13 Jan 2013: Sayedee defense applications

After dealing with the contempt matter, the defense filed six applications following the filing of an application to review the tribunal order which rejected their retrial application

Prosecutor Haider Ali said that the court should summarily reject these six applications

Razzaq responded by saying that the tribunal should not proceed with the prosecution summing up since their review application is pending.

Mr. Justice Jahangir Hossain said that the review application is contradictory to the six applications filed today as they appear to accept the impugned order.

Razaq explained that the defense filed the review application before filing these six applications. The tribunal should first hear the review application and if it is allowed then the defense will not need to press these six applications. But if it is rejected then we will have to press these applications. He said that the defense have to file this application before disposal of the review application since the tribunal had fixed today to commence the prosecution summing up. In my submission you should not proceed with the prosecution summing up without hearing the review application.

The chairman said that the trial cannot be stopped due to the review application. We will hear the review applications later.

The defense lawyer said that if the review application is allowed then you will have to restart the trial and so there is no point in hearing prosecution summing up during pendency of the review application.

Haider Ali, the prosecutor, said that in the review application the defence has prayed to disclose identity of the IT expert that you relied in your impugned order. Can they make such prayer?

Chairman said that so far we understand that Skype conversation cannot be hacked. But it can be recorded. The recording can be easily manipulated. This is a matter of common sense. We have an IT expert in Tribunal.

The prosecutor said that you should impose heavy cost upon the defence for filing the other six applications. These matters are already settled. You should impose Tk. 200,000/- for each application.

The chairman asked the prosecution to start its closing arguments.

13 Jan 2013: Order on ETV and ATN

The tribunal passed an order concerning the Sayedee defense applications alleging contempt on the part of two television stations (summary below):

Delwar Hossain Sayedee has filed two applications under section 11(4) of the International Crimes (Tribunal) Act 1973 read with Rule 45 of the Rules of Procedure for drawing up proceeding against Mr. M. Hamid and Sujon Haldar of BTV and Mr. Mashudul Haq of ATN TV channels.

Mr. Tanvir Ahmed Al-Amin, the learned counsel appearing for the applicant submitted that examination of the prosecution and defence witnesses has been completed and the parties have summed up their cases. But BTV reporter on 01.01.2013 reported new report on the Applicant that tends to prejudice the defence case before the Tribunal. The Reporter of ATN also telecasted on 25.12.2012 a Follow Up program on Mr. Delwar Hossain Sayedee alleging that he was Rajakar and committed atrocities in 1971 in Pirojpur.

Mr. Zead Al Malum, the learned prosecutor submitted that it has become a common features to criticise the proceeding of the Tribunal in media. If the Tribunal starts looking into all these matters then the trial will be hampered.

We have given our anxious thought over the matter. The case proceeding against Mr. Delwar Hossain Sayedee is not complete yet. We are to rehear the summing up of the parties. We are inclined to say that the case is still pending with us. No person is supposed to comment on the pending proceeding in the Tribunal. This is sub-judice matter. We therefore direct the respondents to restrain from telecasting any new that may prejudice the parties case before the Tribunal. The contempt petitions are disposed of. Let copies of these orders be sent to the respondents.

10 Jan 2013: BTV and ATN contempt application

Tanvir Ahmed Al Amin submitted that ATN and BTV had committed contempt in broadcasting two programmes involving the interview of prosecution witnesses

He said that ATN broadcasted a program on 25th December 2012 which interviewed 6 prosecution witnesses and where it was reported that defence witnesses have told lies in the tribunal for money. This has seriously prejudiced the case of the Accused. BTV had broadcast a programme with one witness.

The tribunal judges that so much is written about the tribunal, including defamatory remarks about the judges.

The defense lawyer said that whilst what is written on the internet may not be able to be controlled the court could take action in relation to what is published on the daily papers and on TV.

The judges said that they couldn’t conduct the trial proceedings if they were busy taking action in relation to those issues.

The defense lawyer argued that ATN is broadcasting this  program repeatedly. The Accused is seriously prejudiced.

The tribunal against said that so many things are broadcasted. If you approach us repeatedly, it would be quite impossible for us to adjudicate the cases, which is our prime business.

The lawyer said that they are only bringing these programs to the attention of the court as they are so serious. If this is not prevented, people will question the impartiality and transparency of this tribunal. It will hamper the prestige and dignity of this Tribunal.

