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Bangladesh Chief Justice lambasts at incompetent prosecution of Mir Quasem Ali
Wednesday, 24 February 2016

APPEAL HEARING PROCEEDINGS 23.02.2016

09:05am- court proceeding started and all the judges took their seats.

09.05am- The appeal of Mir Quasem Ali (MQA) was item no.2 of the Cause list and was fixed at 11.30am.

CJ – the bench officers erroneously mentioned in the daily list that the matter would appear at 11.30am. In fact the appeal will be heard now.

(But none of the counsels for Mir Quasem Ali were in fact present in the court. The court had to take up other matters and inform the Appellant’s counsel. Later on this appeal was taken up for hearing at 10.20 am in presence of the Appellant’s counel).

The Attorney General (AG) submitted a written argument on behalf of the prosecution.

10.20 am: the AG started argument on Charge 2 where the alleged victim is the sole witness in that charge and concluded the argument at 10.50 am.

10.40 am

CJ: your responsibility is to prove the case; why you could not find anyone in the whole Chittagong except PW-20 for charge-2. There is no corroboration of PW-20. Why do you handle all these cases half heartedly?

AG: It is not a half hearted case my lord. One witness is enough for conviction.

CJ: The present time is in your favor. You cannot say that the witnesses did not come forward to testify. What prevented the investigation agency to produce sufficient witnesses to prove the charges? The incidents took place in brought day light. Now your government is in power. If you wanted you could definitely have given protection those witnesses.. When there is possibility of presence of other witnesses, rule of law says, they should be brought to testify. We believed on witness in a charge Abdul Qader Molla’s case. But that was a different scenario.

AG: PW-20 is victim of this charge and sufficient for conviction in Charge-2.

CJ: why didn’t you bring other witnesses? What the prosecution and investigation agency did? They only ride expansive cars; they get fees that are three times higher than the salary of a high court judge. Is that all only for these nonsense and making fun?

AG: My Lord you have already blamed the prosecutors and investigation in Allama Saydee’s Appeal judgment.

CJ: These people and some other person do politics with these trials. Why do they need that many prosecutors? How many investigation officers they need? At least 50% of them are not competent. We made observation in the Sayedee Appeal Judgment. But you have not yet taken any action against them.

AG: We have recently sacked one prosecutor.

CJ: You cannot leave everything upon our shoulder. The prosecution and the Investigation Agency need to produce sufficient evidence to support a conviction. They are enjoying all the benefits from public fund and yet they are presenting cases in this standard. We feel really ashamed when we read the prosecution evidences.

CJ: They are wasting public money and resources? Why won’t they do their jobs?

AG: my lordship is absolutely correct but you must make sure that the accused must not get away.

 

CJ: How do you deal with these trials and how do you carry out investigations, we are shocked to see this. Shouldn’t you bring even a single witness for corroboration? What the prosecution had done? There was huge possibility in that case to bring corroborative witnesses. Some people do politics using the sentiment of war crimes trials; they don’t care about the procedure under which the trail is going on. It hurts us a lot to hear this kind of appeals.

AG – the Appellant is a powerful and wealthy person. He might have intimidated the witnesses.

HJ(3) There is no corroboration at all, there is no evidence of intimidation of witnesses.

CJ: When law says you have to prove beyond reasonable doubt then is that enough to adduce a sole witness. When we see these cases we feel shame to see how these cases are being conducted by prosecutions. You and prosecution always give responsibility on other people. Investigation Officer (IO) has given no explanation in this case, why do you keep that incompetent officer?

AG: Many things happen. Even your (Appellate Division’s) today’s cause list is changed. Though you wanted this case to hear in morning – but some how the list says that the hearing to commence after the recess at 11.30 am. This appellant is one of the most influential Person, a “money” man. What can’t you get with money?

CJ: we are justices; we will see black and white, what is there in papers, what is there in evidences. But they are doing some funs in the name of war crimes tribunal. The prosecution is wasting people’s money; they don’t even take any information of the trial going. They only come to the television and Medias to show their faces……. Ok go ahead… keep reading…

AG: when you do speak like this then we get scared that culprits (accused) might escapes punishments.

CJ: We have so many objections, if you can’t bring witnesses. You have your government in power, you have everything. We are shocked, the way the prosecution and investigation agency had handled this case.

 

AG: My lord, my point is if want to give any observation in your judgments about these weaknesses, give as much as you can…. but do not give any benefit to the Appellant. He should be punished.

11.00am- The court went for recess for 30 minutes.

11.30am- Argument resumed again.

11.32am–

AG started reading arguments on charge no 3. AG said because of these war crimes trials, the whole nation is getting rid of its burden.

11.33am-

CJ: you said the nation is getting rid of its burden but these PWs regularly appear before the media to show up their faces. This is not their purpose. You said that it is national pride that these people are on trial but you failed to produce any credible evidence for this.

11.34am-

AG started reading examination in examination in chief of PWs.

