23 Dec 2012: Skype retrial application, day 1

Abdur Razzaq, the defense lawyer said that they filed applications for retrial the case of Motiur Rahman Nizam and that of Delwar Hossain Sayedee and said that these two applications could be heard along with that of Golam Azam, already filed. These applications sought a retrial in the context of the publication of the Skype and e-mail conversations with the former chairman of the tribunal and a Bangladesh lawyer based in Belgium who was also advising the prosecution

The application relating to Sayedee can be seen here, and a supplementary application here

The application relating to Azam can be seen here

The chairman said that these applications should be heard altogether on the following day and that the hearing of these cases should be adjourned till disposal of the application for retrial.

The issue of Tajul Islam came up for hearing. See here for discussion of this

Razaq then asked whether Moudued Ahmed could place his arguments relating to the re-trial application for the accused today as he was due to go to Saudi Arab to perform Omra. After some discussion the tribunal allowed this.

Moudud Ahmed made the following submissions (set out in summary)

Moudud Ahmed: Thank you my lord for accommodating me. I am going to submit a consideration before your lordship about the re trial of the petitions.

My Lord, Sec-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.”

This is normal practice. But section 6(6) does not apply here. Here the formal Chairman has resigned accepting that he was regularly discussing and taking help about this case from with a third party. That third party was drafting orders for the Chairman. He has drafted the charge framing order against the accused, 19(2) order and the recusal order. The conducts of the former Chairman has contaminated the whole process. This is why you should order for a retrial.

My Lord, what is said in Section 6(2A). See, it refers that "the judges of the tribunal shall independently exercise their judicial functions to ensure fair trial"

You have to give a look minutely on the 2 words of this clause 'independently'. And 'exercise'. Here you see, these words are related with one another, if the first word fails to comply with then the second one would be vain.

So here, the word 'independent' is significant concerning this matter. My Lord, our mentors Lord Denning said in this concern that, "Judicial function shall ensure fair trial, the stream of justice should be clear and pure. Due process of law must be there to ensure fair trial...... Due process of law shall authorise by the law"

But after disclosure of the conducts of the former chairman it is clear that he did not allow to flow the stream of justice clear and pure.

And, my lord, you have to read Sec-6(6) with Sec - 2(A) in parallel, otherwise it would be no meaning. And it is established that due process of law is must in relation to Sec 6(6). But here what has happened was fully against this 'due process'. So if you consider this situation as 'due process' then how could it be fair and pure!

Not only that, see through the Constitution; what is said there? Give a look on Art-27, 31, and 94. Art-27 provides that- " All citizens are equal before law and are entitled to equal protection of law"

Art-31 refers that - " To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law"

So my clients are protected by the provisions of the constitution that they're entitled to go through a fair trial in accordance.

My Lord, what is said in Art-94(4). "the judges shall be independent in exercising their judicial functions"

Though this tribunal is established with an extra-ordinary law but you are under the oath of the Supreme law of this land. And The former chairman is oath bound to uphold the constitution. But the recent publications in the Economist and the Daily Amar Desh clearly shows that the former chairman was in breach of Article 94(4) of the Constitution.

My Lord, We are going to produce some more strong pieces of documents before your lordship for consideration. We annexed document to prove that the charge framing order against DHS was in fact drafted by Dr. Ahmed Ziauddin for the Chairman. And this has not happened in the history of the whole world. We will show you some proof from his email communication and skype conversations with Dr. Ziauddin that the important orders were passed through this tribunal were drafted by Dr. Ziauddin. How an undisclosed third party at the same time who is also advising the prosecution can draft court orders for the Tribunal. This person has also started drafting judgment against DHS. How the former Chairman could allow this to happen.

Here, the provision of sec-6(6) refers to the situation not to be bound under any external forces but it is evident that he was fully designed to comply with some other external forces.

Finally, a fair trial follow all the provisions which are significant for the seek of justice, your lordship will find the application of all the provisions I discussed earlier for the independence of our judiciary. I hope this tribunal is a fair one, it's a brave tribunal. You may proceed to pass judgment considering section 6(6). But in my submission you should follow other provisions I have mentioned before. If you pass any judgment with this background, will this bear any credibility? This is a special circumstance. We appreciate trial for war criminals. But the process must be fair. My Lord, this is not the end, after 20/25 years many students will study this tribunal, researchers from different countries will research your judgement weather it was fair or biased by anything else.

So, there is no other alternative but starting the case from beginning. If you are concerned about time then you may order for expeditious trial within a time frame. But you should order for a retrial. Thank you my lord.

 The chairman then adjourned proceedings. Defence counsel for Salauddin Quader Chowdhury asked for facilities to play audio recordings of the skype conversation tomorrow. 

Malum, the prosecutor said that there was no need to play the audio recording. And the Chairman agreed that they would not allow audio recording of the skype conversations to be played in Tribunal.