The tribunal said that it would pass the order on the 13th

3 Jan 2013: Tribunal Skype order

The court passed its order following the application on behalf of Sayedee, Azam and Nizami seeking a retrial following the publication of the Skype and e-mail conversations between the former chairman of the tribunal, Justice Nassim

Sayedee application for retrial
Sayedee application for retrial - supplementary application
Azam application for retrial
Day 1 of arguments
Days 2, 3 and 4 of arguments
Day 5 of arguments
Day 6 of arguments
Day 6 of arguments (Attorney General)
Day 7 of argument
Day 8 of argument

This is a copy of the the full order (transcribed from the original)

Today is fixed for order. This is an application under Rule 46A of the International Crimes (Tribunals) Rules of procedure 2010 filed by accused-petitioner professor Ghulam Azam for recalling the order of taking cognizance of offence dated 9th January 2012 and the order of framing charge dated 13th May 2012. Accused Delwar Hossain Sayeedi and accused Motiur Rahman Nizami also filed similar applications for recalling order of framing charges in ICT-BD Cases 01 of 20ll and Case No. 03 of 2011 respectively. Hearing on the three applications was concluded together as those applications involve common facts and question of law. But the order of each case is passed separately.
These applications as claimed, have been filed in the background of the reports published in the local and international media over the alleged communications between Mr. Justice Nizamul Huq, the former chairman of the International Crimes Tribunal-l and one Dr. Ahmed Ziatddin a Bangladeshi based in Brussels, Belgium. It is claimed that the alleged communication was a collusion to secure conviction of the accused persons causing serious prejudice to the accused's rights of fair trial which is guaranteed in section 6(2A) of the Act of 1973. Mainly, on these grounds the accused persons have prayed for recalling the orders of taking cognizance of offence and framing charge and to hold fresh trial of those cases. The prosecution has filed a written objections praying for rejecting the applications for retrial of the cases.  

Submissions made on behalf of the defense.
Mr. Maudud Ahmed, the learned senior counsel submits that it has been revealed by Skype conversation of the former chairman of this Tribunal that the order of framing charge was imported from abroad and as such as per provision of section 6(2A) of the Act, the impugned orders should be recalled to ensure fair justice. Mr. Abdur Razzaq, the learned senior counsel submits that on perusal of skype conversation between Mr. Justice Nizamul Huq and one Ahmed Ziauddin based in Belgium and their E-mail communications as annexed with the application it is clear that as many as five draft orders impugned orders were transmitted from Belgium to this Tribunal and those were reproduced in toto in the trial process of the pending cases. It is argued that final Formal charge was also prepared by Mr. Ahmed ziauddn which was transmitted from Belgium then it was submitted in the Tribunal. If the hacked documents are considered as illegal even then, those are admissible in evidence in the interest of public interest and accordingly the Tribunal can exercise its inherent power to ensure fair justice. In support of his contention he referred some decisions viz 48 DLR 86, (1994) Supreme court cases 632 (R.Raja Gopal vs. State of T.N. India) and other citations. Mr. Mizanul Islam, the leamed counsel submits that it will be revealed from the documents annexed with the application that the former chairman of this Tribunal did not perform judicial works independently, he received copies of orders prepared by one Ahmed Ziauddin and also took advice from him as to how trial process would be concluded. He added that there is no prohibition upon the Tribunal under section 6(6) of the Act to refrain from recalling its orders in appropriate cases. Mr. Khondokar Mahabub Hossain, the learned senior counsel submits that in order to maintain sanctity of the Tribunal, the reasons behind the resignation of the former Chairman of this Tribunal are to be taken into consideration for recalling the orders in question to ensure fair justice. He added that Tribunal is at liberty to alter or amend the charge as and when necessary after recalling the same. Mr. Rafiqul Islam Miah, the leamed counsel made a short submission in support of recalling the orders in question in the interest of fair justice.  

