Why Molla Should Not Be Hanged

7/27/2019 Why Molla Should Not Be Hanged

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Why Molla should not be hanged

By: David Bergman

• Unreliability of witness testimony is

reason alone why Molla should not

be hanged

• The biggest drawback of this

particular case is the testimony of

false Momena Begum. The

Supreme Court has awarded Molla

with death penalty on this basis of

the testimony of this lady who had

delivered 3 different statements in

three different occasions.

It is impossible not to have enormous pools of

sympathy for Momena Begum, whose

immediate family was massacred in Mirpur on

26 March 1971, less than a day after Pakistan

began its military crackdown which started the

war for the Independence of Bangladesh.No

one questions that Momena, who was 12 or 13

years of age during the 1971 war, suffered a

huge tragedy in her life and it is very

unfortunate – having gone through so much –

that her testimony in the international crimes

tribunal now must come under close scrutiny.

This, though is somewhat inevitable since her

testimony, about which the tribunal said that there

was ‘no earthly reason to disbelieve’, is the sole

reason why the Jamaat-e-Islami leader Abdul QuaderMolla now faces a death penalty.

On 7 October, a report in New Age detailed how

Momena’s testimony in court differed in highly

relevant matters to previous two statements – one

to a liberation war museum researcher in 2007 and

another to the tribunal investigation officer in the

case in 2010. [Please note you can access here all the

documents referred to in the original New Age

article, and below) in the annotated version]

In neither statement did she mention that Molla was

present at the scene of the crime – in both

statements she claimed that it was Biharis who came

to her family’s house accompanied by Pakistan

military. No mention of any Bengali man, yet alone a

person called Molla in either.

In the statement to the liberation war museum researcher

she even said that she was not an eye-witness, having

travelled two days earlier to her in-law’s house.

The inconsistencies in these statements – which go to the

very heart of the prosecution’s case – raise serious doubts

as to merit of the conviction.

Conviction requires that an offence be proved ‘beyond

reasonable doubt’.

In the context of this offence, this must mean that the

tribunal had (putting to other various legal issues) to be

‘sure’ or ‘convinced’ of the truth of Momena’s claim made

in her testimony in court that Molla was present when her

family was massacred.



The trial concerns events 42 years ago – a long period of

time to have passed prior to a trial taking place.

Witness testimony is, at the best of times, now considered

of questionable reliability – and so particular scrutiny

needs to be given when considering a witness who gave

uncorroborated testimony 42 years after the event, and onthe basis of which a person has been convicted and given

the death penalty.

It is possible for a single uncorroborated witness to be the

basis of a conviction for the offence of murder in

Bangladesh law or for a ‘war crime’ in international law.

However, for this to happen, the court has to be very

certain of the reliability of the witness’s evidence – and the

consistency of the accounts given by that witness over

time is one crucial component of judging that.

And it is the lack of consistency in Momena’s evidence

which is concerning.

For the whole of the last 43 years since the incident on 26

March 1971, it appears that Momena never told anybody

that Quader Molla had been present at the time of her

family’s murder.*

Prior statements made by a witness which are consistent

with subsequent testimony in court can help to increase a

view that witness is reliable – but in relation to Molla’s

presence at the crime scene, there was no such prior

supportive evidence.

The prosecution did not collect any statement from a

single person stating that Momena had told him or her

that Molla, who in the last few decades had become a well

known politician, was involved in the murders.

Is it feasible that throughout, this whole 43 years she did

not tell anybody – not even a friend or wider family

member – and then out of the blue suddenly tells a court

of law?

When asked about this in her cross examination, Momena

said: ‘Many people came to me and snapped my photosbut I didn’t tell the name of Quader Molla and Aktar

Gunda to anybody out of fear.’

One can appreciate, why a woman, whose whole family

has been murdered, might not want to inform a stray

journalist or other such person that Molla, a powerful

politician, was involved in her family’s murder.

But if it was in fact true that Molla was present when her

family was killed, and she witnessed this, it is difficult to

understand why she never told anyone else at all in all of

these years.

Her failure to have done should raise some initial concerns

about the reliability of her subsequent testimony in court.

However, it is not just the lack of prior corroborative

statements, it is the presence of two statements Momena

previously provided which were substantively inconsistent

with her testimony that are really significant.

