On the 22nd of November, convicted war time criminal SQC was hanged till death, as per the instruction of the highest court of law existing in Bangladesh. There were a few curious reactions to his predicament, but none more so than one provided by Mr David Bergman, rookie journalist for the New Age newspaper published in Bangladesh. He chose to react by publishing an article on his blog, which he constructed listing 10 separate concerns, detailing as to why SQC’s trial may have been an unfair and biased one.
At the start of his tireless monologue, Mr Bergman chose to begin divert the reader’s attention towards SQC’s previous political exploits. It was done so in a manner which we adjudged to be biased at best and convincing to say the least. We can rightly refer to the court’s comment regarding Mr Bergman’s “Psyche state” by pinpointing his intentions in the lawsuit where he was accused of contempt of court. The ICTBD-2 went on saying-
68. Contemnor’s intention was to demean the authority and ability of the Tribunal and to generate controversy and confusion on historically settled issue in the mind of public, we conclude.
ICTBD also confirmed in another similar lawsuit brought against Mr. Bergman in 2011 where the court confidently stated that-
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I would like to remind the readers and Mr Bergman to a certain extent that I am not in the process of analysing SQC’s political prowess. Indeed I did not find any explicit links with what Mr Bergman wrote on his introductory paragraphs with what he tries to present later on.
1) Fairy tales woven on restriction on witnesses
Mr Bergman has argued that there were discrepancies on the number of witnesses both SQC and the prosecution party were allowed to introduce during the trial proceedings. He went on to give us a total of 41 witnesses in favour of the prosecution party compare to a meagre total of 4 witnesses for SQC respectively. Now Mr Bergman described that as an unjust and prejudiced act on behalf of the court, but what he fails to understand is it was SQC first who muddied the waters in the first place and chose to make a mockery of the law. The man or rather his defense lawyers presented a witness list comprised of 1,153 individuals many of whom, according to a press report from renowned national newspaper “Prothom- Alo” many whom declined to have any sort of association with the name SQC (Source). Indeed some of them were surprised and quite bewildered at their inclusion in the witness list reiterating they have no business being on that list and that they haven’t dealt with SQC ever before.
First of all as undignified as it may be this is a well-known time-wasting tactic in courts and we are confident SQC saw it that way and knew exactly what he was doing. Anyways coming back to Mr Bergman, who I would like to remind with all due respect, that there were 23 separate charges that were erected against SQC, 6 of which the prosecution was eventually unable to establish. Meaning, that there were unable to present any further witnesses to support those 6 charges any further. Now in a bid to counter the remaining 17 charges against him, SQC, rather than argue against each accusation separately, proposed that he wasn’t even in the country when said events were supposed to have occurred. In doing so he had utilised popular defence known in the corridors of international law, something commonly referred to as the “plea of alibi”.
Now coming to the point, the judge who oversaw the trial, upon discovery of SQC’s counter-argument, rightfully restricted him to 5 witnesses in total. That he did so staying with section 51A(2) of the ROP, where the number of witnesses allowed for the defendant or prosecutor is proportionate to the number of arguments or pleas he makes which in SQC’s case, was that of the “plea of alibi”. A single defence constructed for a total of 23 individual charges brought against him.
Now, the most astonishing fact remains that although SQC presented a list consisting of over a 1000 witnesses, he actually failed to produce the number the court “restricted” him to, only managing to conjure 4 witnesses out of his total quota of 5. He himself was listed as D.W. 1. What is even more dumbfounding is that, he spent a grand total of 9 days to conclude his witness deposition, an event unheard of in a court of law before. The poor prosecutor who was tasked with the job of cross examining him, only had 2 days to do so and that is not all. They kept postponing their witness depositions as many times as they could as well, using well versed time-wasting techniques.
