Monday, April 21, 2014

Overwhelming Injustice in the name of Delivering Justice: The Case of Allama Delwar Hossain Sayedee

The International War Crimes Tribunal in Bangladesh was set up to try those accused of crimes against humanity in the Liberation War of 1971. Till date, the accused facing trial has consisted of almost the entire dock of the central leadership of Jamaat-e-Islami Bangladesh, the largest Islam based party in the country and key ally in the main 19 party opposition alliance. One of the accused facing trial at the tribunal is Naib-e-Ameer of Jamaat-e-Islami Bangladesh, Allama Delwar Hossain Sayedee, worldwide renowned orator and Islamic scholar.  He was arrested back in 2010, along with other central leaders of Jamaat in a politically motivated blasphemy case and was later accused of war crimes. Like all the cases before the Tribunal, the trial and subsequent judgment of Allama Sayedee 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 International Crimes Tribunal on October 3rd 2011 brought 20 charges against Jamaat-e-Islami Naib-e-Amir Allama Delawar Hossain Sayedee on charges of committing crimes against humanity and others during the 1971 Liberation War. The charges against Allama Sayedee brought under the International Crimes (Tribunals) Act, 1973 are published here in brief:

1. On May 4, 1971, Sayedee as a member of Peace (shanti) Committee carried secret information to the Pakistan army about a gathering of a group of people behind the Madhya Masimpur bus-stand under Pirojpur Sadar and took the army to the spot. The army killed 20 unnamed people by firing.

2. On May 4, 1971, Sayedee along with his accomplices accompanied by the Pakistan army looted goods of members of the Hindu community living in Masimpur Hindu Para under Pirojpur Sadar. They also set the houses of Hindus alight and opened fire on the scared people, who started fleeing from the scene, with 13 people being killed.

3. On May 4, 1971, Sayedee led a team of the Pakistan army to Masimpur Hindu Para, where the team looted goods from the houses of two members of the Hindu community - - Monindra Nath Mistri and Suresh Chandra Mondol - - and completely destroyed their houses by setting them on fire. Sayedee also directly took part in the large-scale destruction by setting fire to the roadside houses of villages Kalibari, Masimpur, Palpara, Sikarpur, Razarhat, Kukarpara, Dumur Tola, Kalamtola, Nawabpur, Alamkuthi, Dhukigathi, Parerha and Chinrakhali.

4. On May 4, 1971, Sayedee and his accomplices, accompanied by the Pakistani army looted the houses of members of the Hindu community and opened fire indiscriminately on them in front of Dhopa Bari and behind the LGED Building in Pirojpur, leaving four persons killed.

5. Sayedee declared publicly to arrest Saif Mizanur Rahman, then deputy magistrate of Pirojpur Sub-division, when the magistrate organised a Sarbo Dalio Sangram Parishad to inspire people to join the Liberation War. On May 5, 1971, Sayedee along with his associate Monnaf (now deceased), a member of Peace (Shanti) Committee, accompanied by the Pakistan army picked up Saif from the hospital where he was hiding and took him to the banks of river Baleshwar. On the same date and time, Foyezur Rahman Ahmed, sub-divisional police officer, and Abdur Razzak (SDO in charge of Pirojpur), were also arrested from their workplaces and taken to the river bank. Sayedee as a member of the killer squad was present there and all three government officials were gunned down. Their bodies were thrown into the river Baleshwar. Sayedee directly participated and abetted in the acts of abduction and killing of those three officers.

6. On May 7, 1971, Sayedee identified the houses and shops of Bangalees belonging to the Awami League, Hindu community and supporters of the Liberation War at Parerhat Bazar under Pirojpur Sadar. Sayedee as one of the perpetrators raided those shops and houses and looted away valuables, including 22 seers of gold and silver from the shop of one Makhanlal Shaha.

7. On May 8, 1971, Sayedee led a team of the Pakistan army to the house of Nurul Islam Khan, where he identified Nurul Islam as an Awami League leader and his son Shahidul Islam Selim as a freedom-fighter to the army. Sayedee then detained Nurul Islam and handed him to the army, which tortured Nurul Islam. His house was then looted and finally set on fire.

8. On May 8, 1971, Sayedee and his accomplices accompanied by the Pakistan army raided the house of one Manik Posari at Chitholia under Pirojpur Sadar and caught his brother Mofizuddin and one Ibrahim Kutti. Sayedee's accomplices then burnt five houses there. On the way to the Pakistani army's camp, Sayedee instigated the members of the occupation force to kill Ibrahim Kutti by gunshot and dump his body near a bridge. On the other hand, Mofiz was taken to the army camp and tortured. Sayedee directly participated in the abduction, murder and persecution of the victims.

9. On June 2, 1971, armed associates of Sayedee under his leadership and accompanied by the Pakistani army raided the house of one Abdul Halim Babul at Nolbunia under Indurkani Police Station and looted valuables from Halim's house. The team then razed the house to ashes.

10. On June 2, 1971, Sayedee's armed associates under his leadership and accompanied by the Pakistan army burnt 25 houses of a Hindu Para in Umedpur village under Indurkani Police Station. At one stage, a victim, Bisabali, was tied to a coconut tree and was shot dead by Sayedee's accomplice.

