24, 25, 26 Dec 2012: Skype retrial application, day 2, 3 and 4

Abdur Razak argued on these three days oncerning the applications of Golam Azam, Delwar Hossain Sayedee and Motiur Rahman Nizami for a retrial concerning the Skype and e-mail conversations between the former chairman of tribunal one and a Belgium expatriate lawyer

Although the factual basis of the applications were different for each of the three accused, the legal arguments were similar.

See first day of arguments with links to written applications here

24th

On 24th after taking his chair Chairman announced that from now nobody would be allowed to pronounce any defamatory language before the lordships about former chairman Justice Nizamul Haque concerning skype scandal. As he was acting judge of the Supreme court.

However, the Chairman asked Abdur Razzak to start his argument before the Tribunal relating to the petition of GA retrial.

My Lord, today I'm standing before you with a heavy heart. I am so much despondent that Independence of judiciary is fully demolished. It was like a mockery in the name of justice, in the name of fair trial. I will show you how these things happened, how this honourable court has been dragged to the land, how this prestigious court has been lost its credibility.

Charge framing was totally copied, witnesses are motivated and influenced directly from the chamber. They delivered the words those are taught them in the chamber.  

Attorney General then got up and started to tell that already honourable tribunal passed an order banning all transcription of Skype matters. So you can't refer it here. He said, my lord, they can give application and it could be heard but they can't refer it as already said.

Razzaq: My Lord, this tribunal passed an order not to transcript, transmit or airing this matter not to refer it, not to discuss it. And as this application is fully focused on that matter how could it be!

He then went on:

Charge framing : order delivered by tribunal copy of an email

Tribunal: you don't need to read conversation you just refer it, we read these before.
See what was said regarding the Registrar by the former Chairman

10th Dec 2011 - Skeleton of the charge was sent by Ziauddin.

Investigation report was sent the Ahmed Ziauddin. But we the defence counsel was not able to get this after a long struggle.

More than 350 document were sent to them, why those were sent to Ahme Ziauddin and Rayhan Rashid? 

On the 26th, Abdur Razzak made the following arguments

My Lord, today I will show you how he (Justice Nizamul Haque) violated the constitution. He violated the Supreme law of this land. He has polluted the Judicial system as well as independence of judiciary. This situation never be contemplated under sec 6(6) of this law. He has violated the code of conduct, he violated the oath of constitution. There is no equivalent provision of Art-94(4) of the Constitution. And he fully contaminated the essence of this provision.

Tribunal : You are saying that he has violated Art- 94(4), code of conduct, and oath but are we supposed to hear all this things? Do we have the authority to take any decision against him? So, why shall we hear you?

Razzaq: My Lord, he has done these and through this criminal conspiracy, he polluted total system. It is a question of fair justice. We have submitted more than 1100 pages to show you how he contaminated the whole process.

My Lord, by an order of 9/10/2012 he limited our witnesses and this order has been given after discussion outside this tribunal.

My Lord, see page 89 of supplementary dated 15/10/2012, it is a conversation between former Chairman and Ahmed Ziauddin concerning limiting our witnesses and at the next week, see page 491, he passed this order. My Lord, everything was made ready before.

As the consequences this tribunal has been contaminated, the consequences are that the independence of judiciary has been thrown to the streets.

My Lord, in cases of witnesses there happened innumerable fabrication. There happened tempering of the witnesses, selection of the witnesses, and sometimes they have been driven by the prosecution, what to say or not. Witnesses are protected under the Law, selection of the witnesses are totally prohibited.

Sometimes it was decided by the prosecution that which witness was vague as well as where has any lecuna, then to fill the lacuna who should be produced before the Tribunal.

Conversation between Justice Nizamul Haque and Ahmed Ziauddin concerning Sultana Kamal as a witness. And in this conversation it was discussed that all information has been given to Sultana Kamal so she would be produced in the place of General Shafiullah.

My Lord, it is true that no witness have been brought from Brussels but most of the witnesses have been manipulated from Brussels.

Here you'll find how witnesses were selected, it was tried to fill the gaps of some weak witnesses.

My Lord, not only he has done these consciously but also he has done this with an specific motivation.

He discussed the meeting with the minister

My Lord, in Section 2(a) it is said that - "auxiliary forces includes forces place under the control of the Armed Forces for operational, administrative, static and other purposes"

But in this formal charge Bangladesh Jamat Islami has been included as auxiliary force, it is totally political fabrication over the rule of justice. This formal charge has been changed 5 times in accordance with the discussion with Ahmed Ziauddin before it's framing.

My Lord, not only that he violated the 3rd para of preamble of the constitution. It is said that -
'Further pledging that it shall be a fundamental aim of the State to realise through the democratic process to socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;'

Here 2 things which are violated - rule of law and equality and justice

My Lord, he also violated Art- 96(4) where it is required that judges follow a code of conduct but you see he did some grave violence regarding following the code of conduct of the judges.
Tribunal : Ok, you have shown us that this trial was vitiated, it was contaminated as well as violated by some work of a former judge, and somehow we are managed that there placed some criminal conspiracy but you have to place an eye over our jurisdiction. Then why should we retrial this case? Show us some substantive piece of law.

Razzaq: My Lord, place an eye on Sec - 6(6) of this law, it is said 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.”

Here, 2 words are important in this regard - i) merely and ii) change. My Lord, this is not a mere change, it is an extraordinary change, yes it is true that there is no straight law regarding the retrial so you can claim not to be bound to start a retrial but it would be bare example of injustice.
Tribunal : Ok, read Sec - 6(4) of this law, it is provided that - "If any member of a tribunal dies or is, due to illness or any other reason, unable to continue to perform his functions, the government may by.............. " Here you see there has given a phrase 'any other reason', so if you want to say it was an extraordinary change not a mere change then this extraordinary change fall under this expression. So, you have to read sec -6(6) after reading sec-6(4).

Razzaq: My Lord, have a look to the Rule-46(a) of 2010, here it is shown 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."