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Dr Kaukab Siddique | Editor-in-Chief Mohurram 17, 1434/December 1, 2012 # 53

Thanks to Dr. Ismail Zayid, in Halifax, Nova Scotia, for his activism in support of Palestine. He has sent photos of the vigil against the attacks on Gaza. It was well attended by Muslims and non-Muslim Canadians.

We have received an angry letter about our report on India's execution of Ajmal Kasab. It includes abusive language and hence cannot be published. The suffering of Kashmir cannot be ignored and its connection to the attack on Bombay has to be understood. Civilian casualties in both places should be opposed, not just in Bombay.

Breaking News: November 22. Delayed. The pro-India clique ruling Bangladesh is encouraging gangsters to attack Islamic facilities. In Rajshahi an Islamic educational foundation and a retina center have been set on fire by pro-India gangsters. The government has also arrested an Islamic woman Aysha Akhter from her home without providing any cause. [We provide a detailed study of the show trial of an Islamic leader as seen by an outsider. Also we have a report on the mistreatment of 90-year old Islamic Bangla leader Prof. Ghulam Azam. Please scroll to end. ]

Breaking news #2: December 1. Syria's Islamics supported by mujahideen from other Arab countries have cut the road to Damascus airport. An Assad tank column re-took the road yesterday but the Islamics are fighting near it again.
Please scroll down to two items about Syria.

Breaking news 3: December 1. Egypt: Massive demonstrations at Cairo's university and in other cities by supporters of President Morsi have swamped the anti-Morsi demonstrations. The anti-Morsi crowds have been violent in Alexandria, trying to burn Ikhwan al-Muslimeen offices but were successfully countered. Morsi has strictly stopped his supporters from clashing with the other side. Imam Badi Ali gives good advice to the Egyptian Islamics. Next item.

From Imam Badi Ali: Jamaat al-Muslimeen Shoora Leader. [He is not well owing to round the clock activism, so we have a few points.]
It will not be easy to change the habits developed under 40 years of Dictatorship

  1. Many scholars in the Middle East are on the payroll of Arab rulers. They are not independent. The British had started this policy of intruding into Ministries of Religious Affairs and it is continuing.

  2. Claims of Palestinian statehood are absurd. They can't even control a street in the West Bank. Right after UN gave them the vote, Israel declared 3,000 more Jewish homes to be built in the West Bank and East Jerusalem. Israelis entered the West Bank and arrested more youths. This drama of "statehood" was meant to compete with the growing importance of Gaza.

  3. Most leaders in the Arab World, even after the Arab Spring, behave like they used to under dictators. The mindset created by 40 years of dictatorship cannot just go away. It will be a long struggle

  4. Remember how Sharif Husein was fooled into thinking that he would create an arc of linked Arab states. He did not realize that he had been fooled and the Arab world was cut up into numerous artificial states. Today also, the lurking western powers are controlling things from the background. Let's not be fooled.

  5. When the revolution occurred in Iran, there were clear cut changes. We don't see that in the Arab world.

Commentary by Kaukab Siddique
Why are Hajira, Maryam, Khadija, Aisha', Hafsa, Umm Salama, Umm Ammara, Fatima, Zainab so Important for us?

[Allah be pleased with them]

Authentic Islam can only emerge when Muslims replace gender supremacy with Fear of Allah [taqwa] and give absolute equality to women with men. Character, behavior, courage, sacrifice, compassion, knowledge, worship, forgiveness, fearlessness, love are more important than gender as both the Qur'an and the hadith attest.
The mission of Muhammad, pbuh, passed through many stages. Perfection cannot be achieved all at once. In the beginning of the Islamic revolution, women were slaves, even the property of men. However, right from the beginning, the people, both men and women, knew that Islam had come to FREE the SLAVE [90:13]. So it was natural that Bilal r.a., resisted his slave master but also that the first martyr of Islam was a slave woman, Sumayya, r.a. Here is an outline of early Islamic history, from Muhammad, pbuh, through Abu Bakr, Umar and Usman [Allah be pleased with them]

