1. The defence has come up with an application under Rule 464 of the Rules of Procedure, filed on behalf of the accused Abdul Quader Molla, seeking fulland complete retrial of the case, on the grounds stated therein. Retrial of the case has been sought for to be held in the manner stated in paragraph 9 of the application. We have heard the application today. Now the record is taken up for passing our reasoned decision.
Submission of the Defence
2. Mr. Md. Tajul Islam, learned counsel for the defence submits that a newly constituted Bench is to be set up for the reason of previous involvement or interaction of the Judges of the ICT-2 with the former chairman of ICT-I. The learned counsel by drawing attention to the copies of the news reports published in the Daily Amar Desh annexed with the application has further submitted that the former chairman of ICT-I had skype conversations with one Dr. Ahmed Ziauddin a Brussels based Bangladeshi on proceedings pending in ICT-I. The conversation also shows collusion with prosecutors of ICT-2 and ‘higher level' meaning the highly placed person in the Government, to enable ICT-I to deliver the first verdict. They discussed the means of interfering with the process of the cases before the ICT2. Judge Md. shahinur Islam of ICT2, during his tenure as the Registrar in ICT-I, would have been exposed to the views and sentiments of the former Chairman of ICT-I. One conversation has involved Mr. Justice Obaidul Hassan, the present chairman of ICT-2 giving suggestion to minimize Judge Md. Shahinur Islam by Mr. Justice Obaidul Hassan. From the conversations it would appear that influence of the former chairman of ICT- I on the Judges of ICT-2 almost certainly had an adverse influence on proceedings and a prejudicial impact on the accused. Finally, by citing decisions and related jurisprudence it has been submitted that the Judges of ICT-2 having prior association with the former chairman of ICT-1 are not capable to seat for performing judicial functions for the reason of perception created in the mind of public. Therefore, retrial of the case incorporating the necessary preconditions set out in paragraph 9 of the application would be the only viable alternative in the circumstances.
Submission of the Prosecutor
3. It is to be noted first that in the wake of a controversy over skype conversation and e-mail communication between the former Chairman of ICT-I and one Bangladeshi based in Brussels, Belgium the Chairman formally has stepped down from chairmanship of ICT-I. Thereafter, both the Tribunals have been reconstituted and Mr. Justice A.T.M Fazle Kabir the former chairman of ICT-2 has been appointed chairman of ICT-1 and Mr. Justice Obaidul Hassan, Member of ICT-2 has been appointed Chairman of ICT-2 with Mr. Justice Md. Muzibur Rahman Mia as its new Member.
4. This Tribunal (ICT-2) has been set up by a gazette notification dated 22 March 2012. lnitially the Tribunal was composed of three judges including Justice A.T.M Fazle Kabir, Justice Obaidul Hassan and Judge Md. Shahinur Islam. Of them Judge Md. Shahinur Islam is qualified to be a Judge of Bangladesh Supreme Court and prior to his appointment as a Member of ICT-2 he had been working as the Registrar of the Tribunal and not as the Registrar of ICT-I. His prior assignment was concerned to the mere administration of the Tribunal and he had to discharge his duties as authorized under the ROP formulated by the Tribunal under section 22 of the Act of 1973.
5. After formation of this Tribunal (ICT-2) it received the case of the Chief Prosecutor Vs. Abdul Quader Molla, on transfer, from ICT-I and thereafter providing due notice to both sides and after hearing the parties charges have been framed. Now the case is at trial stage and meanwhile prosecution completed summing up of the (argument) of the prosecution case and the defence today has started to sum up the defence case. Trial is still going on.
6. First, the application is not tenable in law as the Act of 1973 does not provide provision of retrial. Rule 46A has given jurisdiction and authority to the Tribunal to make such order as may be necessary to meet the ends of justice and the power given in the Rule is to be exercised by the Tribunal itself on its own motion and not on application of either party.
7. We have learnt that defence in respect of cases pending in ICT-1 has already prayed there for fresh trial of cases mainly on the ground that the proceedings of those cases were not free from outside influence. We are not authorized to identify the truthfulness of those materials which are admittedly have been obtained through hacking of e-mail communications and skype conversations between the former Chairman of ICT-I and Dr Ahmed Ziauddin. However, the way of leaking the private conversations is an 'offence'.
8. The learned defence counsel has made an effort to construe an impression that the ICT-2 and its Judges have also been influenced by the alleged conversations of the former ICT-I Chairman and a third person. We really fail to understand that what the defence has meant by 'previous involvement or interaction' of the Judges of the ICT-2 with the former Chairman of ICT-1'.
9. The judges of ICT-2 axe not the party to the alleged illegally recorded skype conversation. The conversation, if really true, was done exclusively between the former Chairman of ICT-1 and a third person, on their own responsibility and thus such conversation can in no way taint the interaction of Judges of ICT-2 with the former Chairman of ICT-I, as colleague judges. We strongly discourage such unfounded and airy aspersion brought in the application in respect of the faimess of Judges of ICT-2
10. It is true that Judge Md. Shahinur Islam, Member of ICT-2 had been serving as the Registrar of the Tribunal till constitution of ICT-2 on 22 March 2012. But we do not find any earthly reason to say that he would have been exposed to the views and sentiments of the former Chairman of ICT-I. He, as the Registrar, simply had to perform administrative works of the Tribunal as authorized under the ROP.
