31 Dec 2012: Sype review application, day 7

Further responses from Abdur Razzak and Khandaker Mahbub Hossain (for the defense), and the Attorney General and Haider Ali (for the prosecution) in relation to the application made by the defense seeking a retrial application. (NB: This particular post draws on the defense notes of the proceedings)

First Abdur Razak, the chief defense lawyer responded to the Attorney General's arguments concerning

- AG submitted that the Skype and Email communications are extraneous matter and as such should not be considered. This is totally incorrect. These things totally goes to the root of the matter.

- AG submitted that formal charge is the main thing as it is recognized in the Act (s9(1)) and there is no provision to frame charge under the Act. According to him the trial may proceed since there is no allegation that the formal charge was defective. Thanks him for making this submission. In PGA case we showed you that the formal charge came from Dr. Ziauddin. He sent seven drafts of the formal charge one after another to make it accurate. The seventh version was the final one which was submitted by the Prosecution. He was mastermind behind the formal charge also. If the formal charge goes then how the Trial can proceed. This formal charge is not valid in the eye of law. It vitiates the entire trial.

- The charge framing order in all cases was prepared by Dr. Ziauddin.

- The Prosecution submitted a written reply/application to reject our application for retrial. But they did not deny any of the allegations made in the application. They did not deny the Skype and email communication between the former chairman and Dr. Ziauddin. They did not deny that the formal charge and the charge framing orders were prepared by Dr. Ziauddin.

- The formal charge and the charge framing orders are totally fraud upon this tribunal.

Razaq then said that he would like reply on legal points on the next day, which the chairman agreed

Senior Advocate Khandakar Mahbub Hossain then made the following submissions for the defense , particularly in relation to Nizami, though they apply to the other

My Lord, in the total history of our country this incident is unfortunate. The dignity, prestige of the highest court has been demolished. My Lord, we have lost the face to our children that we are failing to ensure an environment for fair justice. So now you have the responsibility to uphold this dignity that we were in a court system where there was justice for every people, for our next generation.  

My Lord, All legal provision were discussed by my learned friends but I just give a look through the sec 6(6) of this law. It is established that some unholy act coloured this tribunal, and your lordship can recall him to check. 

My Lord, this is a question of the honour, proud, prestige of the justice. Everyone of us shamed on us, how this honourable judge can do it. Here my submission is former chairman said he did not do any wrong even when he was asked about this incident, he claimed he didn't share, talk even he didn't discuss about any matter with his wife. So now what would be his position, what would he say regarding this. 

My Lord, one day we won't remain, you won't remain, this tribunal won't remain but history will remain, these facts will remain. 

My Lord, the charge which has been framed is the result of a clear misrepresentation. A charge can be amended, altered, changed at any time but there are a due process to do it. That's why we have this tribunal, we have this dignified premises of law. But this change of the charge was not concurrent with the argument. This didn't agree with the words of the arguments. It is the charge not from your lordships but came from the outside.

To save the honour and dignity you have to find out how it was drafted, printed, produced and recorded in this judicial record. 

My Lord, Ziauddin is not only the Ziauddin, there's a lot of machineries behind him. I know him personally, he is not that much learned. I am conscious about the sanctity of the trial. 

My Lord, just give a look to the sec 6 (2a). I didn't come to argue before you, I am here just to ask you weather this charge was independent or not. If it is not independent then how the whole process of trial would be independent. 

I have seen the language of this charge, it was politically motivated. There tried to impose some colour on Jamat Islami that they are 'auxiliary forces'. 

My Lord, he resigned due to his repentance, he repented himself but after this resignation how your lordship will continue this.

So for a glorified history your lordship will make an instance of fair justice to the next generation. Thank you.

Then Attorney General came before the Tribunal and kept an argument on the submission of Khandakar Mahbub Hussain. 

AMy Lord, I want to recall some history before your lordship. My learned friend (Khandakar Mahbub) was the chief prosecutor during 1973-1975 when there was ongoing a trial against collaborators. He is the person who made a stance against this war criminals and was in the process of adopting law against them but now he is defending this law. That time he was in prosecution and today he is in defence. He himself is defending the law which is adopted in their hands. So as a lawyer how could he do this.

Another thing is, he said that our former chairman has resigned only from repentance but this is not true because what he said in his order before his resignation is that he took assistance from Ahmed Ziauddin.

Mahbub then responded to this: 

My Lord, when this Collaborators Order was enacted, my learned friend was child in this legal profession. This collaborators order was enacted against the abetors those people who were the members of Shanti Commetee and their leaders. And there were some penal provisions. When our great leader Bangabandhu Sheikh Mujibur Rahman saw that there are a lot of abetors whose son is a freedom fighters and related with independence then he promulgated General Amnesty. And this Sayedee, Nizami and Gulam Azam was not the accused under that law. So my learned friend should know, ICT Act and Collaborators Order are not same. 

Prosecutor Haider Ali then gave the following replies particularly in relation to Sayedee

- As per Para 27 of the Retrial Application Dr Ziauddin only changed one word in the Charge Order. He only changed ‘other inhuman acts’ with ‘persecution’. This little change does not vitiate the charge framing Order. By only a single word this cannot be claimed that the charge framing order was Drafted by Dr Ziauddin.

