15 Jan 2013: Sayedee skype order review petition

This is the copy of the defiance's written application seeking a review of the order of the tribunal that rejected a retrial in the cases of Delwar Hossain Sayedee, Golam Azam and Motiur Rahman Nizami. (This application is linked to this page)

1. That on 23rd December 2012 the Accused/Petitioner filed an application for recall of the order dated 3rd October 2011 framing charges against the Accused Petitioner and full and complete retrial of the instant case under Rule 46A of the International Crimes (Tribunals) No. 1 Rules of Procedure 2010(‘RoP’) (hereinafter referred to as ‘the Application’).

2. That the Application was filed following the publishing of reports in the local and international media of hacked Skype and e-mail communications between Mr. Justice Nizamul Haq, the former Chairman of the International Crimes Tribunal-1 (ICT-1) and Dr. Ahmed Ziauddin, an expatriate Bangladeshi based in Brussels, Belgium. It is submitted that these communications are proof of wrong doings by the former Chairman, Dr. Ziauddin, a section of the Prosecution and a section of the Executive and othersto secure conviction of the Accused/Petitioner, seriously prejudicing his right of fair trial guaranteed under section 6(2A) of International Crimes (Tribunal) Act 1973, and under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) to which Bangladesh is bound. The Skype and email communications of the above two persons reveals, inter alia, the following:

(i) The order of framing charge dated 3rd October 2011 was in fact prepared by Dr. Ziauddin and sent to the former Chairman as an email attachment in the evening before it was announced in open court by the former Chairman. (Annexure – E series of the Application);

(ii) The Former Chairman did not carry out his judicial functions independently. He regularly received copies of orders prepared by Dr. Ziauddin and took advice from him, for example, on how the trial process would be concluded within shortest possible time;

(iii) That Former Chairman and Dr. Ziauddin had discussions not only as to who should depose as Prosecution witnesses, but also as to the contents and length of the depositions;

(iv) The Former Chairman and Dr. Ziauddin engaged in a conversation conspiring to fast-track the case against the Accused in order to issue a judgment as expeditiously as possible. Their emails show that Dr. Ziauddin had been preparing judgment for conviction in this case even before the close of the Defence case;

(v) The Former Chairman Mr. Justice Huq had regular meetings with a section of the Prosecutors during which decisions were taken regarding filing of petitions by the Prosecutors and passing of orders thereon by the Tribunal. Moreover, Dr. Ziauddin played an important role in advising the former Chairman and a section of the Prosecutors, acting as a conduit for the exchange of information between the Tribunal and the Prosecution;

(vi) The conversations between the former Chairman and Dr. Ziauddin clearly show extensive Executive interference with the process of the Tribunal.

3. That thereafter, the Hon’ble Tribunal heard the Application on 24th, 26th, 27th, 30th and 31st December 2012 and 1st January 2013. Thereafter on 3rd January 2013 this Hon’ble Tribunal passed an order rejecting the Application (hereinafter referred to as ‘the Impugned Order’). On 6th January 2013 the Accused-Petitioner filed an application for certified copy of the Impugned Order and on 07 January 2013 the same was supplied to the Defence.

4. That it is submitted that the impugned order fails to properly consider the submissions set out in the Application and the obvious prejudice this would have on the integrity of proceedings.

5. Accordingly, the Accused-Petitioner files this Application for Review of the Impugned Order under Rule 26(3) of the RoP which is quoted below for ready reference: "The Tribunal, on its own motion or on the application of either party, may review any of its order including the order of framing charge (s) in the interest of justice."

A copy of the Impugned Order dated 3rd January 2013 has been annexed herewith pursuant to Rule 26(4) of the RoP and marked as ANNEXURE – ‘A’.

Grounds for Review: 

Admissibility of Hacked Materials:
6. That in the Impugned Order the Tribunal observed that hacked materials are not admissible as evidence until it is resolved who, how and where they were hacked and recorded. The Impugned Order states as follows: “Who hacked and illegally recorded it and when and in which country? All these relevant questions are to be resolved first before we take all those into account.”

7. Further the Hon’ble Tribunal observed that ‘[t]he defence could not produce any document to show that hacked documents are admissible in evidence’. As such the Tribunal concluded that it could not pass any order relying upon the skype and email conversations.

8. It is respectfully submitted that the above observations of the Hon’ble Tribunal are wholly mistaken. It is not correct that the Defence could not produce any supporting arguments and authorities to show that the hacked documents are admissible in evidence.

9. In fact, in the impugned order the Tribunal recorded that the learned Defence Counsel Mr. Abdur Razzaq ‘referred some decisions viz 48 DLR 86, (1994) Supreme Court cases 632 (R. Raja Gopal Vs. State of T.N. India) and other citations’ in support of his contention that the hacked documents are admissible in evidence. The relevant part of the impugned order is quoted below:

“[Mr. Abdur Razzaq argued that] If the hacked documents are considered as illegal even then, those are admissible in evidence in ... public interest and accordingly the Tribunal can exercise its inherent power to ensure fair justice. In support of his contention he [Abdur Razzaq] referred some decisions viz 48 DLR 86, (1994) Supreme Court cases 632 (R.Raja Gopal Vs. State of T.N. India) and other citations.” 