Submissions made on behalf of the prosecution. Mr. Mahabubay Alam, the learned Attorney General of Bangladesh appearing before this Tribunal submits that the alleged documents annexed with the applications are all hacked E-mail communications and skype conversations between the former chairman of the Tribunal and one Ahmed Ziauddin, resident of Belgium. He submits that Article 43 of our constitution provides a bar to disclose private communications of the citizens but an interested quarter has hacked E-mail communications and recorded skype conversations and published the same in daily newspaper without obtaining permission of the persons concern and as such no order can be passed relying upon illegal documents. He further submitted by referring sub-section (4),(6) of section 6 of the Act that there is no scope to recall or rehear the matter for the reason of changing chairman of the Tribunal and as such above provision of law is a bar to hold retrial of the case. He further submits that section 11(1)(d) and sub-section (6) of the Act give us sufficient indication to hold that the Tribunal can lend legal assistance from others to carry out its business, even without giving formal appointment to such persons. Lastly, he submits that undisputedly hacked documents are the product of illegal act which is also punishable offence, in view of the fact, the defence cannot claim to have any remedy relying upon hacked documents. There is a maxim 'No man can take advantage of his own wrong'. Mr. Syed Haider Ali, the learned prosecutor submits that there is no provision in the Act to recall any order or to hold retrial of a case, moreover, de novo trial procedure has also been abolished long ago by criminal Amendment Act in 1978 and, as such the applications for recalling said orders are liable to be rejected. He further submits that sections 54 to 57 of the 2006 Information Act go to speak that the act of hacking unsafe documents is a crime and punishable offence and as such hacked documents cannot stand as a barrier on the way of trial process of the Tribunal. Lastly, he submits that chairman alone is not the Tribunal, every charge framing order was passed by three judges of the Tribunal and for the sake of argument if participation of the former chairman is excluded even then charge frame orders passed by the majority judges stand good since rest two judges did not disown the said orders.  

Discussion. Reasons and Decision
In course of hearing, it has been revealed that the E-mail communications between the former Chairman of ICT-1 and Dr. Ahmed ziauddin has been hacked and disclosure of skype conversations between them has come to light through its illegal recording. The former chairman of ICT-I, on the wake of a controversy over the allegedly leaked private E-mail communications and conversations, stepped down on 11 December from the responsibility of Chairman of ICT-1. Authenticated to be True CoPY Thereafter, the Tribunal (ICT-l) has been reconstituted by a gazette notification dated 13 December 2012. Undeniably the matter of hacking of alleged private commutations and illegal recordings of conversation itself is a crime and extremely unethical too. Who hacked and illegally recorded it and when and in which country? All these relevant questions are to be resolved first before we take all those into account. But it remains un-clarified in the applications. The application, as it appears, is based on transcript of alleged illegally recorded skype conversations published in the daily Amar Desh. Admittedly, the alleged materials i.e. E-mail communications and alleged transcript of skype conversations are the product of hacked E-mail account and illegal tape recording of private conversations. This is a crime committed with a malafide intention. The Economist, as we know, respecting the institutional dignity of the Tribunal has not yet published the entire conversations obtained illegally, excepting a few and it does not intend to disclose the source of having those hacked and leaked communications and conversations. But surprisingly a local daily Amar Desh started publishing alleged illegally leaked conversations allegedly made by the former Chairman, going beyond minimum ethics.  

The proceeding of taking evidence has taken place in public and transparently. Both parties have been afforded sufficient time they need to examine and cross-examine witnesses. This part of proceeding chiefly based on the testimony made by witnesses in open court. Parties shall have adequate opportunity to show, in course of summing up their respective cases, any flaw between the evidence adduced and the charges. Final decision or verdict in no way shall be based merely on the charges framed. Evidence adduced is to be evaluated only for arriving at a decision as to how far the prosecution has been able to establish charges. In the process of such task of evaluation of evidence before us the alleged illegally hacked E-mail communications and illegally obtained skype conversations shall in no way keep any impact causing prejudice to either party. Tribunal's sacred and burdened responsibility is to act on evidence already adduced or to be adduced by both parties by affording rights of defence and the Tribunal is obliged by the Statute to make it guaranteed.  

 It is needless to mention that in the four corners of the International Crimes (Tribunals) Act 1973, there is no express provision to hold retrial or recall any order of the tribunal. The defence has prayed for exercising inherent power of a court order be invoked whether there is an express provision in the Act giving a remedy. In the instance case, we find express provision in sub-section 6 of section 6 of the Act that in the event of any chance in the membership, the tribunal may process from the state of the case from where such change took place. Thus we find no reason to exercise inherent power in the above legal context and factual position. Accordingly, we do not think it necessary to reall any order or witness in the interest of expeditious trial as contemplated in the Act.
We also also that the former chairman along did not form the tribunal itself. All the order of framing charge have been passed by three judges. Art from the former chairman, rest two judges i.e majority judges did not disown the said oreder and as such those orders stand good for every purpose. Now a pertinent question if before us whether this tribunal as a court of law can pass a judicial order relying upon hacked document which are undoubtedly produce of an illegal act and punishable offence as well. The defence could not produce any document to show to show that hacked documents are admissaible in evidence. The act of hacking is nationally and internationally recongised as a crime. Moreover if it learnt from the opinion of an IT expert that skype conversation can be manipulated by omitting a portion of it in order to understand separate meaning as desired by the hacker. In view of the fact we are of the opition that no reliance can be placed upon such hacked documents which are inadmissible in evidence and as such the prayed for recalling the order of taking cognizance of offence and framing of charge is thus rejected.