Finally, with regards to specific comments made by Mr Bergman, I would like to reiterate that even though SQC had to “defend himself against 20 offenses with only 4 witnesses“, he did so using the “plea of alibi”, which again was intended to be a solitary defence against all those charges. As far as allowing “the defence lawyers to summon 5 witnesses” and then subsequently restricting “the defence lawyers to summoning only 4 witnesses” goes, we would like to point out that one of SQC’s witnesses, Mr Salman F Rahman, had gone to perform pilgrimage and would have been unavailable for for up to six weeks in total, according to SQC’s lawyers.
Now what we must understand is that SQC and his defence had already adjourned the court for numerous seemingly pointless reasons, by the time it was Mr Salman F Rahman’s turn to be deposed. In truth Mr Salman F Rahman never even turned up for his deposition and the court is in no way obliged to halt trial proceedings for a missing witness. Thus according to 51A(2) ROP, the court decided that it was an attempt to further detain the court’s proceedings and to “defeat the end of justice”
It should be submitted here that even SQC’s defence lawyers explicitly stated (Para 54, Trial verdict) that they have satisfactorily proved their arguments with the 4 witnesses they’d been allowed to present and that the deposition had been a “success”. Nowhere, and I repeat nowhere in the initial 171 page trial verdict, did we find an instance where the defence lawyers had complained or expressed disdain on the amount of time they were allocated to present their witnesses. That paragraph reads-
Lastly, it is submitted that accused Salauddin Quader Chowdhury left this country on 29 March 1971 for Pakistan and returned to Bangladesh in 1974 and this plea of alibi has been successfully proved by 4 defence witnesses including the accused himself and as such the accused is entitled to get an order of acquittal.
It is either SQC’s or his defences’ responsibility to ensure that their witnesses are at hand and ready to be deposed as necessary. I am confident Mr Bergman, that this fact alone is sufficient to satisfy your “concerns” of “severe witness restrictions”. In the tribunal of Yugoslavia Orić there was a case in which paragraph 8 of the verdict read-
Rule 73 gives the Trial Chamber the authority to limit the length of time and the number of witnesses allocated to the defence case
2) Time allocated to the defence and prosecution: An analytical review exposing Mr Bergman’s shortcomings
Now the 5th witness Mr Bergman has introduced above of course is MR Salman F Rahman and I have nothing new to add about him. My original argument stands firm here. The defence “failed” to present him rather than the court restricting them.
Now, it is with exasperation that I argue the time rift issue Mr Bergman introduces regarding the amount of time allotted to the defence and the prosecution to present their witnesses. What you must understand is that Bangladesh was in a state of political anarchy during SQC’s trial. There were a whole host of strikes and public demonstrations organised by none other than SQC’s own political party BNP and their allies, namely Islamist extremist party Jamat-E-Islami. What is even more intriguing is that they used to coincide with all the dates SQC was due to appear in court. Using that as an excuse for personal safety, SQC elongated and detained court proceedings further and further, placing a raft of interlocutory applications to legalize his time wasting actions. Furthermore, it should be noted that out of the allotted 28 working days, SQC himself devoured 9 separate sessions to conclude his own deposition. Barrister Shah Ali Farhad in his article published on bdnew24.com dubbed “SQC Trial: Strategy of obstruction, delay and offence”, accurately summed up SQC’s “diversionary” tactics,
“Throughout his trial process, Salauddin Quader Chowdhury (“the convict”) demonstrated the tendency to obstruct the course of justice using all and every means at his disposal as opposed to seriously defending the charges brought against him. From contradictory witnesses, to forged documents; from filing frivolous applications to submitting names of thousands of witnesses; from ridiculing judges to threatening prosecutors, the convict tried them all. However, the most controversial has been his fondness to obstruct the trial process, deploying delaying tactics, using forgery and misbehaving with others in court.
Before charge framing, he first dismissed his own lawyer, and applied to the court to represent himself. But when the court permitted him to do so, he refused to accept documents from the prosecution to prepare his case. Seeing such non-cooperation, the court appointed a state-defence counsel, who also did not get any response from the convict. He then applied again for instructing a lawyer of his choice. The convict cancelled power of attorney of his counsels twice and reappointed the same counsel thrice!