10. At the time of hearing of the application the learned Senior Defence Counsel made reference to the cases reported in 1955 1 ALL ER PC 237, AIR 1974 SC 348 and 48 DLR 108 to substantiate the contention that if the evidence is relevant, it is admissible, ‘even if you have stolen it’.

11. The near universal approach adopted by international tribunals and most national (common law) jurisdictions and regional human rights courts confirms that evidence obtained illegally is not, a priori, inadmissible, but rather that the manner and surrounding circumstances in which the evidence is obtained, as well as its reliability and effect on the integrity of the proceedings, will determine its admissibility. [The Prosecutor v. Brdjanin, Decision on Defence Objection to Intercept Evidence, 3 October 2003, IT-99-36-T]

12. Moreover, it is submitted that the Hon’ble Tribunal has not acted in accordance with Article 19 of the International Crimes Tribunal Act 1973 (as amended) (“ICTA”),which stipulates that the ICT is “not bound by technical rules of evidence” but “may admit any evidence, including reports…published in newspapers, periodicals and magazines, films and tape recordings and other materials as may be tendered before it, which it deems to have probative value.”

13. In fact, under Rule 2(9) Rules of Procedure (hereinafter “Rules”) the Tribunal was mistaken to consider that the skype and email conversations is “evidence” at all. They have not been placed before the Tribunal in relation to matters of fact, but rather demonstrate the conduct of the former Chairman, the Prosecution, the Executive, and third parties in a conspiracy to pervert the course of justice.

14. Rule 46A states that “Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make such order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process.” It is in the interests of justice that the Tribunal recognizes that the skype conversations and emails have cast serious doubt over the integrity of proceedings in all cases before the ICT-1.

15. Accordingly, there is nothing in the Rules or the ICTA to prevent the ICT-1 from relying on the skype conversations and emails. Indeed, failing to do so would violate the duty of the ICT-1 under Article 6(2A) ICTA to ensure a fair trial, as well under Article 14 of the ICCPR, to which Bangladesh is bound.

16. Further, the Defence refer to The Prosecutor v Jean-Pierre Bemba Gombo, Decision on Admissibility and Abuse of Process Challenges, the International Criminal Court, ICC-01/05-01/08-802, 24 June 2010 para. 204, where it was determined by the Trial Chamber that:

“As to the Court's overarching approach, although the defence must establish, to the civil standard [of proof (a balance of probabilities)], the relevant facts and other necessary matters that underpin the application, in other respects it is not of assistance to describe this exercise as depending on the defence satisfying the burden of proof on the accused's argument. Instead, the result of these applications is simply dependent on a judicial assessment by the Court as to whether the case inadmissible or whether the continued trial is not abusive…”

I.T. Expert of the Tribunal:
17. The Impugned Order referred to an undisclosed opinion of an unnamed I.T. Expert who is alleged to have stated that “skype conversation can be manipulated by omitting a portion of it in order to understand separate meaning as desired by the hacker.” As such the Hon’ble Tribunal held that hacked materials cannot be relied upon.

18. The Defence takes issue with the fact that the Impugned Order specifically states that “the proceeding of taking evidence has taken place in public and transparently”. The Defence submits that by relying on an undisclosed opinion of an undisclosed I.T. Expert the Application hearings were not carried out in public and transparently. The Defence to date has not been provided with a copy of any statement, or been given the opportunity to question the I.T Expert, or indeed to call an I.T. Expert on behalf of the Defence, should they take issue with the Opinion. This is in breach of the right to equality of arms, and the openness of trial guaranteed under section 10(4) of the 1973 Act.

19. It is essential that the name and opinion of the I.T. Expert should now be disclosed so that the Accused/Petitioner is provided an opportunity to challenge the finding which it submits to be incorrect. At the time of the hearing of the Application the Defence Counsel submitted that an Independent Inquiry may be conducted to find out authenticity of these hacked materials. Such an Inquiry should have been conducted by a panel of I.T. experts with representations from the Prosecution and Defence.

20. Moreover, the Defence note that the alleged opinion of the undisclosed I.T. Expert appears to have only gone so far as to say that “skype evidence can be manipulated.” There is no suggestion that the skype conversations in question had in fact been manipulated. The reference in the Impugned Order to the undisclosed I.T. Expert opinion does not mention the email conversations at all.