  1. Stage one. Uncompromising message and absorption of relentless oppression.

  2. Stage two: Migration [hijra] twice to Africa and then to Madina.

  3. Stage three: Defensive jihad.

  4. Stage 4: Offensive Jihad.

  5. Stage 5: Defeat of the oppressors.

  6. Stage 6: Overthrow of the superpowers.
In each stage, women played key roles. Internal purity was maintained.

Then came the huge influx of new converts and the inflow of tremendous wealth. Internal weaknesses ensued resulting in the emergence of Kingship. Still hope came from women. Think of Zainab,the daughter of Ali, r.a., with her eloquence and piety, speaking in the court of Yazeed after the horrific tragedy of Kerbala.
The people rose up again and again against the kings. Among them were valiant women like Ghazala. The conventional historians call her and her people Khwarij but study them closely and one finds that they knew the Qur'an well and were extremely pious.
As and when the Muslims stopped studying Hadith and started self-styled interpretations of the Qur'an [often funded by Kings], the fabric of Islam became weaker and weaker till the Europeans came over and easily took over Muslim lands. The conquerors had little difficulty because 50% of the population was strictly confined to kitchen, sex and children and seldom resisted the invaders.
Only in the last one hundred years Muslims have started studying the Qur'an again and started looking beyond the few selected hadith chosen by the Kings' "scholars." These fake scholars claimed that hadith teaches that a wife should do sajda before her husband! I found after a little study that this "non-hadith" has been indicated as FABRICATED by Mullah Ali Qari in his book MAUDUATE al-KABIR [The Great Fabrications]. A scholar from Bannu, Hafiz Sarwar Qureshi, brought to my attention that the claim of the "king's scholars" that Muslims can keep female prisoners as concubines is rejected by the Qur'an itself and the Prophet, pbuh, never had a concubine. He was the first in history to free and marry female prisoners of war. The claim that Maria Qabtia, r.a., was the Prophet''s, pbuh, concubine [astaghfirullah] is disproven by Hadith. [Hafiz Sarwar was angered by such blasphemy and wrote a powerful though convoluted book against it titled NAMOOSE RASOOL].[How disgusting it is that even a modern scholar, Martin Lings, claimed that Muhammad, pbuh, had a concubine!]

Slowly but steadily the Muslim world is getting out of the morass of the subjugation of women. It's a slow process but it is happening. Jamaate Islami, Jamat-ud-Dawa, Hamas,Hizbullah, Imam Khomeini's movement and many others have huge support from women. Maulvi Fazlullah in Swat had a large audience of women. The Taliban women in Afghanistan, it is reported, help the armed resistance in such a way that NATO cannot win. And Shaykh Osama's wives gave a hard time to their American interrogators. These are no wall flowers.

The western powers see the resurgence of Islam as the only obstacle to their global hegemony. They also know in detail that numerous segments of Muslim populations are stuck in feudalistic and monarchic life styles. So, the west has reached out to fringe groups of secularized Muslims in each country and is using at least some of their women as counters to the Islamic movements. Any news of an atrocity against a woman in a Muslim country is trumpeted in the western media with information obtained through westernized "Muslims." The great importance given to Hirsi Ali, Irshad Manji, Malala and many others is part of the cultural invasion of Muslim lands by the West through its surrogates in the East.

Authentic Islam will emerge
A message of incredible spiritual power from Imam Jamil Abdullah al-Amin cutting through the darkness of America's maximum prison.. [With thanks to Imam Khalil Abdur Rahman. Please scroll to end. It will revive your iman.]

Pakistani Woman leader Calls for trial of Israel for crimes against humanity. Scroll to end.

What General Petraeus did to Iraqis and Afghans, Standish Did to Native Americans.
Muslim Marathoner's Observations as she ran in support of Leonard Peltier, Native POW
From Nadrat Siddique. [Supported by Br. David Wiggins.]

This was a 26.2 mile run through the Miles Standish State Forest, in Plymouth, MA. The forest, like plazas, streets, and other structures in the region is named for General Miles Standish, the white general who killed large numbers of the region's Indians after enjoying their hospitality and assistance in orienting to an unknown and potentially hostile area. According to a plaque in Burial Hill, a Pilgrim graveyard (see photo in my Plymouth Visit album--to be posted shortly), the Plymouth Company under the command of Captain Miles Standish fought against the lightly armed Narragansett Indians with artiillery which included brass cannons.

