It is 'An application for recall of the order dated 3rd October 2011 framing charges against the Accused Petitioner and full and complete retrial of th instant case under Rule 46A of the International Crimes (Tribunals) Rules of Procedure 2010.'
1. That as a result of recent (and increasingly widespread) local and international media reports in respect of alleged interactions or communications between the Ex-Chairman of the International Crimes Tribunal - I(“ICT-1”), Justice Nizamul Huq (“the former Chairman”), and a Bangladeshi lawyer based in Belgium, Dr. Ziauddin Ahmed, members of the Prosecution and members of the government (and others), the Accused Petitioner prays for retrial under Rule 46A of the Rules of Procedure of ICT-1 (‘Rules of Procedure’) as it would be a miscarriage of justice to continue. The breaches of the fundamental rights of the Accused are underscored by the recent resignation of the former Chairman from all his judicial functions at the Tribunal. It is submitted that in light of this, the only reasonable action would be to order a retrial.
2. The communication between the former Chairman of ICT-1 and Dr. Ziauddin clearly indicate that the former Chairman, Dr. Ahmed Ziauddin, a section of the Prosecution and a section of the Executive were acting in collusion with one another to secure a conviction of the Accused Petitioner, thereby seriously prejudicing the Petitioner’s right of a fair trial guaranteed under section 6(2A) of the International Crimes (Tribunals) Act 1973 (‘the Act’). In such circumstances, the Petitioner submits that it would be a miscarriage of justice to continue and that the only course of action open for the Tribunal is to order a retrial of the instant case. The Accused-Petitioner relies on Rule 46(A) of the Rules of Procedure, whereby the Tribunal has the inherent power to make such orders as may be necessary to meet the ends of justice or to prevent abuse of the process. It is therefore submited that the Hon’ble Tribunal has a duty to order a retrial on the grounds set out below.
3. That international law reflects common law principles in recognizing that an abuse of process justifying the stay or retrial of a prosecution arises where it would be: (1) impossible to give the accused a fair trial; or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of the case. (R v. Horseferry Road Magistrates Court, Ex p. Bennett  3 All E R 138, 151, HL, per Lord Lowry).
4. It is stated that this principle has been upheld by the International Criminal Court (ICC) Appeal Chamber in the Lubanga case, where it held that “Where [a] fair trial becomes impossible…it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped”. (ICC-01/04-01/066-772, Prosecutor v. Thomas Lubanga Dyilo, , Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, Appeals Chamber, 14 December 2006 (“Lubanga Stay of Proceedings Appeals Judgment”), para. 37. Also ICC, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09, Decision on Defence Request for a Temporary Stay of Proceedings, 26 October 2012, (“Banda and Jerbo Stay of Proceedings Decision”), paras. 74-80; STL, In the Matter of El Sayed, CH/AC/2010/02, Appeals Chamber, Decision on Appeal of Pre-Trial Judge's Order regarding Jurisdiction and Standing, 10 November 2010, para. 45.)
Conditions precedent for a Re-trial5. That it is recognized in international law, including under the ICCPR to which Bangladesh is bound and the Rome Treaty, that a breach of an accused’s right to a fair trial would constitute a “miscarriage of justice” and any subsequent conviction should be set aside (Prosecutor versus Kordic and Cerkez, Appeals Chamber Judgment, 19 September 2005, para.19; Also Tihomir Blaškić Appeal Judgment, para. 19; and Kupreškić et al. Appeal Judgment, para. 29). A miscarriage of justice has been defined as “a grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime” (Prosecutor v. Furundžija Case No. IT-95-17/1 Appeal Judgment, 21 July 2000, para. 37, upheld in Prosecutor v. Kvocka, Case No. 98-30/1-The Appeals Chamber Judgment, 28 February 2005, para. 18).
6. It is submitted that in view of the communications between the former Chairman and Dr. Ziauddin the only remedy would be for the Hon’ble Tribunal to order retrial. If a retrial is ordered, the Hon’ble Tribunal will kindly appreciate that it is imperative that there be a full and complete retrial which would entail the following: (1) institution of new and separate proceedings against the Accused-Petitioner; (2) a new investigation and the gathering/re-gathering of all prosecution evidence; (3) re-drafting formal charges against the Accused-Petitioner by a separate and independent pre-trial panel; (4) disqualification of judges involved in the judicial process during the tenure of the former Chairman of the International Crimes Tribunal-1, (5) calling or recalling prosecution witnesses; and (6) the presence of independent, international trial observers.
7. That it is stated that respected international institutions including Human Rights Watch and the Bar Human Rights Committee of England and Wales have called for a full retrial. Such retrial is required to conform the requirements set out in the previous paragraph.
8. That in addition, the retrial must be strictly in accordance with the Accused-Petitioner’s rights to a fair trial and that should be imbued constitutionally and institutionally through the separation of government and judiciary and a respect for the rule of law, statutorily through instruments that do not breach the fundamental principles of legality and specificity, and is consistent with international obligations to which Bangladesh is bound so as to protect defence rights, and evidentially through the requirement of the Prosecution to prove each and every element of each charge they seek to bring.
9. That a new trial is required in the interest of justice to be conducted by a bench of judges not involved in the judicial process during the tenure of the former Chairman. This is an essential condition to any retrial and any deviation from this would offend not only established national or international law on the independence and impartiality of the judiciary as a fundamental right of any accused but would be in violation of the Code of Conduct which guarantees this right pursuant to Article 96(4)(a) of the Bangladesh Constitution. Under Article 3 of the Code of Conduct, a judge must disqualify himself in a proceeding in which his impartiality might reasonably be questioned.
10. That it is submitted that the recent resignation of the Chairman of this Hon’ble Tribunal is by no means sufficient so as to rectify the breaches of the Accused’s right to a fair trial.
11. That on 6th December 2012, the Tribunal-1 presided by its then Chairman, Mr. Justice Huq passed an order directing the Editor and South Asia Bureau Chief of The Economist to ‘give reply within 3 (three) weeks as to why proceedings under section 11(4) of the International Crimes (Tribunals) Act 1973 shall not be initiated against them’ for ‘hacking computer, email and skype accounts and obtaining confidential information from the Chairman illegally which amounts to influencing a Judge of the Supreme Court of Bangladesh’. By the said order, the Tribunal also directed The Economist ‘to keep secret the information which they have gathered from the skype and email accounts as well as the computer of the Chairman as this makes public the privacy of the Chairman which needs to be kept secret.’ (Acopy of the said order dated 6th December 2012 is annexed herewith and marked as Annexure- A.)
12. That on 8th December 2012, The Economist published an article titled ‘Discrepancy in Dhaka’ in its online edition raising questions about the integrity of the former Chairman. In the said article, it was stated that Mr. Justice Huq in a telephonic conversation on 5th December 2012 with The Economist (which the latter had recorded) had denied ever exchanging any information regarding the tribunal, the judgment or the proceedings with any one, yet the order dated 6th December 2012 of the Tribunal-1 clearly states that the Tribunal Chairman received ‘the support [of Dr. Ziauddin] on the developments on International Criminal law throughout the world’ and also took assistance ‘during the proceedings of the trial and orders.’ Furthermore, subsequent publication of Skype and email communications between Mr. Justice Huq and Dr. Ziauddin clearly demonstrates the falsity of the statement of the former Chairman to The Economist. (A copy of the said article dated 8th December 2012 as published in the online edition of the Economist is annexed herewith and marked as Annexure- B.)
13. That on 9th December 2012, the Daily Amar Desh published transcripts of Skype conversations between Mr. Justice Huq and Dr. Ahmed Ziauddin on 27th August, 6th and 8th September and 14th and 15th October 2012. According to the report dated 9th December 2012, the Amar Desh had obtained more than 17 hours of Skype communications between Mr. Justice Huq and Dr. Ziauddin from its source in Brussels, Belgium. Thereafter, on 10th, 11th, 12th and 13th December 2012, the Daily Amar Desh published transcripts of Skype conversations between Mr. Justice Huq and Dr. Ahmed Ziauddin on 1st, 10th, 12th, 15th and 17th September and 13th and 16th October 2012. Reports of the Skype conversations were also published in the Daily Jugantor. (Copies of the news reports published in the Daily Amar Desh are annexed herewith and marked as Annexure- C series
14. The Skype conversations and email communications between Mr. Justice Huq and Dr. Ziauddin show the following:
(i) That Mr. Justice Huq and Dr. Ziauddin had discussions not only as to who should depose as Prosecution Witness, but also as to the contents and length of the deposition.
(ii) Emails between Dr. Ziauddin and Mr. Justice Huq show that the orders of the Tribunal framing charges against Ghulam Azam, Motiur Rahman Nizami and Delwar Hossain Saydee were in fact drafted by Dr. Ziauddin and emailed to Mr. Justice Huq the evening before they were announced in open court by the former Chairman of Tribunal-1.
(iii) Mr. Justice Huq and Dr. Ziauddin engage in a conversation conspiring to fast-track the case against the Accused in order to issue a judgment as expeditiously as possible given the profile of the Accused. Their emails show that Dr. Ziauddin had been preparing judgment for conviction in this case even before close of the defence case.
