1. That on 23rd December 2012 the Accused-Petitioner filed an application for recall of the order dated 3rd October 2011 framing charges against the Accused Petitioner and full and complete retrial of the instant case under Rule 46A of the International Crimes (Tribunals) Rules of Procedure 2010 (hereinafter referred to as ‘the Applicaion’).
2. That the audio clippings of 17 hours' Skype conversation between Hon'ble former Chairman Mr. Nizamul Huq and Dr. Ahmed Ziauddin are available in the online media including various Websites, Face Book and You-Tube. The Petitioner has downloaded the said clippings of the conversation from the online media but inadvertently those clippings had not been brought in the record of the instant case. As such the Petitioner begs to submit a DVD (Digital Versatile Disk) containing 17 hours' Skype conversation between the former Chairman and Dr. Ziauddin. (A DVD (Digital Versatile Disk) containing 17 hours' audio recording of the Skype conversation is annexed herewith and marked as Annexure -'G' )
3. That it is submitted that the said audio clippings are very much relevant for the proper disposal of the instant application and hence is required to be kept in record of the Hon’ble Tribunal for ends of justice.
4. Section 6(6) of the International Crimes Tribunal Act 1973 provides as follows: “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.”
5. It is submitted that the words ‘merely by reason’ in section 6(6) clearly indicates that in normal course of events if any member of the tribunal is changed or absent, the remaining members are not bound to recall and rehear the witnesses already recorded in presence of the previous member, e.g. where a judge resigns on health ground. But in the present case the former Chairman has resigned accepting that he was regularly discussing and taking help about the instant case from a third party, Dr. Ahmed Ziauddin. It is evident from the email communications between the former Chairman and Dr. Ziauddin that this person was regularly drafting court orders for the former Chairman in this case. It is already stated in the Application that in one hand Dr. Ziauddin was regularly advising the prosecution and on the other hand he was secretly appointed as an advisor to the former Chairman from the very beginning of the inception of the Tribunal. It is also disclosed from the email communication of the former Chairman and Dr. Ziauddin that they started drafting a conviction judgment for the Accuse even before close of the defence case. In these circumstances the former Chairman was forced to resign when his Skype conversations and email communications with Dr. Ziauddin were revealed by the Economist, Daily Amar Desh and some web sites. It is therefore submitted that the post of the former Chairman was not vacated by any ‘mere’ reason and hence section 6(6) of the 1973 Act does not apply here. The former Chairman resigned in an exceptional circumstance. His involvement with Dr. Ziauddin in this case has contaminated the whole process and hence a full and complete retrial is inevitable.
6. Section 6(2A) of the 1973 Act provides that ‘The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.’ But it is now clear that the former Chairman is in breach of this provision. The independence of the tribunal was not maintained by the former Chairman. He was not independent in exercising the judicial functions. He was forced to resign in an abnormal / exceptional situation. It is therefore submitted that there is no scope to follow Section 6(6) to continue the case from the stage left by the former Chairman.
7. It is submitted that the stream of justice should be clean and pure. Due process of law must be followed to ensure fair trial. But after disclosure of the conducts of the former Chairman it is clear that he did not allow the stream of justice to flow clean and pure.
8. According to Article 94(4) of the Constitution ‘... the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.’ It is submitted that the former chairman is oath bound to uphold the constitution and bound by its Article 94(4). But the recent publications in the Economist and the Daily Amar Desh clearly show that he sacrificed his independence to Dr. Ziauddin in breach of his oath under the Constitution.
Recusal Reason order drafted by Dr. Ziauddin:
9. It is stated that on 30th October 2011 the Accused Petitioner filed an application for recusal of the formal Chairman, Mr. Justice Nizamul Haq for his involvement as a member of the Secretariat of the People’s Inquiry Commission that investigated allegations of war crimes made against the Accused-Petitioner. The Ghatak Dalal Nirmul Committee has published the results of the People’s Inquiry Commission in 2005. On 13th November 2011 the other two members of the Tribunal heard the application and on 14.11.2011, they passed an order disposing of the application and left the matter of recusal to the ‘good conscience’ of the former Chairman. Thereafter the former Chairman continued as presiding judge in this case. On 16th November 2011 the Accused Petitioner filed an application to provide and record reasons as to why Mr. Justice Md. Nizamul Huq, continued to sit as Chairman of the Tribunal. The former Chairman heard said application on 20th November 2011.
10. In an email dated 27th November 2011, Dr. Ziauddin sent the former Chairman a document titled ‘261111-Draft order.doc’ containing the order on the Recusal Reason Application to be delivered in this case. In the text of the email, Dr. Ziauddin stated that ‘Please find attached the draft prepared. We are pleased with it since it has covered every issue raised in the petitions. It also gives good and firm response to all claims made by the defence’. On the next day i.e. on 28th November October 2011 ICT-1 passed the same order sent with some cosmetic changes by Dr. Ziauddin to the former Chairman on the previous day. (Copies of the said email dated 27th November 2011 and the attachments thereto and the Order of the Tribunal dated 28th November 2011 are annexed herewith and marked as Annexure- H series).
