21 Jan 2013: Tribunal Skype review order

This is a copy of the order issued by the Tribunal following the application by the defense to review a previous order of the court which held that it would not take cognizance of any of the Skype/e-mail communication involving the chairman and an expatriate lawyer, and would not order a retrial in the cases of Sayedee, Nizami, and Azam. (see here and here for arguments on this)

Today is fixed for order on three review applications. These 3(three) review applications presented by accused Professor Gohlam Azam, Motiur Rahman Nizami and Delowar Hosain Sayedee to review the order dated 03.01.2013 passed by this Tribunal rejecting the applications filed under Rule 46A of the ROP for recalling orders of taking cogruzance and framing charges and for full and complete re- trial of the cases. Since, the subject matter of the review petitions is almost similar to each other, all those were heard together for disposal.  

Mr. Abdur Razzak, the learned Senior Counsel of the defence, contends that the orders passed by the Tribunal on 03.01.2013 had prejudiced the accused as the Tribunal opined that the skype conversations and E-mail communications between former chairman and Dr. Ahmed Ziauddtn, a Bangladeshi national living in Brussels, are illegal documents. Unless it has been proved after taking evidence by the appropriate court of law, this Tribunal does not have jurisdiction to say that such hacked e-mails and recorded conversations are illegal. By the order of this Tribunal dated 3rd January, 2013 injustice had been made against the accused, therefore, the question of review has been arisen and it can be only cured by allowing the present review applications. By citing decision of 2(two) cases namely Prosecutor-vs-Mico Stanisic and Stojan Zapljanin and Prosecutor-vs- Radoslavbrdjanin, Mr. Razzak argues that the admission of an intercept does not depend on whether it was obtained legally or illegally under the domestic law inforce at the time intercept was recorded. The intercepts would be envisaged to have probative value if the Tribunal feels that those documents .are sufficiently reliable, authentic and relevant to the issue in the case. The reliability, authenticity and relevancy seem to be present in the instant issue. He finally submits that the Tribunal has wide power and scope to allow review petitions for the interest of ensuring fair trial  

On the contrary Mr. Mir Iqbal Hossain, the learned Prosecutor has argued that there is no scope to review the orders passed by this Ttibunal on 03.01.2013 as the Tribunal elaborately discussed on the issue stating the reasons for not allowing the recall of the orders of taking cognizance and framing charges. He further submits that the defence counsels had made similar arguments in disposal of the earlier applications. Mr. Syed Hyder Ali, the learned Prosecutor, has also argued that the defence has failed to show that from where and by whom such alleged e-mail communications and skype conversations were recorded and hacked. So such documents are absolutely unsafe and have no probative value and also illegal as per Information and Communication Act, Technology 2006.  

We have heard both the parties and perused the review petitions along with order dated 03.01.2013 therein, wherefrom it transpires that earlier the defence Counsels on behalf of the aforementioned accused preferred 3(thee) applications under Rule 46A of the ROP, 2010 for recalling the orders of taking cognizance and framing charges in the instant cases on the ground that the e-mail communications and skype conversadon between former Chairman Mr. Justice Md. Nizamul Huq and Ahmed Ziauddn, in collusion with each other, were hacked and recorded. Subsequently, part of which was alleged were published in the local and international media that causes seriously prejudice to the right of accused to ensure fair trial as guaranteed in Section 6 (A) of the ICT Act, 1973. Those applications were heard at length earlier and subsequendy, were reiected by the Tribunal figuring elaborate reasons therein. Against which the present 3(three) review petitions have been presented by the aforesaid accused on the plea that unless the alleged skype conversations and e-mail communications between former Chairman and a so called expatriate legal expert Ahmed Ziauddin eaked out in the media, are being declared illegal documents by adjudication in the appropriate court of law, the Tribunal should not hold that-e-mail communications and transcript of Skype conversatiorns are the product of hacked e-mail account and illegal tape recording of private conversation.  

By the order dated 3rd January 2013 we had expressed our view on those applications after a long hearing that took no cognizance of the dossier annexed, by the defence regarding the skype conversation and email communications between former chairmen and Mr. Ahmed Ziauddrn as the same brought to the notice of the Tribunal after hacking unlawfully. Former chairman, before his stepping down from the Tribunal, by the order dated 06.1,2.2072 admittedly disclosed that his email communications and conversation had been hacked prior to his knowledge, consent or approval. So, there is no reason to disbelieve the statement of the former chairman as to alleged hacked documents. Therefore, nobody can surely say that the skype conversation and hacked e-mail communications had been obtained legally. The disclosure of its source is yet being detected and claimed to be done in accordance with law.  

Now, we further opine that hacking and recording of personal conversation and e-mail communications without permission of the person concerned is inevitably the outcome of an offence. Unauthorized entry into private conversation is a clear violation of privacy rights as guaranteed in out constitution. None is allowed to hack e-mail communication or tecord conversadon of any private individual under law of the land. Stolen property may be admissible in evidence, as when it is being brought to the notice of the authority concerned from where or from whom it has come. But in the instant case, it does not emerge that from where it was recorded and at whose initiative it was published in the daily news paper. So the question of reliability, authenticity-and relevancy does not arise, therefore, it has no probative value at this stage. It is surprising that when the defence filed review applications for re-calling the orders of taking cogntzance and framing charges of the cases, pending disposal of the same in the tribunal, they preferred six applications for re-calling some witnesses, exhibiting some dossier of skype conversation and e-mail communication and extending duration of time to sum up the case of accused Delowar Hossain Sayedee, which appear to be contradictory initiatives to each other taken by the defence. Moreover, the applications for review do not disclose discovery of any new fact or error on the face of the orders which are basic requirement for prefering a review. Therefore, we do not find anything to interfere with order dated 03.01.2013 of this tribunal. Hence, the review applications do not have any merit whatsoever for consideration. Having regard to submissions and reasons stated above, all the three review applications are hereby rejected.