Bergman questions the adequecy of Tribunal’s response to abduction of Witness Shukhoronjon Bali

12 Nov

David Bergman a freelancer  regulalrly follows the Proceedings at the Bangladesh War Crimes Tribunal

David Bergman: How adequate was the response of the Bangladesh war crimes tribunal to last week’s witness abduction outside its gates…

David Bergman is a British Journalist working in Bangladesh who provides an independent take on the issue of abduction of Defence witness by plain clothed personnel from the Tribunal premises.

How adequate was the response of the Bangladesh war crimes tribunal to last week’s witness abduction outside its gates

Tribunal response to abduction allegation
It is worth considering whether or not the tribunal’s response to the allegation made by the defense that a witness was abducted by law enforcement personnel outside the tribunal gates was sufficient or not

What was the response?
The incident happened at around 10:10 am. At 10.30, twenty minutes later, the tribunal sat and the defense lawyer Mizanul Islam immediately brought the incident to the attention of the three member tribunal. He was followed by the defense lawyers Abdur Razzaq and Tajul Islam. They also complained of, and questioned the need for, the extraordinary level of security at the gates that required the defense lawyers in Mizanul Islam’s car to get out of the car along with the witness.

The tribunal chairman called the registrar who explained that the security system was strengthened on that day.

The lawyers continued to complain, particularly mentioning that whilst the defense had to get out of their car, the prosecutors did not.

Haider Ali, the prosecutor was asked to come forward and said that he noticed the increase in security and thought that they must be some reason for it. He then said that another matter is about whether Sukhronjon Bali could be now called as a defense witness as he was previously a prosecution witness.

The tribunal chairman said that this this is not the issue here. ‘We would like to know whether the person has been taken away from the gate?’ Haidar Ali responded by saying, ‘We are not informed about the matter.’

The tribunal chairman then passed an order – a summary of which is set out below:
When the Tribunal sat in the room at 10:30 A.M. Mizanul Islam the learned counsel of the defence team submitted before the Tribunal that when he was entering the Tribunal with his juniors and a defence witness Sukhronjon Bali in his car a plainclothes policeman came and said only the senior counsel could enter with the car and others have to stop at the door. He submitted that Mizanul Islam has entered the Tribunal with his car and his junior didn’t get the entrance. The junior and the witness Sukhronjon Bali have been taken at the side of the gate by the civil dressed person and the junior was told that he is not allowed to enter without pass.
We are concerned about the occurrence. A special arrangement has been made for security purpose. The lawyers have to come at the Tribunal with their Pass. We also find no reason why the numbers of lawyers present today are much more than another day.

We are very much concerned about the matter of taking Sukhronjon Bali away from the gate. We ask the Chief Prosecutor to immediately ask the higher authority to take necessary steps.

Mr. Haidar Ali also stated that he has observed the checking at the gate.

Now Mr. Chief Prosecutor is asked to go to his chamber to take necessary steps by consulting with the Police authority and take necessary steps. Also the Coordinator of the Investigation Agency is asked to look into the matter with the Chief Prosecutor.
Abdur Razzaq then asked for an adjournment of proceedings, but this was rejected. Instead the tribunal dealt with a series of applications.

After some time the chief prosecutor and the head of the Investigation Agency came back into the court. A summary of the interaction that took place is as follows.
Chief Prosecutor: We have discussed about the matter of the witness missing with the officials of Ramna Police Stations at the Registrar’s office. They have stated that the security has been strengthen from today. Everyone is required to hold pass to get the entrance. And no one has been abducted from the Tribunal gate. They knew nothing about it.’

Chairman: Are you saying about the civil dressed persons that nothing has happened?

Chief Prosecutor: Yes the Police Officers have stated that nothing has happened within their knowledge.

Chairman: Okay, we will sit at 2:00 P.M. In the meantime we’ll look at the matter by sitting at our chamber.

Tajul Islam: No let the matter be solved first, then you may depart.
Mizanul Islam: Let us give us the scope to speak. [Angrily]
Tajul Islam went to the door of the Tribunal and came with some photographs in his hands from another lawyer claiming that these were photographs of the witness who was then being abducted.
Tajul Islam: Let the matter be solved first.
There was then an angry cacophony of insults between the defense and the prosecution.
Chairman: No we will not hear this, we will sit at 2:00 P.M.
The defense lawyers did not attend the afternoon session of the tribunal (which started with the closing statement of the prosecution). On the following morning, the Mizanul Islam says that he asked the tribunal about whether they had passed any order the previous afternoon, but the tribunal said that it had not as the defense lawyers were not present. Since then (till now: 12 November), the issue of the alleged abduction has not come up before the tribunal which has continued on its normal course.