- How is the accused prejudiced? Why is retrial needed? They were given several days adjournment at the time of framing of charge 10-8-2011, 18-8-2011, 23-8-2011, 24-8-2011, 4-9-2011, 13-9-2011, 20-9-2011, 21-9-2011, 25-9-2011, 27-9-2011, 3-10-2011 and 30-10-2011.

- On 16-11-2011 a drama is played by defence and they have walked out. Though as per section 13 No adjournment should be allowed but the defence had taken so many adjournments in different occasions. We have taken only one or two adjournments.

- Following benefits were given to the Accused to ensure fair trial: Defence application for recalling pw 1 and 6 were allowed; Health friendly vehicle was allowed to the Accused; Medical treatment was given to him in jail custody; In the court room computer monitors were installed in front of the defence and the accused so that they can see what is being recorded as evidence; Defence cannot show a single order where they were prejudiced; Evidence recording system is unique here; Defence got sufficient time to cross examine prosecution witnesses.

- What else we could have done? The Victims of 1971 deserve justice. We have to keep in mind their sufferings all times.

- A retrial is not permitted by law. This provision has been repealed in 1978 by Criminal law amendment Order. There is no ground except the Change of membership. Though Skype conversation was recorded earlier but it was published just before the judgment.

- After ‘hacking’ the owner of the email had no control over his own e-mail so this documents are not safe documents as per Information & Technology Act 2006. So these cannot be used to reach a decision.
- On the basis of unsafe documents no decision can be taken. This is not the proper forum to place these documents.

- Defence Counsel Razaq had admitted that these documents are ‘stolen’ docs.

Mizanul Islam objected and said, Abdur Razzaq never admitted that, and Haider Ali withdrew the claim. He then continued.

- Skype conversation was a mere discussion between two friends. There is not a single word about the Trial. See the formal charge just one word was suggested to be replace. 

- My Lord, the defense received a lot of adjournments, and challenged these orders. So they got enough time to argue. Now they must show us how they were prejudiced by these orders. 

- According to section 6 (4) (5) (6) and (7) of the 1973 Act there is no scope for retrial. He mentioned that in sec-6(4). If any member of a tribunal dies, or is , due to illness or any other reason , unable to continue to perform his functions , the govt. may by notification in the official gazette , declare the office of such member to be vacant and appoint there to another person qualified to hold the office. In that case views of the majority Judges will prevail. According to rule – 26 sitting of all members at a time is not compulsory.

- Rule 2 (4), 26(1) and (2), there is no requirement that all the judges should sit every day. Even one is enough to proceed the trial. The resignation of the chairman should not have any effect on the trial.

- In the 1973 Act is no provision to pass Charge Framing order. It is in rules. Without the Charge framing order the trial may proceed with the formal charge submitted by the Prosecution.

- Charge framing order is the byproduct of Formal charge. The Defence did not allege that the Formal charge is drafted by Dr. Ziauddin. Main indictment Order was given upon the basis of formal charge. Sec 16 says about what will be in formal charge . A) the name and particulars of the accused person. B) the crime of which the accused person is charged. C) such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged. So, we can say that , there was no situation to recall the charge. They talked about the ex- chairman Mr. Nezamul Huq  . He is now no more in that Tribunal. Even if he would not go, there would no problem in formal charge framing.  There was nothing added beyond the formal charge.

- There is no defect in the charge framing order so there is no scope recall that order. The Charge is framed as per law. Recall is illegal, not necessary.

- All orders subsequent to the charge framing order were passed as per law.

- Even if the former Chairman had talked with Dr. Ziauddin, he is no more in this tribunal. He will no longer affect the Trial process.

- 28 PW and 17 DWs have given evidence. The person who gave his testimony before this honourable tribunal what has happend to him, how he was affected by these accused persons. About him what would be said by defense? These were done legally. Now you may proceed from where the trial was stopped.  

- In our Information Technology Act 2006, see sec 02, 16, 17. This emails, conversions had been printed, made a book and produced before you and it is an offence u/s 27 of the IT Act of 06. My Lord, as these materials are not safe because these are not encrypted by digital signature, so under this law of 06 they are not admissible in this tribunal. 

Mizanul Islam then replied to the submission of the Attorney General and Haider Ali

Firstly, I will give thanks to opposition lawyer for admitting my point under 17(1). (1) the accused may be allowed to explain the charges under section 17(1) of the 1973 Act
Secondly, the Attorney General admitted a part of the 6(6) that, there is a scope of recalling charges but that type of circumstances has not arisen.

- In para 3 of the Prosecution’s reply to our application they stated that it is an offence to use hacked materials under the 2006 Act. According to section 52 of the 2006 Act the proper authority to complain about any hacked material is the Regulator/Controller. The prosecution did not make any application to the Regulator/Controller to stop publication of the Skype and email communications. How ICT-2 could pass the order of Injunction on publication of those materials? They were not the proper authority.