21. It is submitted that the Hon’ble Tribunal failed to appreciate that the hacked documents are not disputed, rather admitted by the parties concerned. It is stated that at least 22 persons are named in the Skype conversations out of whom 7 are members of judiciary, 6 are prosecutors, 4 ministers and 5 other persons. None of these persons have disputed the skype conversation. The Hon’ble Tribunal did not address the fact that in his order dated 6th December 2012 the Former Chairman has in fact admitted the skype and email communication with Dr. Ziauddin. (Annexure- A of the Application). On 11th December 2012 he resigned accepting the responsibility. Dr. Ziauddin has also admitted the regular communication with the Former Chairman in his press statement published on 19th December 2012 in the bdnews24.com (Annex- I of the Supplementary Statement to the Application filed on 27.12.2012). Further it is to be noted that in their reply to the application the Prosecution did not deny the skype and Email communications between the Former Chairman and Dr. Ziauddin nor did they make submissions on their reliability. Rather the Prosecution prayed that the skype and email conversations should not be used since they were allegedly obtained by applying unlawful means.

22. It is therefore submitted that the impugned order was passed without considering relevant facts, documents and materials before the Tribunal. This resulted in serious prejudice to the Accused/Petitioner and as such the Impugned Order should be reviewed in the interests of justice.

Right to Privacy:
23. In the Impugned Order the Hon’ble Tribual held that “Undeniably the matter of hacking of alleged private communications are illegal recording of conversation itself is a crime and extremely unethical too.” However, the fact that such materials may have been obtained unlawfully, will not affect its admissibility in a court of law.

24. With regard to the issue of privacy it is submitted that the Defence Counsel have relied upon several decisions of the Indian Supreme Court and submitted that Public servants have right of privacy in their private life. But they do not have right of privacy when the question is on discharge of public function. It is submitted that the Judges of this Hon’ble Tribunal are performing public functions and they are not entitled to privacy in discharge of their judicial duty. The requirement of section 10(4) of the 1973 Act that “[t]he proceeding of the Tribunal shall be in public” emphasizes this further. It is submitted that the former Chairman is not entitled to any right to privacy to conspire with a third party, i.e. Dr. Ziauddin, who is also connected with the Prosecution to fast track the case of the Accused/Petitioner, denying his right to a fair trial and to deliver a guilty verdict. If this is allowed in the name of ‘right to privacy’, the public confidence in the fairness of the judiciary will be seriously injured.

25. That furthermore, the Tribunal failed to take into consideration the decision of the Supreme Court of India cited by the Defence which has been reported in (2009) 8 SCC 106 (R K Anand vs Delhi High Court). In the said decision, the Supreme Court of India held that the greater public interest would have to be taken into consideration in determining whether a sting program telecast by New Delhi Television (‘NDTV’) regarding a meeting between Senior Defence Counsel, Special Public Prosecutor and a Prosecution Witness negotiating for the said witness’s sell out in favour of the defence had the effect of undermining the pending criminal trial. The Supreme Court held that the sting program of NDTV was in the larger public interest and served an important public cause and that it in no way interfered with or obstructed the due course of any judicial proceeding, rather it was intended to prevent the attempt to obstruct the due course of law in the BMW trial. It is submitted that the Hon’ble Tribunal failed to appreciate the public interest involved in the publication of the Skype and email communications between Mr. Justice Huq and Dr. Ziauddin. Furthermore, the Hon’ble Tribunal failed to appreciate that the Skype and email communication served an important public cause and were intended to prevent any attempt to obstruct the due course of law in the instant case, and that as such, the same was required to be considered by the Tribunal, irrespective of the manner in which it had been obtained.

26. In reply to the above submissions of the learned Senior Defence Counsel, the learned Attorney General claimed that the ‘right to privacy’ guaranteed under Article 43 of the Bangladesh constitution is not in Indian constitution and hence Indian decisions to limit the right to privacy are not applicable. It is submitted that the learned Attorney General ignored that the Indian Supreme Court has developed the right to privacy of a person though precedent. In India right to privacy is well recognized but subject to reasonable exception referred above.

27. It may be noted here that the Daily Amar Desh is not the only media to publish the Skype and email communications of the former Chairman with Dr. Ziauddin. The renowned English journal The Economist and some other national news papers including the Daily Jugantor has also published part of these communications. The said materials are also available on a European based website (www.tribunalsleaks.be) that reveals how Dr. Ziauddin is able to essentially dictate the whole process to the Chairman of the Tribunal, the Prosecuting authorities and the Government.

28. That it is stated that there is no prohibition or bar in the Information and Communication Technology Act 2006 for using the hacked materials.

29. In view of the above it is therefore submitted that the Hon’ble Tribunal committed an error of law causing a failure of justice by holding that the hacked materials are not admissible in evidence on the grounds that they are obtained in violation of the right to privacy. As such, the Impugned Order is liable to be reviewed in the interests of justice.

Prejudice of the Accused in the Trial by the Former Chairman:
30. That in the Impugned Order the Hon’ble Tribunal found that the proceeding of the case was conducted fairly without any prejudice to any party and as such there is no question of retrial. The Tribunal states as follows:

“Both the parties have been afforded sufficient time they need to examine and cross-examine witnesses. This part of proceeding chiefly based on the testimony made by witnesses in open court. Parties shall have adequate opportunity to show, in course of summing up their respective cases, any flaw between the evidence adduced and the charges.”

