defence argument and intentionally refrained from proving those documents by recalling defence witnesses.’
4. And what happened at the appeal?

Following the appeal arguments, the judgment of the court did not explain its views about the letter from the chairperson of the university. It argued, however, that, "No explanation has been given why the accused could not bring any duplicate certificate from the University. If he could collect the affidavits, a testimonial from a teacher, what prevented him to collect a duplicate certificate from the University is not clear to us.". The full extract is below.
"It is interesting to note that though the accused could file a duplicate copy of his Higher Secondary Examination Certificate, he did file neither the original nor any duplicate copy of the certificate from the Punjab University. He claimed that he had successfully completed his graduation from the Punjub University and then had his higher education from Lincoln’s Inn. He filed a testimonial alleged to have been issued by Dr. Umbreen Javid of the department of political science, University of Punjab on 24th January, 2013. No explanation has been given why the accused could not bring any duplicate certificate from the University. If he could collect the affidavits, a testimonial from a teacher, what prevented him to collect a duplicate certificate from the University is not clear to us. The testimonial shows that he appeared BA honours final examination in August 1971 and that he scored 233/500 for the academic session 1970-71.

It is to be noted that if there are oral and documentary evidence on the same subject, the documentary evidence will prevail over the oral evidence. Accused Salauddin Qader Chowdhury’s basis of alibi plea is that he had studied at Punjab University, where he had completed his Bachelors of Arts (Honours).

Considering the above facts, we are of the view that the plea of accused’s undergoing educational study in West Pakistan during the relevant times in 1971 being the sheet anchor of the case must be proved beyond doubt. The accused has utterly failed to prove the same."
5. And did anything change at the review stage?

As part of its review application (to exactly the same court which had ruled in the appeal), the defense lawyers had filed an application requesting that 8 alibi witnesses, who had not been able to testify at the tribunal (see above), should be summoned to the court. This application was denied. In court the chief justice said, "You were able to get all these affidavits from all parts of the worlds and yet you were not able to get a copy of the university certificate." In its written order, given later, the court stated:
This Division rejected the same by order dated 2nd November, 2015, on the reasoning that if he had at all underwent education in Punjab University, he could have produced authentic documents from the University concerned.
 Following this decision the case was adjourned to 17 November.

6. And then what happened?

On 16 November, Chowdhury's family then filed an application to admit as additional evidence a number of documents relating to the certificate.
A. A duplicate copy of the certificate
(click here to download plain certificate taken from filed application
B. A duplicate copy of the certificate attested by Vice chancellor of the University, the registrar of the university, the chairperson of the department of political science of the university and the Deputy Director (Attestation) of the Higher Education Commission, Lahore.
(click here to download attested certificate taken from filed application
C. An attested letter from the registrar video of the registrar in which she says:
This is to certify that Mr Salauddin Quader Chowdhury s/o AKM Fazlul Quader Chowdhury was a regular student of the Department of Political Science of the Punjab, Lahore for the academic session 1970/71. His university examination roll number was 170 and his department of Political science enrollment was 172.
The university is willing to provide any other documents necessary to support this matter other than the verified document attacked by my office. For further information on this matter please feel free to contact us office of the undersigned.
          Click here to download copy of attested letter 
D. A video of the registrar in which he states the following:
I am Doctor Liaquat Ali. I am presently the registrar of th ePunjab University, Lahore and have issued a certificate which reads that:
To Whom It May Concern
This is to certify that Mr Saldduin Quader Chowdhury was a regular student of the Department of Political Science, University of Punjab, Lahore for the academic session 1970-71. His university examination rol number was 170 and his department of Political science enrollment number was 172. The university is willing to provide any other documents necessary to support this matter other than the verified document attacked by my office. For further information on this matter please feel free to contact us office of the undersigned.
I have also atteted and verified the copy of the degree issued to Mr Saluddin Quader Chowdhury, if anyone required to see the documentation regarding the admission, graduation, examination and issuance of the degree the record is available in my office. Thank you for the questions I ma happy to answer the questions.
In its application in court the defense lawyer pointed out that the university was willing to provide any assistance to the court to verify the documents, and also said the prosecutor can take any steps necessary also to verify the documents