The tribunal has previously heard allegations made by both the defense and the prosecution that witnesses on either side in the Sayedee case were being intimidated in Pirojpur. It has not taken any action itself in relation to these allegations, as far as I know, but it is clear from a number of orders that it has believed the allegations when they have come from the prosecution and given favorable orders as a result. So, for example, the prosecution alleged that a number of witnesses that the prosecution had wanted to bring to court were too intimidated in doing so, and this was part of their argument in in its application that their statements could be admitted as evidence. In its order on the application the tribunal stated:
In another report [of the investigation officer] dated 19.03.2012 it is stated that witnesses Suresh Chandra Mondal, Gonesh Chandra Shaha, Shahidul Islam Khan Selim, Md. Ayub Aii Howlader, Sitara Begum, Rani Begum Md. Mostafa, Abdul Latif Howlader, Anii Chandra Mondal and Ajit Kumar Shil, the investigating officer went to their houses and only found the witness Sitara Begum sick in her house and others could not be found. The investigating officer stated in the report that during his investigation, he found that the local arms cadre has given threats to those witnesses and as such due to fear of their Iife, they have kept themselves in the secret place so that they cannot be produced in the Tribunal and their life is saved. The investigating officer mentioned that the terrorist groups who gave threats are man of the accused. Based on that report, the learned prosecutor Mr. Syed Haider Ali submitted that a prima-facie material was found by the prosecution in support of their statements that these witnesses cannot be produced in this Tribunal and their attendance cannot be procured without an amount of delay or expense. Mr Ali further submits that considering this aspect, this petition may be allowed.
The Tribunal’s order on the back of these allegations went on to allow 15 statements – including all of those alleged to have been intimidated – to admitted as evidence. The order appears to accept the prosecution claim that these witnesses were subject to threats.

The defense have also argued to the tribunal that its witnesses have been intimidated by the police. The Tribunal in response has said that the witnesses can always seek the use of the safe house used by the prosecution, but the defense have responded that they do not trust the authorities to be involved with their witnesses.

However, the allegation about the abduction of Shukharanjan Bali is of an entirely different order.
– The defense had specifically filed an application on 21 October with the tribunal requesting it to issue a summons so that he would appear in court; the tribunal had ruled against this, and simply said that the defense were at liberty to bring any witness to court. The defense lawyers have said that they sought the issue of a summons as part of protecting the witness from intimidation, and making it easier to come to the tribunal. It remains unclear why the court was not willing to issue a summons in this case.
– A subsequent application had been made by the defense seeking permission from the court to allow him to appear as a witness even though the tribunal had closed the defense case. The court set the 4th November as the date for this. The witness was brought by the defense to the tribunal and he was present the whole day in the tribunal premises. In the morning the tribunal said that they would hear the application at 2pm. However, at 2pm the tribunal did not hear the application, providing no reasons for not doing so, even though the witness was present in court to give evidence. It remains unclear why the tribunal did not hear the application at 2pm.
– the witness was abducted right outside the court premises;
– the complaint was made to the tribunal within twenty minutes of the abduction;
– eye-witnesses to the events that morning was a senior defense lawyer, a number of junior defense lawyers, and two other journalistic eye-witnesses who were present in court;
– the tribunal must also have been aware of the potential significance of the evidence that Bali may have given.

However, all that the tribunal did was to ask the chief prosecutor and head of the investigation agency to find out about the allegation. The tribunal was not adjourned in the meantime – it continued with business as usual. It did not take any statements from any of the witnesses to the incident. When the prosecutor returned after about an hour, and reported that the police had no knowledge of the incident, the tribunal took no further action. It did not seek to take any further detailed information about the allegation from those who alleged that they had directly seen it.

A further legitimate question would be why did the tribunal ask the prosecution and investigation team to find out what happened – since they are very much a party to proceedings, and have a direct interest in the matter. Why did the tribunal not use his own executive personnel, including the registrar, to make enquiries on the court’s behalf?

Many will conclude that the tribunal did not respond satisfactorily to a serious allegation of witness abduction outside its court gates

Perhaps, though, what this incident shows is the extraordinary lack of trust that imbues this whole process.

It is impossible to say what an international tribunal would do in this situation – since it is unfathomable to think that such a thing would happen (as the witnesses would be involved in a proper protection service) and if if somehow it did happen, the tribunal would almost certainly accept the allegation made by the defense lawyers, the prosecution would be just as outraged as the defense, and there would be a system to undertake immediate enquiries that would get to the truth of what happened.