The convict regularly filed a series of applications on different dates to delay the disposal of the case. The topics ranged from staying proceedings of the case, to cancelling the power of attorney and permission to conduct case personally, to praying for permission to attend Parliamentary sessions, to challenging the jurisdiction of the Tribunal and its judges, to pray for bail, to praying for reviewing important orders repeatedly, to praying for application of laws like the Cr.P.C and the Evidence Act despite knowing well that the International Crimes (Tribunals) Act 1973 expressly prohibits so.”
But interestingly, and I believe for MR Bergman in particular, in paragraph 54 of the trial verdict, SQC’s defence explicitly stated that they have satisfactorily proved their arguments with the 4 witnesses they’d been allowed to present and that the deposition had been a “success”. Nowhere, and I repeat nowhere in the initial 171 page trial verdict or the supreme court’s final 217 page verdict of the SQC trial, did we find an instance where the defence lawyers had complained or expressed disdain on the amount of time they were allocated to present their witnesses.
As for the prosecution they had to depose 41 separate witnesses in order to establish 23 different charges against SQC. It is easy for someone with even circumstantial knowledge of law to understand, that deposing 41 people for 17 different accounts, takes more than 28 working days. Or is it that Mr Bergman would have been happier if the prosecution had wrapped up their witness depositions within SQC’s given time frame?
(3) Eight Pakistani & 20 Bangladeshi witnesses. Should they have been acknowledged? Or (4) was it all just a big farce?
What bothered us most during this whole ordeal, corroborated by the paragraph of the AD’s verdict quoted below, was the defence’s attempt at introducing 8 new witnesses after the trial proceedings had been firmly concluded. None of these 8 new witnesses, were even named on the defence’s preliminary witness list, during the commencement of the trial or whilst framing formal charges. And again, SQC’s lawyers failed to even produce 5 out of their constructed 1153 witness shortlist, but declared themselves “successful” with their witness depositions. This claim is evident from and can cross-checked if someone cares to refer to paragraph 54 of the trial verdict which clearly states,
“Lastly, it is submitted that accused Salauddin Quader Chowdhury left this country on 29 March 1971 for Pakistan and returned to Bangladesh in 1974 and this plea of alibi has been successfully proved by 4 defence witnesses including the accused himself and as such the accused is entitled to get an order of acquittal.”
Coming back to the “new witness saga”, it can be stated confidently that, not only did they even attempt to follow the correct procedure to erect such a sham, they did so with complete disrespect of the law. Meaning, they were seemingly unconcerned as to how unjust such an act would be to the victims of war crimes.
The AD specifically mentions in page number 155 of the verdict,
The defence did not at all produce these affidavits as documentary evidence before the commencement of the trial or at the stage of framing formal charge. It has produced these affidavits only on 18th July, 2013, after examination of D.W.2 and in the midst of cross-examination of D.W.3 by the prosecution. Till that date, the defence did not file those affidavits or even stated anything regarding the existence of these affidavits. The tribunal, in the premises, has rightly ignored these affidavits as not admissible in evidence.
Furthermore they stated,
Rule 51(2) provides that the defence shall prove the documents and materials to be produced by it in accordance with law, that is to say, under the Act of 1973. In order to prove any documentary evidence by the defence, it is required to prove the same in accordance with section 9(5) of the Act which provides that a list of witnesses for the defence, if any along with documents or copies thereof, which the defence intends to rely upon, shall be furnished to the tribunal at the time of the commencement of the trial.
The court has to comply with what it is said section 9 (5) in the ICTA 1973, regarding the formalities of introducing witnesses into an open trial. It reads-
“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.”
The defence resorted to presenting 8 witnesses to the court, who were previously unaccounted for and where produced out of thin air. Their names were not even mentioned in the preliminary witness list. Allow us to remind Mr Bergman, how the court went about resolving the matter. Mentioned in the trial verdict’s paragraph number 251 which reads-
“The defence in violation of the provision of section 9(5) of the Act submitted some documents before the Tribunal at the fag end of defence argument and intentionally refrained from proving those documents by recalling defence witnesses. As such the defence has miserably failed to prove its plea by documentary evidence that the accused stayed in West Pakistan during whole period of the Liberation War of Bangladesh.”