11. Rather, prima facie. it will appear from those alleged illegally obtained materials i.e. transcript of skype conversaiion that Judge Md. Shahinur Islam, Member of ICT-2 was not liked by them (former Chairman ICT-I and Dr. Zia) as according to them he was too inclined to international standard and he in passing orders used to cite international references. Further, the Tribunal (ICT-2) is composed of three judges of whom two are the sitting Judges of Bangladesh Supreme Court and it is quite impracticable to infer that any particular judge of ICT-2 has been able to affect the proceedings being influenced by such conversations that admittedly took place between the former Chairman of ICT-I and an outsider third party.
12. It will be found from The Economist (Dec 15th 2012) is stated also at page 30 of the applicationl that:
'Second, their discussions ranged beyond the realm of technical advice. On September 6th Mr Nizamul said: "I am a bit afraid about Shahinur [Shahinur Islam, a tribunal judge]. Because he is too inclined to the international standard. It...was in my mind-and prosecutors also complained to me-that he brought the references of foreign tribunals in every order." Mr Ziauddin replied, "he has to be stopped from doing that or he has to be removed from there...Ifhe does not stop he has to go as well, because it is so harmful to us” Here Mr Zaiuddin talks as though he can recommend the dismissal of a judge.’13. The conversation' if taken to be true, indicates that there had been a design even to remove Judge Md Shahinur Islam which of course does not suggest that the said third person or the former chairman of the ICT-I had been successful in any manner to cause influence either on him or any of Judges of the ICT-2. Rather, the above alleged conversation reminds us again that Judge Md. Shahinur Islam is not a person liked by the alleged Brussels based Dr zia for his [Judge Md. Shahinur Islam] inclination to international standard in disposing of matters. Is such inclination any ineligibility for a Judge who is here to deal with the matter of prosecution of international crimes? If it is not so, how Judge Md. Shahinur Islam or any of Judges of ICT-2 can be said to have been influenced by the alleged illegally recorded skype conversations? Rather, this alleged conversation, if true, is aimed to attack the judicial fairness of the ICT-2 and its Judges including the Member Judge Md. Shahinur Islam.
14. It has been contended by the leamed defence counsel that from the conversations it would appear that influence of the former chairman of ICT-I on the other Judges almost certainly had an adverse influence on proceedings. Hacking e-mail communication and illegally recording one's skype conversation itself is an 'offence'. The ICT-2 is not in any way concerned with such alleged private conversations and communications made between the former chairman of ICT-1 and a third person. This Tribunal (ICT-2) is quite independent and separate judicial body which has been functioning quite independently free from any kind of influence and bias. The learned defence counsel has made a superfluous attempt to imprint stigma on ICT-2 by bringing the instant application. It is regrettable indeed.
15. Besides, any comment evolved from their private conversation does not give rise to any indication that any of Judges of lCT-2 has acted being influenced from outside. All orders have been passed by the ICT-2 composed of three Judges and thus it is totally unbelievable and unacceptable that the proceedings of the case have been somehow influenced by the former Chairman of ICT-I or any outsider activities.
16.It has been submitted from the end of defence that cognizance was taken on 28.12.2011 by ICT-I being influenced by third person with whom the former chairman of ICT-I had conversations and thus further proceedings need to be taken place afresh. It is to be noted that cognizance is taken of offences committed and not against accused. That is taking cognizance of offence is a matter of taking the fact of commission of offence alleged into judicial notice. The defence is not needed to be heard at this stage. The order of taking cognizance was taken not by the former Chairman of ICT- 1 alone but by the Tribunal (ICT- 1) composed of three judges.
17. The case record of the instant case was sent to this Tribunal (ICT-2) after taking such cognizance of offences by the ICT-I. Thereafter on receipt of the case record this Tribunal (ICT-2) framed charges on hearing both parties and the hearing centered to the formal charge, statement of witnesses and documents upon which the prosecution intended to rely upon. Before such hearing, copies of all those documents were fumished to the defence. The defence, the record goes to show, filed application seeking review of order framing charges and this Tribunal rejected the same after due hearing of both parties.
18. After framing charges, meanwhile prosecution completed summing up of the (argument) of the prosecution case and the defence today has started to sum up the defence case. Trial is still going on. The stage of taking evidence is being held in public and transparently. Both parties have been afforded sufficient time they need to examine and cross-examine witnesses. Therefore, the order taking cognizance of offence committed cannot be a basis of retrial of the case and we do not find anything to infer that the order of taking cognizance was the outcome of any influence from outside.
19. The application does not have any merit whatsoever for consideration. Having regard to submissions and reasons stated above, we do hereby reject the application.