(iv) Mr. Justice Huq had regular meetings with a section of the Prosecutors during which decisions were taken regarding filing of petitions by the Prosecutors and passing of orders thereon by the Tribunal. Not only that, Dr. Ziauddin played an important role in advising the former Chairman and a section of the Prosecutors, often acting as a conduit for the exchange of information between the Tribunal and the Prosecution.
(v) The conversation between Mr. Justice Huq and Dr. Ziauddin clearly show extensive executive interference with the process of the Tribunal.
15. That on 11th December 2012, in the wake of revelations of the aforesaid Skype communications, Mr. Justice Huq resigned as Chairman of the Tribunal-1.
16. That on 15th December 2012, The Economist, in its print edition, published an article titled ‘Trying War Crimes in Bangladesh: The trial of the birth of a nation’ setting out in detail ‘profound questions about the trial’ which have been raised in light of the emails and Skype conversations between Mr. Justice Huq and Dr. Ziauddin. In an Editor’s Note to the said Article, it has been stated that that The Economist has ‘no reason to suppose that the tapes and emails we have seen are fakes, or have been tampered with.’ The article justified publication of the communications by stating that the concerns raised ‘are so serious that there is a risk not only of a miscarriage of justice affecting the individual defendants, but also that the wrongs which Bangladesh has already suffered will be aggravated by the flawed process of the tribunal.’ The article concluded by ‘raising legitimate questions about due process that the Bangladesh authorities should … investigate thoroughly’. The article, which has been published in the print edition of The Economist on 15th December 2012 was uploaded on the website of The Economist on 13th December 2012. (A copy of the said article in the Economist dated 15.12.2012 is annexed herewith and marked as Annexure- D.)
17. That the Skype conversations and the email communications between Mr. Justice Huq and Dr. Ahmed Ziauddin are not only in the possession of The Economist and the Daily Amar Desh but are now widely available in the social media, including Facebook and You Tube. The said materials are also available in a European based website (www.tribunalsleaks.be), which it says reveals how Dr. Ahmed Ziauddin is able to essentially dictate the whole process to the Chairman of the Tribunal, the Prosecuting authorities and the Government.
18. That the authenticity of the Skype and email communications between Mr. Justice Huq and Dr. Ziauddin has never been questioned. In fact, by its order dated 6th December 2012, Mr. Justice Huq admitted that ‘… just two or three days earlier the Chairman found that his email and skype accounts along with his computer has been hacked.’ In the said order, the Tribunal also directed The Economist to ‘keep secret the information they have gathered from the skype and email accounts’. The order of the ICT-1 dated 6th December 2012 thus clearly indicates that Mr. Justice Huq had been in communication with Dr. Ziauddin over email and Sype. Furthermore, the resignation of Mr. Justice Huq on 11th December 2012 upon the publication of the transcripts of the Skype conversations is clear evidence of the authenticity of the same.
19. That it is apparent from the Skype communications, details of which are set out below, that such conversations included the provision of expert legal advice by Dr. Ziauddin and focused on issues specifically relating to the proceedings against the Accused-Petitioner. The Defence submits that accepting such “legal advice” in this manner constitutes a fundamental abuse of process and the proper procedure for appropriate legal advice would be through an amicus curiae brief or advocate in the manner provided under Rule 41 of the Rules of Procedure. It is stated that the matters discussed between the former Chairman and Dr. Ziauddin went far beyond what could ever be considered acceptable, even if it had been given in a transparent manner through appropriate procedure. In fact, the discussions provide clear evidence of judicial bias, a matter which is discussed in detail in the paragraphs below. It further appears from the communications that not only was Dr. Ziauddin providing advice to the Chairman, he was also providing such advice to members of the government and the Prosecution. In addition, he started drafting Judgment convicting the Accused Petitioner even before close of defence case.
20. It is submitted that it is evident from the Skype communications that the former Chairman, through his involvement and discussions with Dr. Ziauddin on matters pertaining to the proceedings (including with regard to members of the Prosecution and their work), had acted in such a way as to compromise the integrity and fairness of the proceedings, and that he has not acted independently and impartially, free from external influences and pressures, and that as a result the entire proceedings have been vitiated.
21. That the Defence illustrates the nature of the conversation between the former Chairman and Dr. Ziauddin below. On 12 September, 2012 the following conversation took place between them which was reported in the Daily Amar Desh on 10 December, 2012:-
Justice Nasim: when we see that it is irrelevant, we don’t take it. And We are not taking everything.. You don’t need to stand. First we’ll say that we are taking this. Then you say that it’s not being right. So why they are so excited? So we have to show that we are taking. When they see us taking something why won’t they speak to us in due time? Why they become so excited? …Ziauddin: we have discussed, objection should not be…., I mean the speed should not be reduced.
Justice Nasim: yes of course. ….
Justice Nasim: There are two more sessions remaining. The second session has not completed yet as she has gone to see the Prime Minister. Tomorrow it will end in two sessions.
Ziauddin: Who has gone in this session? Sultana Ma’m?
Justice Nizamul Haque Nasim: yes, Sultana Kamal …..
Ziauddin: alright, thats another issue. She came yesterday. We talked. I have talked with the central yesterday as with our own members. Mohsin and Shanjib [son of Anwar Hossain, VC of Jahangir Nagar University] are coming. By the way, will he come, the lad of yours?
Justice Nasim: No he will not come today. I haven’t told him. ….
Justice Nasim: How they will work from Savar?
Ziauddin: The fact is it takes same time to move from Savar or if you want to go to another part of Dhaka. And for our movement we shall be able to manage if we are informed on the previous day. We will start from Gulshan so there will be no problem. …
Now the thing is, Malum had wanted some documents we can give it to them. There is an article of Washington Post and some other things. They will be able to reach these to Mr. Malum. Considering all these our legal team has revived once again. Malum has to be provided with some documents. He is in bad condition without these documents…………And this Simon and some others are not efficient at all but they are efficient in making mess.. And Mr. Malum and that deputy speaker most probably from same districts but Malum is more visible in camera. Most probably this is the result of his popularity. Mr. Simon thinks that the speaker considers him as a threat in his area. He has permanent movement in the chamber of Aminul Huq. He was an accused in the Agartala case. He is a veteran Awami Leaguer and it seems he has a dream to take part in election. According that elected or selected district chairman he wants to stand for election but his son is far better than him. If he was in the prosecution then he would have gained a better image.
22. That it is submitted that it is clear from the above (which is only a short extract of one conversation) that it is sufficient for the Hon’ble Tribunal to reach the conclusion that the former Chairman, through his involvement and discussions with Dr. Ziauddin on detailed matters pertaining to the proceedings (including on members of the Prosecution and their work), has acted in such a way as to compromise the integrity and fairness of the proceedings, and that he has not acted independently and impartially, free from external influences and pressures.
23. That this is particularly clear from the transcript dated 14 October 2012, in which the Chairman and Dr. Ziauddin engage in a conversation conspiring to fast-track the case against the Accused in order to issue a judgment as expeditiously as possible given the profile of the Accused. On 14 October, 2012, the conversation between the former Chairman and Dr. Ziauddin (as reported in the Daily Amar Desh on 9 December 2012) is as follows:-
Ziauddin: That I don’t know, but the message should be sent. But the process has to be started from one direction. The message that is being sent to him is that a decision should be provided within two years … a kind of policy decision has to be taken as to which of the cases should be disposed of first. At least the first case. Secondly, otherwise, that case (Ghulam Azam’s case) has to be in the top of the list. Because here there is good reason given that he (Ghulam Azam) bears the greatest responsibility and therefore it is very significant, politically and otherwise … and this should be addressed first. Particularly, in terms of responsibility. This is significant not only in the legal arena but also in the political context. There is no justification in leaving out the ‘big fish’ and going after ‘small fishes’. … This was a problem from the very beginning but now it has come to such a stage, that it can be overcome if the Minister takes action. … In that sense, there are 12 witnesses are yet to come in this case (Ghulam Azam’s case). I do not know exactly the current position of that case. How many Defence witnesses have been examined in that case (the case of Abdul Quader Mollah) there (i.e., in Tribunal No. 2). Defence witnesses have started deposing there (in Tribunal No. 2), right?Justice Nassim: No. Defence witnesses have not yet started their deposition.
Ziauddin: In that case (in Tribunal No. 2), DWs have not yet come?
Justice Nassim: No.
Ziauddin: In that case, it cannot be said that they have progressed much, is that right?
Justice Nassim: Yes Yes Yes.
Ziauddin: Do you have any idea regarding when defence witnesses will come there? … Ok, I myself will ask them. I can’t remember clearly.
Justice Nassim: No. No. I don’t know.
Ziauddin: Who is the Prosecuting lawyer in that case?
Justice Nassim: That I don’t know.
Ziauddin: I will ask them and find out today. I mean, if I get to speak to them. And we will have to make a list as well of the persons who are assisting the lead prosecutors. I think the case of Kader Molla ….. Probably it’s Tareq (Prosecutor Saiful Islam).
Justice Nassim: No, it’s not tareq. Tareq has slowed down the proceedings in the Kamruzzaman case. .