11.50am-

HJ(3) – do you have any documentary evidence to show that the Appellant was in Chittagong when this alleged offence of abduction took place on 22/23 of November because according to newspapers you submitted he was delivering speech in Dhaka on 23rd November.

AG – it is not hard to move from one place to another place.

HJ(3) Is there any evidence to show that he was not in Dhaka but in Chittagong?

AG: It is possible to make statements to media from anywhere.

CJ: the state of transport and communication in 1971 was not same as it today. In 71 it was not possible to make any statement from anywhere as it can happen today. From my own experience I can say when we used to come to Dhaka from Sylhet I found so many impediments during the journey. The bridges/culverts were destroyed by freedom fighters. The Communication was totally disconnected.   The electronic communication was not that powerful as it today. One could not make a statement from one place when he was in another place. The air travel between Dhaka and Chittagong were also disrupted in November-December-1971.

CJ: why didn’t you prefer appeal against this charge when 7 years imprisonments are awarded? It could have been a life imprisonment. We are very frustrated to see how you handle these cases half heartedly. We are very disappointed to see that you are using these trials out of your political benefits. These trials are being used for political interests.

AG – I seriously object to this comment. The opposition political parties are making these comments to discredit these trials. The press is present in court. They may pick up your comments and make a big issue.

CJ – No this is conversation between you and me. The press should not report them.

HJ (3) -do you have any specific documentary evidence to show that the appellant was not in Dhaka but in Chittagong at the relevant time. The prosecution didn’t give any explanation as to how he could be in Chittagong while the newspaper shows that the statement was made in Dhaka.

AG – he could have made these statements from Chittagong, I will explain this later on.

CJ: (with a very annoyed mood) – what are you saying does not look convincible at all. Tribunal gave stereotype judgment 7 years in most of the charges, why didn’t you prefer appeal against the sentences? It is utterly frustrating that you are dealing with these cases half heartedly.

12.05am-

AG started reading arguments on charge no 4.

12.07am-

AG started reading arguments on charge no 6.

 

12.15

CJ: Remove this Investigation Officer (IO). They should be punished for dealing with this case half-heartedly.

AG – my lord our tribunal and our judgments are so unique and even better to some extent from that of other ad hoc tribunals like Sierra Leone, Rwanda.

CJ: but we are very frustrated to see how the prosecution is conducting these cases.

AG – My Lord it is because of the Investigation agencies.

CJ: I understand but why the prosecution is not supervising them.

CJ: He is only the one but you all are here, which is more than enough. I think 80 percent of prosecution people are incompetent. And we are very frustrated to see your evidences Mr AG.

AG: My Lord please try to feel the pain of those victims who were tortured to death.

CJ: I understand the pain but how they are conducting the cases are not acceptable at all. Please remove these worthless people from there.

AG: My Lord the appellant has invested a lot of money and appointed lobbyist for making propaganda against trials. He can influence many other concerned persons.

CJ: He could not appoint any lobbyist in the Supreme Court of Bangladesh. We are getting hurt by this. People’s money is being wasted for this.

12.18 – AG started reading arguments on charge no 7.

12.25 – AG started reading arguments on charge no 9.

12.37am-

CJ: You said PW 1 is victim in Charge-9. He was not shown as victim of this charge.

AG: But his deposition shows that he is victim of Charge-9.

CJ: He is not in the charge. We are finding so many flaws in your case. It’s painful to see how you deal with these cases. It hurts a lot. Go ahead.

12.40am-AG started reading arguments on charge no 10.

12.45am- AG started reading arguments on charge no 11 (death sentence).

AG referred to the book called ‘sei somoyer anondo bedonay’ and started reading the introduction of the writer Advocate Shafiqul Alam.

CJ -is he alive?

AG – no he has died in 2006.

AG continued reading the introduction of Advocate Shafiqul Alam.

12.50am-

AG: in reference to the defense suggestion of prosecution witness that he never knew the said Advocate Shafiqul Islam, AG started reading from the book to show that Adv Shafiqul Alam believed in leftist ideology. AG said most of the intellectual who were killed in Mass Graveyard including Dr Alim choudhury, Altaf Mahmood etc were the followers of the leftist ideology. And PW was also involved in leftist politics so they are likely to know each other.

CJ: Go ahead.

1.00am-

While reading and arguing the disposition of PW 17, AG said she didn’t know that there was a tribunal sat up in 1971 to try the local collaborator. He further said in pointing to lead Defense counsel Khodokar Mahbub Hossain (KM) that she might not known Mr Hossain.

1.10am-

CJ said did you notice that what the AG said they have proved the case more than it deserve. Because if you look at the major change took place in last 45 years that Mr Khondokar Mahbub Hossain (KM) was for the prosecution in 1971 but now he is in side of the defense.

KM – I was for the prosecution in 1972 and the appellants’ names were not there it was a creation of this government out of political benefit.

1.15am- Court adjourned for next day.

(Senior Advocate Khandker Mahbub Hossain, Advocate SM Shahjahan and Barrister Tanvir Ahmed Al-Amin were present as counsels for the Appellant).