The first war crimes tribunal on Wednesday erupted as the defence and the prosecution shouted at each other.
This was preceded by defence counsel Tajul Islam engaging in an argument with the court in a rather loud voice after the tribunal had cautioned him.
The court atmosphere became hot close to the end of the day's proceedings, a little after 2:30pm when tribunal Chairman Justice Mohammad Nizamul Huq rejected a plea from Jamaat-e-Islami leader Delwar Hossain Sayedee's senior defence counsel Mizanul Islam.
The senior counsel, who has been leading Sayedee's trial with his meticulous cross-examination and earned the confidence of the tribunal, argued that he meant to prove that a certain application of the prosecution was malafide and in turn showed that fraud had been committed upon the court.
Set up to deal crimes against humanity during the 1971 Liberation War, the three-judge International Crimes Tribunal – 1 indicted the Jamaat executive council member on 20 counts of war crimes on Oct 3, 2011 including murder, rape, arson and loot.
The tribunal had on Mar 29 partially allowed a prosecution petition to receive 15 witness statements taken down by Sayedee's war crimes investigator as evidence. The order noted that those witnesses had not been produced in the court for cross-examination, nor were they under oath during their interview with ASP Mohammda Helal Uddin, the case investigation officer.
That application cited a provision of the tribunal's act which allows such statements to be taken as evidence in case of witness deaths or in cases where producing those witnesses would require unreasonable time or incur unreasonable expenses.
The prosecution had said some witnesses could not be found, some had fled, most likely to India, some were being threatened by armed thugs loyal to Sayedee and one was extremely ill and perhaps on her death bed.
The tribunal then allowed 15 statements to be received as evidence instead of 46 that the prosecution had asked for.
Mizanul Islam, the defence counsel, has been cross-examining the investigator for the last few days about the procedures he followed regarding those 15 witnesses to verify if Helal Uddin had exhausted his efforts to locate them, presumably in a bid to discredit the investigation.
On Wednesday, when the investigator took oath for the 41st time to be cross-examined, Mizanul Islam also asked questions about other witnesses in the prosecution's list of 46 'unavailable' witnesses.
The tribunal said it would not allow questions regarding witnesses whose statements were not being received as evidence since those would not even be considered in the case.
The defence counsel then reiterated a point he has been making for quite some time. Mizanul Islam said that his contention was that the entire application had been based on false premises and the prosecution had misrepresented the facts in that application when it claimed that the witnesses had gone missing or could not be traced and so forth.
Mizanul Islam also pointed that even the tribunal remained unconvinced regarding 31 of those witnesses and allowed the petition for only 15 witnesses.
"Now you come to the point," said Justice Huq. He said the court had thus rejected the prayer for the rest of the witnesses.
"But you did not state in the order that the information was false and fabricated," the defence counsel said and added that this was what he wanted to show through his cross-examination.
There has been an implied understanding that the tribunal will be lenient in allowing defence counsel proceed with questions regarding the 15 witnesses and Mizanul Islam has been at it over the last few days.
However, regarding the other 31, the court put its foot down with the tribunal Chairman saying that he would not allow questions regarding the other witnesses.
The defence resorted to his last measure that he generally does whenever his oral submissions are rejected. Mizanul Islam said he would come back with a petition to that effect, and the tribunal chief he could very well do. "That is your wish and you can very well do that, but it stands rejected."
One of the lawyers representing almost the entire Jamaat leadership at the war crimes tribunals, Tajul Islam had joined the proceedings a short while before this exchange between the bar and the bench. He was heard to exlaim, "The application stands rejected even before it is heard!"
Unheeded, the tribunal chief told Mizanul Islam, "I will not waste our time regarding the 31 witnesses. We won't allow questions regarding them."
Tajul Islam's voice could be heard again from the other side of the court. "If we are not allowed to ask questions then what is the point of staying here?"
Tribunal member Anwarul Haque intervened to convince Mizanul Islam. "You see the remaining 31 were not accepted. Their statements are not going to be of any value."
"But I am not going to ask questions about their statements at all. It is about the facts that the prosecution presented that I wish to question him," said Mizanul Islam.
Tajul Islam was still passing remarks among his colleague in the defence and by this time the tribunal chair took serious exception.
"Mr Tajul Islam," he began in a harsh voice and continued, "I have heard the remark you made. I caution you."
The defence counsel stood up and began to protest loudly and said the judge had not heard it correctly.
The judge replied that he had indeed. "You suggested leaving the courtroom."
"No, I only said there is no point staying."
"It comes down to the same thing," said Justice Huq.
The counsel then told the judge. "I am talking amongst my friends and the judges are not supposed to hear that. You talk amongst yourselves and expect us not to hear that either."
Justice Huq could only manage to say, "You are saying that you are talking in the court and the judge is not supposed to hear it!"
Tajul Islam continued in his loud voice that the court was accusing him of something that was not true but Prosecutor Abdur Rahman Howladar stood up and protested the defence counsel's behaviour as loudly.
Tajul Islam then shouted back at him saying, "Don't shout."
Justice Huq stopped both parties and addressed Tajul Islam saying, "You have been shouting more than anyone else."
He then said, "We are having no further discussion in this regard."
Mizanul Islam, however, protested, saying that he was yet to be done with his submissions.
Justice Huq said, "All day long, we have been conducting the proceedings in a befitting manner. And the moment Tajul Islam comes in, he starts up a ruckus."
Mizanul Islam said, he never spoke without the leave of the tribunal, nor when the prosecution is submitting. "There might have been one or two exceptions. But the prosecution should not have intervened in such a manner when the defence is in the middle of an argument with the tribunal. That was undesirable."
It was obvious that the court would not see any further questions from the defence. Before rising, the tribunal Chairman told Mizanul Islam that the court expected that the defence conclude cross-examination of the investigation officer by Thursday.
Mizanul Islam shook his head indicating that it would be impossible.
"You have said that you would try and we expect it to be finished tomorrow," said Justice Huq.
The defence counsel kept shaking his head saying, "It won't be possible."
The tribunal chief, however, did not dwell upon the matter any further.
Mohammad Helal Uddin's cross-examination is set to resume for the 42nd time on Thursday and continue through the day.