We now have to wait and see how the High Court responds to the Habeas Corpus application that was heard on Sunday.

Abduction of defense witness outside tribunal
Shukharanjan Bali

This is the first of a number of blogs about the alleged abduction of an International Crimes Tribunal (ICT) defense witness, Shukharanjan Bali, on 5 November 2012

I have interviewed three members of the ICT defense legal team who were in the car from which the witness is said to have been taken by law enforcement officials

I have also interviewed two journalists (both of whom work for the Daily Sangram, a pro-Islamic/pro-Jamaat national paper) who were eye witnesses to the abduction.

Although there remains at present no entirely independent witness to this abduction, this allegation is credible in light of the background circumstances to this incident, the detailed corroborating accounts provided, and the photographs taken of the police vehicle in which the Bali is said to have been taken.

Background to Shukharanjan Bali at the tribunal

Prosecution witness: Shukharanjan Bali’s name was on the list of 68 prosecution witnesses who were supposed to testify on behalf of the prosecution against Delwar Hossain Sayedee. In the end, however, the prosecution only presented 20 of these witnesses to the tribunal.

In March 2012, the prosecution filed an application asking that the tribunal accept as evidence the unsigned statements of 46 of these witnesses who had not given oral evidence at the tribunal.
These statements are said to have been made by the witnesses to the investigation officer. They were given to the tribunal (and the defense) at the time of charge-framing.

Bali was ones of these 46 witnesses. He had not given oral evidence, and the tribunal wanted his statement to the investigation officer to be admitted as evidence. In the statement, he appears to be a strong witness against Sayedee. The statement reads:
‘On 2 June, 1971 at about 10 am, we saw under the leadership of Delwar Hossain Sayedee alias Delu, the peace committee, armed Rajaker force ….. guiding Pakistan soldiers to our Hindu block. …. To see what they will do, we followed them from behind. Entering into the village, they looted the 25 houses. … They set fire on each and every house and burnt them to the ground.’
The statement goes on:
‘Armed Rajakers captured my brother Bisha Bali and after tying him to a coconut tire they started to flog him. Then according to the order of Delwar Hossain Sayedee alias Delu, a Rajaker shot and killed my brother. I saw the killing of my elder brother with my own eyes and became very frightened.’
In Bangladesh, generally statements made to an investigation officer are not entitled to be accepted as evidence – only testimony of witnesses given in court. However, section 19(2) of the International Crimes Tribunal Act 1973 allows statements to be admitted as evidence if the witness:
‘at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.”
In relation to Bali, the prosecution in its application stated that he was ‘missing for about last 4 months after he went out of his house’ and therefore his statement should be admitted.

Although the defense argued that the criteria set out in section 19(2) had not been met in relation to any of these witnesses, the tribunal on 29 March passed an order allowing 15 of the witness statements to be admitted.

The fifteen included the statement of Bali.

In late May/early June, the tribunal heard a review application of the order that had been lodged by the defense. As part of that, the defense showed to the tribunal a short news piece that was broadcast on Diganta TV which included a short interview of Bali where he stated: ‘“They wanted me as a witness but I have said that I did not want to give any false witness. Just I have to tell the truth what I know.” The news piece contained the statements of three other witnesses which suggested either that they were available to give testimony (in conflict with the prosecution claim) or that the statements that the court had admitted as evidence did not reflect what the witnesses had said to the investigation officer.

The defense argued that Bali was available to give evidence to the tribunal – but that the prosecution did not want to call him as he would not provide evidence that supported its case.

From prosecution to defence Witness: The defense had provided the tribunal with a list of 48 witnesses that it intended to call. Bali’s name was not on that list.

On 14 August the tribunal passed an order stating that it would only allow the defense to bring 20 witnesses – the same number of witnesses that the prosecution had called. In early September the defense started to bring its witnesses

On 21 October, the defense filed an application asking the tribunal to issue a summons requiring Bali to come to the tribunal as a defense witness. This stated:
…. Shukharanjan Bali has direct knowledge of the alleged incidents of the case. He is the brother of the late Bishabali who was allegedly killed at the instruction of the accused as per charge 10 of the instant case. As such it is necessary to issue summons upon Shukharanjan Bali so that he can give evidence as Defence Witness.
This application was heard on the 23 October, and the tribunal ruled that it would not issue a summons, but that the defense could bring any witness that it wanted.

