The killers of intellectuals during the Liberation War can be prosecuted on the basis of evidence preserved by the government. It only needs to take a move to resume the long halted process of trial of the intellectuals' murder cases. 
Sufficient number of documents and records on the cases have been preserved since 1972 at the home ministry, Criminal Investigation Department, Ramna police station, district and sessions judges' courts, chief metropolitan magistrates' courts and deputy commissioners' offices.
Over the years, eminent jurists said all this evidence has now become ancient documents according to the evidence act, and is more effective than any other evidence in trying a case. And the government won't have to gather fresh evidence for trying the killers of intellectuals.
The Evidence Act, 1872, says documentary materials, which are more than 30 years old, are to be treated as ancient documents.
To resume the trial process, the jurists said, the government could enact a new law, or revive the Bangladesh Collaborators (Special Tribunals) Order, 1972, which was revoked on December 31, 1975, burying the process of trial of the killers.
"The government can revive the cases any time, if it wants. In the absence of parliament, the president can promulgate an ordinance to this effect," Vice-Chairman of Bangladesh Bar Council Khandker Mahbub Hossain told The Daily Star yesterday.
He was chief prosecutor of the cases under the collaborators order.
Echoing his views, Ghulam Rabbani, former judge of Appellate Division of the Supreme Court, said people who collaborated with the occupation Pakistan army should be punished. He pointed out that according to globally acclaimed jurist Lord Denning the main justification for punishment of a criminal is not that it is deterrent, but it is the emphatic denunciation of a crime by a community.
"Therefore, the collaborators order should be put into force again, and it will not affect the fundamental rights as stated in Article 35 of the Constitution…Secondly, Article 35 will not stand in the way of such revival of the order," Rabbani said.
After the independence, the then government of Bangabandhu Sheikh Mujibur Rahman promulgated the collaborators order and set up 73 special tribunals, including 11 in Dhaka to try Razakar, Al-Badr and Al-Shams forces, defined as collaborators in the order.
The families of many martyred intellectuals filed a large number of cases under the order, and the government initiated a move to try the criminals.
Trials started in June 1972 at a special tribunal with the first case being that for killing Abul Kalam Azad, a professor at the Institute of Advanced Science and Technology Teaching. The charge sheet in the case was submitted on June 13.
Information gathered from the families of martyred intellectuals, lawyers of the cases and newspaper reports of those days say six cases were disposed of and five persons convicted.
But the August 1975 changeover stopped the trial process since the collaborators order was revoked on December 31 that year and almost all the convicted collaborators were released in the early days of the regime of General Ziaur Rahman.
"I presume that necessary documentary materials for convicting the collaborators including the killers of intellectuals are lying with the home ministry. Since the materials are more than 30 years old, according to the evidence act those are to be treated as ancient documents. No other evidence is required as those at the disposal of the ministry would be sufficient as exhibits in the case records, and conviction and sentence on the basis of that are very much possible," Rabbani said referring to Section 90 of the Evidence Act, 1872.
Section 90 of the act says where any document, purporting or proved to be 30 years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the hand writing of any particular person, is in that person's hand writing, and in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
"Furthermore, there are sufficient admissions, as admissible under the evidence act, in the statements, news or photographs published at that time in the newspapers," he said.
Besides, the home ministry regularly kept contact with the occupation army since the Pakistan government sent messages to it ,and the ministry also forwarded information about the activities of collaborators to the Pakistan government during the Liberation War. And it has evidence of those.
The government of Bangabandhu had formed a committee comprising the late Supreme Court lawyer Sirajul Haque and the late attorney general Aminul Huq to enquire into the genocide. The committee compiled evidence and submitted a report on about 1,500 cases to the home ministry in July 1972.
The report listed the war criminals in two categories -- 195 members of Pakistani army and bureaucracy, who had been taken into custody in New Delhi and were subsequently handed over to Pakistan in 1974 following the Simla Agreement, and about 12,000 of their local collaborators, including members of Razakar, Al-Badr, Al-Shams and the peace committees.
HOW MANY INTELECTUALS WE LOST
When it became clear that the Pakistani forces headed for a defeat, they and their collaborators targeted the intelligentsia, dragging academics, journalists and professionals out of their homes, mostly on December 14, 1971, and killing them one after another.
In a statement on December 20, 1971, a spokesman of the Mujibnagar government said the Pakistani army and their henchmen had killed 360 intellectuals before they surrendered on December 16.
"Bangladesh", a documentary publication of the government in 1972, said the Pakistani occupation forces and their collaborators had killed 637 primary and 270 secondary schoolteachers, and 59 college teachers during the war of independence.
Bangla Academy in its encyclopaedia of martyred intellectuals named 'Shaheed Buddhijibi Koshgrantha', put the number at 232. The encyclopaedia, reprinted in 1994, however said the list was neither complete nor comprehensive.
The encyclopaedia defined martyrs as people who had been either killed by the Pakistani army or their collaborators or had gone missing between March 25, 1971 and January 31, 1972. It also defined intellectuals as writers, scientists, artists, singers, teachers at any level, researchers, journalists, lawyers, physicians, engineers, architects, sculptors, government and non-government staff, persons involved with film and theatre, and social and cultural workers.
Immediately after the discovery of a mass grave of martyred intellectuals at Rayer Bazar in the capital, Buddhijibi Nidhan Tathyanusandhan Committee was formed on December 18, 1971, under the initiative of a group of leading civil society members for enquiry into the killings.
The late filmmaker and litterateur Zahir Raihan was made convener of the 17-member committee. The committee started recording depositions on December 20, 1971 and worked on the lists and other documents recovered during raids on the killers' camps at Dhanmondi, Motijheel and elsewhere in Dhaka.
The lists, some short and others long, contained the names of 20,000 of the best brains of the nation, according to the members of the committee.
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