Ziauddin: It must be someone else then. .. It has to be a synchronized decision … we have to make them understand this.
Justice Nassim: Listen to me … What I think is … and this is my personal opinion … that if possible Ghulam Azam’s case should be disposed of first, Saydee second, Quader Mollah third. And if there’s a problem with that, then Saydee first, Ghulam Azam second and Quader Mollah third. Saydee’s case is different … there aren’t many legal issues here… its like a regular criminal case. Once Ghulam Azam’s case is disposed of, law will be settled.
Justice Nassim: Therefore, Ghulam Azam is the team leader. Saydee is on the side-track. Leadership issues are not arising in Saydee’s case. After the judgment in Ghulam Azam’s case, the judgments in the cases of Nizami, Mujahid, Quader Mollah, Kamruzzaman can follow, one after another. But Ghulam Azam’s case must be the first one … in that group. From this, the Saydee and SAQA (Salauddin Quader Chowdhury) cases are a little different. And I myself have stalled SAQA’s case. I haven’t stalled Sayedee’s case however because his trial is almost complete. … If it is possible to make communications with the higher authorities and getting them to stop this case by making them say so … … They (Tribunal no. 2) can be told to slow down the proceedings in Quader Mollah’ case. Let them progress with the other cases. … The one that is absent, … what’s his name … Bacchu (Abul Kalam Azad) .. his case can be started …
Justice Nassim: Yes, let them (Tribunal No. 2) proceed ahead. After that, let them deliver 3-4 judgments, one after another. But after Ghulam Azam, not before that.
Ziauddin: Yes, they can progress ahead with that case.
Ziauddin: There is another matter here. What you said is perhaps correct from the legal angle, but regarding Saydee’s case is not in the leadership … but
Justice Nassim: Not many legal issues involved in Saydee’s case. But you have to remember the world outside, that is outside the court room …
Justice Nassim: They will want the judgment to be in Ghulam Azam’s case.
Ziauddin: Yes, that is important. That audience is very important. If any of the other cases, including the Sayedee case is first disposed of … I mean, the first case to be disposed will be of historic importance … and everyone will hope for ….
Justice Nassim:… it to be Ghulam Azam.
Ziauddin: In consideration of all things the judgment of the BIG one…..
N. Yes, sure
Ziauddin: Therefore, that case has to be ‘tuned’ accordingly. You can deliver the judgment in the other cases the day after or the week after (Ghulam Azam’s judgment). There will be no problem at all. I mean decision may be made later, but it has to afterwards.
Justice Nassim: I am in full agreement with you. In Ghulam Azam’s case, the Investigating Officer (IO) is now being examined. After that defence witnesses will be examined. The matter will take up to January or February to complete. Not before January- February next year. But the Government will not wait until then. The Government is absolutely crazy for a judgment. In Sayedee’s case, I can deliver judgment in December. The Government has gone totally mad. They just want a judgment.
Ziauddin: Yes, but no talk is taking place with them … what is the significance of the previous judgment of Sayedee. They are proceeding with a one-track mind. Or they have panicked. There is nothing here to panic about.
Justice Nassim: They (the Govt.) have gone completely mad – I am telling you. They want a judgment by 16th December, although this is meaningless. But they want a judgment – its as simple as that.
Ziauddin: Last time the ghost of 16th December had …
Justice Nassim: So in that respect, the Saydee case is in a much more advanced stage. If judgment is given in Saydee case, the Government will calm down.
Ziauddin: The ghost of 16th December was there from before … its not a new phenomenon…
Justice Nassim: In December probably, judgment can be given in Saydee’s case …
Ziauddin: The ghost of 16th December will invite trouble for them …
Justice Nassim: All. … Ghulam Azam was the 6th case. Saydee was first, SAQA (Salauddin Quader Chowdhury) second, Nizami third, Quader Mollah fourth and Kamruzzaman fifth.
Ziauddin: The problem started by the investigation agency
Justice Nassim: then, what do you have to do with that! No. No. There is nothing for us to do about that. How can you take Case No. 6 to the top?
Ziauddin: Well, if that is done, then there is no problem. I understand everything.
Justice Nassim: They will try to prevent it by hook or crook … and we are also not getting … Sayedee’s witnesses are decreasing. Defence witnesses. I cannot ask them to go back. Saydee’s case is almost concluded.
Ziauddin: No, no. The Defence witnesses can’t be brought back?
Justice Nassim: Saydee’s case is almost closed. Before Eid (Eid-ul-Azha), the deposition of Defence witnesses will be concluded … we are hoping.
Ziauddin: Defence witnesses will complete their deposition before Eid?
Justice Nassim: Yes, it will be over. … In Ghulam Azam’s case, they (Defence counsels) wanted two weeks to supply list of names (of defence witnesses). I have rejected that application. I have said, tomorrow you supply list of 5 defence witnesses and another 7 defence witnesses day after tomorrow… this is your last chance. I have directed them but even if they don’t supply the names of defence witnessess, what can you do. If I stop them (from producing defence witnesses), there will be an outcry. They will say, we have been prevented from supplying names of DWs, no time has been given. Then the Government would have said, you could have granted the time but now you have given them something which is in their favor for no reason. They will now say that they are being prevented from producing witnesses.
Ziauddin: But, this is actually counter & encounter.
Justice Nassim: Yes, you are right!
Ziauddin: Therein lies the problem. The ICT is doing a lot.
Justice Nassim: The Government will tell me – ‘You could have given them time. You could have given them a day. They would have remained in court…’
Ziauddin: Ok then … you proceed then … lets see what happens.
Justice Nassim: My plan is that law will be settled in Ghulam Azam’s case – this is right. In Saydee’s case, no legal issues will be settled. It will be disposed of by a normal judgment, no no … not a normal judgment but, God willing, a very good judgment … Whatever happens afterwards is a different thing …
Ziauddin: The first case has a significance of its own and the judgment in the first case will be a template for following judgments.
Justice Nassim: Certainly so.
Ziauddin: Once there’s a format, the rest of the judgments will more or less be according to the same format. There will be different issues, but the format will be the same. And there is no scope for treating this as a ‘small’ case as this is an ICT case. Each and every single case of ICT is significant. And judgment has to be delivered with that in mind, as it will be scrutinized nationally and internationally.
Justice Nassim: I have adopted such a technique now … that I don’t keep SAQA’s case (in the list). I allow them (Salahuddin Quader Chy’s counsel) time. I don’t keep Nizami’s case either (in the list). If they (Defence counsels) prevent Saydee’s case from proceeding, then Ghulam Azam’s case will proceed. If they prevent Ghulam Azam’s case from proceeding, Saydee’s case will proceed. Let them do what they want …
Ziauddin: No … you will have to be on the fast-track on this one … you will have to proceed with the two cases side by side …
Justice Nassim: I am giving them (Defence counsels) opportunity. They say, ‘al right, My Lord, adjourn this case, and proceed with the other case. I am not giving them any opportunity. Either of the two cases will have to proceed. You have to do the case, now tell me which (i.e., either Saydee or Ghulam Azam). If you have got witnesses in any one case, I will proceed with that. So tell me, which case to proceed with.
Ziauddin: Ha Ha hee hee
Justice Nassim: Neither Saydee nor Ghulam Azam. There will be no adjournment for these two cases – I have even said this to them…. I have even said that the day the cross examination of the Investigating Officer concludes, immediately thereafter, Defence witnesses will have to be produced. I told them to be ready for that. Without any gap, without any adjournment, immediately after cross examination of the IO, the deposition of the DWs will begin. They (the Defence counsels) were not happy about it, but they had to accept it.
24. It is submitted that the above Skype communication, illustrate the lengths in which the Chairman, in association with Dr. Ziauddin and members of the Prosecution and the government would go to in order to secure an expeditious conviction against the Accused. This included, inter alia, liaising with Prosecution teams in other cases in order to delay their progress in order to assist in the conviction against the Accused. This violates the fundamental right of an accused to be tried by an independent and impartial judiciary, the presumption of innocence and, as well as an accused’s right to present his case and be afforded a fair trial.
25. That in light of the submissions set out below in this petition and, in particular, breaches of the fundamental principles of impartiality and independence of the judiciary and as a result of the Chairman’s bias, it is prayed that the Hon’ble Tribunal order a full and complete retrial of the instant case.
26. That the Accused Petitioner sets out in the paragraphs hereinafterbelow the manner in which the entire trial process has been tainted by the actions of Mr. Justice Huq, Dr. Ziauddin, a section of the Executive and a section of the Prosecutors, thereby necessitating a retrial in the interests of justice.
Charge Framing Order against the Accused drafted by Dr. Ziauddin:
27. Emails between Dr. Ziauddin and the former Chairman show that the order of the Tribunal framing charges against the Accused was in fact drafted by Dr. Ziauddin and emailed to Mr. Justice Huq the evening before it was announced in open court on 3rd October 2011 by the erstwhile Chairman of ICT-1. Since the order of indictment has not been passed by the Tribunal but by Dr. Ziauddin, the proceedings pursuant to such indictment has been vitiated, thereby necessitating a retrial. As such, fair trial can be ensured only by ordering a retrial.
