Monday, September 16, 2013

Quader Molla appeal, day 8: Attorney General arguments

27 April 2013
To see previous day's proceedings

The Attorney General started his argument with Rules of Evidence under section 19 of ICT Act. This states:
19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.
He read out the section and then argued, “section 19 needs to be read with section 23' which excludes the applicability of the CrPC 1898 and Evidence Act 1872. 

He then read out the preamble (purpose) of the Act. 
An Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law.

WHEREAS it is expedient to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law, and for matters connected therewith;
Now lets see in respect of charge No. 4 whether the tribunal correctly assessed all these (sections 19, 33 and preamble).

At this stage, Mr Justice S K Sinha asked AG, “Mr AG, a person cannot come before the court without giving testimony to I.O.” 

AG replied, “My lord, this is not applicable in this case.” Mr Justice Wahab Miah then reminded the AG, “Mr AG you are deriving from the tribunal’s judgement.” Mr Justice Wahab Miah further explained to the AG, “Mr AG you are missing a point- the tribunal did not believe PW 7 because he did not tell that to I.O.” However, the AG argued, “My Lords, this is a case of absolutely different nature” but Mr Justice Wahab Miah repied to AG, “We are very much aware of the fact that we are trying this matter as a special court. We know the law i.e. it has excluded CrPC and Evidence Act. You should not undermine this bench.”

AG then started with paragraph 296 of the judgement:
296. First, we find that P.W.7 has made conflicting version as to the fact that accused accompanied the Pakistani army having rifle in his hand. Because, once he claims to have witnessed the accused at the crime site having rifle in hand and then claims to have learnt that a person named Abdul Quader Molla accompanied the gang after they had left the crime site. Which one is true version?
Then he readout a part of PW7’s testimony from part 2, page 387 of the paperbook:
 “Pakistani army opened fire, there was short man with dark complexion wearing panjabi with the army. He also fired. Later on, he came to know that the short dark man was the accused petitioner Abdul Quader Mollah.” 
The CJ and Mr Justice Sinha interrupted him and said, “Mr AG, you have already read out all these before us.

Then the AJ readout paragraph 297 of the judgement:

297. P.W.7 has not even disclosed the source of his knowledge as to presence of accused at the crime site. Next, according to him, he on hearing frequent gun firing from the end of northern part of village started approaching to that end and then he saw the accused Abdul Quader Molla with the Pakistani army. This version does not seem to be natural. Because, normal human prudence suggests that, particularly in circumstances prevailing through out the country, it was not natural for a Bangalee civilian to come forward to a place from which direction the perpetrators were moving with frequent gun firing. Rather in such a horrific situation non combatant civilians were supposed to escape. But P.W.7 claims that he rather moved forward to see what was happening. It is not believable as well.
AG said that 'this is misleading, my lord.'

At this stage, Mr Justice Wahab Miah asked to AG, “Mr AG, what would you do if you were in that situation?” The AG replied, “My Lord, during the war of independence, from my roof top I saw the fighter jets are bombing.” Justice Wahab argued, “that is different” but the AG did not agree with him. AG argued, “it was November, my lord. Mukti Bahini (liberation force) had already been formed then. It was possible for someone to come forward to see what was happening outside hearing the frequent gun firing as it could be fired even by the liberation force. Therefore, it is completely misleading, my lords. Bangalees is not a cowardly nation. It ought not to be mentioned in the judgement.”

He then moved to paragraph 298 regarding the effect of not disposing a fact to I.O. 
298. Next, P.W.7 denied that he did not state what he has narrated here in Tribunal incriminating the accused with event alleged. But it appears that the I.O P.W.12 has stated that P.W.7 did not state all these to him implicating the accused, during investigation. Earlier statement made to IO is not evidence, true. But it is used to contradict what the witness deposes in court. Thus, it appears that there has been a fatal omission in earlier statement made to IO as to pertinent fact relating to culpability of the accused with the alleged event of attack causing mass killing of unarmed civilians which is a ‘glaring contradiction’ in evidence made before the Tribunal by P.W.7 on material particular which has created serious doubt as to credibility and truthfulness of his testimony
[However, the CJ then asked the AG, “Mr AG where is your Additional Attorney General and Deputy Attorney General? You should be assisted by them.” The AG replied, “My lord, the Additional Attorney General has gone to Geneva to attend a conference and the Deputy Attorney General is busy with making submission in a case before the HCD.” He then continued.] 