Two days later the tribunal ordered the defense to close its case and fixed 5 November 2012 for the prosecution to sum up its case. On 31 October, the defense made another application asking the tribunal to allow it to bring Bali (and another witness) to testify prior to the beginning of the prosecution summing up. The tribunal said that it would hear the application on 4 November. According to the defence lawyers, Bali was brought to the tribunal on that day, spending the whole day in the defense room. However the tribunal did not hear the application.

The next day: the abduction
According to Tajul Islam, a defense counsel, whilst in Dhaka, Bali was staying at the house of Masud Sayedee, one of the sons of Delwar Hossain Sayedee, and that on the morning of monday the 5th October, he was brought from that house to the defense lawyers legal office in Purana Palton. This office is situated in the same building that another main defense lawyer, Mizanul Islam, was also living.

Bali was then taken to the tribunal in Mizanul Islam’s white microbus. Mizanul Islam, who has to use a wheelchair, was in the front passenger seat. In the back was Bali with two lawyers on either side. One was was Md Hasanul Banna Sohag (a junior to Mizanul Islam), and another was Advocate Ansari. In addition, a person who helped Mizanul Islam was sitting in the seat behind. The car arrived at the gate at about ten minutes past ten in the morning.

When the microbus arrived at the entrance of the tribunal at around 10 minutes past ten (see diagram below) – this is about twenty minutes before the start of the tribunal – it found that (unusually) the tribunal gate was closed, and there with lots of police officers. (The registrar explained later to the Tribunal that the reason for this was there was a Jamaat national day of protest and the tribunal had therefore increased its security.) On a normal tribunal day, not many journalists arrive by ten past ten – and it appears that this was also the case this day.

The car was stopped and the police said that everyone other other than Mizanul Islam and the driver, should leave the vehicle. The three lawyers and Bali then got out of the vehicle which then went into the court grounds.

Sohag, the defense lawyer, explains what happened:
“I was in the back of car. I was on left, beside me was Bali and on the right was Monjur Ahmed Ansari and behind me was Ashrafuzzaman, the helper of Mizanul Islam. When I got down from the car, when they saw Bali, four men came forward and asked him what was his name. He replied, ‘My name is Shukharanjan Bali’. One of the men said, ‘We have to talk to you, please come to us in front of the main gate in the police control room’. They slowly took Bali to their destination. I requesting them to please stop. I said, ‘I am the appointed lawyer of Bali. He is our defence witness now, you cannot take him outside of the court.’ I asked [the man] what was his identify. He said, ‘we are DB [detective branch] personel. We have to talk with this man, please let us ask him some questions’. I requested him, ‘Please whatever you ask you should ask before me, in front of me, in this place. Not outside the court, not outside these premises.’ They did not take heed upon my request.
My senior, Ansari said that ‘I am going to collect your passes’. He went on foot [into the tribunal premises]. He went to collect the passes as without the passes they would not allow us to enter. It was due to out simplicity that they snatched him.
One guy held Bali’s left arm, one guy held his right arm, and the third man was pushing him saying ‘hurray up, hurray up’. They were in so much hurry to take him there.
I saw Golam Azam a journalist from Dainik Sangram as he was entering from the road. I asked him to come he with me. He was with me [walking down the pavement]. I was walking behind him. One of the drivers was in front of him. I walked all along with him [past the police post and down the pavement outside the tribunal] until he was put into the police van. [Whilst walking] I saw the DB man phone and ask the vehicle to come. The car came from that place [inside the tribunal]. It was in this direction [of the road].
At this time, Shahidul Islam [Sangram reporter] was passing on the road on a bike and I asked him to stop. Bali was taken around to the front of the car and the right door was opened and he was put in. Two police men were in the car, the driver and three DB policemen. Seven in all. My driver took photos using his mobile.”
Diagram of area where alleged abduction took place.
Distances are not proportionate

Of those sitting in the car that took the witness to court, Sohag was the only one who was present right the time when the three men took Bali until the moment he was put in a police vehicle and driven off. There were however three other witnesses

Golam Azam: Azam is a trainee journalist for the national newspaper, the Daily Sangram who has been working for the newspaper at the tribunal for about a month. He says he obtained his graduation and masters in Law from Rajshahi university. He got his job with Sangram paper though a friend of his father. He says that his father, and family, are Jamaat supporters, but that he has no political affiliation and he is not involved in politics. He says that he was not involved in student politics whilst at Rajshahi university. He said that he worked at Sangram as he needed a job, but that this does not mean he was a Jamaat supporter.