The forest, with its vast thickets of aged pines, was breathtaking and dense. Every now and then, we'd encounter a lovely turquoise pond. I could feel the spirits of the Indians in the forest, envisioning them hiding from maurading Whites, or, in some cases, conducting guerrilla war with the forest as cover.

The race started at 8:00 AM, and I got there an hour earlier in order to pick up my race number. The participants, with the exception of two Black people (one man and one woman), were all white. Most were from Massachusetts or other parts of New England, including a good number of military (some of the latter were bragging about marathons run in countries they "were not at liberty to name"). I wondered if they knew of Miles Standish's criminal behavior, killing innocent people who had exercised nothing but kindness towards him. The Eastern seaboard's Custer. Perhaps they knew and didn't care. After all, was not Standish merely the 1600s equivalent of General Petraeus? Or Rumsfeld or McChrystal. And Petraeus' ignominious departure from his position at the CIA was met with laments and accolades of his "accomplishments"--the killing of multitudes of Iraqis and Afghans. So perhaps it was not surprising for a state forest to be named after a person I would consider a war criminal.

I ran the race as a tribute to Leonard Peltier, wearing a "Free Leonard Peltier" shirt given to me by a good friend in Maryland, who is phenotypically White, but deeply committed to the rights of indigenous peoples.

As I ran, I said a silent prayer for all the Indians slaughtered by Standish. May the original people of this land finally get justice, may their land be returned to them, and may the resources contained therein--for once--benefit them. I also prayed for Leonard Peltier's freedom, and for the freedom of all political prisoners, especially Tariq Mehanna, Muslim political prisoner railroaded in Boston (about 45 minutes away from where the marathon was taking place) not too long ago.

Even though I'd arrived by car only a few hours prior to the race, the immense beauty of the Forest invigorated me to a 4:03 finish. It was my first time running two marathons back to back (on consecutive weekends), and I still felt fine afterwards, and walked all over the town of Plymouth the next day. Alhamdulillah


{Dear friends, loved by Jamaat al-Muslimeen, our best wishes go with you- NT Editor.}

Sara Flounder & Cynthia McKinney standing up for Dr. Aafia Siddiqui
http://iacenter.org/actions/sign_dr_aafia_siddiqui_petition_1-28-12/ I'm off to Pakistan tomorrow to oppose U.S. wars and injustice. Please take a moment to sign this petition in support of Dr. Aafia Siddique.
Aafia Siddiqui
SIGN the Petition for Dr. Aafia Siddiqui! Repatriate Aafia to Pakistan!
iacenter.org
As part of a continuing campaign to secure the repatriation of Dr. Aafia Siddiqui to Pakistan, former U.S.

Syrian Islamics Gaining Ground. Assad Forces Based on Syrian Christians, Druze, Alawites Facing Retaliation. Captured Missiles Bring down 3 Assad Attack Aircraft.

Islamic forces launched a new offensive on November 29 and are advancing on Damascus airport. Assad closed down the Internet and facebook. to stop news of Islamic victories. Horrific civilian losses are being inflicted by Assad and the death toll of Sunni Muslims has reached 40,000 over 19 months. This is mass murder, observers worldwide agree.
The city of Homs is without heat and electricity, under steady shelling by Assad's forces.
In retaliation, on November 28, two human bombers, probably from al-Qaida, attacked Assad's support base, Syrian Christians and Druze in the town of Jaramana near Damascus. At least 54 people were killed and 120 wounded as the bombers on fire ripped through early morning commuters going to Assad's offices.

Stash of Assad's Missiles & Rockets captured by Islamics changing the situation.

New Trend's new volunteer Sis. Sherry Garris [in North Carolina] comments on Assad's internet censorship;

"Arwa Damon for CNN reports from inside Syria as the Al-Assad government shuts down the internet. In an attempt to control the release of news as the rebels shoot down government air craft targeting civilians. With the takeover of the military base and access to ground to air missiles it seems the rebels have gained the upper hand.
Before the internet blackout, video was released of what appears to be a helicopter pilot still alive but with a head injury.
Al-Assads latest attempt to prevent the truth from being known about the attacks on civilians and the achievements of the rebel forces only goes to prove his uncertainty of his success and his true weakness Only those who fear the truth try to hide it." [The Internet was blocked for two days.]