Admission by Dr. Ziauddin:
11. It is stated that Dr. Ahmed Ziauddin is living as an expatriate Bangladeshi in Brussels, Belgium. He is also the so called director of the Bangladesh Centre for Genocide Studies in Belgium, which campaigns against trial of the Accused Petitioner. He is also a campaigner for the Tribunal as a member of the International Crimes Strategy Forum (ICSF). On 19th December 2012 Dr. Ziauddin admitted the Skype conversations and e-mail communications with the former Chairman by press statement published in bdnews24.com. (Copy of the press statement of Dr. Ziauddin dated 19th December 2012 has been annexed herewith and marked as Annexure ‘I’)
12. It is stated that in the above press statement Dr. Ziauddin wanted to justify his communications with the former Chairman. He has admitted that he has been a campaigner for trial of the war criminals in Bangladesh for the last 41 years. He is also a well known campaigner against the Bangladesh Jamaat-e-Islami and its leaders including the Accused Petitioner. His Skype conversation and the e-mail communications reveal that he has been providing regular assistance to the Prosecution and the former Chairman was aware about that. Despite this background of Dr. Ziauddin, the former Chairman has been taking his assistances for tutoring prosecution witnesses, drafting orders and judgments in the Tribunal. It is therefore clear that the former Chairman’s unholy alliance with Dr. Ziauddin has contaminated the whole process of the pre-trial and the trial proceeding of the case against the Accused. In these circumstances there is no other alternative but to order for a retrial followed by a fresh investigation.
The former Chairman eager for promotion to the Appellate Division:
13. In Skype conversation on 6th September 2012 published in the Daily Amar Desh dated 9th December 2012 the former Chairman is reported to have said that he was hurrying to give judgment against the Accused, Professor Golam Azam and Salauddin Quader Chowdhury to get an early promotion to the Appellate Division of the Supreme Court of Bangladesh. Relevant excerpts of the transcript of the conversation of 6th September 2012 is quoted below for ready reference:
Justice Nassim: I will see it later but in the first judgment I will give it. I don’t know whether I will be here but the fact is in the first judgment I will place it.
Justice Ziauddin: It’s very important. Where will you go again?
Justice Nassim: Let a judgment commence. I will bring you here.
Justice Ziauddin: Not the only one after the final judgment…
Justice Nassim: His language….his language…
Justice Ziauddin: Big brother has told me to wait for this…
Justice Nassim: Their view is they will not place the judges of appellate division and they place there the government adamant judges. I said, “Sir, then I will not get the promotion.”
Justice Ziauddin:You will be the victim that’s all. I can’t understand their view. This is always happening. You are in high court division now you are dealing with the appellate division. Now you are doing this.
Justice Nassim: They can do anything …. He says, give one. Mr. Sinha has said give three within December. This one, Mr. Golam Azam’s and Saka’s. These three will do. Then let us bring you here. After that, you won’t have to be there anymore. This is it. I said that, do whatever you want, give me the promotion first. All I want is promotion.
14. It may be recalled that the prosecution was allowed more than nine months time from 7th December 2011 to 13th August 2012 for the 28 prosecution witnesses. On the other hand the defence case was forced to close in one month and 20 days from 2nd September 2012 to 23rd October after recording only 17 defence witnesses. The above conversations of the former Chairman clearly show that he was hurrying to complete defence case within shortest possible time so that he can pass judgment in the case and elevated to the Appellate Division. As a result the Defence was not given sufficient time to place the defence case.
Code of conduct of the judges:
15. Code 2 (A) and (B) of the Code of Conduct of the Judges provides as follows:
“A Judge should avoid impropriety and the appearance of impropriety in all activities.A. A Judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A Judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not lend the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the judge.”
16. It is submitted that the former Chairman’s Skype conversation and email communications with Dr. Ziauddin reveals that he is in clear breach of the Code 2(A) and (B) of the Code of Conduct of the Judges.
Rules of the Tribunal drafted by Dr. Ziauddin:
17. It may be recalled that on 19th April 2012 the ICT -1 has amended its Rules of Procedure for third time. In Rule 18(4), proviso it has curtailed the right of the defence to get particulars of the prosecution witnesses in the name of witness protection. In an email dated 9th November 2011 (http://www.tribunalsleaks.be/index.php/justice-denied/tribunal-delivers-orders), Dr. Ziauddin sent the former Registrar of the Tribunal, Mr. Shahinur Islam (who was later on appointed as a member of ICT-2) sending the draft of the third amendment of the Rules of Procedure. In the text of the email, Dr. Ziauddin stated that ‘Please find attached our feedback on the draft amendment to Rules. This has done in a hurry to contribute in the discussion that will take place tomorrow.’ (Copies of the said email dated 9th November 2011 and the attachments thereto are annexed herewith and marked as Annexure- ‘J’ series. )
18. It is submitted that Dr. Ziauddin was so authoritative and influential on the Tribunal that he was drafting amendments to the Rules of Procedure for the Tribunal.