In Momena’s 2007 statement to the Liberation War

Museum researcher, she says that she was not present at

the time of the murder. The liberation war museum

researcher wrote: ‘Because the elder daughter of Hazrat

Ali, Momena Begum, left for her father in law’s house two

days earlier, she remained alive. … After a few days the

elder daughter of Hazrat Ali Momena Begum knew

everything about what happened, but as the situation in

Mirpur was still problematic, she was not able to come to

Mirpur.’

In its judgment, the tribunal did not engage directly with

the statement Momena made in 2007, but did consider

the overall relevancy of the statements taken by the

liberation war museum researchers. It stated: ‘The tribunal

refrains from taking the account made to a non-judicial

body into consideration for the purpose of determining

credibility of testimony of witnesses made before the

tribunal.’

It gave a number of reasons for this.

First, that the ‘photographed copy’ of the alleged

statement submitted before this Tribunal was not

authenticated.

However, the tribunal had earlier refused an application by

the defence lawyers asking it to request the original

documents from the museum – something which it had

the power to do.

Secondly, it stated that the ‘photographed copy of

statement’ did not form part of documents submitted by

the defence at the commencement of the trial and so

could not be taken into account.

It is true that the defence did not submit these statements

at that time – but that is because they only came to light at

the end of the trial. This statement of Momena’s is clearly

a significant piece of evidence and it is difficult to



appreciate why the tribunal would not want to make use

of its ‘inherent power … to meet the ends of justice,’ not

only just to access the original document, but to consider

recalling her as a witness even at the late stage.

Moreover, there is another relevant issue here. It is

difficult to believe that the tribunal investigators were

unaware of this statement – since it was the museum in

Jallad Kanna that helped set up the investigation officer’s

interview with Momena.

This suggests that the prosecution failed to inform the

tribunal – or the defence – of the existence of a very

relevant piece of evidence necessary to assist in the

determination of an offence.

Whilst Bangladesh law – unlike international law – does

not require that the prosecution provide the defence with

exonerating evidence, its apparent failure to make such a

statement available does raise questions about the probity

of the state appointed lawyers. The strong possibility that

the prosecution had been aware of Momena’s 2007

statement throughout the trial, should arguably have been

a factor that the tribunal considered in deciding whether

to seek the original copy.

The third reason why the tribunal refused to give any

consideration to the statement, was because it was not

sworn testimony. The judges stated that the value

attached to the statements is ‘considerably less than direct

sworn testimony before the Tribunal, the truth of whichhas been subjected to the test of cross-examination’ and

as a result the ‘statement cannot be taken into

consideration for determining inconsistencies of statement

of witnesses with their earlier statement.’

The tribunal here seems to be saying that only prior

statements given in court which have been subjected to

judicial cross-examination can be used to question the

reliability of testimony subsequently given in court.

However, law in Bangladesh along with law in other

jurisdictions, prior ‘non-judicial’ statements, can be

relevant in dealing with the question of witness reliability.

Moreover, the tribunal’s position on this contradicts what

it has said elsewhere in the judgment.

In dealing with another charge against Molla, the tribunal

had to consider a contradiction between the testimony

made by a witness in court and his prior (inconsistent)

witness statement to an investigation officer.

In relation to this the tribunal stated (at para 269 of the

judgement) that if the contradiction is minor, not affecting

the core of a prosecution case it will not have an impact.

“In all criminal cases, normal discrepancies are bound to

occur in the depositions of witnesses due to normal errors

of observation, namely, errors of memory due to lapse oftime or due to mental disposition such as shock and horror

at the time of occurrence. Thus, exaggerations per se do

not render the evidence brittle. However, minor

contradictions, inconsistencies, embellishments or

improvements on trivial matters which do not affect the

core of the prosecution case, should not be made a ground

on which the evidence can be rejected in its entirety.’

There is no doubt that what Momena said to the museum

researcher is far from trivial and does absolutely ‘affect

the core’ of the case - whether Molla was present or not.

So the tribunal’s decision not to consider the relevancy of

the statement Momena gave in 2007 is concerning.

The prosecutor, Mohammad Ali told New Age that at the

time of giving this statement, Momena may well have

feared repercussions and it would be entirely reasonable

for her to lie about Molla’s presence.