CAIR Openly Opposes Islamic Law.
Symbolic Sentencing of Preacher Terry Jones and 7 Copts for Blasphemy & Qur'an Burning.
Islamic Law Considers Blasphemy a Genocidal Act of War Against entire Muslim Ummah
[New Trend report]

On November 28, an Egyptian court sentenced 7 Copts and a White American preacher to death for abusing the blessed Prophet Muhammad, pbuh, and for burning the Qur'an. The Muslim world is aghast that America allows such acts of cultural genocide under the pretext of "freedom of expression."
Millions of Muslims have demonstrated in the streets globally to protest the abuse of Islam coming out of America. Previously the Qur'an was put in the latrines of Guantanamo Bay and hundreds of Qur'ans were burned in Afghanistan by US troops.

The Qur'an says "The Prophet is closer to the believers than their own selves, and his wives are as their mothers." [33:6]

Hence an attack on the Prophet and his family is an attack on every Muslim and must be repelled.

In this horrendous situation where scores of Muslims have given their lives in defense of the honor of the Prophet, pbuh, a bunch of renegades with Muslim names who call themselves CAIR have condemned the action of the Egyptian court. They claim that the Prophet, pbuh, was forgiving and mercifulk, so we should forgive those who attack the Prophet, pbuh.
CAIR is known for its bootlicking activities and shameless support for every American tyrant but this time it has outdone itself.
Following the example of the Prophet, pbuh, means that like him, we should forgive personal abuse. So if CAIR's moronic leader is insulted, he should forgive. But these attacks by the Copts are not on the person of the Prophet, pbuh. He is not here. The attacks are on Islam and on the entire system of Islam.
Under Islam and under international law, a concerted attempt to desecrate what is holy to Islam is CULTURAL GENOCIDE. It's a trampling on all that is sacred.
Islamic Law decrees WAR against those who desecrate the Qur'an and abuse the Prophet, pbuh. We in America are helpless but that does not mean that Muslim countries have to allow blasphemy over there to please America, or accept homosexuality to soothe Obama.
Notice that the Egyptian court's verdict is merely SYMBOLIC, while America has given huge prison sentences to Islamic people for merely THINKING of rising up against America. The lick spittles who run CAIR do not notice that great men like Imam Jamil, the Blind Shaykh, Dr. Ali Timimi, innocent women like Dr. Afia and Lynne Stewart, youths like Ziyad Yaghi and Masoud Khan and countless others are rotting in America's Gulag for THOUGHT CRIMES. They did nothing and are spending their lives in the most shameful and degrading conditions. How humanity has degraded itself by doing cavity searches of pure Islamic scholars when they are visited by anyone, which itself is rare.
Not only only is blasphemy punishable by death, the Prophet, pbuh, himself ordered it, as can be seen in the execution of the Jew Ka'ab Ashraf.
We urge CAIR to remove the word "Islamic" from its title. CAIR are a bunch of liars who are openly standing against Shar'ia Law, with all the Spencers and Brigittes and Hirsi Alis.
It is time for the Muslims of America to recognize these vipers in our mosques.

Israel has Committed Crimes against Humanity: Pakistani Woman leader's Call
Lahore: Dr Rukhsana Jabeen, Secretary General Jamaate Islami's Women's wing, expressed deep concerns over atrocities against innocent human beings in Gaza.She said that Israel launched a war against innocents and world powers turned a blind eye towards Israel.
Dr Jabeen condemned the acts of Israeli aggression which have killed dozens of innocent women and children but UNO is shamelessly silent on these crimes of Israel against humanity.
Dr Jabeen said that most of the Muslim world leaders are silent on this key issue which is very tragic. She asked OIC to take a firm stance against the crimes of Israel against humanity.

A message from Imam Jamil al-Amin, America's greatest Imam.