31. That it is submitted that each of the Defence petitions to the Tribunal and each of the Decisions made by the Tribunal may have been adversely affected by the former Chairman’s lack of independence and impartiality, and but for his role, may have been decided differently. Undoubtedly the trial would have proceeded very differently had defence rights been respected to the degree required by international standards. It would be an abuse of process to continue the trial regardless of the implications of the influences by the Former Chairman, and to do so would amount to a miscarriage of justice.

32. It is stated that the matters discussed between the Former Chairman and Dr. Ziauddin went far beyond what could ever be considered acceptable, even if it had been given in a transparent manner through appropriate procedure. In fact, the discussions provide clear evidence of judicial bias of the Former Chairman that has vitiated the trial.

33. It is submitted that it is evident from the skype communications that the Former Chairman, through his involvement and discussions with Dr. Ziauddin on matters pertaining to the proceedings (including with regard to members of the Prosecution and their work), had acted in such a way as to compromise the integrity and fairness of the proceedings, and that he has not acted independently and impartially, free from external influences and pressures, and that as a result the entire proceedings have been vitiated. These communications reveal that the integrity of the proceedings has been irreparably undermined.

34. That this is particularly clear from a Skype communication dated 14 October 2012, in which the former Chairman and Dr. Ziauddin engage in a conversation conspiring to fast-track the case against the Accused in order to issue a judgment as expeditiously as possible given the profile of the Accused.

35. That it is submitted that notwithstanding the exposure of the skype conversations and emails, the trial against the Accused-Petitioner has been conducted with scant regard for due process and the rights of the Accused-Petitioner:

Denial of right to cross-examine: a. That it is stated that the Former Chairman denied the Defence Counsel the opportunity to cross-examine on more than 200 out of the 276 prosecution exhibited documents which has seriously prejudiced the Accused Petitioner as he has not been afforded the chance to challenge the evidence adduced against him. 

b. The cross-examination of the Investigation Officer and other prosecution witnesses were severely restricted in breach of the right of the Accused/Petitioner to examine witnesses against him under Article 14(3)(e) ICCPR. 

c. Though the Prosecution submitted more than 4000 pages documents before the Tribunal before commencement of the trial, they served only 400 pages documents upon the Accused violating section 16(2) of the 1973 Act. The Accused-Petitioner filed several applications for the service of copies of these  documents. However, the applications were rejected without valid reason. 

d. Due to the proviso inserted in Rule 18(4), following instruction of Dr. Ziauddin, the Accused’s right to particulars of prosecution witnesses (“PWs”) was curtailed in the name of witness protection. This was the sole ground rejecting the Defence application for a copy of the investigation report. The Defence Counsel were unable to cross-examine the PWs effectively due to the absence of their particulars and the investigation report. There is no trial in Bangladesh where an accused is denied copy of the investigation report. This is a example as to how the trial of the Accused was affected by the Former Chairman’s communication with Dr. Ziauddin.

Denial of right to answer charges: e. Though section 17(1) of the 1973 Act empowered the Accused/Petitioner to explain the charges against him,the Former Chairman did not allow Defence Counsel to adequately exercise this right of the Accused. It may be recalled that at the time of framing charge the accused wanted to say something. But at that time he was asked only to plead ‘guilty’ or ‘not guilty’. The Former Chairman assured him that he would be given the chance to explain the charges later on. At the close of the prosecution case, the Accused again wanted to explain his position vis-à-vis the charges and prosecution evidence. Again, he was not allowed to do so but was assured that he would get the chance at the close of the Defence case. However, after the close of the Defence case the Accused was denied the opportunity to give his explanation. On 5th December 2012 the Former Chairman passed an order saying that the Accused has already availed the right under section 17(1) at the time of framing charge. It may be noted here that the other two members of the Tribunal were not present at the time of framing charge and as such had to solely rely on the Former Chairman on this issue. 

f. On 5th November 2012 Mr. Shukhoronjon Bali, who came to the Tribunal as a defence witness, was abducted by the law enforcement agencies from the Tribunal premises, but the Former Chairman and the Tribunal did not take any steps to secure his release. 

g. The Former Chairman allowed the prosecution applications under section 19(2) of the 1973 Act to receive in evidence the alleged statements of 16 witnesses holding that those witnesses were unavailable relying upon the reports of the Investigation Officer dated 17.03.2012 and 20.03.2012. He did not allow the Defence Counsel to cross-examine the Investigation Officer on those two reports. The Defence filed safe house documents (Attendance Registers, Food Registers and General Diary Book of the Safe House) to show that those witnesses were available and some of them were brought to the witness Safe House in Dhaka. It was specifically alleged by the Defence that these witnesses were not willing to give false testimony against the accused and that the Investigation Officer had concocted statements in their names, in an attempt to pervert the course of justice. The Former Chairman did not allow the defence witnesses to exhibit the safe house documents. He also rejected the Defence application to issue summons on the Safe House officials which could have proved that the Investigation Officer was committing fraud upon the Tribunal. As a result of these the Accused was substantially prejudiced as he could not challenge the 19(2) witness statements that are sole bases of Charge No. 1, 2, 3, 4, 12 and 18 against the Accused. 

h. The Defence application under Rule 40 to call for the case records of FIR lodged by Mrs. Momtaz Begum, wife of deceased Ibrahim Kutti and sister of deceased Shaheb Ali (concerning charge 8 and 13), cases filed by PW 1 and 6 (charge 7, 8, 10 and 11) and other relevant documents were rejected without affording any reasons.