The SC (AD) also stated that-
“rule 44 of the Rules to admit any evidence oral or documentary, print or electronic including books, reports and photographs published in newspapers, periodical and magazines, films and tape recording and other materials as may be tendered before it and it may exclude any evidence which does not inspire any confidence in it. In exercise of this discretionary power, the tribunal has discarded these affidavits as having no reliability”
(5) The word “affidavits” fall under the umbrella of the word “documents”. Unnecessary scrabble games
I’m afraid the word “documents” in the verdict includes the affidavits as well. I am bit confused as to why it has proved so difficult for Mr Bergman to determine that. It does beg the question though, was it an attempt to cloud the reader’s sense of judgement with such comments or something even more sinister on MR Bergman’s part
(6) Manufactured documents caught red handed. “The art of being oblivious to the obvious”
Frankly, I am a bit concerned with Mr Bergman’s “intentions” while he trifles with the court’s decision on the affidavits. I am quite sure that the court will explore this much more deeply in the near future, if there are any further investigations initiated against Mr Bergman.
As far as the affidavits themselves go, they were ruled inadmissible due to “severe procedural inadequacies” which the Supreme Court (AD) has diligently pointed out in their 217 page verdict. The affidavits themselves were not produced in an orderly and certainly procedural manner, at least not in a way which satisfies a court of law. The aforementioned issue has been described clearly on the following paragraphs of the verdict. Let us take a look.
The affidavit of Muhammed Usman Siddique was affirmed on 25 June, 2013, before Mr.Michael. S.McCleary, Notary Public District of Columbia, Washington containing a seal with the following words “my commission expires on 6/30/2013’. So just a few days before expiry of the tenure as Notary Public, the affidavit was affirmed. It is surprising to note that on the following day on 26th June, 2013, One Mr. Toby M. Cadman, countersigned the said affidavit at his London office at International Chamber of Anthony Berry QC, 9 Bedford Row London WCIR 4AZ and the same was again countersigned by Mr. Michael S.Mcheary on the same day.
Learned Attorney General submitted that this Mr. Toby M. Cadman was an engaged lawyer for the War Crimes offenders and he wanted to defend the offenders but when it was detected that he obtained visa by making false statement, he was compelled to leave the country and then, he was making propagandas and wrote many articles against the trial process being held by the International Crimes Tribunals. So, according to him, this gentleman manufactured all these affidavits. The affidavit of Mr. Siddique has been sworn on a white paper and it has not been authenticated by any officer of the State Department, USA and not having been authenticated by the Counselor or any officer of the Bangladesh Embassy in USA, no reliance can be given to it, inasmuch as, it is a false affidavit which has no sanctity at all. No stamp paper has been affixed or charged in accordance with the Stamp Act, 1899 and therefore, a bare looking of this affidavit appears as a collusive one created by the defence to mislead the tribunal and the same is also legally not admissible in law.
What I could extricate thus far from page 134 of the Supreme Court’s (AD) verdict was enough to establish the duplicity and ingenuity of the origin of the affidavits. Just for the sake of an argument, even if we were to admit that the document in question signed by Mr Mcheary on the 25th of June 2013, is capable of being sent from the USA to the UK in less than a day to collect the signature of Mr Cadman, we ask the readers this. How is it possible that on the same day that it arrives on Mr Cadman’s desk in London, Mr Mcheary in the US, manages to sign the document again on the same day, that is on the 26th of June? Thus, it is perfectly clear to us that these documents were indeed fabricated, and the court were confident enough to come to a conclusion that Mr Cadman is the main architect behind this devious scheme. And the court had credible reasons to believe so, because for the past five years Mr Cadman has actively written and commented negatively on the trial’s proceedings, not to mention lending his unbridled support to all those tried, tested and eventually convicted for war crimes in Bangladesh.