AG said that 'My Lord, non-disclosure to I.O. has been dealt with by section 162 of the CrPC 1898.'

However, Justice Wahab replied, “Leave the laws. It is common sense. Show me a single International (War Crime) Tribunal which has accepted such.” 

In response to that the AG argued, “my lord this is a domestic tribunal; not international therefore, such reference from other international war crime tribunal is not necessary here.” However, Justice Wahab further argued, “But our tribunal has referred so many international tribunals and referring to the same is not barred by law.” 

Then the AG readout the similar provisions from the governing laws of other international tribunals e.g. Art. 19 and 20 of Nuremberg Tribunal, Art. 13 of Tokyo Tribunal, Art. 15 of Yugoslavia Tribunal.

Justice Wahab said “You see Mr AG, all are drafted in the same language.” However, the AG argued, “A person having rifle in hand in front of rajakar camp- this is enough. Deposing to the I.O. or not is technical. We should remove the technical difficulties according to provision of the similar laws governing other international war crime tribunals. 

After that, the AG brought another issue. He submitted that the court should only consider examination in chief of witness deposition; but not the contradiction which is of course related to the earlier issue (deposing to I.O.). He said: “You see my lords, the PW8 Nurjahan herself said that she saw a short man with dark complexion; later on she came to know that it was Abdul Quader Mollah of Jamat-e-Islami. She came to know that not only from PW7 but also from her father-in-law and some other people. Now lets come to  testimony of PW12 i.e. the I.O. of the case. He said that PW8 did not say that ‘exactly’ he testified it before the tribunal which implies that he (PW8) he told that to I.O. in other way though. Then he moved to where PW12 deposed that ‘this witness did not say this way…but he told to me that…’ she deposed to me that she has heard it from her father-in-law but did not tell me that he has also heard it from PW7 Abdul Mazid Palwan.

After an hour's adjournment, the court resumed.

The AG started his submission reading out s. 19. He also read out rule 53 by ICTB-2 at chapter 6. Mr Justice Mahmood asked to him, “Whether rules made by the tribunal is applicable to us (to follow)?” The CJ explained, “He (AG) is trying to show whether ICT has followed his own rule in this respect.” The AG argued, “My lord, the incident happened 40 years back.” CJ replied, “The statement she (PW7) deposed before the court that should be conjunctive with his earlier statement. If he says whatever he likes in different occasions, what is his credibility then?” 

The AG argued, “here in the law, ‘statement by him’ means ‘statement before the court’; not ‘statement before I.O.’” Hearing this argument by AG 3 out of 6 judges laughed out and Justice Wahab said, “If we accept your this argument then…” Justice Sinha finished the sentence with, “You are trying to tie up our hands!” 

AG replied, “My lord, you cannot shift the credibility.” Justice Wahab replied, “Mr AG, you are shifting from your argument.” Mr Justcie AHM S Chowdhury said: “In the testimony we can see there is an omission by the PW; if there was a contradiction instead of omission (hypothesis) , will your argument would be the same?” The AG then replied, “I have alternative argument as well my lords. Nurjahan (PW8) did not say that ‘exactly’ does not mean she did not say at all.”

At this stage the issue came before the court relating to changing law after the judgement - whether the change is applicable to this accused petitioner. Mr Justice Mahmood referred to a case from 50 Dhaka Law Reports (DLR), “the ‘date of the decree’ is the yardstick”. Thus, can you clarify your position whether the amendment is applicable to accused petitioner?”

Justice Wahab raised another issue, “Under Act, government may appeal against an acquittal; but you please make us clear what does acquittal means here- ‘acquittal of charge’ or ‘acquittal as a whole’. The amendment made after 2 weeks from the date of judgement. Please explain your position regarding this.” 