Contamination in the investigation:
19. It is stated that according to Rule 18(1) of the Rules of Procedure ‘Upon receipt of report of investigation of offence(s), the Chief Prosecutor or any other Prosecutor authorized by him shall prepare a formal charge in the form of a petition on the basis of the papers and documents and the evidences collected and submitted by the Investigation Officer and shall submit the same before the Tribunal.’
20. It is therefore clear that the formal charge is result of the Investigation Report. It is stated that the email exchanges and Skype conversations between Dr. Ziauddin and the former Chairman clearly show that the Formal Charge in the case of Professor Ghulam Azam was prepared at the behest of Dr. Ziauddin. This indicates that Dr. Ziauddin has influenced the investigation also.
21. It is evident from the various email communications between Dr. Ziauddin and the former Chairman that the former had sent various versions/drafts of the Formal Charge of Professor Golam Azam to the Mr. Justice Huq prior to submission of the same on 5th January 2012 by the Prosecution.
22. Though it may be argued that the email communications show Dr. Ziauddins interfering the investigation in only the case against Professor Golam Azam, it would only be a logical conclusion that this similar events would have also occurred in the present case against the Accused. It is therefore submitted that the this Hon’ble Tribunal may kindly order for a retrial after fresh investigation by independent investigators.
Incomplete and faulty Investigation:
23. That at the time of arguing against the Prosecution’s section 19(2) application the defence Counsels have substantially argued that the Investigation Officer, Mr. Helal Uddin has practiced fraud upon this Hon’ble Tribunal by telling lies about availability of certain prosecution witnesses. During the trial it was established that the submission of the Investigation Report on 30.05.2011 was unlawful since the investigation against the Accused was not completed. Form the evidence on record it was clear that Investigation Officer dishonestly carried out the investigation with malafide intention to falsely incriminate the Accused with the alleged occurrences. It is therefore submitted that this Hon’ble Tribuanl may kindly order for a fresh investigation of this case for ends of justice. Otherwise the Accused Petitioner will be highly prejudiced.
24. That it is stated that PW 6 and PW 1 filed / lodged Pirojpur Sadar Police Station Case No. 9(8)09 dated 17.08.2009 and Zianagar Police Station Case No. 4(9)09 dated 08.09.2009 respectively against the Accused Petitioner alleging the incidents of Charge No. 7, 8, 10 and 11. The Investigation Officer has admitted in his cross examination that both these cases are still under investigation. It is therefore submitted that without conclusion of the investigation of the above two cases the trial of Charge No. 7, 8, 10 and 11 cannot proceed.
Prejudice of the Accused
25. That it is submitted that the instant trial of the Accused was conducted in an unfair manner to the highest prejudice of the Accused Petitioner. Following are few examples:
a. That it is stated that the former Chairman has restrained the Defence Counsels to cross examine on most of the prosecution exhibited documents by applying guillotine. Thereafter on 12.08.2012 the Accused Petitioner filed an application to allow the Defence Counsel to cross examine the Investigation Officer (PW-28) on the Prosecution Exhibited documents bearing exhibit marks 54 to 59, 62 to 84, 86 to 127, 129 to 150, 158 to 165 and 167 to 251 upon which this Hon’ble Tribunal used guillotine to restrict the defence counsels from cross examining. On 14.08.2012 the former Chairman rejected the application without any assigning any reason. It is submitted that this has seriously prejudiced the Accused Petitioner in challenging the prosecution exhibited documents.
b. That it is submitted that though the Prosecution has submitted more than 4000 pages documents before the Tribunal before commencement of the trial, they served only 400 pages documents upon the Accused violating section 16(2) of the 1973 Act. The accused petitioner filed several applications to get copies of the unnerved documents. But the applications were rejected without any valid reason.
c. That though section 17(1) of the 1973 Act empowered the Accused to explain the charges against him, the Tribunal headed by the former Chairman did not allow this legitimate right of the Accused.
d. That it is stated that at about 10.15 am of 5th November 2012 Mr. Shukhoronjon Bali, who came to the Tribunal as a defence witness, was abducted by the law enforcing agencies from the Tribunal premises. This was immediately brought to the attention of the former Chairman and he promised to pass necessary order relating to his abduction at 2.00 pm of that day. It is stated that despite the serious nature of the incident, the former Chairman did not pass any order regarding abduction of Mr. Bail until his resignation on 11th December 2012.
26. That the above statements may form part of the Application of the Accused Petitioner dated 23rd December 2012.