The chairman said that he was chairman of ICT-2 at the time of passing the order of Injunction. Although section 52 of the 2006 Act provides power to the Controller, it does not take away our inherent power to pass any necessary order.

Mizanul Islam responded by saying that the order of injunction was passed without giving any opportunity to the aggrieved person to defend themselves. They were not given any notice before passing that order.

- Section 2(15) of 2006 Act provides that ‘Customer’ means the person in whose name electronic signature has been given. No such electronic signature was assigned to the former chairman and Dr. Ziauddin. So they cannot claim any protection of 2006 Act.

- Section 76(2) of 2006 Act – the case against the Daily Armar Desh for publication of the hacked materials should have been filed before a session court. It was filed before a magistrate court which is wrong forum. The prosecution cannot take any advantage of that case.

- According to section 69(2), 70(1) and 81 of 2006 Act, it is the Cr.P.C. which should regulate the 2006 Act. In this Tribunal Cr.P.C. is expressly excluded so 2006 Act does not have any application here. So the entire submission of the Prosecution on 2006 Act has no value.

- Hacking may be an offence. But there is no restriction in the 2006 Act on use of the hacked materials. Section 19(1) of the 1973 Act allows admission of news paper reports. So the news paper clippings of the Daily Amar Desh and the Economist submitted with the application should be looked into to come to a right decision.

- Attorney General submitted that sections 9(3) and 16(2) of the 1973 Act are unique features of ICT as they allow the accused to get prosecution documents and list of prosecution witnesses three weeks prior to commencement of trial. According to the attorney general no such right is given to an accused in traditional trial. This is not correct. In traditional trial in Bangladesh the accused is entitled to everything before commencement of trial. According to section 540 of Cr.P.C. the accused is entitled to get copy of any document submitted by the police or the prosecution.

- Due to the proviso inserted in Rule 18(4), following instruction of Dr. Ziauddin, the accused’s right to get particulars of prosecution witnesses were curtailed in the name of witness protection. This was the sole ground to reject our application for copy of investigation report. We were unable to cross examine the proecution witnesses 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 classic example how the trial and the Accused was affected due to the former chairman’s communication with Dr. Ziauddin.

- According to section 11(1) (a) there is right to get summons on witnesses. But by framing rules this right was curtailed. The former chairman allowed all applications to summon PWs. But he rejected all applications to summon DWs. Safe house witnesses could not be called since the Tribunal was not ready to issue summon. Relevant defense witnesses could not be called. This is how the former chairman has prejudiced the Accused.

- Relying on sections 11(1)(d) and (6) of 1973 Act, the AG submitted that the Tribunal had power to appoint Dr. Ziauddin and his communications with the former chairman were not illegal. My question is does allow the former chairman to delegate judicial functions e.g. drafting orders, judgments on Dr. Ziauddin. Does it allow Dr. Ziauddin to act as an advisor to the Prosecution, tutoring prosecution witnesses? Section 10(4) provides that the proceeding should be public. Does it allow the former chairman to secretly communicate with Dr. Ziauddin to conspire as to how to convict the Accused? The former Chairman could have appointed him as an amicus curie under rule 41 so that everyone would know that he was an advisor to the tribunal. It should be open so that anyone affected can challenge. There is no scope to appoint Dr. Ziauddin secretly under section 11(1)(d).

- Haider Ali submitted that 12 adjournments were allowed to defence on 10-8-2011, 18-8-2011, 23-8-2011, 24-8-2011, 4-9-2011, 13-9-2011, 20-9-2011, 21-9-2011, 25-9-2011, 27-9-2011, 3-10-2011 and 30-10-2011 for charge hearing. I have checked the record. Haider Ali has mislead the tribunal by giving incorrect information. The tribunal only allowed four adjournments on 18-8-2011, 24-8-2011, 13-9-2011 and 30-10-2011 to the defence. In some of the above dated the tribunal did not even sit.

- Due to serious violation of the code of conduct by the former chairman the trial was vitiated. He was always prejudicial to the Accused. Following are some example: he used guillotine to prevent us from cross examining on more than 200 out of 276 prosecution exhibited documents; the prosecution case was allowed to continue for more than nine months. But the defence case was forced to close in one and half month; in the Skype conversation he was heard to say that he advised the Investigation Officer that during defence cross examination the IO should give evasive reply and the remaining would be taken care by him (i.e. the former Chairman); rule amended inserting proviso in rule 18(4) curtailing defence right to particulars of PWs – this limited our ability to XX the PWs; not issuing summons for any of the DWs while allowing all prosecution applications to summon PWs; Our Rule 40 Application to call for the case records of Momtaz FIR, cases filed by PW 1 and 6 and other relevant documents were rejected without affording any reason; Guillotine used to prevent cross examine on more than 200 prosecution exhibited documents; the investigation of PW 1 and 6’s cases relating to charge 7, 8, 10 and 11 are still pending. The trial cannot continue during pendency of investigation.

- The former chairman conducted the trial of the Accused in an unfair manner resulting gross miscarriage of justice. Only remedy is to order for retrial after fresh investigation.