36. In view of the above, it is submitted that the Tribunal headed by the former Chairman conducted the trial of the Accused in an unfair manner resulting in a gross miscarriage of justice. Other issues which have prejudiced the Accused-Petitioner include, but are not limited to, a lack of time for the Defence to prepare its case, the failure by the Prosecution to disclose evidence, the denial of time and/or unfettered access to Defence counsel to the Accused-Petitioner to receive privileged instructions, the denial of an independent health assessment and a failure to take into account the health and fitness of the Accused to stand trial.

37. It is therefore submitted the above examples of the disregard for fair trial rights and due process will not be remedied simply by a change in the judicial panel. It is submitted that the Impugned Order has been passed without considering the above prejudice to the Accused and hence the Impugned Order is liable to be reviewed in the interests of justice.

Evidence Produced Before the Tribunal:
38. The Tribunal held in the Impugned Order that the final decision of the Tribunal would not be merely based on the charge framed and the Tribunal would evaluate the evidences to arrive at a decision. According to the Tribunal the hacked Skype and email communications would not have any effect in the judgment. The Tribunal held as follows:

“Final decision or verdict in no way shall be based merely on the charges framed. Evidence adduced is to be evaluated only for arriving at a decision as to how far the prosecution has been able to establish charges. In the process of such task of evaluation of evidence before us the alleged illegally hacked email communications and illegally obtained skype conversations shall in no way keep any impact causing prejudice to either party.”

39. It has been stated above that due to the prejudicial conduct of the Former Chairman the Defence Counsel were substantially restricted in cross-examining the prosecution witnesses, challenging prosecution documents, calling defence witnesses and exhibiting relevant defence documents. As a result, the evidence before the Hon’ble Tribunal is neither complete nor sufficiently challenged by the Defence. This is a clear abuse of process and offends all internationally recognised principles of fairness, including Article 14 of the ICCPR.

40. It may be recalled that the Prosecution was allowed more than nine months time from 7th December 2011 to 13th August 2012 for the 28 prosecution witnesses. Though the Prosecution listed 138 witnesses they could not produce more than 28 during this period. The number of prosecution witnesses was never reduced by the Tribunal. On the other hand, the Defence case was forced to close in one month and 20 days from 2nd September 2012 to 23rd October after recording the depositions of only 17 defence witnesses. The Accused/Petitioner was not allowed sufficient time to call his listed 46 witnesses limiting his ability to challenge the prosecution case against him. This is contrary to the right to examine witnesses on his behalf under the same conditions as those against him, under Article 14(3)(e) of the ICCPR.

41. In these circumstances it is therefore submitted that restrictions on the number of defence witnesses coupled with the prejudice inflicted by not being permitted to adequately challenge prosecution witnesses substantially impairs the Hon’ble Tribunal’s ability to reach a fair verdict.

42. The skype and email communications have revealed the conspiracy of the Former Chairman to limit the ability of the Accused to challenge the prosecution case. As such the Tribunal incorrectly held that in the process of ‘evaluation of the evidence before us the alleged illegally hacked email communications and illegally obtained skype conversations shall in no way keep any impact causing prejudice to either party’. As such the impugned order is liable to be reviewed in the interests of justice.

Inherent Power of the Tribunal to Order for Recall or Retrial:
43. That in the Impugned Order the Hon’ble Tribunal held that there is no express provision to hold retrial or recall any order of the Tribunal and there is no reason to invoke inherent power of the Tribunal under Rules 46A since there is express provision in the 1973 Act, i.e. section 6(6), which provides that the Tribunal may proceed from the stage of the case from where the change in the membership of the Tribunal took place.

44. It is respectfully submitted that the above observation of the Hon’ble Tribunal is not correct. According to Rule 46(A) of the Rules of Procedure, the Tribunal has the inherent power to make such orders as may be necessary to meet the ends of justice or to prevent abuse of the process.

45. Section 6(6) of 1973 Act provides that “A Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it.”

46. It is submitted that the words ‘merely by reason’ in section 6(6) clearly indicates that in normal course of events if any member of the tribunal is changed or absent, the remaining members are not bound to recall and rehear the witnesses already recorded in presence of the previous member, e.g. where a judge resigns on health grounds. But in the present case the Former Chairman resigned accepting his liability of unethical conduct throughout the trial. The conversations went so far as to reveal that the Former Chairman and Dr Ziauddin had started drafting a conviction judgment for the Accused even before the close of the Defence case. It is therefore submitted that the post of the former Chairman was not vacated by any ‘mere’ reason The former Chairman resigned under exceptional circumstances. Hence section 6(6) of the 1973 Act does not apply. The Former Chairman’s involvement with Dr. Ziauddin in this case has contaminated the whole process and hence a full and complete retrial is the only fair solution.

