The use of false evidence before the International Crimes Tribunal was not just an occasional flaw; it was a pervasive issue that tainted the entire judicial process. Time and again, when the defence began exposing contradictions in the prosecution’s testimony, cross-examinations were abruptly halted under the guise of irrelevance. In one particularly glaring instance, the Appellate Division, faced with false evidence, assumed facts to ensure a conviction. Such practices eroded faith in the judiciary, transforming investigators, prosecutors, witnesses, and even judges into complicit agents of injustice. This article explores the systemic failures that plagued these trials.
In the last few articles published in the Naya Diganta, I discussed how the law was abused by Judges of the Tribunal and by the then Appellate Division to execute leaders of the Bangladesh Jamaat-e-Islami. I discussed how the rules of cross examination were changed and how well-known principles of international law were misinterpreted solely to achieve a guilty verdict. Today, I intend to discuss how false evidence was presented or created by investigators, prosecutors and judges.
The case of Muhammad Kamaruzzaman, an Assistant Secretary General of Bangladesh Jamaat-e-Islami, where I served as lead defence counsel, exemplifies the challenges of ensuring justice. The first witness, Md. Hamidul Hoque, claimed to be a Mujib Bahini member and accused Kamaruzzaman of anti-liberation activities without direct evidence. His testimony raised doubts about his war participation. During cross-examination, questions about his supposed .303 rifle revealed his inability to answer basic details, undermining his credibility. He was unable to unable to answer the most basic questions about the rifle such as how many bullets could be stored in a magazine of the .303. The Tribunal stopped our cross examination describing it as irrelevant. However, the cross examination clearly showed that the witness was not credible and such line of questioning was permitted under the Evidence Act, 1872. However, the Evidence Act was not applicable, and our line of questioning was brought to an abrupt end.
One of the most eccentric prosecution witnesses was Mohon Munshi, who described himself as a part-time exorcist and former tailor. He testified that he had initially trained as a freedom fighter but later joined the Al Badr as a security guard. To avoid duties, he feigned illness, convincing doctors he suffered from a severe reaction to glucose prescribed by a homeopath. Claiming to be Kamaruzzaman’s servant, he offered bizarre statements, such as alleging correspondence between a 17-year-old Kamaruzzaman and Professor Ghulam Azam. Cross-examination revealed his son had recently secured a government job despite lacking qualifications, raising concerns about his motives. His often absurd testimony, including having five wives and attributing marital issues to his Al Badr affiliation, frequently drew laughter in the courtroom for its implausibility.
Another witness in the Kamaruzzaman case was Ziaul Islam, who claimed to be a freedom fighter trained in bridge demolition in India during 1971. However, his name was initially missing from the official list of freedom fighters, with allegations casting doubt on his credentials. He confidently asserted his readiness to defence lawyers about questions on his use of weaponry. The prosecution had prepared him for questions on the .303 rifle. But he was instead asked two elementary questions from an Army Manual on bridge demolitions: (i) the minimum bridge length for a successful demolition and (ii) proper placement of explosives. Despite his claimed training, he failed to answer either question.
Midway through the trial, the prosecutors realized their existing evidence was insufficient to convict Kamaruzzaman for the Shohagpur massacre, one of the most brutal incidents of the liberation war in Sherpur. Men were executed in cold blood before their wives, who were then raped. Despite its notoriety, no historical accounts, including those from the Ekattorer Ghatak Dalal Nirmul Committee—dedicated to targeting Jamaat and its leaders—implicated Kamaruzzaman. No tribunal witnesses or investigators had linked him to the massacre. Faced with this gap, the prosecution adjourned the trial and travelled to Shohagpur to find incriminating evidence. Prosecutor Zead Al Malum returned with multiple new witness statements, all implicating Kamaruzzaman for the first time. These statements were conspicuously uniform in style and language, raising serious doubts about their authenticity. The Tribunal was clearly aware of the dubious nature of this sudden evidence collection. It was understood by all of us that the prosecutor had gone to Sherpur to create evidence against Kamaruzzaman.
And then there were instances when the Tribunal would arbitrarily decide to follow one book in preference to another. In the Kamaruzzaman case, the Tribunal decided to rely on the book, “Ekattorer Ghatok O Dalalra Ke Kothai” written by Shahriar Kabir (although he is neither an academic nor a historian) in preference “Ekattorer Bijoygatha” written by Professor Muntasir Mamun. The Tribunal described Shahriar Kabir’s book as being more “authoritative” although it had no references of citations as Kamaruzzaman was described as the Chief Organiser of Al Badr in the book.
The other book in question was authored by the academic and historian Professor Muntasir Mamun, a recipient of both the Bangla Academy Literary Award and the Ekushey Padak. Despite his well-documented anti-Jamaat stance, Professor Mamun’s works did not implicate Kamaruzzaman in any crimes during the liberation war. However, the Tribunal dismissed Mamun’s book, arguing that it lacked references to authoritative sources and thus could not be classified as research. This highlights the Tribunal’s selective reliance on non-academic writings while disregarding established academic works when it suited their narrative.
As a defence lawyer, I observed that the widespread presentation of false evidence by witnesses could be attributed to the secular affirmation process mandated by Bangladesh law. Unlike Christian witnesses, non-Christian witnesses, including Hindus and Muslims, are not required to swear an oath on a religious text. This lack of religious sanctity associated with their testimony diminishes the moral and spiritual compulsion to speak the truth. This legal framework stems from the enactment of the Oaths Act, 1873, which restricted the privilege of swearing on religious texts to Christians alone. Following the enactment of the Oaths Act, 1873, the Allahabad High Court, in Queen Empress v. Maru (1888), acknowledged the detrimental impact of this change on the justice system in British India. The court observed that the exclusion of religious oaths for Hindu and Muslim witnesses significantly weakened the courts’ ability to ensure truthful testimony, undermining the administration of justice.
A fair trial hinges on authentic and reliable evidence. And it is the duty of the prosecution, investigators, and the Tribunal itself to ensure that the evidence presented complies with such standards. The repeated use of fabricated or dubious evidence undermines not only the judicial process but also public trust in the institutions responsible for justice. Investigators must commit to uncovering the truth, prosecutors should present cases based on credible and verifiable information, and the Tribunal must adjudicate impartially, prioritizing genuine evidence over conjecture.
True evidence is the cornerstone of justice. Without it, trials risk becoming mere performances, producing outcomes that are neither credible nor legitimate. The responsibility lies with all stakeholders to ensure that justice is not just done but is seen to be done. For the International Crimes Tribunal, this means breaking free from the shadows of past misconduct and striving to uphold the principles of fairness and truth, ensuring that justice retains its integrity.