- Evidence obtained by way of illegal search may be admissible if it is relevant. The test is relevance. He cited some English, Bangladeshi and Indian cases in support of this.
- 22 persons are named in the Skype conversation. 7 are members of judiciary, 6 are prosecutors, 4 executives and 5 other persons. None of these persons have disputed the Skype conversation. 4 heavy-weight ministers were involved and none of them denied the allegation.
- Right of Privacy: No no one has raised any objection against Economist in England. Public servant 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.
- Larger public interest – here he cited an Indian case relating to NDTV
- The Daily Amardesh has published the Skype Conversation in greater public interest. They only referred the 17 hours Skype conversation and 230 emails of the former Chairman. This is tip of the iceberg.
- We showed you that the formal charge and the charge framing order against Golam Azam has been drafted by Dr. Ziauddin. So you should pass an order recalling these two orders.
- Given the nature of bias revealed in the Skype conversation and e-mail communication between the former Chairman and Dr. Ziauddin, you should order for a retrial. You have power to pass an order for retrial.
- My arguments on the law points in the last three days are equally applicable in the Sayedee and Nizami cases.
Mizanul Islam then made certain arguments specifically in relation to Sayedee
In relation to section 6(6) of the ICT Act, he said the following
In relation to section 6(6) of the ICT Act, he said the following
- the Attorney General (AG) has given wrong interpretation of section 6(6) of the 1973 Act to the press. This section provides that ‘merely by reason of’ resignation of a judge the other judges are not bound to rehear the evidence. This provision provides that even in the case of a mere resignation of a judge, e.g. for health ground, the remaining judges has discretion to rehear the evidence. But Attorney General has omitted the word ‘merely’ and addressed the press that in any circumstances if a judge resigns then the remaining judges shall not re-hear the evidence.
- Section 6(6) does not apply here. The former Chairman did not merely resign - he resigned in a special circumstances accepting bias revealed in the 17 hours Skype conversation and 230 email communication with Dr. Ziauddin. This is against right to the fair trial guaranteed under section 6(2A) of the 1973 Act.
He then continued to make other general points:
- The Skype conversation reveals that the former Chairman and Dr. Ziauddin discussed about appointing Mr. Shahdin Malik (an advocate of the Supreme Court, well known to be a supporter of Awami League) as amicus curie. But the former Chairman was concerned about whether Mr. Malik would support the cause to the extent they want and was worried if Mr. Malik gives advice that may support the defence case. Dr. Ziauddin advised the former Chairman to obtain a written opinion from Mr. Malik before calling him as an amicus curie. He advised that if Mr. Malik’s opinion supports prosecution case then he may be called as an amicus curie under rule 41 of ICT-1 and in that case Mr. Malik cannot go beyond his written opinion.Chief Prosecutor interrupted and asked that the defense time be limited. Islam responded by saying that he should be given reasonable time to disclose the conspiracy.
The defense lawyer went on:
- IO cross examination was substantially curtailed by the former Chairman. We were not allowed to cross examine on more than 200 out of the 276 prosecution exhibited documents.
- Though the prosecution submitted more than 4000 pages document before the Tribunal they only served 400 page documents on the defence. We applied to get copy of the remaining document before commencement of trial. But the former chairman rejected the prayer saying that we were not entitled to those documents since the prosecution was not relying upon them. But when IO started exhibiting those unserved prosecution documents the former chairman allowed then to be exhibited. He passed order that if those documents were so much important to the defence then why the defence did not file any application for copies of those documents. We filed review application showing that, in fact, we applied listing those documents before commencement of the trial. This review application was also rejected.
- Though section 17(1) of the 1973 Act gives to the accused a right to explain the charges made against him, the former chairman did not allow this right. At the time of framing charge the accused wanted to say something. But at that time he was asked to plea guilty or not guilty only. The former Chairman assured him that he would be given chance to explain the charges later on. At the close of the prosecution case the accused again wanted to explain the charge and evidence. At this time also he was not allowed to give explanation and was assured that he would get the chance at the close of the defence case. But after close of the defence case the accused was denied to give explanation. He passed an order saying that the accused has already availed the right under section 17(1) at the time of framing charge. This is how the former chairman has conducted the trial to the extreme prejudice of the Accused.Attorney General then intervened and said, No. you should not allow to play the Skype conversation. 3 million people died in the liberation war and it is a conspiracy against them.