47. It is submitted that the inherent power of the Tribunal under Rule 46A cannot be limited on improper grounds. This Rule empowers the Tribunal to pass any order to meet the ends of justice or to prevent abuse of the process. It is submitted that there is no bar in section 6(6) of the 1973 Act for retrial in exercise of the Tribunal’s inherent power. It is therefore submitted that the Hon’ble Tribunal committed an error of law causing a failure of justice. As such the Impugned Order is liable to be reviewed in the interests of justice.

Expeditious Trial vs. Fair Trial:
48. That in the Impugned Order the Hon’ble Tribunal held that ‘in the interest of expeditious trial it is not necessary to recall any order or witness’.

49. Rule 53 (3) of RoP provides that ‘The Tribunal shall have jurisdiction to regulate the matter of time management as and when deems necessary, for ensuring effective and expeditious trial.’ On the other hand section 6(2A) of the 1973 Act provides that ‘The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.’ It is therefore submitted that The Tribunal’s primary duty is to ensure a fair trial guaranteed under section 6(2A) of the 1973 Act. It is submitted that expediency must never take precedence over fairness.

Disowning Charge Framing Order by Remaining Members:
50. That the Hon’ble Tribunal rejected the Application in the Impugned Order holding that ‘the Former Chairman alone did not form the Tribunal itself’ and ‘the order of framing charge has been passed by three judges. Apart from the former chairman, rest two judges, i.e. majority judges did not disown the said order’. The Tribunal held that for this reason the charge framing order ‘stands good for every purpose’.

51. It is submitted that email communications between Dr. Ziauddin and the Former Chairman show that the Order of the Tribunal framing charges against the Accused was in fact drafted by Dr. Ziauddin and emailed to Mr. Justice Huq the evening before it was announced in open court on 3rd October 2011 by the Former Chairman. (Annexure – E series of the Application). In an email dated 2nd October 2011 Dr. Ziauddin sent the Former Chairman a document titled ‘20111002-Caseno1ChargesJV.doc’ containing the charge framing order to be delivered in this case against the Accused. In the text of the email, Dr. Ziauddin stated that ‘we are now suggesting to consider use of ‘crime of persecution’ on any of four grounds instead of ‘inhuman acts’ for arson, burning, looting.’ On the next day i.e. on 3rd October 2011 ICT-1 passed the same charge framing order sent by Dr. Ziauddin. A comparison of the draft order sent by Dr. Ziauddin and the charge framing order delivered by the Tribunal clearly shows that the Accused was charged for Crimes Against Humanity and Genocide according to the dictates of Dr. Ziauddin. Since the charge framing order has not been drafted by the Tribunal but by Dr. Ziauddin, and passed at his behest, the said order is not an order of the Tribunal. As such, the order dated 3rd October 2011, not being an order of the Tribunal is liable to be recalled for ends of justice The proceedings pursuant to such indictment has been vitiated, thereby necessitating a retrial. .

52. In view of the above discussions it is therefore clear that the Impugned Order was not passed in considering relevant facts and circumstances of the cases and hence the same suffers from illegality. As such the Impugned Order should be reviewed in the interests of justice.

Defence Arguments which are not Addressed in the Impugned Order:
53. It is respectfully submitted that the Hon’ble Tribunal did not recognize in the Impugned Order the Defence submission that in international law, including the ICCPR to which Bangladesh is bound and the Rome Treaty, that a breach of an accused’s right to a fair trial would constitute a “miscarriage of justice” and any subsequent conviction should be set aside.

54. The Hon’ble Tribunal did not at all consider the following evidence of Executive interference in the process of the Tribunal that raised serious concern as to the fairness of the proceedings:

(a) During Skype conversation of 27th August 2012, reported in the Daily Amar Desh on 9th December 2012, Mr Justice Huq said that a former Member of Tribunal-1, Mr. Zaheer Ahmed had been removed from the Tribunal at the behest of the Law Minister. Mr. Justice Huq stated that the Law Minister had summoned Mr. Zaheer Ahmed to his residence on an earlier evening and had asked him to resign and further that the Law Minister had assured Mr. Zaheer Ahmed of an appointment in the Law Commission.

(b) On 14th October 2012, in the Skype conversation reported in the Daily Amar Desh on 9th December 2012, the former Chairman stated that the Government had gone mad for a judgment and that they are extremely keen to have a judgment delivered by 16th December 2012. Mr. Justice Huq also informed Dr. Ziauddin that he could deliver a judgment in Saydee’s case within December 2012, but not that of Professor Ghulam Azam, which would continue till January-February 2013. He also said that the Government would ‘cool down’ only after a judgment has been delivered. Transcripts of this conversation have also been published in the Economist on 15th December 2012.