Whilst, this was not mentioned by the tribunal in its

discussion of the liberation war museum statement, the

point does need consideration.

The museum statement was taken 36 years after the

event, at a time when the Bangladesh Nationalist

Party/Jamaat-e-Islami were not in power, during a state of

emergency when there was a widespread campaign to

hold trials and it was given by Momena to a liberation war

museum researcher, someone clearly sympathetic to her

plight.

In that situation, would it have been reasonable to imagine

that she would have lied about whether she was an eye-

witness or not? Whilst one can’t discount this possibility, it

is also not that probable.

Momena’s 2010 statement to the investigation officer,

who had been specifically assigned to investigate Molla, is

again different from her subsequent testimony.

This time she says that she was present at the time her

family was massacred. Assuming that on this occasion,

Momena is telling the truth, it is important to note that

she again does not state that Molla was present at the

time of her family’s massacre.



Momena did not tell the investigation officer – as she

subsequently did in her testimony in court – that her

father rushed into the house and said that Molla was

chasing him; that Molla grabbed her father by the collar;

and that she was told subsequently by two people that

Molla was involved.

The failure to mention Molla at part of the gang is

particularly relevant since Momena does tell the

investigation officer that a Bihari called Akhter Gunda was

in fact present.

If Molla had been present, why would Momena not have

mentioned it to the officer who was actually investigating

Molla?

The differences between the statement given to the

investigation officer and the court testimony are clearly

not minor ‘contradictions’, ‘inconsistencies’,

‘embellishments’ or ‘improvement on trivial matters’ –

which the tribunal, as noted above, considered could be

seen to have no impact upon the credibility of the witness.

This contradiction goes to the core of the case.

It is notable that in its judgment the tribunal, when

assessing Momena’s court testimony, appears not to have

chosen to refer to – yet alone consider – the contradictory

statement Momena made to the investigation officer.

There are two further points – though less significant –

which are relevant to the assessment of the witness’s

reliability.

First, Momena did admit in her evidence that after her

family’s murder she had a mental breakdown that lasted

for two years, requiring her to be ‘chained’ up.

Whilst clearly, a person can have a breakdown and still

retain her memory, it is arguably a factor that would need

to be taken into account in terms of her reliability about an

event 43 years ago.

In addition, in its assessment of Momena’s evidence, the

tribunal in its judgment pointed out that Momena was ‘anatural live witness’.

It is of course difficult to second guess the view of the

tribunal on this, but it is notable that when she gave her

testimony, Momena was wearing a hijab – so her whole

face was covered except for her eyes. One can question

whether the tribunal can really argue, in such a situation,

that she was such a ‘natural’ witness when the court could

not even see her demeanor.

So in summary: the sole basis of Molla’s death sentence

is the uncorroborated testimony of a single witness who

said (having suffered a mental breakdown, and whilst

wearing a hijab) that the accused was present at a crime

scene, in recollection of events 43 years previously when

she was 12 or 13 years of age, and where she had, uptil

that point, never mentioned his presence at the scene,

and where her testimony was inconsistent with two

other statements she had given (including one to an

investigation officer).

Whilst it is of course it is certainly possible that Molla was

present at the time of the massacre, in light of all the

combination of the reasons above, there remains sufficient

doubt about the reliability of Momena’s testimony, that it

really should not be the basis to convict him for this

offence and, significantly, be the reason why he is put to

death.

It is just as likely, with this context above, that prior to the

trial this vulnerable women was pressed to include the

name of Molla in her testimony. Something that the

tribunal did not consider at all.

The detailed grounds of why the appellate division thought

that a death penalty was appropriate have not yet been

published.

It will obviously be interesting to see why in light of the

above, the court felt it appropriate not just to uphold the

conviction but also to pass the death penalty.

However, at least this is not the end of the road: the

appellate division does have the opportunity to correct

itself if it considers reviewing its decision.

If it does not, whilst Molla’s death may satisfy those

convinced of his guilt, it will, to say the very least, not be

a golden day in the country’s criminal justice system.

Source: David Bergman Blog: http://bangladeshwarcrimes.blogspot.ca/

http://bangladeshwarcrimes.blogspot.ca/




Documents

Why Molla Should Not Be Hanged