Tuesday, July 3, 2012

16 Apr 2012: Chowdhury plea recall

After dealing with the tribunal transfer, the tribunal dealt with an application for amendment of the charge-framing order relating to Saluddin Quader Chowdhury.

The written application was as follows:
1. That the Learned Tribunal without paying any heed to all applications pending before the tribunal proceeded with reading a prepared charge matter at about 11.00AM on 04.04.2012.

2. That the Chairman started reading historical backgrounds of the Indian Subcontinent spanning as far beyond the context of the charge matter. The Tribunal noted by saying “today is a remarkable occasion for the country” and continued read the allegations for formal charge.

3. That at the end of the reading of the earlier prepared materials the conversation of the petitioner and the Chairman was as follows:

Chairman: “Mr Chowdhury, you have heard and understood the aforesaid charges?”
Petitioner: “I did not hear them nor did I not understand them”
Chairman: “You did not understand?”
Petitioner: “No, I will have to read them and then I shall answer in writing.”
Chairman: “You do whatever you like.”
Petitioner: “I didn’t hear the charges and I certainly did not understand the charges”.
Chairman: “Are you guilty or not guilty?”
Petitioner: “Of what?”
Chairman: “Of the charges.”
Petitioner: “What charges?
Chairman (dictating to clerk): “It is presumed that the Accused has pleaded ‘not guilty’.”
Petitioner: “Your presumption is completely wrong.”

4. That this conversation between the Chairman of the Tribunal and the petitioner was also published in the newspapers as well as the dictation that the Chairman of the Tribunal gave to the Bench Officer.

5. That certified copy of the order was provided on 08.04.2012 containing 30 pages of plea, charge and order.

6. That in the plea portion of the certified copy reads as follows:

“Thus you have committed the offences, under different provisions of section 3(2) of the Act, punishable under section 20(2) of the Act an within the cognizance of this Tribunal. And we hereby direct you to be tried by this Tribunal on the said charges. You have heard and understood the charges.

Q: Are you guilty or not- guilty?

Ans:   “Not Guilty”
The charges are read over and explained to the accused in dock who pleaded not guilty and claimed to be tried.”

7. That this is the way the Hon’ble Chairman concluded the framing of charge chapter and fixed the date 29.04.2012 for examination of witnesses.

8. That Sec 10(1)(b) of the ICT Act reads as follows “ the tribunal shall ask each accused person whether he pleads guilty or not”, and Rule 38(2) reads as follows “An accused pleading not guilty will get at least three weeks time for preparing his defence” but in the instant case since the petitioner neither pleaded guilty nor pleaded not guilty and instead the petitioner prayed to read the charges himself before his plea is recorded.

9. That members of the media were present at the hearing of the charge as well as the plea portion, and that news articles published on the following day regarding the framing of charge of Mr Chowdhury do not correspond with the last portion of the certified order.

10. That the plea and ordering portion of the charge hearing is not an innocuous mistake by the tribunal since it indisputably affects the proceedings and adversely affects the fate of the petitioner’s right to a fair trial and brings into question the good faith of the Tribunal.

11. That the true and actual proceedings does not give authority to the Chairman of the Tribunal to presume that the petitioner pleaded ‘not guilty’ when the petitioner clearly stated that he did not understand the charges and said he would reply after reading the charges.

12. That after the reading and order of charges, among open discourse with the Defense and Petitioner regarding the Petitioner’s right to speak in court and the Chairman’s reluctance to allow it, the Chairman of the Tribunal claimed to the Petitioner and the Defense that he believed that he was placed there (as Chairman of the Tribunal) by God. The Petitioner clarified to the Chairman that the Chairman was in fact placed there by the Law Secretary. The Chairman repeated his claim and further added that he “shall do what the people want”.

13. That the plea portion of the certified copy of the order is a blatant fiction and that the Chairman passed an order based on a presumption of a plea by the petitioner which he has no authority and provision to do, and hence the entire order may kindly be recalled.
Fakhrul Islam, the Defence Counsel, stated that; the tribunal has asked to the accused that- whether you are guilty or not. After getting no answer the tribunal afterward stated that it is presumed that he has not pleaded guilty.

Justice Nizamul Huq: He has to choose one; either guilty or not guilty.

Fakhrul Islam: It was a innocent and harmless mistake of the tribunal to put the word on the order sheet.

Justice Nizamul Huq: [angrily] How do you think that- the tribunal can be mistaken? Explain it.

Fakhrul Islam: It may be mistake of the tribunal or the Bench Officer.

Justice Nizamul Huq: Mr. Islam; sometimes you’re playing with fire. Whether writing guilty or not guilty is a mistake?

Fakhrul Islam: You might not write it on this language.

Justice Nizamul Huq: The tribunal need not learn about what should be writen on the order sheet. Please go forward. What corrections are you asking for the charge framing

Fakhrul Islam [Defence Counsel]: Your Lordship, might kindly recall that- after getting your question about pleading guilty or not- at first he said that- he can’t understand and after that he answered he will answer after reading the order.

Justice AKM Zaheer: Section-10(1) of the ICT Act-1973 says that- the charges will be read over to the accused; but it has not been mentioned anywhere that the order should be given to the accused, after he read over and getting accustomed with it he might give the answer. You might ask that my client has not understood, so your Lordship might kindly make it clear to him.

Justice Anwarul Haque: In any case after reading over the charge to the accused, if he/she say that- I can’t understand or I need time to understand, then will it be permissible to allow time? There is no system like this.

Justice Nizamul Huq: Now, tell us whether you’re feeling prejudiced for writing the line. It is presumed that he has not pleaded guilty. Are you countering review on this ground? Now you have to choose one thing.

Zead Al Malum [Prosecutor]: Your Lordship; each and every times they’re claiming that the accused has not understood; but it is to be noted that he was the member of the Parliament. Total 91 applications have been placed before the Tribunal which are organized, dictated and planned by Salahuddin Quader Choudhury. Now, in no way it is believable that he could not understand the order.

Justice AKM Zaheer: Salahuddin Quader Choudhury is a very meritorious person. It would be a matter to disrespect him, if it is said that- he has not understood the matter.

Justice Nizamul Huq: It has been stated in the order that he said I didn’t hear nor did I understand that.

Salahuddin Quader Choudhury: I would like to add something Sir. I’ve not understood it was intended for what charge. It was not even stated in the charge brought against me by the Prosecution that- the accused was the member of Convention Muslim League. But the tribunal chairman was reading over the order, I just found that- the honorable members of the tribunal are stating that- I was the member of Convention Muslim League, from that time my mind got switched off; because I was in no way the member of Convention Muslim League. So, I was not able to concentrate on any matter afterwards.

Justice Nizamul Huq: As far as I could remember, it was stated about your father.

Salahuddin Quader Choudhury: I was in no way the member of Convention Muslim League.

Justice Nizamul Huq: If it is so, then we have the power to amend anything even judgment. You could have mentioned it on the very day.

Zead Al Malum [Prosecutor]: My learned friend; defence counsel Mr. Fakhrul Islam is trying to make the senior parliamentarian an adolescent person; I strongly disagree the matter. And after rejecting the review petition; by which power the rejected order is prayed to be reviewed. It is not clear. So, their submission should be rejected.

Justice Nizamul Huq: Okay 24th April is fixed for the order for review.

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