28. In an email dated 27th September 2011, addressed to the then Tribunal Registrar, Dr. Ziauddin stated that they were conducting ‘further research’ and that according to ICC and ICTY jurisprudence, the ‘crime of persecution’ could be interpreted to include ‘destruction, looting of private properties as international crimes.’ (Copies of the said email dated 27th September 2011 is annexed herewith and marked as Annexure- E.)
29. In an email dated 2nd October 2011 (http://www.tribunalsleaks.be/index.php/justice-denied/tribunal-delivers-orders), Dr. Ziauddin sent the former Chariman a document titled ‘20111002-Caseno1ChargesJV.doc’ containing the charge framing order to be delivered in this case against the Accused. In the text of the email, Dr. Ziauddin stated that ‘we are now suggesting to consider use of ‘crime of persecution’ on any of four grounds instead of ‘inhuman acts’ for arson, burning, looting.’ On the next day i.e. on 3rd October 2011 ICT-1 passed the same charge framing order sent by Dr. Ziauddin to the former Chairman on the previous day. A comparison of the draft order sent by Dr. Ziauddin and the charge framing order delivered by the Tribunal clearly shows that the Accused was charged for Crimes Against Humanity and Genocide according to the dictates of Dr. Ziauddin. Since the charge framing order has not been passed by the Tribunal but by Dr. Ziauddin, the proceedings pursuant to such indictment has been vitiated, thereby necessitating a retrial. (Copies of the said email dated 2nd October 2011 and the attachments thereto and the charge framing order dated 3rd October 2011 are annexed herewith and marked as Annexure- F series.)
30. It is submitted that the order dated 3rd October 2011 of the Tribunal framing charges against the Accused Petitioner having been prepared by Dr. Ziauddin, the said order is not an order of the Tribunal. As such, the order dated 3rd October 2011, not being an order of the Tribunal is liable to be recalled for ends of justice.
Witness selection and tutoring:
31. The conversations between the former Chairman and Dr. Ziauddin clearly show that they had discussions not only as to who should depose as Prosecution Witness, but also as to the contents of the deposition. The conversation also gives an indication of extensive witness tutoring being conducted at the instance of Dr. Ziauddin. Furthermore, there is clear evidence of the Tribunal, Dr. Ziauddin and a section of the Prosecution determining the contents of the deposition of the Prosecution Witnesses.
32. In a Skype conversation on 10th September 2012, reported in the Daily Amar Desh on 11th December 2012, Dr. Ahmed Ziauddin said that the deposition of Advocate Sultana Kamal should not be too long as otherwise she would be subjected to ‘too many questions’ during cross-examination. The relevant excerpt of the conversation of 10th September 2012 is reproduced below:
Ziauddin: Has witness hearing been done today? Has he given the first half?Justice Nasim: Yes, only first half.
Ziauddin: Alright, that means it ran for 3 hours? This much testimony was delivered?
Justice Nasim: About two hours.
Ziauddin: This much wasn’t necessary, less than this could do. They will ask about these again.
33. Later on 15th September 2012, Skype conversation reported in the Daily Amar Desh on 11th December 2012 Dr. Ahmed Ziauddin expressed his satisfaction with the deposition of Sultana Kamal noting that she had realized which points to emphasise after a ‘good number of discussions’ with her and ‘supplying her all relevant information’.
34. During the conversation of 15th September, Mr. Justice Nizamul Huq also stated that the incidents of 19th March 1971 in Joydebpur Park should be brought on record so as to facilitate in the delivery of his judgment. Dr. Ziauddin however expressed his dissatisfaction with Major General (Retd) Shafiullah’s capacity to depose as Prosecution Witness, stating that Maj General(Retd) Shaifullah does not have a good memory and that he has the ‘attitude of a commander’ and that both he and Prosecutor Zead Al Malum were concerned that Shafiullah would portray the Pakistan Army as the ‘main protagonist’. Dr. Ziauddin also went on to say that Maj General (Retd) Shafiullah was a ‘heavy weight witness’ and that if his deposition was off mark, it would create major problems. Thus, during the conversation, Dr. Ziauddin, stated, amongst others, as follows:
But he has no ….. on this Mr. General. And Mr. General can’t keep it in mind even he is told. In addition, he still has the attitude of a commander, for example he like to speak about the fights he have fought, he says that the army fought the fight. These parts have a probability to take this towards the war. This is why, Mr. Malum’s view is, we want to avoid the war issue, because though his speech if we show that a real war took place here and the Pakistani army is the main protagonist and these people who were here are not important, I mean they are….., I mean if they can establish that through his speech, that what actually happened was an war, and that won’t be comfortable for us.34. In the same conversation of 15th September 2012, the former Chairman suggested that since Muntasir Mamun would be returning to the Tribunal to depose, the incidents of 19th March 1971 could be brought on record by re-examining him Dr. Ahmed Ziauddin readily agreed to the proposal stating that Muntasir Mamun was a ‘historian’ and could be accepted as an ‘authoritative witness’ and that the ‘back-up plan’ was to ‘fill up the gaps’ in the evidence by re-examining him.
35. That furthermore in the Skype conversation on 16th October 2012, reported in the Daily Amar Desh on 13th December 2012, the Defence filed applications for issuance of summons upon Professor William Schabas and Sir Jack Deverell to appear as expert witnesses in the instant case. On the same day (i.e., 16th October 2012), Mr. Justice Huq had a conversation with Dr. Ziauddin during the course of which, the former asked the latter as to what order he should pass on the application. In the same conversation, both Mr. Justice Huq and Dr. Ziauddin agreed that the application should be rejected with the observation that the Defence is at liberty to produce the two foreign witnesses. On 18th October 2012, the Tribunal rejected the application of the Defence for issuance of summons. Thus, it is apparent that the former Chairman of the Tribunal and Dr. Ziauddin were instrumental in ensuring that the orders of the Tribunal were delivered as per the dictates of Dr. Ziauddin.
36. Strictly speaking it may be argued that the skype conversations show prosecution witness selection and tutoring by the former Chairman and Dr. Ziauddin in only the case against Professor Golam Azam. But 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 only remedy is a retrial.
Collusion between Tribunal and the Prosecution:
37. The conversations between the former Chairman and Dr. Ziauddin reveal the manner and extent of collusion between the Tribunal and the Prosecution in determining the course of proceedings of the cases pending before the Tribunal. The former Chairman had regular meetings with the Prosecutors during which decisions were taken regarding filing of petitions by the Prosecutors and passing of orders thereon by the Tribunal. Not only that, Dr. Ziauddin played an important role in advising the former Chairman and the Prosecutors, often acting as a conduit for the exchange of information between the Tribunal and the Prosecution. These conversations clearly establish that the Tribunal had been acting in collusion with the Prosecution to secure conviction of the accused persons.
38. It is stated that a large part of the Skype conversation of 8th September 2012, reported in the Daily Amar Desh on 9th December 2012, shows how the former Chairman of the Tribunal, the Prosecution and Dr Ziauddin were working together to determine the pace at which the trials should run and as to the scope of the Tribunal-1 delivering judgment in the instant case. The Accused Petitioner will refer to relevant excerpts of the transcripts of the conversation of 8th September 2012 as reproduced in The Daily Amar Desh at the time of hearing of the instant application.
39. Furthermore, Skype conversations show how Mr. Justice Huq, Dr. Ziauddin and a section of the Prosecution planned to have the judgment in the case of Professor Ghulam Azam delivered first. During the conversation, Dr. Ziauddin tells Mr. Justice Huq that he has spoken to the Prosecutors of Tribunal-2 who are willing to co-operate so that the cases in Tribunal-2 fall behind and Tribunal -1 can pass the first judgment in Prof. Ghulam Azam. The relevant excerpts of the transcripts of the Skype conversation of 8th September 2012, reported in the Daily Amar Desh on 9th December 2012, is reproduced below:
Zia: No problem. But I think there may be some problem also. If they want to give the first judgement I will be very worried. They will try to take credits which should not be done. An d the more important thing this we don’t know the legal principles they will quote. I and Raihan talked about it on the day before yesterday. In the discussion of yesterday and the day before yesterday I have talked with the people of that case i.e. that Saiful and others.32. That the Daily Amar Desh disclosed on 10 December, 2012 how the former Chairman of Tribunal-1 and the Prosecutor, Zead Al Malum, put on an act to show to the defence and the public that they (i.e. the Tribunal and Prosecution) are not on good terms. The Chairman tells Dr. Ziauddin over Skype that he (the Chairman) and the Prosecutor Malum have agreed that - Mr. Malum will stand up and make meaningless objections in court and the Chairman will order him to sit down. All this would be done to show to the public that there is no good relationship between the Tribunal and the Prosecution. The Chairman is reported to say the following to Dr. Ziauddin
Justice Nasim: Yes
Zia: What is their condition actually? I haven’t had the chance to talk with them much. It seems they are also very worried. May be they want to make a road map for the publicity or like this. And the target is personally you not the others. So finally it can happen despite we started much later but we’ll be able to complete the case at first. […meaning unclear]. It’s very important. They are running fast with the 3 cases, the cases of Kamarujjaman, Kader Molla and Ali. They are cutting the number of their witnesses against Golam Azom and they are after Sultana Ma’m
Ziauddin: Most probably they will allow no more witnesses. If so then they have also some seizure list witness. I have been informed that they are cutting short this part also. They will only confirm the basic things like signature, date etc. of the seizure list. So they will run very fast provided that the verdict of the court has been made restricted. I think that means we think if the case of Golam Azom can be made the first case and the pace of this case should be accelerated. It is the most significant case among all the cases both politically and legally. The case will be light on construction. Both order wise and nationally this case is the most important. We have talked about it like this. […Unclear Meaning]. Brother Malum, Shipon and Taref were also present there. During the discussion they said that it will require around 25 days to complete. Most probably they have prepared a work programme on it. You can see that there are 75 more working days in this year. We can also do it. Another thing is the judgment of the tribunal 1 must come first. There is no competition here, but it does exists. The reason is a chance of inordinate negative campaign will be created on this issue. Of course they will do it. And for this, it will have to be facilitated. [… Unclear meaning]. And I am worried what they will do and what the law will do. And they have already said in public that they are not bound with the first tribunal.