(7) Understanding the technicalities of evidence, the difference between “choices” and obligatory actions
To be honest, as I dug deeper into Mr Bergman’s statement eventually stumbling upon his queries on the “technical rules of evidence” in the SQC trial, I am constantly reminded of the court’s recent declaration on Mr Bergman’s expertise on the matters of international criminal law. Let us take a closer look at what it had to say,
68. Admittedly, the contemnor is a foreign national. He claims to have obtained Law degree from UK. But mere obtaining law degree does not ipso facto make an individual a ‘legal expert’.
As the readers can probably guess now, the court itself has raised doubts over Mr Bergman’s overall knowledge of the law, which has led us to question his credibility in this matter as well. To us the way he managed to twist section 19A of the ICTA 1973, was a bit hilarious in truth. Section 19A clearly states,
19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.
In a nutshell, the rule itself justifies the court’s decision to nullify the affidavits’ value during the trial. As it clearly states the court “shall not be bound” by the technical rules of evidence. Thus if it “wants to”, and therein lies the difference, if it wants to the court can determine whether or not evidence presented in any form has “probative” value or not, which again is confirmed by the act itself provided above. If it deems that it doesn’t, the court is perfectly within its rights to dismiss said evidence as ineligible. The court adjudged said affidavits to be devoid of any form of cogency, they did so without any hesitance or any lingering doubts. They deemed that it would be a pointless waste of time in a trial, which has already dragged on for too long and has had to go through too many obstructions.
In support of my argument, I would like to refer to pages 145-147 of the AD’s verdict. In doing so I would like to expose the gaping holes and irregularities in the affidavits presented by the prosecution, offering the readers a chance to relive the defence’s attempted debauchery. The verdict reads,
The affidavit of Reaz Ahmed Noon was affirmed before an advocate, Oath Commissioner, Lahore, and though it was attested by Assistant Protocol Officer, Ministry of Foreign Affairs, Camp Office, Lahore on 8th July, 2013, it was also not authenticated by the High Commission of Bangladesh in Pakistan. It is also worthy noting that the affidavit was affirmed on 8th July on non-judicial stamp of one hundred rupees and on the same day, it was attested by an officer of the Ministry of Foreign Affairs. In paragraph 4 it is stated that in October 1971, Salauddin, Ishaq Khakuani and Naeem-ur Rahman Akhond had a journey to London by road and they arrived on the 2nd week of November. Since he was in Bolton, he went to meet them in the 3rd week of November. Mr. Ishaq Khakuani and Salauddin stayed back in England because of the deteriorating security situation in East Pakistan and his family had advised him to stay back and so on.
Affidavit of Amber Haroon Saigol was also affirmed on the same day on 8th July, 2013 and it was also attested by the same Protocol Officer of the Ministry of Foreign Affairs, Lahore on the same day. This affidavit was also not authenticated by the High Commission Office of Bangladesh in Pakistan. These two affidavits were not also stamped under the Stamp Act in Bangladesh.
In the affidavit of Muneeb Arjmand Khan, which was affirmed on 12th July, 2013, and the Foreign Ministry’s Officer counter signed it on the same day. It was also not authenticated by any officer of the High Commission in Pakistan. In the affidavit affirmed by Ishaq Khan Khakwani on 26th June, 2013 none identified the signature of the deponent. Similarly the signature of Muneeb Arjmand Khan was not also identified by a lawyer. This affidavit is not also authenticated by the Bangladesh High Commission Office in Pakistan.