1 Jan 2013: Skype retrial application, day 8

On the final day or submissions relating to the defense application seeking a review of the trials of Sayedee, Azam and Nizami (following on from the previous day) the tribunal first heard from Abdur Razak, the defense lawyer, and then heard again from the Attorney General.

Summary of Razak's submissions
He argued the following:

My Lord, today I will defend some points made out by my learned friend Mr. Attorney General on my previous submission regarding skype matters.
 At the first position he alleged that this formal charge has been drafted and brought by prosecution and he said that private communication is not submissible in this tribunal.
 Secondly, he said that even if he took help from Ahmed Ziauddin, he has every authority to do this.
 Thirdly, he said a person can not take advantages of his own wrong.
 And finally my lord, I want a fair trial for my client.
 On the 1st point I want to say formal charge is the craft of the tribunal. Depending on it the whole trial find its pathway. My Lord he has said that this charge has been investigated, drafted and submitted only by the prosecution counsel. I am fully agreed with him but I want to say they did this work with full help from a third party I mean Ahmed Ziauddin.

My Lord, this charge has been amended 5 times before submission and this draft was made by Ahmed Ziauddin. And we shown some emails as proof.

My learned friend said that it is fully private matters not to disclose and these mails are irrelevant in this case. But these are not extraneous matters, he is totally incorrect. We are affected, this goes to the root course to the justice.

He showed an order of the tribunal prohibiting not to transcript or publish. But my lord, we didn't want the permission to publish all these materials. We just submitted before you to show how injustice happened. He also referred sec 36, 55, 56 of Information Technology Act 2006. But my lord, where is the prohibition in this whole Act.
 And my second point is to show that my clients are not thief, he said that no one can take advantage of his own wrong. My Lord, we have said before these materials have been published in various news papers and websites of our country as well as abroad. So this is in public domain . And again we are strongly defending his argument that this Gulam Azam, Nizami, Sayedee did not steal these and not using for their advantages.

My Lord, take a look to the sec 6(2a) of this law, there are two ingredients. It demands not only independence of justice but also fair trial should be ensured.

Yes, we are in agreement that cognisance was taken by you but framing of charges was by someone else. Review order, recusal order came from Brussels, so independence of judicial functions has been compromised and consequently my clients were affected, that's why I want a fair trial.

In sec 6(6) it says if there happens a 'mere' change then you can continue the previous proceedings but it doesn't say you must continue. We submitted that this is not a mere change it is an extraordinary change. He (Justice Nizamul Haque) committed a forge not only to this tribunal but also to the entire judiciary.

Attorney General: I strongly object my lord, he can't use this language.

Tribunal: you better sit down. We are listening to him, if you have anything to say we will hear you later.

Razzaq: Therefore this is not a small matter, it is a big matter. Another thing is that inherent power can't be taken away from court, if it is taken away then there will be no existence of the court.

Tribunal: there is a verdict of Appealate division in what extent inherent power can be exercised and not to misuse.

Razzaq: My Lord, you have a view that sec 6(6) is preventing not to re trial but my lord it is not barring you towards a fair justice.

Razzaq continued:

My Lord, my learned friend also said that former chairman Justice Nizamul Haque didn't do any wrong communicating with Ahmed Ziauddin. He had that authority to take any help from anybody and referred sec 11 (1e) and 11(6). Let's see what says these sections Sec 11(1e) says "A Tribunal shall have power to appoint persons carrying out any task designated by the tribunal" and what says 11(6). It says: "the chairman of a tribunal may make such administrative arrangements as he considers necessary for the performance of the functions of the tribunal under this Act." 

So I want to ask a question, my dear friend who appointed Ahmed Ziauddin? Do you know? We don't know. This was not an appoinment, it was a conspiracy against fair trial.

And in sec 11(6) it says about an administrative arrangements such as various administrative officials for carrying out functions of administrative in nature. But my lord I want to say what was done by Ahmed Ziauddin not an administrative function, this is fully a judicial functions. 