Islamic Faith & Spiritual Power Emerging from the Hell Hole of an American Maximum Prison

IN THE NAME OF ALLAH, THE BENEFICIENT, THE COMPASSIONATE

FROM: Allah's Slave, Jamil Al-Amin

TO: Those Who Have Benefited Off Of My Struggle

As-Salaamu Alaikum,

Peace Be Upon Those Who Do Good,

An Appeal to Allah's (Ta'A'la) Mercy is Never Made in Vain. Wha'st this old world coming to ... things just ain't the same ... anytime the hunter gets Captured by the Game.

There are those who are CONSPICIOUS by their absence of commentary regarding my situation. I tell you that Justice is a master virtue, no light matter, no nicely calculated less or more, no civil rights issue, just truth as it prevails over falsehood. Truth is the cry of all, but the discipline of a few. There is no worse lie than truth misunderstood by those who say they knew.

The Prophet (PBUH) said, "if you imitate a people, then you are of that people". Racism and its manifestation in self-hate, systematically verifies itself anytime a slave can only become "free" by imitating his master.

There is no such thing as a "neutral education". Cultural dependence brings with it economic and political dependence (slavery). James Baldwin said that language itself enslaves: "The principle upon which the oppressor's language has been constructed form part of the architecture of the oppressed person". Allah says, "Tyranny and oppression is worst than slaughter".

Verily, an Appeal to Allah's (Ta'A'la) Mercy is Never Made in Vain.

Wa Salam,
Allah's Slave

In Peace Strong !
In Battle, Strongest !!!

With thanks to Salim Mansur Khalid for this and the next item.

Pro-India Gang Ruling Bangladesh Treating 90-year old Islamic Scholar like a Criminal.

Prof Azam transferred to 'Prison Cell' of BSMMU
Inhuman treatment by police in Hospital
http://bdinn.com/news/prof-azam-transferred-to-prison-cell-o-bsmmu/
BDINN Desk: Prof. Ghulam Azam was sent to Bangabandhu Sheikh Mujib Medical University (BSMMU) hospital from War crime Tribunal premises after found unconscious in court while waiting for hearing Monday noon at Dhaka.
Prof. Azam became unconscious at the court while he was in 'Court Waiting Room' for his case to be heard.
He was unconscious for a long time without any one realizing. It was only noticed when his son former Brigd. Gen Amaan Azmi, went to visit him. He was immediately transferred to BSMMU when His lawyer Tajul report that to notice of the Tribunal. He regained conscious on the way to hospital.
Doctors suggested that Azam should be seen by Cardiologist and Neurologist should be send to CCU.
But before the initial diagnosis by Neourologis, Jail Superintend of 'Prison Cell' of ordered the police to force out his family members and transferred Prof. Azam to the 'prison cell' of the hospital under police custody.
When the attending doctors mentioned that he needs to be seen by Neurologist, the Jail Superintend answered that 'Neurologist can see him in cell'.
No further news could be obtained after that.
'This kind of barbaric and inhuman behaviour with a 90 year's old respected and internationally renowned personality is beyond belief' said Prof. Azam's son Noman Azmi when contacted form BDINN desk.
'Further more ill treatment towards his family, at this worrying time, is also shameful' Noman mentioned.
'We appeal to everyone to pray for his speedy recovery' said Noman.
On 11 January 2012, Ghulam Azam, ex-president of was arrested on charges of committing crimes against humanity and peace, genocide and war crimes in 1971 by the International Crimes Tribunal.


Wednesday, November 28, 2012

Sayedee trial analysis: limiting defense witnesses

[David Bergman gives an outsider's view of the trial of Islamic leaders in Bangladesh. He is not on the Islamic side or on the government side. Long piece but helps to understand the legal cover the Bangladesh government is trying to give to its blatant denial of rights to innocent Islamic prisoners.... Editor NT]

This is a first of a series of posts looking at some of the issues relating to whether or not Delwar Hossain Sayedee, a Jamaat-e-Islami leader accused of genocide and crimes against humanity during the 1971 War of Independence, is receiving a fair trial.

Whilst the daily newspapers in Bangladesh provide reports of some of what goes on at the tribunal, they provide very limited analysis. This and a number of subsequent posts are intended to help provide a better understanding of the trial process. The focus on his trial - rather than any of the others taking place in the two tribunals in Dhaka - is because it is the most advanced; if press reports and rumors are to be believed the verdict will be given just before or after 16 December 2012, a day known in Bangaladesh as 'victory day', the 41 years ago when the Pakistan military surrendered and Bangladesh became independent.

