1 Jan 2013: Skype retrial application, day 8

On the final day or submissions relating to the defense application seeking a review of the trials of Sayedee, Azam and Nizami (following on from the previous day) the tribunal first heard from Abdur Razak, the defense lawyer, and then heard again from the Attorney General.

Summary of Razak's submissions
He argued the following:

My Lord, today I will defend some points made out by my learned friend Mr. Attorney General on my previous submission regarding skype matters.
 At the first position he alleged that this formal charge has been drafted and brought by prosecution and he said that private communication is not submissible in this tribunal.
 Secondly, he said that even if he took help from Ahmed Ziauddin, he has every authority to do this.
 Thirdly, he said a person can not take advantages of his own wrong.
 And finally my lord, I want a fair trial for my client.
 On the 1st point I want to say formal charge is the craft of the tribunal. Depending on it the whole trial find its pathway. My Lord he has said that this charge has been investigated, drafted and submitted only by the prosecution counsel. I am fully agreed with him but I want to say they did this work with full help from a third party I mean Ahmed Ziauddin.

My Lord, this charge has been amended 5 times before submission and this draft was made by Ahmed Ziauddin. And we shown some emails as proof.

My learned friend said that it is fully private matters not to disclose and these mails are irrelevant in this case. But these are not extraneous matters, he is totally incorrect. We are affected, this goes to the root course to the justice.

He showed an order of the tribunal prohibiting not to transcript or publish. But my lord, we didn't want the permission to publish all these materials. We just submitted before you to show how injustice happened. He also referred sec 36, 55, 56 of Information Technology Act 2006. But my lord, where is the prohibition in this whole Act.
 And my second point is to show that my clients are not thief, he said that no one can take advantage of his own wrong. My Lord, we have said before these materials have been published in various news papers and websites of our country as well as abroad. So this is in public domain . And again we are strongly defending his argument that this Gulam Azam, Nizami, Sayedee did not steal these and not using for their advantages.

My Lord, take a look to the sec 6(2a) of this law, there are two ingredients. It demands not only independence of justice but also fair trial should be ensured.

Yes, we are in agreement that cognisance was taken by you but framing of charges was by someone else. Review order, recusal order came from Brussels, so independence of judicial functions has been compromised and consequently my clients were affected, that's why I want a fair trial.

In sec 6(6) it says if there happens a 'mere' change then you can continue the previous proceedings but it doesn't say you must continue. We submitted that this is not a mere change it is an extraordinary change. He (Justice Nizamul Haque) committed a forge not only to this tribunal but also to the entire judiciary.

Attorney General: I strongly object my lord, he can't use this language.

Tribunal: you better sit down. We are listening to him, if you have anything to say we will hear you later.

Razzaq: Therefore this is not a small matter, it is a big matter. Another thing is that inherent power can't be taken away from court, if it is taken away then there will be no existence of the court.

Tribunal: there is a verdict of Appealate division in what extent inherent power can be exercised and not to misuse.

Razzaq: My Lord, you have a view that sec 6(6) is preventing not to re trial but my lord it is not barring you towards a fair justice.

Razzaq continued:

My Lord, my learned friend also said that former chairman Justice Nizamul Haque didn't do any wrong communicating with Ahmed Ziauddin. He had that authority to take any help from anybody and referred sec 11 (1e) and 11(6). Let's see what says these sections Sec 11(1e) says "A Tribunal shall have power to appoint persons carrying out any task designated by the tribunal" and what says 11(6). It says: "the chairman of a tribunal may make such administrative arrangements as he considers necessary for the performance of the functions of the tribunal under this Act." 

So I want to ask a question, my dear friend who appointed Ahmed Ziauddin? Do you know? We don't know. This was not an appoinment, it was a conspiracy against fair trial.

And in sec 11(6) it says about an administrative arrangements such as various administrative officials for carrying out functions of administrative in nature. But my lord I want to say what was done by Ahmed Ziauddin not an administrative function, this is fully a judicial functions. 

If we go through various war crimes trial, we see that except Cambodia nowhere was any provision to appoint such advisors.  

My Lord, though it's a national court but there are some ingredients of international nature. These case of Gulam Azam, Nizami and Sayedee are not only the concern of this country but also have already become a subject of international customary law.

Then Mr. Abdur Razzak submitted some paper cutting of various international newspapers.

My Lord, fair trial has been compromised for a long time and it was being continued. He has polluted the function of the justice, he has destroyed the dignity of the court. Who would take the responsibility my lord?

Adv. Rafiqul Islam Miah from the defense counsel, then spoke

My Lord, I won't argue on any specific matter concerning these cases but I will try to put on a light over a vague point which is very important to be clarified. This is inherent power of this Tribunal. My Lord, few minutes ago my friend Abdur Razzak tried to give you a lucid view of your inherent power and again I also will put some words in this. 

There is no limitations of inherent power for a higher court if it is for the ends of justice. In case of purposes sometimes there are some limitations but for ensuring a fair trial there is no limitations. 

My Lord sec 6(2a) demands a fair trial for the ends of justice. If these are the true then it deserve a fair trial. Not only our people is observing this trial but also the whole world.
 

Then Attorney General prayed for 10 minutes from the the Tribunal

- Article 104 of our Constitution provides the inherent power to our Appellate Division. Section 561A of Cr.P.C. and Section 151 of CPC provides similar power to the High Court Division and Civil courts respectively. You may note that these provisions are in the substantive legislation. The 1973 Act does not recognize any such inherent power for the Tribunal. The Tribunal cannot take up this power by framing Rule 46A.

- Since there is a appellate forum against the judgment, the issue of fairness of the Trial can only be seen by the Appellate Division. You should proceed with the Trial from the stage left by the former Chairman.

- The Indian cases cited by Razaq are decisions under Indian constitution. We are bound by our constitution. The other cases cited by him are distinguishable.

- I have serious objection to the facts raised by the Supplementary Statement filed by the defence today. The foreigners cannot interfere to our judiciary. Our country is sovereign and judiciary is independent. We have our own law. The 1973 Act is a protected law. Even our Cr.P.C. and Evidence Act was excluded. How can the defence bring foreign comments in the name of international standard?

Chairman : We have heard 3 applications of GA, Nizami and Sayedee and will pass our order on 3rd January.