Justice Nasim: I know it. [… unclear meaning]
Zia: (Laugh) He he he…hm you know this attitude. I am a bit worried about this attitude considering the entire situation. As there is publicity and the prosecutors themselves have declared their cooperation for the case of Golam.) ... On the other hand there are some political indications also. So after all our demand is both politically and legally tribunal 1 is more important the 2nd tribunal. And the target is personally you not the others. So finally it can happen despite we started much later but we‘ll be able to complete the case at first.
Justice Nasim: Golam Azam will not be the first judgment. You can take it otherwise but we will take it differently. [… unclear meaning]. So it may create a negative campaign which should not be allowed. We will engineer it if necessary. Everyone is agreed to do so. All have now realized that this case should be the first one. Our prosecutors have realized now. It seems good
Justice Nasim: Busy in mitigating the quarrels of two sides. Malum is over excited. He doesn’t rise with any logical points.
Zia: tell me what is that?
Justice Nizamul Haque Nasim: No there’s no reason. I have scolded and stopped him today. Later I called him in my room. Later I told him that it’s alright. I’ll stand up and you will make sit, People should see that we have no internal alliance. Hee hee hee…Executive interference with the trial process:
33. During Skype conversation of 27th August 2012, reported in the Daily Amar Desh on 9th December 2012, Mr Justice Huq also said that a former Member of Tribunal-1, Mr. Zaheer Ahmed had been removed from the Tribunal at the behest of the Law Minister. Mr. Justice Huq stated that the Law Minister had summoned Mr. Zaheer Ahmed to his residence on an earlier evening and had asked him to resign and further that the Law Minister had assured Mr. Zaheer Ahmed of an appointment in the Law Commission.
34. In a subsequent conversation on 1st September 2012, reported in the Daily Amar Desh on 11th December 2012, Mr. Justice Huq said that he had advised Mr. Zaheer Ahmed to tell everyone that he had resigned on medical grounds.
35. A conversation between the former Chairman and Dr. Ziauddin on 1st September 2012 clearly shows that the administrative functionaries of the Tribunal are political appointees. The two men discuss how the new Assistant Registrar, Shawkat had been involved beforehand with ICSF (which has long been campaigning for trial of Jamaat leaders) and that he was considered as reliable by them. The relevant excerpts of the transcript of the conversation of 1st September 2012 is reproduced below:
Justice Nasim: A boy……..has joined. Was he at the ICSF?
Zia: Oh! Yes Rayhan has informed me. Shaokot
Justice Nasim: You will tell him that I have been informed that you were in ICSF [International Crimes Strategy Forum]…..ok let me think….
Zia: I have met that chap in Bangladesh. He is a good boy. He has completed his study from UK. He had joined the judiciary after BCS [exams]. Yes he is ours. You can talk with him. He knows me. Tell him that I know him and he informed me that he has joined.
Justice Nasim: Ok ok.
Zia: And tell him that you got this information from me and also tell him to keep in touch with us.
Justice Nasim: Sure.36. On 8th September 2012, in the Skype conversation reported in the Daily Amar Desh on 9th December 2012, Mr. Justice Huq and Dr. Ziauddin agreed that the case of Professor Ghulam Azam should be disposed of first given that there was a ‘political signal’ regarding its disposal. The relevant excerpts of the transcript of the conversation of 8th September 2012 is reproduced below:
Zia: He is a good boy. He is good at judiciary….They say he has come here willingly.
Justice Nasim: Yes I have heard this
Zia: What is his designation now?
Justice Nasim: As Assistant Register.
Zia: Very good then the register office will be strengthened. Have you requested or is there any organogram?
Justice Nasim: Organogram…but we had informed them of our need but they were not getting any…)
Zia: On the other hand there are some political indications also. So after all our demand is both politically and legally tribunal 1 is more important the 2nd tribunal.37. On 14th October 2012, in the Skype conversation reported in the Daily Amar Desh on 9th December 2012, the former Chairman stated that the Government had gone mad for a judgment and that they are extremely keen to have a judgment delivered by 16th December 2012. Mr. Justice Huq also informed Dr. Ziauddin that he could deliver a judgment in Saydee’s case within December 2012, but not that of Professor Ghulam Azam, which would continue till January-February 2013. He also said that the Government would ‘cool down’ only after a judgment has been delivered. Transcripts of such conversation has also been published in the Economist on 15th December 2012. The relevant excerpts of the transcripts of the conversation of 14th October 2012 is reproduced below:
Justice Nasim: Golam Azam will not be the first judgment. You can take it otherwise but we will take it differently. The others are not very weak and you have become the target again and again. So it may create a negative campaign which should not be allowed. We will engineer it if necessary. Everyone has agreed to do so. All have now realized that this case should be the first one. Our prosecutors have realized now. It seems good.
Government has become crazy for the verdict. If Sayeedi’s hearing finishes, I can give a verdict within December. Government has become crazy. They want a verdict.38. In a Skype conversation on 15th October 2012, reported in the Daily Amar Desh on 9th December 2012, former Chariman stated that the State Minister for Law had visited him and that he (the State Minister) had asked him to deliver judgment in the case of Professor Ghulam Azam quickly. Mr. Justice Huq also stated that the State Minister had said that a meeting would be arranged of all the judges of the Tribunals in order to ensure that that judgment in the case of Professor Ghulam Azam before any other case. Dr. Ziauddin also indicates that a similar message was sent by him to the Law Minister. The relevant excerpts of the transcripts of the conversation of 15th October 2012 is reproduced below:
Justice Nasim: Our State Minister is going for hajj. This state…This state.39. That in view of the statements and submissions made above, it is apparent that the entire process of the Tribunal in the instant case has been tainted by the machinations of the former Chairman, Dr. Ziauddin, a section of the Executive and a section of the Prosecution in seeking to procure a conviction of the Accused. In such circumstances, the proceedings of the instant case have been vitiated and are liable to be declared to have been a mistrial. As such, the Accused Petitioner prays for a full and complete retrial.
Justice Nasim: "He came to meet me in the evening and told me to deliver the judgment faster. I told him, " how can I deliver that? The judgment is not a one paged document. If I got time and dictation from you then I could have complete it within one month. Then he said, " Try to do it fast."
Ziadduin: Did you say anything about what’s going to happen? Or what’s happening? Regarding this verdict?
Justice Nasim: Yes. (He said) ‘There are going to be 10 witnesses, with regards to Golam Azam. I will discuss with you about both the tribunals sitting in one room. You will put Golam Azam first and then they will put forward, they wait’. I laughed saying ‘okay you can try. Judges don’t listen to others. This is the character of a judge.’ He laughed. Whatever.
40. It is submitted that it is clear from the above it is sufficient for the Hon’ble Tribunal to reach the conclusion that the former Chairman, through his involvement and discussions with Dr. Ziauddin on detailed matters pertaining to the proceedings (including on members of the Prosecution and their work), has acted in such a way as to compromise the integrity and fairness of the proceedings, and that he has not acted independently and impartially, free from external influences and pressures.
41. That it is submitted that the email communications between Mr. Justice Huq and Dr. Ziauddin show that Dr. Ziauddin drafted the order framing charge against the Accused Petitioner which was delivered by the Tribunal on 3rd October 2011, and as such the entire proceedings, including the order of framing charge, have been vitiated and are liable to be declared to have been a mistrial, and in such circumstances, the order of framing charge is liable to be recalled for ends of justice.
42. That it is submitted that the Skype communications between Mr. Justice Huq and Dr. Ziauddin show that Mr. Justice Huq had regular meetings with a section of the Prosecutors during which decisions were taken regarding filing of petitions by the Prosecutors and passing of orders thereon by the Tribunal and as such proceedings of the Tribunal have been tainted and are liable to be declared a mistrial and in such circumstances the only remedy in an order of full and complete retrial for ends of justice.
43. That it is submitted that the Skype communications between the former Chariman and Dr. Ziauddin show that Dr. Ziauddin played an important role in not only advising the former Chairman and the Prosecutors, but also acted as a conduit for the exchange of information between the Tribunal and the Prosecution, and as such the entire proceedings of the Tribunal have been vitiated and are liable to be declared a mistrial and in such circumstances the order framing charge is liable to be recalled and a full and complete retrial should be ordered for ends of justice.