In the past I have written about the issue of national vs international standards and about a number of legislative and procedural weaknesses in the tribunal (these are all listed here). What I am writing about in these series of posts is more fundamental; decisions made by the tribunal that go to the heart of whether or not Sayedee has/had a fair trial (irrespective of whether the tribunal was aspiring to national or international standards).

The 20 witness order

This first analytical post looks at an order made by the tribunal on 14 August 2012 in which it ruled that Sayedee's defense lawyers could present a maximum of 20 witnesses in court.

Summary of facts and concerns
The summary of the facts and concerns are as follows:

In July 2011, the prosecution gave the tribunal 138 names of witnesses it wished would testify before the tribunal to substantiate 20 counts (involving 35 separate offenses) involving crimes against humanity/genocide.

The defense in December 2011 then gave a list of 48 names of witness it wished to call to the tribunal. This is one third of the prosecution number and was at the time accepted by the tribunal.

When the trial started, the prosecution were only able to summon a total of 28 witnesses - 20 of which were witnesses of fact - to the tribunal. The tribunal accepted
as evidence a further 16 written statements from witnesses of fact. Substantive statements of 36 people were admitted as evidence

In August 2012, when the prosecution finished its case, the tribunal - without having any knowledge about what evidence any of the defense witnesses were going to give - passed an order saying that the defense could only call 20 out of their 48 witnesses.

In its order, the tribunal explained why 28 witnesses could not be called by saying that 48 witnesses was 'given with the intention to delay the trial.'

The tribunal did not have in its hand any information to suggest that any of these witnesses were not relevant to Sayedee's defense, and so how calling them would inappropriately delay the trial

It cannot be suggested that 48 witnesses to defend 20 counts of crimes against humanity/genocide - when conviction for any of them could result in the death penalty - is excessive.

The tribunal did not deal substantively with the application to review the order - simply saying that the review application of the order was itself also intended to delay the tribunal.

The ability of the accused person like Sayedee to call relevant witnesses is crucial to a fair trial. Cutting by more than half the number of witness that an accused can call to the court, without evidence that these witnesses are unnecessary, is a serious matter, going to the heart of the integrity to the process. One would have expected that the tribunal would have wanted to hear all relevant evidence before making coming to judgement.

Background
The law: Section 9(5) of the International Crimes (Tribunal) Act 1973 requires that at the beginning of the trial, before any prosecution testimony is heard in court, the defense provide to the court (and the prosecution) a list of the witnesses it wishes to rely on. It states:

'A list of witnesses for the defence, if any, along with the documents or copies thereof, which the defence intends to rely upon, shall be furnished to the Tribunal and the prosecution at the time of the commencement of the trial.'

[As an aside, this provision itself is very unusual - and is one example of the many problems in the International Crimes (Tribunal) Act 1973. Such a provision is not part of Bangladesh law where the practice is for the defense to provide the magistrate with details of any witnesses it may wish to call after the prosecution has presented its case. It is also unheard of in any international tribunal for the defense to have to inform the court which witnesses it will call prior to the prosecution case. There is good reason why the defense should not be required to provide details of their witnesses at such an early stage; the defense needs to hear exactly the nature of the evidence against them before deciding which particular witnesses should be called. It makes no sense to have the Defense be required to form a witness list before they have heard the Prosecution case]

Prosecution provides witness list/statement: In July 2011, at the time of taking cognizance for offences against Sayedee the prosecution team provided to the tribunal and the defense statements of 60 witnesses (30 of which were witnesses of fact) that it hoped would testify before the tribunal. Subsequently it gave a further 78 witnesses (of which 35 were witnesses of fact, making a total of 65 witnesses of fact with the remaining as seizure list witnesses).

Trial starts: The prosecution started calling witnesses on 7 December 2011. Prior to starting, the tribunal made no comment or passed no order limiting the number of witnesses that the prosecution could bring, or making any other negative comment. There was no assertion by the tribunal that seeking to bring 138 witnesses as a delaying tactic.