He came to the tribunal first by bus to the press club and then on foot to the tribunal. As he entered the High Court premises at mark ‘X’ on the diagram above, he says that he saw the lawyer, Sohag whom he knew from Rajshahi University days.
“I had just entered from the road and saw Sohag and he said that ‘DB is taking away our witness’. Then I saw the men taking the witness, and kind of dragging him. They were wearing civil dress, while collar or check. There were three men, two on the side and one on the back. I followed them.
I called my senior reporter, Shahidul Islam but he was not receiving a call. I learnt later that this was because he was on his bike. As they walked down the pavement. I went to ask one of the men in civilian dress and asked him ‘What was going on?’, and the man asked for my identity I said I was a reporter. He said, ‘Don’t make a big deal out of it, we are just taking him for interrogation.’ I enquired more what is the interrogation about. And then the man said ‘Please don’t ask any more questions it is just standard procedure.’
I followed and then saw a white police car coming from inside the tribunal. It looked quite new. The the man whom I came to know was Bali was put in a seat behind the driver.
Just before the man was put in the car, Shahidul Islam who was driving his bike down the road [adjacent to the pavement] saw me and stopped and asked what I was doing and I said, ‘They are taking the witness away.’ Then he brought his bike back to where the white car was. He did not say anything but just watched.”
When he was shown a picture of Bali, he identified him as the man that he saw being taken into the vehicle.

The man in the foreground of picture number 1 (see below, taken by Ujjog) is said to be that of the journalist Golam Azam.

Shahidul Islam: He is a senior correspondent for the same newspaper that Azam worked for, the Daily Sangram.
“I was coming from my house by motorcycle, when I was came past I saw the incident. I saw one of the lawyers, and he said that, ‘This is Bali and he is going to be arrested’. The vehicle came up from inside the tribunal. One man was holding Bali on the left side and another on the right. He came into the car on the right hand side, and he was taken away.”
He has confirmed that he picture taken of a man on a red bike (see below, picture 3) is him on his bike at the scene of the incident.

Md Nurruzzaman Ujjol: He is a driver who is employed by the Jamaat-e-Islami. According to Advocate Sohag, Ujjol had already parked his car outside the tribunal (he was not the driver of the white microbus) and Sohag asked him to come with him. I have not yet been able to interview Ujjol, but he is the person who took three photographs on his his mobile phone.
1. White vehicle coming parked outside one of the tribunal
gates. The journalist Golam Azam is said to be the person
in the foreground. At this point, Bali is said to have already
been put in the car.

2. Close up of vehicle. Man on outside is claimed to be from
detective branch. The unclear figure in the car is said to
be that of Bali who was wearing a white shirt on the day.
The face on the other side of the car, outside, is said to be
that of Advocate Sohag

3. Police vehicle leaving the tribunal with Bali inside. The man in the foreground of the picture
is said to be that of the journalist Shahidul Islam

Credibility of the allegation
The only witnesses available at present are the members of the defense team, one of their drivers, and two journalists of a newspaper sympathetic to the objectives of the defense team. Despite the lack of independent testimony, there is good reason to conclude that the defence witness Shukharanjan Bali was indeed kidnapped by the police outside the International Crimes Tribunal.

The photographs are particularly important. (a) In picture 1, the tree in the picture matches with the actual tree outside the gate from which the witnesses said Bali was taken; (b) in both pictures 1 and 2, the police vehicle is pointing in the direction of the road as though it has just come from the Tribunal, as the witnesses testify; (c) there are also two pictures that appear to show that both the two journalists witnesses, Shahidul Islam and Golam Azam, were at the scene of the abduction – an important piece of corroboration.

Without independent testimony, there is perhaps no conclusive proof that such an abduction has taken place. It is also of course notable that the only two journalists present at the time were from the Sangram paper. However the detailed testimony, along with the pictures do suggest that the defense witness was abducted by law enforcement personal outside the tribunal gate.

10 November 2012:
– The spellings of the names of Md Hasanul Banna Sohag and that of Shahidul Islam was corrected
– The text was also corrected to make clear that Shahidul Islam confirmed that he was the person on the bike in picture 3, and that this was the picture of his bike.
– It was clarified that the time of the alleged abduction was about 10:10 am, and also the following line was added: ‘On a normal tribunal day, not many journalists arrive by ten past ten – and it appears that this was also the case this day.’
11 November 2012
– the following line was added the section on the journalist, Golam Azam: ‘When he was shown a picture of Bali, he identified him as the man that he saw.’


One Response to “Bergman questions the adequecy of Tribunal’s response to abduction of Witness Shukhoronjon Bali”

  1. Haritha November 13, 2012 at 5:26 am #

    Good work by Mr Bergman.

    Couragous Journalist!

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