(c) In a Skype conversation on 15th October 2012, reported in the Daily Amar Desh on 9th December 2012, former Chairman stated that the State Minister for Law had visited his residence and that he (the State Minister) had asked him to deliver judgment in the case of Professor Ghulam Azam quickly. Mr. Justice Huq also stated that the State Minister had said that a meeting would be arranged of all the judges of the Tribunals in order to ensure that judgment in the case of Professor Ghulam Azam before any other case. Dr. Ziauddin also indicates that a similar message was sent by him to the Law Minister.

(d) A conversation between the former Chairman and Dr. Ziauddin on 1st September 2012 clearly shows that the administrative functionaries of the Tribunal are political appointees. The two men discuss how the new Assistant Registrar, Shawkat had been involved beforehand with ICSF (which has long been campaigning for trial of Jamaat leaders) and that he was considered as reliable by them.

(e) That in view of the statements and submissions made above, it is apparent that the entire process of the Tribunal in the instant case has been tainted by the machinations of the former Chairman, Dr. Ziauddin, a section of the Executive and a section of the Prosecution in seeking to procure a conviction of the Accused. In such circumstances, the proceedings of the instant case have been vitiated and are liable to be declared a mistrial. As such, the Accused Petitioner prays for a full and complete retrial.

55. In skype conversation on 6th September 2012 published in the Daily Amar Desh dated 9th December 2012 the Former Chairman is reported to have said that he was hurrying to give judgment against the Accused, Professor Golam Azam and Salauddin Quader Chowdhury to get an early promotion to the Appellate Division of the Supreme Court of Bangladesh.

56. That at the time of hearing of the Application the learned Senior Defence Counsel argued that a person cannot at the same time be advising the Prosecution and the Tribunal. It is submitted that the Hon’ble Tribunal did not give any heed to this submission of the learned Defence Counsel.

57. The learned Senior Defence Counsel also argued that the conduct of the Former Chairman (as is evident from the skype communications) shows that he, Dr. Ziauddin, a section of the Prosecution and a section of the Executive had perpetrated fraud on the Tribunal. Reference was made to various English cases, including Lazarus Estates vs Beasley, to justify the submission that fraud vitiates the entire proceedings. On a query by the Tribunal as to whether the court has the power to recall its orders, it was submitted that the Tribunal has an inherent power to recall all orders procured by fraud. Reference was made to a decision of the Indian Supreme Court in this regard. The Hon’ble Tribunal failed to consider these arguments whilst passing the Impugned Order.

58. That on another query by the Hon’ble Tribunal as to whether there was an express provision in the Act to address the present situation, it was argued by with reference to Wade’s Administrative Law and Maxwell's Interpretation of Statutes that the Legislature never contemplates abuse of power or fraud in the exercise of statutory powers and that safeguards against such abuse/fraud are to be implied in the Act itself. But none of these arguments were addressed in the Impugned Order.

59. It was further argued by another senior Defence Counsel Mr. Moudud Ahmed that according to Article 94(4) of the Constitution ‘... the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.’ It was therefore submitted that the former Chairman is oath bound to uphold the constitution and bound by its Article 94(4). But the recent publications in the Economist and the Daily Amar Desh clearly show that the Former Chairman sacrificed his independence to Dr. Ziauddin in breach of his oath under the Constitution. This point was also not addressed in the Impugned Order.

None of the judges now constituting the trial panel have heard the entirety of the case
60. It is stated that the Hon’ble Tribunal has already suffered the departure of two of the originally appointed judges at crucial times in the case. It is now the position that none of the judges now constituting the trial panel have heard the entirety of the case. Furthermore, the absence of full audio and/or transcript recordings of the proceedings prevents the judges from being able to adequately familiarize themselves with the evidence. It was therefore submitted on behalf of the Defence that this lack of continuity of the judicial panel adds considerable weight to the duty of the Hon’ble Tribunal to order a full and complete retrial on the basis that to continue would constitute an abuse of process.

61. That Sections 6(4) to (6) ICTA permit the replacement of a judge during the trial itself, as well as the continuation of a trial in the absence of a member of the Tribunal. Indeed, the ad hoc international criminal tribunals have permitted the replacement of judges during the trial, and it cannot be said that such a practice is prohibited by international law. However, the Defence emphasizes that it cannot be employed in a manner that would prejudice the rights of an accused. Indeed the statute can never have been meant to deal with a situation where all of the judges have been replaced at various stages during the course of the proceedings, and there is no continuity at all. In other words, sections 6(4) to (6) ICTA do not apply to a situation where the former Chairman has had the judgment prepared for him by an uninvolved third party, has resigned as a consequence of allegations of judicial misconduct and has been purportedly “replaced” by a new judge.