Defence provides list: Seven days later on 14 December 2011 the defense provided the tribunal and the prosecution with a list of its own 48 witnesses. This is a third of the number of prosecution witnesses which the

Prosecution calls 20 witness: The prosecution case lasted between December 2011 and August 2012 (9 months). 28 out of the 138 prosecution witnesses testified at the tribunal - 20 of which were witnesses of fact. In addition, following an application to the tribunal, the judges ruled that the unsigned statements of 15 additional witnesses could be admitted as evidence. [It should be noted that the 1973 Act does not appear to allow the defense to seek the admission of written statements*] An additional statement was also admitted when one witness died. This made the total number of witnesses whose oral or written statements have been admitted to be 44 (36 of which were witnesses of fact). At no point during the prosecution case did the tribunal try to limit the number of prosecution witnesses.

The 14 August Order
On 14 August, just after the prosecution had completed its case, the tribunal passed an order limiting the defense witnesses to 20. A full transcript of this order can be found here. The pertinent part is below:

"It appears that the recording of prosecution witnesses has been completed. Now the next step according to the Act is fixing a date for defence witness. It appears that the defence has submitted list of witnesses and also materials upon which they want to rely with. This case involves 20 charges against the accused Person The witness produced in this Tribunal by the prosecution is number 28 including the Investigation Officer. Upon eye view of them, we find that that out of 28 witnesses the Investigation Officer is witness Nos 28 and there are 27 witnesses more who have been produced in this Tribunal by the prosecution Among them, we find 20 witnesses made statements regarding occurrence and there are more witnesses who have produced documents and are seizure list witnesses. We now find that 20 witnesses have been produced by the prosecution in support of the 20 charges brought against the accused' We have also examined section 11 (3) (a) and (b) of the Act and Rule 51(A)(1)(2) and 53(3) of the Rules. We have given our anxious thought as to the number of defence witnesses to be allowed to be produced. The defence has submitted list of 48 witnesses and we find that this is excessive. There is no reason to allow 48 witnesses to be produced by the defence Rather it has been given with the intention to delay the trial. After due consideration of the fact and laws, we are of the view that the accused may be allowed to produce 20 witnesses in his favour and in that case, ends of justice will be met. As such the defence is directed to submit the list of those 20 witnesses along with particulars of the points and the charges on which the witnesses will adduce their evidence by 23.08.2012 positively' To 28.08.2012 for defense witness."

Section 11(3)(a) and (b) of the Act states:

A Tribunal shall-(a) confine the trial to an expeditious hearing of the issues raised by the charges;
(b) take measures to prevent any action which may cause unreasonable delay, and rule out irrelevant issues and statements.

Rule 53(3) states that the tribunal the right to:

'regulate the matter of time management as and when it deems necessary, for ensuring effective and expeditious trial'.

Recall and review application
The defense sought to recall the order and, once it received a copy of the written order, sought to review it. (These are detailed arguments in the defense applications can be seen at these links)

In its order of 28 August 2012 rejecting the recall application the tribunal stated:

"In the second application they have prayed for recalling the order dated 14.08.2012, on the ground that limiting the number of Defence witnesses to 20 has been done by the Tribunal without any support of Law and Rules even it violates the principle of equality of arms because of the fact that the prosecution examined 28 witnesses and 16 more statements made before the Investigation Officer has been accepted by the Tribunal as evidence that means they have produced evidence of 44 witnesses. As such equality of arms having been denied, the order is liable to be recalled. He further submitted that the moot question of criminal justice is this that no party should be prejudiced and if the order dated 14.08.2012 is not recalled then the accused will be seriously prejudiced.

Mr. Syed Haider Ali, the learned prosecutor opposed the petitions, by submitting that they were to submit list of 20 witnesses by 23.08.2012 and that having not been done the order of the Tribunal has been violated and as such the accused should be barred from producing any witness in their favour.