The AG replied, “I will explain, my lord.” The CJ added, “You need to look at art. 35 of the constitution as well. The AG was looking into his documents to make submission about that but due to his delay, the CJ said, “If you are not prepared on this issue take preparation otherwise there is no point to hear your submission. Now proceed at your own motion.”

AG then continued with his submission, “Now, section 20 (2) (about sentencing) of the ICT Act regarding remedy of the crime in respect of charge No. 5 & 6. My submission is it is clear from the section that if death is not awarded the reason needs to be mentioned which has not been done here.” 

Then he read out the testimony of PW3 Momena Begum:  “You see my lord, what a natural witness!” 

At this stage chief counsel for accused petitioner, Mr K M Hossain realised that the AG has finished his submission regarding charge no. 4 and thus asked the AG, “How can you move to charge nos. 5 and 6 before I give my submission in respect of charge no. 4?” However, the CJ said, “No problem. Let him (AG) make his submission. Whenever you will make your submission he will not interrupt.”] 

Then the AG started to read: “My father came to our housing shouting. I saw him hiding under the bed. The person who hold the collar of my father was Quader Mollah. They slaughtered my mother and sisters; killed my 2 year old brother throwing him to floor. After the war of independence, Akkas Member (of Union Porishod, lowest unit of local government) told me that Quader Mollah has killed your father. Akkas Member is no more alive. His sons are alive.”

The AG then submitted, “You see my lords, her family members have been killed, her sister was raped and killed, her brother was mercilessly killed, she was also raped. She is the only surviving member of his family. The defence could contradict by cross-examining her, but they rather clarified the truth." 

Then the AG read out paragraph 334 of the judgement i.e. court findings and reasoning in respect of charge no. 5. 
334. It has been proved that the horrific event of mass killing of 300- 350 unarmed civilians of Alubdi village was perpetrated by a gang of local Bihari hooligans and their accomplice accused Abdul Quader Molla and Pakistani army. Accused Abdul Quader Molla physically accompanied the gang to the crime site having rifle in hand and therefore he is liable for the atrocious event of massacre in the same manner as if it was done by him alone. Therefore, accused Abdul Quader Molla incurs criminal liability under section 4(1) of the Act of 1973 for the offence of mass killing as crimes against humanity as specified in section 3(2)(a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.
He then readout the ‘verdict of the sentence’ from paragraph 428. 
428. We have taken due notice of the intrinsic magnitude of the offence of murders as ‘crimes against humanity’ being offences which are predominantly shocking to the conscience of mankind. We have carefully considered the mode of participation of the accused to the commission of crimes proved and the proportionate to the gravity of offences. The principle of proportionality implies that sentences must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender. In assessing the gravity of the offence, we have taken the form and degree of the Accused’s participation in the crimes into account.
He argued, “(In this paragraph) the court relied upon and explained ‘principle of proportionality’ but this is not in our ICT Act; what is in our Act is in section 20 i.e. ‘gravity of the crime’. The concept of ‘principle of proportionality’ has been taken from ICTY.” 

He then referred to the provision of punishment in the governing legislation of different ICTs which is as follows: (i) Art. 27 of Nuremberg (at page 11 of their paperbook), (ii) Art. 16 of Tokyo Trial (at page 17), (iii) Art. 23 and 24 of ICTY (at page 24)- ‘individual circumstances of the convicted person’ and here there was no provision for death penalty either., (iv) Art. 19 of Sierra Leon (at page 47) there was no provision for death penalty here as well. According to Art 19 (2), ‘such factor and personal circumstances’ and ‘responsibility of the offender’. The AG argued, other sentence can be given in accordance of our Act but should be reason explaining tha.t but you can see there is no such reason except one line. 

Justice Sinha raised another issue about the punishment. The AG agreed and said, “Yes, it has not been specified as ‘till death’ and how many years to serve in the case of ‘imprisonment for life’.” The AG then read out the relevant provision of the CrPC, although it is not applicable here, where ‘imprisonment for life’ means 30 years of imprisonment.

He concluded his submission saying that “the story narrated by the PW3 (Momena) is so natural. There cannot be more heinous crime. For that reason we are fighting against the judgement.

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