- Sukhoronjon Bali’s abduction was a serious issue. But despite his promise the former chairman did not pass any order to find out S Bali. The CCTV cameral was used to issue contempt proceeding against the defence counsel. But, surprisingly the former chairman did not use the CCTV camera to find out the truth in relation to Bali. These are few examples of how the former chairman conducted the trial.
- The Skype conversation reveals that the former chairman was hungry for promotion. He told Dr. Ziauddin that the Chief and Mr. Sinha (judge of the Appellate Division) promised him to give promotion to the Appellate Division if he can give three judgment of Azam, Sayedee and Nizami by December 2012. The conversation shows that how eager he was to get promotion to the Appellate Division. He was heard to have said that his only concern was promotion.
- The Skype conversation also reveals that the former chairman appointed a member of ICSF (International Crimes Strategy Forum of Dr. Ziauddin) as Assistant Register of the Tribunal (Mr. Showkat) to ensure that he can be assisted and surrounded by supporters.
- The email communications reveal that the third amendment of the ICT-1 rules was drafted by Dr. Ziauddin curtailing the Accused’s right to get details of the prosecution witnesses - adding a proviso in Rule 18(4).
- We have attached copies of these e-mails and the audio records of the 17 hours’ Skype conversations with the application and the Supplementary statement. Please allow us to play the Skype conversation for at least for one hour to show the extent of the conspiracy. If you think media should not hear these conversation then it may be heard in camera.
Defence: liberation war is not property of any political party. My family is also victim of liberation war. I lost two of my family members. The purpose of the liberation was to create a society based on fairness and oppression. The freedom fighters did not sacrifice their lives to establish a society where a judge would conspire in Skype and e-mail communications with an interested party to convict innocent persons.
- the IO cross examination shows that investigation was incomplete. He admitted that the investigation of the cases filed by PW 6 and 1 in Pirojpur relating to charges 7, 8, 10 and 11 were not completed. According to the Rules the trial was not supposed to start before completion of the investigation.Chairman replied saying, No. You have attached the audio recordings in DVD. If necessary, we will hear it.
- We filed application for recusal of the former chairman for involvement as an investigator against the Accused in the People’s Inquiry Committee. He continued though the other two members left it to his ‘good conscience’. We filed another application asking him for reason why he was not recusing himself. The former chairman passed an order on 28.11.2011 that he took oath as a judge and he would be acting impartially in the trial. Even this order was not also drafted by him. The draft of the order was sent to him on the previous evening by Dr. Ziauddin as e-mail attachment. This order itself was passed in violation of his oath. Copy of the email of 27.11.2011, the attachment and the certified copy of the order dated 28.11.2011 have been annexed with the supplementary statement file today.
- Only 17 hours Skype conversations in September and half of October 2012 and 230 emails reveals this serious conspiracy of the former Chairman. Can you imagine, what would have happened if all the Skype conversations and the email communication could be revealed.
- The charge framing order dated 3.10.2011 in this case was drafted by Dr. Ziauddin and sent to the former Chairman on the former evening by email. Copy of the email of 2.10.2011, the attachment and the certified copy of the charge framing order dated 03.10.2011 have been annexed with the Application. The present Chairman was present as a member at that time. You know better than us, how it was done. Judge Zahir Ahmed was another member of the Tribunal at the time of passing the charge framing order who later on resigned. You may call Judge Zahir Ahmed to get information as to how the charge framing order was prepared against the Accused. It is now clear that the Tribunal passed the Charge framing order against the Accused that was drafted by Dr. Ziauddin. This has vitiated the whole trial.
- Please allow us to play the Skype conversation for at least 30 minutes. If you are worried about media then it can be played in their absence. But it is very much necessary for adjudication of this application.