44. That it is submitted that the Skype communications show that Mr. Justice Huq and Dr. Ziauddin were involved in deciding not only as to who should depose as Prosecution Witness, but also as to the contents and length of the deposition and as such the entire proceedings, being a sham and an abuse of process, has been vitiated and is liable to be declared a mistrial.
45. That it is submitted that the communications between Mr. Justice Huq and Dr. Ziauddin show extensive executive interference regarding the process of the Tribunal and in such circumstances, the proceedings of the instant case have been vitiated and are liable to be declared a mistrial and this Hon’ble Tribunal may kindly order a full and complete retrial of the case for ends of justice.
46. It is submitted that the communications between the former Chairman and Dr. Ziauddin illustrate the lengths in which they with members of the Prosecution and the government would go to in order to secure an expeditious conviction against the Accused. This included, inter alia, liaising with Prosecution teams in other cases in order to delay their progress in order to assist in the conviction against the Accused. This violates the fundamental right of an accused to be tried by an independent and impartial judiciary, the presumption of innocence and, as well as an accused’s right to present his case and be afforded a fair trial.
47. That international law reflects common law principles in recognizing that an abuse of process justifying the halting of a prosecution where it would be: (1) impossible to give the accused a fair trial; or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of the case (R v. Horseferry Road Magistrates Court, Ex p. Bennett  3 All E R 138, 151, HL, per Lord Lowry).
48. It is submitted that the aforesaid principle has been upheld by the International Criminal Court (ICC) Appeal Chamber in the Lubanga case, where it held that “Where [a] fair trial becomes impossible…it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped”. (ICC-01/04-01/066-772, Prosecutor v. Thomas Lubanga Dyilo, , Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, Appeals Chamber, 14 December 2006 (“Lubanga Stay of Proceedings Appeals Judgment”), para. 37. Also ICC, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09, Decision on Defence Request for a Temporary Stay of Proceedings, 26 October 2012, (“Banda and Jerbo Stay of Proceedings Decision”), paras. 74-80; STL, In the Matter of El Sayed, CH/AC/2010/02, Appeals Chamber, Decision on Appeal of Pre-Trial Judge's Order regarding Jurisdiction and Standing, 10 November 2010, para. 45).
49. It is submitted that on the basis of the former Chairman’s reported interactions with Dr. Ziauddin Ahmed and all the implications such interactions and communications have on the trial, in particular the lack of independence and impartiality of the judges in this case, it is impossible that the proceedings against the Accused-Petitioner can proceed with any semblance of fairness.
Inconsistencies in statements from the Chairman and Dr. Ziauddin regarding interaction
50. It is stated that on 6th December 2012 the former Chairman passed an order requiring two members of The Economist to appear before the court, demanding that they explain how they came by e-mails and conversations between himself and Dr. Ziauddin.
51. The report goes on to highlight remarkable inconsistencies between the content of their conversations (taken from the transcripts) and how the same was described such conversations in the order of 6th December 2012 (Annexure – B). Both the former Chairman and Dr. Ziauddin denied that any discussions between them were related to the case. Indeed, the former Chairman went so far as to state; “As judges, we cannot take help from third persons and outsiders.” Asked whether they sometimes exchange e-mails about the Tribunal, he replied “No, no, no, regarding tribunal, no talks regarding the judgment or regarding the proceedings, no…As Supreme Court judge, we do not talk even with our wife regarding the tribunal.”
52. It is submitted that such statements are demonstrably false given the content of the conversations published to date. Moreover, the statements demonstrate the former Chairman was well aware of the judicial duty and necessity to be and appear to be independent and impartial in conducting a case. The former Chairman’s resignation is an inevitable consequence of his initial acceptance of his breach of his duties as a “Supreme Court Judge”.
53. That a further and more in-depth article on The Economist website, published on 13th December 2012, (Print Edition published on 15th December 2012 – Annexure – D) confirmed their initial suspicions that the collusion between the Chairman and third parties uninvolved with the Tribunal is evident from the recovered e-mail and Skype conversations. Indeed, the article states from the outset, “The e-mails and [skype] conversations we have seen raise profound questions about the trial.” Shown below are key extracts of this article. It underlines the seriousness and impact of the former Chairman’s, as well as the Prosecutor’s, improper conduct and exposes the prejudice against the Accused-Petitioner, and in all cases before the Tribunal. It also strongly indicates that all the verdicts are pre-ordained. It is submitted therefore that it would be an abuse of process to ignore this information and continue with the proceedings and that the only remedy in this situation is to order a full and complete retrial of this case. The relevant portion of the Economist report published in the print edition on 15 December, 2012 is as follows:-
Extracts of article in The Economist, published 12 December 201
It [the evidence] seems to show he [the Chariman] worked improperly with a lawyer based in Brussels, and that the lawyer co-operated with the prosecution—raising questions about conflicts of interest. And in Mr Sayeedi’s case it points to the possibility that, even before the court had finished hearing testimony from the defence witnesses, Mr Nizamul was already expecting a guilty verdict …
The first part of that evidence raises questions about the government’s behaviour. It suggests the tribunal came under political pressure to speed proceedings up, even though Bangladesh guarantees the independence of the judiciary… In a conversation of October 14th, between Mr Nizamul and Ahmed Ziauddin, the Brussels-based lawyer of Bangladeshi origin, the judge [stated that]… They want a judgment by 16th December...it’s as simple as that.” December 16th, known as Victory Day in Bangladesh, is the anniversary of the surrender by Pakistani forces in the war of independence.
It is one thing to push for an early verdict, another to attempt to intervene in the trial to secure one. That seems to have happened, too. In a conversation the next day, Mr Nizamul described how a member of the government “came to visit me this evening. He asked me to pass this verdict fast. I told him ‘how can I do that?’... He said, ‘Try as quick as you can.’” …
Elsewhere in the material we were shown, however, it is Mr Nizamul’s independence that is in question. He is a Supreme Court judge and remains one after resigning as chairman of the tribunal. (A tribunal has between three and five judges; there is no jury.) Mr Ziauddin, the man he is communicating with, is an expatriate Bangladeshi who is an academic specialising in international law. He is the director of the Bangladesh Centre for Genocide Studies in Belgium. The two men have known each other for 25 years, as they were human-rights campaigners and Mr Ziauddin’s late brother had been a student friend of the judge. …
In the material shown to us, Mr Ziauddin emerges as an important figure in the trial—offering advice, urging Mr Nizamul to do this or that, and supplying him with news and drafts of court documents. In general, judges are required to be extremely careful about discussing details of cases with third parties because that could lead to bias or the impression that they have come under the influence of someone who has nothing to do with the proceedings. This requirement is embodied in Bangladesh’s constitution, which says “the chief justice and other judges shall be independent in the exercise of their judicial functions.” The judges’ code of conduct confirms that “an independent judiciary is indispensable to the justice system in Bangladesh.” …
Of course, judges can take advice. But any adviser is usually given an official role, known to prosecution and defence. Also as a general rule, advisers tend to stick to their areas of expertise—giving advice on knotty points of law, for example.
Mr Ziauddin does not seem to meet these requirements. Before the tribunal’s order on December 6th his role had not been disclosed to the court or the public. And his advice seems to go beyond particular points of law to include, for example, the drafting of charges. The 17 hours of conversations available to The Economist took place between August 28th and October 20th this year—the equivalent of almost 20 minutes every day. The two men also exchanged more than 230 e-mails in the 12 months to September. Many of these contacts suggest that Mr Ziauddin was involved in aspects of the trial that go beyond what would be permitted to a court adviser or anyone else. Each particular accusation might appear to be modest, or might be explained away. Taken together, they suggest a disturbing pattern.
First, Mr Ziauddin appears to have helped prepare documents for the tribunal, which the judge said would be improper. On May 12th the Brussels-based lawyer sent Mr Nizamul a document called “GhulamAzamChargesFinalDraft”; it was a slightly revised version of a charge sheet he had sent six days earlier. The next day, May 13th, the tribunal issued its indictment against Mr Azam, whom the two men usually refer to as “the big one”. It was identical to Mr Ziauddin’s document. In interviews with us, both men denied that Mr Ziauddin helped prepare documents for the court.
Second, their discussions ranged beyond the realm of technical advice. On September 6th Mr Nizamul said: “I am a bit afraid about Shahinur [Shahinur Islam, a tribunal judge]. Because he is too inclined to the international standard. It...was in my mind—and prosecutors also complained to me—that he brought the references of foreign tribunals in every order.” Mr Ziauddin replied, “he has to be stopped from doing that or he has to be removed from there...If he does not stop he has to go as well, because it is so harmful to us.” Here, Mr Ziauddin talks as if he can recommend the dismissal of judges. …
Again, on November 26th 2011 Mr Nizamul (who is known informally as Nasim) sent Mr Ziauddin an e-mail about an important defence petition. His message reads in full: “Subject: Order. not yet received. very anxious. please send by this night bd [Bangladesh] time, otherwise, i will follow my own one. Nasim.” Mr Nizamul’s e-mail suggests that he considered Mr Ziauddin’s arguments to have primacy over his own. ...