11. On June 2, 1971, Sayedee led a team of Peace (Shanti) Committee members, accompanied by the Pakistani army, to raid the house of Mahbubul Alam Howlader (freedom-fighter) of Tengra Khali village under Indurkani Police Station. Sayedee and the team then detained Mahbubul's elder brother Abdul Mazid Howlader and tortured him, and looted cash money, jewellery and other valuables from the house.

12. One day a group comprising 15-20 armed accomplices under Sayedee's leadership entered the Hindu Para of Parerhat Bazar under Pirojpur Sadar and captured 14 Hindus, who were all supporters of Bangladesh's independence. The fourteen were then tied with a single rope and dragged to Pirojpur and handed over to Pakistani soldiers, who killed them. Their bodies were thrown into the river.

13. One night, about 2 to 3 months after the war commenced, some members of Peace Committee under Sayedee's leadership accompanied by the Pakistan army raided the house of Azhar Ali of Nalbunia village under Pirojpur Sadar Police Station. They then caught and tortured Azahar Ali and his son Shaheb Ali. The team then abducted Shaheb Ali and ultimately he was taken to Pirojpur and killed.

14. During the final stages of the war, Sayedee one morning led a team of Razakar Bahini consisting of 50 to 60 Razakars, into attacking the Hindu Para of Hoglabunia under Pirojpur Sadar. Seeing the attackers, the Hindus managed to flee but one Shefali Gharami failed to do that. Some members of Razakar Bahini entered her room and raped her. Being the leader of the team Sayedee did not prevent them from committing rape upon her. Sayedee and the members of his team also set fire to the dwelling houses of the Hindu Para.

15. During the last part of the war, Sayedee led 15 to 20 armed Razakars who entered the Hoglabunia village under Pirojpur Sadar Police Station and caught 10 members of the Hindu faith. The attackers then tied all the members of Hindu community with a single rope, dragged them to Pirojpur and handed them over to the Pakistani army. They were all killed and their bodies were dumped into the river.

16. In the course of the Liberation War, Sayedee led a group of 10-12 armed Razakars and Peace Committee members, which surrounded the house of Gouranga Saha of Parerhat Bandar under Pirojpur Sadar. Subsequently, Sayedee and the others abducted three women and handed them over to the Pakistan army at Pirojpur where they were confined and raped for three days before being released.

17. During the Liberation War, Sayedee along with other armed Razakars kept Bipod Shaha's daughter Vanu Shaha confined at Bipok Shaha's house at Parerhat under Pirojpur Sadar Police Station and regularly used to go there to rape her.

18. During the Liberation War, one Bhagirothi used to work in the camp of the Pakistan army. One day, after a fight with the freedom fighters, and at the instance of Sayedee, Bhagirothi was charged with passing information to the freedom fighters and killed.

19. During the war, Sayedee, being a member of Razakar Bahini and exercising his influence over the Hindu community of Pirojpur, converted 100-150 Hindus of Parerhat and other villages and compelled them to go to the mosque to offer prayers.

20. On a day at the end of November 1971, Sayedee got information that thousands of people were fleeing to India in order to save their lives. A group of members of the Razakar Bahini consisting of 10-12 armed forces, under Sayedee's leadership, then attacked the houses of Talukdar Bari at Indurkani village and detained a total of 85 persons and looted goods from there. Of them, all but 10-12 persons were released in exchange for bribes negotiated by Fazlul Huq, a member of the Razakar Bahini. Male persons were tortured and female persons were raped by Pakistan soldiers deployed in the camp.

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. 

As per the verdict, Allama Sayedee was awarded capital punishment for the offenses as listed in charge Nos. 8 and 10. The court refrained from passing any separate sentence of imprisonment for the offences listed in charges Nos.6,7,11,14,16 and 19 which it said had been proved beyond reasonable doubt. At the same time, the accused was found not guilty to the offenses of crimes against humanity as listed in charges nos. 1,2,3,4,5,9,12,13,15,17,18 and 20 and was acquitted from the said charges.

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.

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 real case of Ibrahim Kutti and Allama Sayedee’s innocence:

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.

Chargesheet of Ibrahim Kutti murder

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 case file 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 again shamelessly departed from this time honoured practice regrettably speaks volumes about the government control on the process.

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.

Court’s refusal to enter Sukharanjan Bali’s (brother of murdered Bisha Bali) assertion of Sayedee’s innocence as evidence:

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 heldin 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.

Video: Sukharanjan Bali's original statement asserting Allama Sayedee's innocence before abduction

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.

(1) Defence Statement: Following the Conclusion of the Appeal Proceedings in the Case of the Chief Prosecutor v. Maulana Sayedee by Toby Cadman, Barrister-at-law, Foreign Counsel for Bangladesh Jamaat-e-Islami

1 comment:

  1. accommodating and comprehensive. Thanks for writing such an outstanding piece. It will be considered as a document for all of us. I would also like to suggest u to write down some short notes on every specific controversial issue. I hope we will get such informative writing from you in the upcoming days about all of our leaders. May Allah bless you...