7. What did the appellate division say in response to these document?

The appellate division rejected the application. In its written judgment the court found that the certificate was 'spurious' and 'forged'. The court gave the following reasons why it believed that it was forged:
A. The duplicate certificate was issued on 22 May 2012, but the defense did not lodge the certificate at the time of trial, at the time of appeal or at the beginning of the review application.
'We fail to understand why the petitioner did not produce this certificate before the tribunal or in the appellate Court in course of hearing of the appeal, although he had filed good number of documents which he procured in 2013. If he could produce those documents, there was no reason for him not to produce these duplicate certificates.'
B. The certificate states that the academic session was '1971' and not 1968-71
'In these certificates the academic session has been mentioned as ‘1971’. Learned Attorney General pointed out that if the petitioner had at all studied at Punjab University in honors course, his examination allegedly held in August 1971 his academic session ought to have been 1968 - 1971, inasmuch as, the honors course during that period was for three years.'
C. Chowdhury did not produce any paper showing that he had transferred his credit to Punjab university.
'Learned Counsel submitted, the petitioner studied at Dhaka University earlier and then he transferred his credit to Punjab University in 1971. In support of this claim, the petitioner did not produce any paper. Therefore, facts reveal that in May, the petitioner admitted to Punjab University in honors and obtained graduation in August in political science from the Punjab University which is totally an absurd story to believe.'
D. The certificate was not certified by a Bangladesh government representative.
'Further, the authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan.'
In court the chief justice also said that Pakistan is a hostile country and has criticized the war crimes tribunal, and so any documents coming from Pakistan can not be trusted.

8. How should one assess the court's decision?

The following points can be made about the decision by the court
A. If the document is forged, who forged it? The court's decision assume that there must be a conspiracy involved in the forgery including the Chancellor of the university, the registrar of the university, the head of the political sciences department, and the Deputy Director (Attestation) of the Higher Education Commission, Lahore. However, the court has no evidence to support any such conspiracy
B. The court emphasized in its claim that the certificate was forged that the certificate had been made available in 2012, but was not  produced before the court until 2015. This is a perfectly legitimate query. However, if the document was forged, it makes no sense why the forgers would put the date of May 2012. 
C. The defense lawyers did in fact provide in its written application an explanation as to why this certificate was not filed earlier. They say that they had filed a letter form the head of the political science department with the Tribunal, and the Tribunal did not at any point, including in its judgment, suggest that a copy of the certificate was required. 
D. The issue of whether or not the defense lawyers should have submitted the document earlier is a different one from whether the document is genuine or not - but the court conflates those two issues. The defense may have been negligent in failing to file this certificate earlier, but the certificate can still be genuine. However the court suggests that the document must be false because it was not submitted earlier.
E. As to why (i) the certificate has '1971' written on it and not '1968-71' and (ii) as to how it was possible for Chowdhury to attend the university in April and take the exam in August are questions for the university authority to answer, and not one you would expect the court to decide upon itself without hearing what the university authorities had to say on the matter. The Attorney General and the Appellate Division are not experts on such issues and one would imagine, particularly with the life of a man hanging in the balance, the court need to obtain an explanation from the university authorities before coming to these conclusions.
F. As to the lack of attestation by the Bangladesh High Commission in Bangladesh, there are two issues. First, it is clear that no Bangladesh High Commission would have attested such a document. Secondly, the International Crimes Tribunal Act 1973 makes clear that technical rules of evidence should be ignored - and the prosecution have taken great advantage of this in the past. So why not the defense?
9. So what does it all mean?

The key issue here, is that the appellate division put a great degree of emphasis on the absence of the university certificate in its appellate division judgment and also in its initial hearing of the review application, as to why the Chowdhury's alibi cannot believed. As a result, the defense lawyers then filed with the court a duplicate copy of the certificate. 

Of course the appellate division is perfectly within its rights to view this certificate with suspicion, but one would expect - particularly given that a persons life is on the line, and that the trial court and the appellate division court itself has declined to hear a series of alibi witnesses -  that before the court made any conclusive judgments about the certificate's authenticity it should make a proper examination of the certificate by calling, if necessary witnesses, from the university. 

It is also notable that the court has previously made claims that documents have been manufactured, without any actual evidence and when it has been strongly denied by those involved.