We have heard Mr. Abdur Razzaq the learned counsel and Mr. Syed Haider AIi, the learned prosecutor. We have found that the petitioner has not submitted the list of witnesses on 23.08.2012 but they have come with the petition mentioning only five witnesses and the particular of charges upon which they will give evidence today and prayed for time to submit the remaining list with a further prayer to recall the order dated 14.08.2012 and in the order passed by this Tribunal on 23.08.201.2 the order dated 14.08.201.2 was considered and found valid, and as such there is no reason to recall that order, and the recall prayer stands rejected." (emphasis added)

This order refers back to an earlier order given on 23 August 2012. In that order (which dealt primarily with an application for adjournment of the trial) the tribunal stated that the review application, which had not yet been filed, would be rejected because it was only being filed for the purpose of delay. It stated:

"It appears that in the Act there is no provision for review application; only to correct mistakes and to give a chance to either parties we introduced review in the rules framed by us. It now appears that this has become a frank stain and is being used for the prayers for adjournment and delay the trial which cannot be done. We do not find any reason to consider the review application if filed as such for preferring review application we are not included to allow any adjournment." (emphasis added)

This 23rd August order does not, actually explain why the order was 'considered and found valid'

When the review application was filed (which happened after the tribunal had given the defense a certified copy of the order) the tribunal dismissed it referring back to these orders. At not time therefore, does it appear that the Tribunal gave a substantive response to the detailed defense application questioning the lawfulness of the 14 August order. Instead the tribunal simply said that the review application was undertaken to waste time.

Safe house witnesses - no flexibility on 20 witnesses
There will be a separate post on this issue, but at one point during the trial the genuineness of a register of the 'witness safe house' became an issue, and the tribunal in an order given on 9 October said that the defense had to prove its genuineness through 'evidence'. However the tribunal subsequently ruled that if the defense lawyers wanted to bring any witness to help provide the authenticity of the register it would have to be within the 20 witnesses. Any witnesses on this issue could not be additional to the 20 permitted witnesses.

Comment
In the context of a fair trial, the August 14th order is significant. Sayedee has to defend himself in relation to 35 offenses. In that context 48 defense witnesses do not appear in any way excessive, in particular when the prosecution had originally hoped to bring 138 witnesses to court. The prosecution's inability to call more than 20 oral witnesses, should not limit the number of defense witnesses. In any case the prosecution is also relying on a further 16 written statements, so if it was parity that the tribunal sought (though parity on number of witnesses should not be the logic that is operating) the tribunal should have allowed 36 defense witnesses - particularly in the context that the the 1973 Act does not allow witness statements to be admitted as evidence.

It is not uncommon for international tribunals to rule that a particular witness should not be brought to court court - but any decisions of the kind taken had an objective basis. The relevant international tribunal will having looked at a summary of the evidence which the particular witness is likely to give, and determined that it was either redundant (since similar evidence has already been given) or because it is not legally relevant; if the tribunal considered that a witness should not be called, then it will pass an order about that particular witness providing reasons.

In the Bangladesh tribunal however: (a) the judges could not assess these issues as they did not have any details about what the witnesses would say; (b) did not make an assessment witness by witness (c) instead it made a decision to reject hearing the evidence of 28 witnesses (why 28?) (d) provided no reasons for this decision other than the defense was trying to waste time (e) provided no evidence to suggest that bringing these witnesses were part of a defense strategy of delay.

Effectively the tribunal appears to be saying to Sayedee; bringing witnesses (other than the number that we allow you) to provide evidence to substantiate your claim of innocence is wasting time. However, one must ask: what is the purpose of the tribunal other than to hear relevant witnesses?

It is also worth nothing how the prosecution and the defense have on this issue been treated differently:
(a) the tribunal was not critical of the prosecution seeking to call 138 witnesses, but it was critical of the defense calling 48 witnesses;
(b) allowed the prosecution to admit evidence of 36 substantive witnesses, but only allowed the defense to admit 20 witness (in fact it only allowed 17 witnesses - a matter that I will come to in a different post.

A further disconcerting matter is the fact that the Tribunal rejected the recall/ review application because the tribunal thought that they were filed in order to waste time. So one has the rather bizarre situation that the tribunal first decides to reduce the number of witnesses of the defense, arguing that the defense is trying to 'delay the trial' by seeking to bring 48 witnesses. And then when this order was challenged, judging the 'review' application itself called a delay strategy

2012-12-02 Sun 09:34:23 cst
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