These affidavits were sworn before Mr. Saifullah Khan Khalek, an Advocate and Oath Commissioner though the deponents were staying at different places. Another affidavit of Mohmmedmian Soomro which was affirmed in Karachi on 25th June, 2013, but not affirmed before a Notary Public. It was simply attested by an officer of Ministry of Foreign Affairs, Islamabad. I fail to understand how an officer of the Foreign Ministry can attest it in the absence of its being sworn before a Notary Public. It is also interesting to note that the affidavit of Muneeb Arjmand Khan was affirmed on a stamp paper of fifty rupees, whereas the one of Mohammedmian Soomro was typed on a stamp paper of hundred rupees. In the affidavit of Muneeb Arjamand Khan, an adhesive stamp of sixty rupees has been affixed and it is to be mentioned that both these affidavits were allegedly affirmed in Karachi. This shows that these affidavits are unauthentic documents, which have been created by the defence for oblique purposes and so, no reliance can be placed upon them.
The tribunal has given discretionary power under rule 44 of the Rules to admit any evidence oral or documentary, print or electronic including books, reports and photographs published in news papers, periodical and magazines, films and tape recording and other materials as may be tendered before it and it may exclude any evidence which does not inspire any confidence in it. In exercise of this discretionary power, the tribunal has discarded these affidavits as having no reliability.
(8) Directing and preaching the court on correct and incorrect rationale regarding 8 sudden witnesses. Mr Bergman coveting contempt of court again?
With regards to the issue raised by Mr Bergman in point number 8 of his deposition, I would like to refer him to previous sections of our article where we have clearly discussed as to why those 8 new witnesses were not permissible. Mr Bergman, first and foremost has chosen to dissect the aforementioned argument into two broad groups; crimes he was convicted for in mid-April and crimes he was convicted for May-August. Just to for the sake of argument, even if we admit that SQC was not required to present a University affidavit for crimes he committed during mid-April, is it plausible to place our faith on the dubious witness statements provided by Amber Haroon, MR Khakwani and Mr Ahmed Reza Noon respectively, who affirmed he was situated in Karachi.
I’ve mentioned the gross injustice it would to the victims haunted to this day by war criminals, if the court were to begin accommodating inadmissible affidavits and witnesses, particularly those fabricated and literally plucked out of thin air, at the fag end of trial. But if we were just to turn our attentions to the deposition provided by one Amber Haroon Saigal where he states that,
SQC was stationed at his house for three weeks after the Pakistan army had carried out the mass genocide on the fateful night of 25th of March. He failed to specify an accurate time frame, indeed any dates at all. He did mention one afternoon, although he failed to provide a date for that too.
Furthermore, the affidavits presented by Mr Khakwani and Ahmed Reza Noon gave two contradicting accounts. The one provided by Mr Khakwani claims that he himself, Naieem and Mr SQC travelled to London by car. Mr Khakwani and Naieem were to leave Mr SQC in London due to the deteriorating conditions of the then Bangladesh and return to Pakistan. However the affidavit provided by Mr Noon claimed that although the trio did arrive by car at London, both Mr SQC and Khakwani chose to remain in England.
Frankly, these were just some of the wobbles I could find in SQC’s defence based on our research. The honorable court no doubt has scrutinised these irregularities much more rigorously. The fact remains, the court is incapable of acting outside the boundaries of law no matter the gravity of the case in hand. Under no logic or act of law is it viable to introduce new witnesses after the trial had concluded affirmatively. Again, or apologies on being repetitive, but it would be severely unjust to those who had suffered at the hands of war criminals such as SQC.
(9) Justice shall not be harassed by fiction and fabrications
Now, there are two things to point out here to our readers and Mr Bergman no less. The certificate authenticating SQC’s participation in Punjab University for an Honours Degree was issued to him in May 2012 a month after SQC was arrested for war crimes. One may wonder as to why SQC or his defence failed to submit said certificate during the commencement of the trial or even while his case was being reviewed by the appellate division. One also wonders why SQC chose to present said certificate only during his review petition, having held on to it throughout the entirety of the 3 years it took for his trial to be conceived and concluded.
