By David Bergman
If the prosecutors – and in particular the prosecutor Tureen Afroz, who seems to be spearheading these efforts – have their way, there will soon be more contempt cases than actual prosecutions in Tribunal 1.
The most recent application relates to a TV program broadcast on 18 September on the show Muktobaak, and comments made about the trial of Salauddin Quader Chowdhury, whose judgement is actually being given today.
And it is the comments of two guests about which the prosecutors are concerned.
About these comments, the prosecution claimed:
‘The statement made in the said talk show is biased, baseless, utterly false and fabricated, ill motivated and is not made in good faith.
It goes onto say:
‘Such statement was made only to scadalise this Hon’ble tribunal and its process (by exercising its independent judicial functions and also fair trial) and to undermine the confidence of the people in the integrity of this Hon’ble tribunal and its process.’
It will be for the tribunal to decide whether contempt has been committed here. My purpose here is simply to consider whether the statements are ‘baseless, utterly false and fabricated’.
In its order in response to the application, it was reported that the tribunal stated that the men made ‘false and fabricated statements on subjudice matter … providing ‘reasonable grounds to draw up contempt proceedings against the eight respondents.’ It is not clear from the reports of the order pf the court (I have not seen the full written order) what it considered ‘false and fabricated’.
(I have already in my sister blog. which focuses entirely on the war crimes trials, written about the prosecution’s difficult relationship with ‘facts’ and the ‘truth’ in the context of its application concerning an application by Human Rights Watch)
On this occasion, the comments in question were made by the two guests: Dr Zafarullah Chowdhury, a particularly respected member of the country’s civil society, and founder of the Gonoshasto Kendra Trust, and Mahfuz Ullah, Secretary General of the Centre for Sustainable Development.
In the prosecution’s application, three excerpts of the programme are highlighted – the first two are said by Zafarullah, and the third by Ullah. The English translation of these extracts, set out in the application itself, is as follows:
‘Today Saluauddin Quader Chowdhury, we have known forever, I believed that as well, he was not here that is true, whatever he produced four defence witnesses, one of them was our Salman, another was a sitting justice. He [Salauddin Quader Chowdhury] relied on the testimony of a sitting judge of the Honorable High Court and he [the judge]was willing to testify, he submitted his application, he sought the permission to our Mojammel Hossain [Chief Justice] and permission was not granted, and a former high commissioner testified and he was heard. What will be the result of this? The doubt will remain within the people. Law says that ten accused persons be released, lest an innocent gets punished
And Zafarullah continues
‘I hate Salauddin Quader Chowdhury with all my heart. This man is claiming that he was not here in 1971. He wanted one Justice Hosnain as his defence witness. Why this justice was not given permission to appear as a defence witness. If he is not allowed whether that will not hurt the natural justice?
And Ullah states:
And the question that is raised by Zafarullah Chowdhury is that he [Salauddin Quader Chowdhury] submitted the names of four defence witnesses which were allowed in other cases, but not allowed in this case. That is why he [Dr Zafarullah Chowdhury] is saying that these questions are being repeatedly raised.
Now lets talk about what is factually true and what is not.
Zafarullah’s two excerpts basically state the following: Salauddin Quader Chowdhury claimed that he was not in the country at the time. He wanted a judge, Justice Hosnain to testify to support this claim. This particular judge was wiling to testify. The judge asked the permission of the chief justice to so do. Permission was not granted.
The prosecution claim that this is ‘baseless, utterly false and fabricated.’
However, this set of facts seems to be entirely correct.
On 22 July 2013, Justice Shamim Husnain did write a letter to the chief justice asking whether he would be permitted to testify to the tribunal.
The letter, a copy of which is in my possession, stated:
“I have learned that my name has been submitted as a defence witness by Salauddin Quader Chowdhury, an accused in the International Crimes Tribunal.
I presume my name as a defence witness was considered by the accused on the basis that he was a classmate of mine at Punjab University at Lahore. It is true that Salauddin Quader Chowdhury was at the Punjab University Campus between the first week of May 1971 till August of the same year
I am told by my brother Judges that a sitting judge of the Hon’ble court division , I am debarred from appearing as a witness in any court.
As I am torn between my official obligation/conduct on the one hand and my conscience on the other, I seek to confer with our lordship in respect of the ‘Bar”, if any, and particularly having regard to the fact that a consultation with you and your approbation is condition precedent for me to respond in this matter.’
We also know that Hosnain did not depose at the tribunal.
An article in New Age by the tribunal correspondent on 25 July confirms that he did not attend and sets out the circumstances
“Later, defence lawyer Fakhrul sought an adjournment in the hearing to produce his fifth witness, Justice Shamim Hasnain.
Prosecutor Malum vehemently opposed the plea and prayed for closing defence witness examination.
He pointed out that the defence missed several chances to produce its witnesses.
He called it a trick of Salauddin’s lawyers to delay the trial.
The tribunal, in its order, said that it had observed that the fifth defence witness Justice Shamim Hasnain proposed by the defence made no correspondence with the tribunal until Wednesday.
The tribunal in its order said, since the defence failed to produce its witnesses on two more chances it was given there was no ground to allow its plea to examine its witness anymore. The defence witness examination is hereby closed, said the order.”
It is of course possible that the prosecutors do not know about this letter.
But perhaps before claiming someone has stated something that is ‘baseless, utterly false and fabricated’, they should just check?
About the comment made by Ullah. Well, there is some confusion here I think. Salauddin Quader Chowdhury’s lawyers were only allowed five witnesses. In the end they could bring four, before the tribunal closed the defence argument. Ullah’s comments therefore are slightly incorrect.