62. That under section 6(4) of the 1973 Act the removal of a judge in the proceedings of a case is limited to strict circumstances particularly where any member ‘dies or is, due to illness or any other reason, unable to continue to perform his functions’. It is submitted that the application of strict circumstances has not been adhered to. The Tribunal in this case originally consisted of Mr. Justice Md. Nizamul Huq (Chairman), Mr. Justice ATM Fazle Kabir and District Judge A K M Zaheer Ahmed. On 25 March 2012 a new chamber was constituted, ICT-2, and Mr. Justice ATM Fazle Kabir was removed from the ICT-1 appointed Chairman of ICT-2. Evidently, Mr. Justice ATM Fazle Kabir was still deemed capable of performing his functions. He was replaced by Mr. Justice Anwarul Haque who could only hear 1 out of 28 prosecution witnesses. On 29th August 2012, Mr. Justice Jahangir Hossain replaced Judge A K M Zaheer Ahmed after close of the prosecution case. As a result Mr. Justice Jahangir did not hear any of the prosecution witnesses.

63. That following the recent “resignation” of the Former Chairman from ICT-1 after both national and international media reports of judicial misconduct stemming from interference in the judicial process by unaffiliated and undeclared third parties, the Chairman of ICT-2, Mr. Justice ATM Fazle Kabir was appointed on 13 December 2012 as the new Chairman of ICT-1. It is respectfully stated that Mr. Justice ATM Fazle Kabir has not taken part in any of the ICT-1 proceedings for the last nine months. He did not hear the most important prosecution witness, the Investigation Officer, who has exhibited almost all the prosecution documents and the deposition continued for about half of the prosecution case. Mr. Justice ATM Fazle Kabir also did not hear any of the 17 Defence Witnesses and the summing up of the Prosecution and Defence case. It is submitted that the principles of a fairness and justice will not be served if the trial in the instant case continues with a presiding judge who has not been involved in or followed the evidence, witness testimony and submissions for the larger part of a case. It is therefore submitted that judges cannot be employed/appointed/transferred/removed in a manner that would prejudice the rights of an accused and that highest standards of fairness are demanded particularly where the cases carry the potential penalty of death.

64. That accordingly, it is submitted that (i) the replacement of judges (in particular the recent appointment of a new Chairman who has missed the vast majority of the proceedings) severely prejudices the Accused-Petitioner, particularly as the case is at an advanced stage and as the new judges would not have heard all the evidence; and (ii) notwithstanding the constitution of the bench, it is submitted that influence of the Former Chairman almost certainly had an adverse influence on proceedings and a prejudicial impact on the Accused-Petitioner, and (iii) but for the Chairman’s role in decisions, the course of the trial may have proceeded very differently. Therefore, it is submit that the instant proceedings have been vitiated and are liable to be declared to be a mistrial.

65. That it is submitted that the Skype communications between Mr. Justice Huq and Dr. Ziauddin show that Mr. Justice Huq had regular meetings with a section of the Prosecutors during which decisions were taken regarding filing of petitions by the Prosecutors and passing of orders thereon by the Tribunal and as such proceedings of the Tribunal have been tainted and are liable to be declared a mistrial and in such circumstances the only remedy in an order of full and complete retrial for ends of justice.

66. It is submitted that the communications between the former Chairman and Dr. Ziauddin illustrate the lengths in which they with members of the Prosecution and the government would go to in order to secure an expeditious conviction against the Accused. This included, inter alia, liaising with Prosecution teams in other cases in order to delay their progress in order to assist in the conviction against the Accused. This violates the fundamental right of an accused to be tried by an independent and impartial judiciary, the presumption of innocence and, as well as an accused’s right to present his case and be afforded a fair trial. 

67. That it is submitted that the email communications between Mr. Justice Huq and Dr. Ziauddin show that Dr. Ziauddin drafted the order framing charge against the Accused Petitioner which was delivered by the Tribunal on 3rd October 2011, and as such the entire proceedings, including the order of framing charge, have been vitiated and are liable to be declared to have been a mistrial, and in such circumstances, the order of framing charge is liable to be recalled for ends of justice.

68. That it is submitted that there is no prohibition upon the Tribunal under section 6(6) of the 1973 Act to order for a retrial and hence the Impugned Order suffers from illegality and the only remedy is to order for a full and complete retrial after reviewing the impugned order.

69. For the abovementioned reasons the Accused-Petitioner prays that the Tribunal sees fit to expunge the unfairness rendered to the Accused and review the impugned order.

70. Finally it is important to quote the final remarks of The Economist (Print edition dated 15th December 2012, Annexure D of the Application) that believed the hacked materials and concluded that “These concerns are so serious that there is a risk not only of a miscarriage of justice affecting the individual defendants, but also that the wrongs which Bangladesh has already suffered will be aggravated by the flawed process of the tribunal.”

Wherefore it is most humbly prayed that the Hon’ble Tribunal would be pleased to review the Order dated 03rd January 2013, and to meet the ends of justice disclose the identity and opinion of its I.T. Expert and pass any further order(s) as it may deem fit and proper.