[Material] we have seen suggests that Mr Ziauddin was communicating with the prosecution and judge about the same issues at the same time. On November 8th 2011 he e-mailed Mr Nizamul a list of matters raised by a defence petition that the judge recuse himself from the trial. The first five items on the list are materials and documents that, the e-mail says, were to be supplied to Mr Nizamul by Zaed-al-Malum, the chief prosecutor at the tribunal… it is curious that, on a matter of procedure, the chief prosecutor is being asked to help by someone who is also advising the judge. …
The connection between judge, prosecution and adviser seemed to have continued. On December 11th 2011 Mr Ziauddin sent an e-mail to two prosecutors, including Mr Malum, apparently giving help with the case against Mr Azam and tips on how to present their arguments. He forwarded this advice to Mr Nizamul the same day. Speaking to us, Mr Ziauddin acknowledged knowing Mr Malum, who is acting for his family in unrelated matters. But he denies improper contact about the cases before the tribunal, and Mr Malum has not replied to our inquiries.
The material we have seen therefore suggests three things: that Mr Ziauddin had an influence over how the prosecution framed its case and how the court framed its indictment; that Mr Ziauddin told the judge in his December 2011 e-mail about how prosecutors might develop their case; and that after the prosecutors laid their charges, the judge accepted guidance about the formal accusations from Mr Ziauddin directly.
Lastly, in the case of Mr Sayeedi, an e-mail from Mr Ziauddin to Mr Nizamul refers to a shared Google document called “Sayeedi judgment”. This document says “last edit was made on October 14”. At this time, Mr Sayeedi’s lawyers were still presenting his defence to the court. The document consists of a series of subjects (“list of testimonies”, “procedural history”; “challenges”, etc). Presumably details were to be filled in later. The final headings, and the only two in capitals, read: “CONVICTION/BASIS” and “SENTENCING”.
Courts often start work on long judgments before the end of a trial and Mr Nizamul could have amended his structure to replace “conviction” with “acquittal”. However, on his own showing, that was not what was happening. He denied to us he had been working on the document in October. “Delwar Hussain’s judgment has not been even started then,” he said.
Legitimate questions54. That the accuracy of The Economist’s above article is corroborated by other sources. One website – bdictunveiled.com – has taken up the task of exposing the “inner workings” [in their words] of the Tribunal. They claim that the files [the same emails and recordings of skype calls obtained by The Economist], which they have obtained and reviewed, reveal how Dr. Ziauddin, in particular, is able to essentially dictate the whole process to the former Chairman, the prosecuting authorities and the government.
The judge called our allegations “absolutely absurd” and “all false”. Mr Ziauddin argued there were other explanations for our findings but—after the court order telling The Economist to appear before it—said he would make no further comment. We do not believe he has broken any laws and cannot be held responsible for the actions of others. In addition, our investigations have not covered any aspect of the defence’s approach to this tribunal. Nevertheless, we believe that, taken together, the material shown to us raises legitimate questions about due process that the Bangladeshi authorities should now investigate thoroughly. These investigations are the more urgent in the light of Mr Nizamul’s resignation.
These concerns are so serious that there is a risk not only of a miscarriage of justice affecting the individual defendants, but also that the wrongs which Bangladesh has already suffered will be aggravated by the flawed process of the tribunal.
55. Furthermore, they describe the former Chairman as “a tainted judge” due to his involvement in the preparation of the “People’s Inquiry Commission” – what they refer to as “a mock trial held in the 1990s to try, accuse and sentence those the Commission deemed as guilty of war crimes in Bangladesh.”
56. That the Accused-Petitioner filed an application for recusal of the former Chairman in view of his involvement in the People’s Inquiry Commission. The website goes on to report on how Dr. Ziauddin advised the judges on how to reject this recusal application and his involvement in feeding information both to the judges and the Prosecutor, Zead Al Malum, to this end.
57. That finally, the website demonstrates that the email correspondence shows efforts made by Dr. Ziauddin and the former Chairman to obstruct the work of the Defence team’s international lawyers, and to keep tabs on them through their international network. Indeed, internal communications between members of the Defence team have been forwarded to the former Chairman.
58. In light of this, the Defence position remains that it is in the interest of justice for the Hon’ble Tribunal to pass an order of full and complete retrial.
Adverse effect on orders passed by the former Chairman:
59. That it is submitted that each of the Defence petitions to the Tribunal and each of the decisions made by the Tribunal may have been adversely affected by the former Chairman’s lack of independence and impartiality, and but for his role, may have been decided differently. Undoubtedly the trial would have proceeded very differently had defence rights been respected to the degree required by international standards. It would be an abuse of process to continue the trial regardless of the implications of the influences by the Chairman, and to do so would amount to a miscarriage of justice
Adverse effect on other judges due to inherent bias of the Chairman prejudices integrity of proceedings
60. That the actions of the former Chairman were indicative of bias and as such, the Defence have raised the real concern that the other judges sitting in this case are likely to have been or at least likely to be perceived to have been adversely affected by his approach, perspectives and overall attitude and conduct in the proceedings. For this reason it is submitted that the recent resignation of the Chairman is by no means sufficient so as to rectify the breaches of the Accused’s right to a fair trial.
None of the judges now constituting the trial panel have heard the entirety of the case
61. It is stated that the Hon’ble Tribunal has already suffered the departure of two of the originally appointed judges at crucial times in the case. It is now the position that none of the judges now constituting the trial panel have heard the entirety of the case. Furthermore, the absence of full audio and/or transcript recordings of the proceedings prevents the judges from being able to adequately familiarize themselves with the evidence. Human Rights Watch, in its report dated 13th December 2012 (Annexure – G) has stated as follows in relation to the present case:
“It would be highly irresponsible and unprofessional for a verdict to be delivered when none of the judges heard all the evidence and were unable to assess the credibility of key witnesses, particularly in a trial involving 40-year old evidence and complex legal issues.” (Human Rights Watch, “Bangladesh: Retrial Needed in Sayedee Case.” December 13, 2012)
62. The Defence submits that this lack of continuity of the judicial panel adds considerable weight to the duty of the Hon’ble Tribunal to order a full and complete retrial on the basis that to continue would constitute an abuse of process.
63. That Sections 6(4) to (6) ICTA permit the replacement of a judge during the trial itself, as well as the continuation of a trial in the absence of a member of the Tribunal. Indeed, the ad hoc international criminal tribunals have permitted the replacement of judges during the trial, and it cannot be said that such a practice is prohibited by international law. However, the Defence emphasizes that it cannot be employed in a manner that would prejudice the rights of an accused. Indeed the statute can never have been meant to deal with a situation where all of the judges have been replaced at various stages during the course of the proceedings, and there is no continuity at all. In other words, sections 6(4) to (6) ICTA do not apply to a situation where the Chairman has had the judgment prepared for him by an uninvolved third party, has resigned as a consequence of allegations of judicial misconduct and has been purportedly “replaced” by a new judge.
64. That under section 6(4) ICTA, the removal of a judge in the proceedings of a case is limited to strict circumstances:
“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 notification in the official Gazette, declare the office of such member to be vacant and appoint thereto another person qualified to hold the office (underline added)”.65. That the application of strict circumstances has not been adhered to. The Tribunal in this case originally consisted of Mr. Justice Md. Nizamul Huq (Chairman), Mr. Justice ATM Fazle Kabir and District Judge A K M Zaheer Ahmed. On 25 March 2012 a new chamber was constituted, ICT-2, and Mr. Justice ATM Fazle Kabir was removed from the ICT-1 appointed Chairman of ICT-2. Evidently, Mr. Justice ATM Fazle Kabir was still deemed capable of performing his functions. He was replaced by Mr. Justice Anwarul Haque who could only hear 1 out of 28 prosecution witnesses. On 29th August 2012, Mr. Justice Jahangir Hossain replaced Judge A K M Zaheer Ahmed after close of the prosecution case. As a result Mr. Justice Jahangir did not hear any of the prosecution witnesses.
66. That following the recent “resignation” of the Chairman from ICT-1 after both national and international media reports of judicial misconduct stemming from interference in the judicial process by unaffiliated and undeclared third parties, the Chairman of ICT-2, Mr. Justice ATM Fazle Kabir was appointed on 13 December 2012 as the new Chairman of ICT-1. It is respectfully stated that Mr. Justice ATM Fazle Kabir has not taken part in any of the ICT-1 proceedings for the last nine months. He did not hear the most important prosecution witness, the Investigation Officer, who has exhibited almost all the prosecution documents and the deposition continued for about half of the prosecution case. Mr. Justice ATM Fazle Kabir also did not hear any of the 17 Defence Witnesses and the summing up of the prosecution and defence case. It is submitted that the principles of a fairness and justice will not be served if the trial in the instant case continues with a presiding judge who has not been involved in or followed the evidence, witness testimony and submissions for the larger part of a case. It is stated that judges cannot be employed/appointed/ transferred/ removed in a manner that would prejudice the rights of an accused and that highest standards of fairness are demanded particularly where the cases carry the potential penalty of death.