Well for starters SQC claimed that he admitted himself to Punjab University by transferring certain credits from Dhaka University, which was contradicted by the AG of Bangladesh himself. The AG, a student of political science himself during the time SQC was enrolled at DU, stated that the university did not employ a semester system at that time and by extension did not facilitate a credit transfer system at all. Putting aside every other glaring abnormality we found in the certificate, it his highly improbable that a University, one which commands any sort of reputation at all, would make abhorrent spelling mistakes such as that of “PANJAB” and “PUNJAB” and three different spellings for its nominee’s name. That was the case in SQC’s certificate. He had his name spelled as “Sala Ud Din” on one instance. On another occasion he was spelled as “Salauddin” and in another testimonial signed by one Umvrin Javeed he was spelled as “Salah Uddin”. Furthermore
I would like to state that it was likely that the University would have established the certificate’s legitimacy. Why? Because SQC served Pakistan for a good chunk of his life. His death was followed by protest strikes and demonstrations in various regions of Pakistan. The document was seemingly signed by the Vice chancellor of the University and a registrar who goes by the name of Liakat Ali of Punjab University, which points to the fact that a whole syndicate might have been involved in issuing such a certificate to SQC. If it is we strongly suspect it originates from Pakistan due to SQC’s affiliation there.
Mr Bergman’s words mirrors his actions on another such previous occasion, where he directed that the court . On that day he was accused of contempt of court and fined 5000BDT for his troubles. I have to ask, is the court obliged to go scurrying about every time it is handed a document as a piece of evidence, especially something as vague and duplicitous as SQC’s certificate? Is it not capable of adjudicating whether or not a document is sound and cogent or not? And even more so, reiterating the point I made earlier, why did SQC fail to produce this certificate at the time he needed it most? Why did he choose to provide it at the final third? These are question Mr Bergman must ask himself, before he goes about comparing a court law to a soap opera, where some last minute miracle saves the day. Truth remains; nothing was performed by crossing any line laid by the law. The court made concrete decisions based on what was provided and consequently seen above.
(10) The accused must prove his “claimed” absence first with proper evidence
Mr Bergman has been previously warned in a court of law dealing with a similar case, and was instructed to follow ICTA 1973 and ROP 2010 which was what the trial in question was governed by. He was asked to cease his lectures on the “trial of absentia” and it is what we ask Mr Bergman to focus on, namely what International rule sets do our courts of law abide by.
And to prove a plea of alibi, the accused is required to prove the following issues according to the Para 247 of Trial Verdict
‘(1) Onus is entirely on the accused to prove the plea of alibi.
(2) The defence is to prove affirmatively that during the War of Liberation in 1971 the accused was continuously staying in West Pakistan since 29 March to 16 December, 1971.
(3) The defence is to prove that the accused was not present in Bangladesh in 1971, at the time when the occurrences took place in Chittagong.
Rule 51 (1) ROP also confirms that the onus of proof is incumbent upon the defence. Again it should also be noted that, rule 51 (3) states that mere failure to prove a plea of alibi and or the documents and material by the defence shall not render the accused guilty. Although SQC was unable to back up his alibi, it did not play a major role in his loss in this trial. Rather the prime reason he lost was due to the strong and vivid testimonies provide by the prosecution’s eye witnesses, namely PW 2, 3, 4, 6, 7, 8, 14, 15, 17, 18, 19, 22, 24, 28, 31, 32 and 37 respectively. All of these witnesses were horrified observers to the monstrosities he committed. Now addressing Mr Bergman directly, it is a waste of time sir pushing statutes of international law in a matter which was resolved by state established jurisdiction. As such references of International law are completely irrelevant here.
I deeply regret Mr Bergman’s misconceptions about the law and are saddened by his continuous support of recognized war criminals such as SQC, strewn throughout his writings, articles and the like. I would urge Mr Bergman not to generate arguments which have more smoke than fire and generate a lot of heat but no light. It is perhaps in his best interest to revisit the laws laid for the International Crimes Tribunals worldwide; in particular the one located in Bangladesh, which is one of the topics of concern here. I would be more than happy to discuss some of the finer points of the ICTBD, should you wish to fully understand its intricacies.
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