Thursday, 12 December 2013

Why I am against the execution of Abdul Kader Mollah...David Bergman

In his blog, Bergman has chronicled the events as they occurred for the last few days. Within those narratives he has aptly pointed out the problems within the way the trial was held. I am just juxtaposing them together so that everyone can have a quick look at it.
 Bergman starts by making it clear that his issues with trial are not that of some minor nuances. The problem is at the very core of a trial - that of evidence. He says:
 Yes I do not support the death penalty, but that is not why I am against the execution of Molla.

Yes, I think there are many legal inadequacies in the International Crimes (Tribunal) Act 1973, but that is also not the reason? Yes, I am aware of the many controversies and scandals that have taken place at the tribunal (including the abduction of a defence witness, the release of skype conversations/e-mails showing, b at least one of the tribunal judges in collusion with the prosecution and the government, and at least 6 tribunal investigators and prosecutors seeking last month Awami League parliamentary seats) – but again these controversies, and there are many more, are not in themselves the reason why I object to Molla's death penalty.

The reason for thinking that it is outrageous to put Molla to death is because of the flimsiness of the evidence on the charge which he has been sentenced to death and the fact that the tribunal simply did not allow him to put forward his defence, restricting his witnesses to five.

The Evidence Issue

Bergman writes:

It is important to remember the following: the case on which Molla is being hung involves the murder of six members of one family.

There was only one witness to the incident, a daughter of the family who was the sole survivor. She was 13 years at the time. In her testimony in court, she said that on 26 March 1971 her father ran towards the house and said “Qader Molla will kill me” and that Quader Molla pulled her father by the collar, and draged him out of the house, The men then killed her mother, three sisters (one of whom was first raped) and baby brother. After the incident, she said, ‘A person called Kamal Khan who served tea to freedom fighters told me, “Quader Molla killed my parents.” My Ukil Baba [marriage witness] Akkas Molla also told me the same thing ...’

There are significant weakenesses about the evidence given by Momena, now aged about 55 - she had given two previous statements which contradicted her testimony in court .

The first statement was given on September 28, 2007 – five years before she she testified in court - when she was interviewed by a researcher, working at Jallad Khana, the annexe of the Liberation War Museum at Mirpur.

In the statement, there is no mention of Molla.  ‘Biharis surrounded [Momena’s father’s house] house and took [her father] away,’ the statement reads. It also states that Momena had told the researcher that she was not present during the incident: ‘Because the elder daughter of Hazrat Ali, Momena Begum, left for her father-in-law’s house two days earlier, she remained alive.’

The statement went on: ‘After a few days, the elder daughter of Hazrat Ali, Momena Begum, came to know everything about what happened but as the situation in Mirpur was still problematic, she was not able to come to Mirpur.’

The second inconsistent account given by Momena was to Mohana Begum, the deputy investigating officer assigned to investigate the case against Molla. Whilst in this statement, Momena said that on March 26, 1971, she was in the house when her family was killed, there is, again, no mention of Molla’s presence.

Instead, Momena told the investigation officer, as she had previously told the museum researcher, that the men who came ‘were Biharis. They entered along with the Pakistani soldiers.’ In fact, Momena specifically told the officer that one person was present. ‘I know all the Biharis. Aktar Gunda was with them. He was known as a gunda (criminal) in our locality,’ she stated.

Molla’s name is mentioned twice in the investigation officer’s report. Momena is quoted as saying: ‘When the war broke out, [Akter Gunda] joined with Quader Molla of Duaripara and started to kill people in Mirpur’ and subsequently, ‘I heard about Quader Molla and Aktar Gunda and their force from people around.’ However, the statement contains no allegation that Molla was present at the time of this offence.

Bergman in a later post summarizes the evidence problems by saying:

What we have is as follows: a witness, giving evidence in court 42 years after the event stating that Molla was present, who had previously given two statements - one to a 1971 museum and another to the investigation officer - neither of which stated that Molla was present at the scene, and one of which stated that she was not even present at the time of the incident.

And we have a court – both tribunal and appellate division – who have decided not to take into consideration any of these previous statements which do obviously raise issues about the credibility of the witness.

Added to this, there is the fact that Momena, who was 13 years old in March 1971, had a breakdown after the murder of her family and, as far as the evidence shows, had never in the 42 year period between then and the time she gave her testimony in court, mentioned to anyone that Molla was present at the time her family was killed.

If all of this had been known by the investigation and prosecutors, there is surely no way that a case like this, would ever have resulted in a prosecution in most jurisdictions - yet alone going to trial and resulting in a conviction or execution.

Defense Prevention Problem

Bergman deals with another problem today at 1 am after Molla has been hanged already. He says:

I said earlier (7.02 pm) that there were two key reasons why I thought that the execution of Molla was highly objectionable. The first one was the total lack of credible evidence for the crime for which hw was put to death (discussed earlier). The second reason is to due to the preventing Molla from putting forward a proper defence. Molla was restricted to only 5 witnesses, whilst the prosecution could bring as many as they wished – in fact they brought 12.

What was the justification for this restriction. You really would not believe this - but the tribunal said that it was not the job of the defence to knockdown the prosecution case, or to discredit prosecution witnesses or to question their credibility. All the burden of proving the case was on the prosecution, so the defence did not have any reason to bring witnesses for that. The only witnesses that they were allowed to bring were alibi witnesses, and five, the tribunal thought was enough.

I doubt there is any criminal justice system in the world – in fact normal Bangladesh law does not even support this principle – that follows this rule that the defence has no right to bring witnesses to discredit the prosecution case.

But that is what happened at the tribunal And the really worrying thing for Bangladesh is that the appellate division did not disagree with this. Is this now the principle of law in Bangladesh.

The tribunal’s logic is that since it is for the prosecution to prove the charges, the accused lawyers have no role in disproving them - by doing such annoying things like bringing witnesses.

This is rather extraordinary. Yes, the burden is on the prosecution to prove its case ‘beyond reasonable doubt’, but this in no way means – and Bangladesh law has never stated otherwise - that the defence cannot bring witnesses to discredit different elements of the prosecution case, and show, for example, the unreliability of prosecution witnesses.

Doing so is a completely standard defence practice in just about any country around the world – including in Bangladesh.

The need for the prosecution to prove its case ‘beyond reasonable doubt’ cannot be turned into a rule that prevents the accused from disproving the case against him or her.