67. That accordingly, it is submitted that (i) the replacement of judges for invalid reasons (in particular the recent appointment of a new Chairman who has missed the vast majority of the proceedings) severely prejudices the Accused-Petitioner, particularly as the case is at an advanced stage and as the new judges would not have heard all the evidence; and (ii) notwithstanding the constitution of the bench, it is submitted that influence of the former Chairman almost certainly had an adverse influence on proceedings and a prejudicial impact on the Accused-Petitioner, and (iii) but for the Chairman’s role in decisions, the course of the trial may have proceeded very differently. Therefore, the Defence submit that the instant proceedings have been vitiated and are liable to be declared to be a mistrial.
Constitutional Responsibility of a Judge and the Judiciary to Provide Fair and Impartial Justice
68. That it is paramount to judicial function that individual judges and the judiciary as a whole are impartial and independent of all external pressures, and of each other, so that those who appear before them and the wider public can have confidence that their cases will be decided fairly, on the basis of the evidence presented in court by the parties, and in accordance with the law, without restrictions, any improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason (Basic Principles on the Independence of the Judiciary, Article 2, endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 13 December 1985). The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected (Article 6, Basic Principles on the Independence of the Judiciary). Judges have a constitutional responsibility to provide fair and impartial justice, which includes a responsibility to protect citizens from unlawful acts of government.
69. Moreover, judges must be seen to be independent and impartial. Justice must not only be done, it must be seen to be done. In Re Pinochet  UKHL 52 (15 January 1999), the United Kingdom House of Lords set aside its original decision on the question of immunity from arrest and extradition when it emerged that one of the Law Lords had a connection with a campaigning organization which was involved in the case. In that case, even though there was no suggestion that the Law Lord was not in fact biased, the decision could not stand. There was a real danger or reasonable apprehension or suspicion that he might have been biased. Judges must be and must give the appearance to reasonable well-informed observers that they were independent and impartial. It is submitted that the former Chairman did not satisfy the requirement of being seen to be independent and impartial as set out by the House of Lords In Re Pinochet. His connection with Dr. Ziauddin and Mr. Rayhan Rashid, both supporters and frequent contributors of information for the International Crimes Strategy Forum (“ICSF”), a pro-government lobby group advocating for the conviction of the Accused, as well as his direct involvement in the Secretariat of the People’s Inquiry Commission against the accused in 1992 strongly supports the Defence’s view that the former Chairman was neither independent, nor impartial.
70. That it is stated that the former Chairman’s above conduct which evidences a lack of judicial integrity has an adverse implication on the Bench over which he presided. The right to an independent and impartial judiciary prescribed in the Bangladesh Supreme Judicial Council Code of Conduct is also a standard obligation to adhere to under international law. Clause 1 of the Code of Conduct provides as follows:
“A judge should uphold the integrity and independence of the judiciary. An independent judiciary is indispensable to the justice system in Bangladesh. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective”71. That moreover Article 10 Universal Declaration of Human Rights (hereinafter “UDHR”) provides:
“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.72. This is further reiterated under Article 14 (1) ICCPR which provides that all persons are: “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The Human Rights Committee which is tasked with upholding the provisions of the ICCPR has held that:
“The impartiality of the court and the publicity of proceedings are important aspects of the right to a fair trial within the meaning of Article 14 (1). ‘Impartiality’ of the court implies that judges must not recognise preconceptions about the matter put before them, and that they must not act I ways that promote the interests of one of the parties. Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a judge who, under domestic statute, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of Article 14”. (Karttunen v. Finland [387/89])73. That the fundamental right to an independent and impartial Judge is also upheld in Article 40 (1) of the Rome Statute which provides that “[t]he judges shall be independent in the performance of their functions”. The disqualification of a judge is outlined in Article 41 (2) (a) Rome Statute:
“A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted”.74. That subsection 6(8) ICTA declares that the constitution of a Tribunal and the appointment of its Chairman or members may not be challenged by the Prosecution or the Defence. This provision, if it is applied without exception, cannot be consistent with the right to be tried by an independent and impartial tribunal. The Defence must have a remedy if the right to trial by an independent and impartial tribunal is compromised because of the composition of the court. If a member of the bench lacks independence or impartiality or an appearance of independence or impartiality, the right to a fair trial necessitates a right to demand recusal.
75. That it is stated that the impartiality of the Tribunal was subjected to a number of challenges by the Defence following the disclosure that the former Chairman had been involved in the Secretariat of the People’s Inquiry Commission. This body investigated allegations of war crimes made against the Accused in 1992. The function of the Secretariat was to assist the People’s Inquiry Commission in its investigation against the Accused. The Ghatak Dalal Nirmul Committee subsequently published the results of the People’s Inquiry Commission in 2005. The Tribunal’s impartiality has been further cast in doubt by national and international media reports alleging the former Chairman’s seemingly improper involvement with undeclared third party “advisors” such as Dr. Ziauddin and Mr. Rashid, both of whom are members of a pro-government lobby group for the Tribunal, ICSF.
76. That despite raising serious concern of the appearance of bias against the Accused-Petitioner and the fact that the former Chairman would be ruling upon evidence that he has assisted in preparing, the Tribunal refused to acquiesce to the application for recusal.
77. That it is submitted that the past and present conduct of the Chairman, and his recent resignation, as well as the effect this will have had on the decisions already made in the case provide sufficient grounds for the instant proceedings to be declared to be mistrial, having been vitiated, thereby necessitating a retrial in the interests of justice.
78. That it is submitted that in the circumstances even if a re-trial were held in the manner stated above, a serious miscarriage of justice has occurred which is unlikely to be rectified due to the ground set out below:
a. The independence of the Tribunal has been compromised
i. The submissions and evidence presented by the Accused in this petition, as well as in earlier petitions, highlight the clear involvement of the Government in the proceedings before the Tribunal. This is demonstrated by but not limited to: (1) the immediate replacement of judges without proper consideration of the statutory and fair trial limitations on their power to do so; (2) pressure to deliver verdicts in unrealistic timeframes; (3) evidence of improper influences, inducements, pressures, threats or interferences which have prevented judges from fulfilling their constitutional duty to provide fair and impartial justice, such as the reported promise to the former Chairman of elevation to the Supreme Court should 3 verdicts be delivered by December, 2012; (4) public statements by senior Government officials announcing the date of execution of the Accused before the conclusion of proceedings and the delivery of a verdict, in total disregard for the fundamental principle of the presumption of innocence, which underpins a criminal trial.
ii. There can be no confidence by those appearing before the Tribunal or the wider public that the cases will be decided fairly, on the basis of the evidence presented in court by the parties, in accordance with the law and without interference. Moreover, justice must not only be done but seen to be done, and as such it would be difficult for the judges to give the appearance to reasonable well-informed observers that they were independent and impartial pursuant to the dislosures made in the print and electronic media regarding the proceedings of the trial during the tenure of the former Chairman.
b. The Tribunal itself has demonstrated that a fair trial is impossible
i. The Hon’ble Tribunal has itself been subject to international criticism by recognized international bodies, foreign governments and other commentators in respect of the consistent violations of international fair trial standards and principles, including those set out in the ICCPR and the Rome Treaty, to which Bangladesh is legally bound.
ii. In an incident which took place on 5 November 2012 in which prosecution-turned-defence witness Mr. Bali was abducted from outside the gates of the Tribunal in plain sight of Tribunal guards, by a group who identified themselves as plain-clothes policemen. The Tribunal’s apparent indifference to the incident, its refusal to effectively investigate the matter, and the inevitable consequence this has had on future defence witnesses willingness to testify due to a real fear for their safety is symptomatic of an indifference and disregard to fair trial rights and principles.
iii. Other issues which have prejudiced the Accused-Petitioner have been raised in previous petitions and include, but are not limited to a lack of time for the defence to prepare its case, the failure by the prosecution to disclose evidence, denying the defence time and/or unfettered access to the Accused-Petitioner to receive privileged instructions, denying an independent health assessment and failure to take into account the health and fitness of the accused to stand trial.
iv. The Prosecution’s conduct would not be remedied simply by a change in judicial panel or a retrial. The Defence submits that there have been numerous serious failures on the part of the prosecution throughout the proceedings. In particular, the Defence has repeatedly challenged the failure to investigate the reliability of the evidence it called (including the failure to verify the identity of its witnesses or the credibility of their allegations) and the use of documents which lacked any guarantee of reliability.
79. That moreover the International Crimes Tribunal Act and its Rules of Procedure have been subjected to criticism as falling below both international and national standards. A fair trial under such a legal framework is therefore unlikely.
80. That as already stated above Human Rights Watch and the Bar Human Rights Committee of England and Wales have called for a full retrial. )Copies of the said Reports of Human Rights Watch dated 13th December 2012 and the Bar Human Rights Committee of England and Wales are annexed herewith and marked as Annexure- F and F-1 respectively. )
81. In light of the above arguments, the Defence pray that the Hon’ble Tribunal allows the instant application and recalls the order dated 3rd October 2011 framing charge against the Accused Petitioner and passes an order for full and complete retrial.