If we go through various war crimes trial, we see that except Cambodia nowhere was any provision to appoint such advisors.  

My Lord, though it's a national court but there are some ingredients of international nature. These case of Gulam Azam, Nizami and Sayedee are not only the concern of this country but also have already become a subject of international customary law.

Then Mr. Abdur Razzak submitted some paper cutting of various international newspapers.

My Lord, fair trial has been compromised for a long time and it was being continued. He has polluted the function of the justice, he has destroyed the dignity of the court. Who would take the responsibility my lord?

Adv. Rafiqul Islam Miah from the defense counsel, then spoke

My Lord, I won't argue on any specific matter concerning these cases but I will try to put on a light over a vague point which is very important to be clarified. This is inherent power of this Tribunal. My Lord, few minutes ago my friend Abdur Razzak tried to give you a lucid view of your inherent power and again I also will put some words in this. 

There is no limitations of inherent power for a higher court if it is for the ends of justice. In case of purposes sometimes there are some limitations but for ensuring a fair trial there is no limitations. 

My Lord sec 6(2a) demands a fair trial for the ends of justice. If these are the true then it deserve a fair trial. Not only our people is observing this trial but also the whole world.
 

Then Attorney General prayed for 10 minutes from the the Tribunal

- Article 104 of our Constitution provides the inherent power to our Appellate Division. Section 561A of Cr.P.C. and Section 151 of CPC provides similar power to the High Court Division and Civil courts respectively. You may note that these provisions are in the substantive legislation. The 1973 Act does not recognize any such inherent power for the Tribunal. The Tribunal cannot take up this power by framing Rule 46A.

- Since there is a appellate forum against the judgment, the issue of fairness of the Trial can only be seen by the Appellate Division. You should proceed with the Trial from the stage left by the former Chairman.

- The Indian cases cited by Razaq are decisions under Indian constitution. We are bound by our constitution. The other cases cited by him are distinguishable.

- I have serious objection to the facts raised by the Supplementary Statement filed by the defence today. The foreigners cannot interfere to our judiciary. Our country is sovereign and judiciary is independent. We have our own law. The 1973 Act is a protected law. Even our Cr.P.C. and Evidence Act was excluded. How can the defence bring foreign comments in the name of international standard?

Chairman : We have heard 3 applications of GA, Nizami and Sayedee and will pass our order on 3rd January. 

31 Dec 2012: Sype review application, day 7

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mahbub then responded to this: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- Due to the proviso inserted in Rule 18(4), following instruction of Dr. Ziauddin, the accused’s right to get particulars of prosecution witnesses were curtailed in the name of witness protection. This was the sole ground to reject our application for copy of investigation report. We were unable to cross examine the proecution witnesses effectively due to the absence of their particulars and the Investigation report. There is no trial in Bangladesh where an accused is denied copy of the investigation report. This is a classic example how the trial and the Accused was affected due to the former chairman’s communication with Dr. Ziauddin.

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

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

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

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

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

30 Dec 2012: Skype review, Attorney General response

The Attorney General then responded to the arguments made by the defense concerning its application for re-trial following the Skype disclosures. This continues from here. The first day of arguments are here

The arguments are summarized below

I have objection on using the Skype and Email communications as they are illegally obtained. Under the Information & Technology Act 2006 hacking is an offence. Information obtained through hacking cannot be used. He said that his argument was two fold –

First,  these documents cannot be considered by the Tribunal on three grounds

- Constitutional prohibition in Article 43;

- Prohibition in the Information & Technology Act 2006

- Prohibition passed by ICT-2 on publication of these materials

Secondly, as an alternative argument – the Chairman / Tribunal did not commit any wrong by the Skype and email communication with Dr. Ziauddin

First set of arguments

(a) Constitutional protection in Article 43 – this article of the Constitution provides protection for right to secrecy. There is no similar provision in Indian Constitution. Razaq cited certain Indian decisions on right to privacy and submitted that in national / public interest this right should be sacrificed. But those Indian decisions are not applicable since in Indian constitution there is no similar provision of our Article 43. The judges are oath bound to protect the constitution. So you cannot ignore Article 43 of the constitution. The publication of the Skype conversations offend Article 43.

(b) Prohibition in Information & Technology Act 2006 on publication of hacked materials. He then referred to a number of sections

- S 2(1) of 2006 Act – definition of information include information stored in computer.

- S 2(Kha) – the information should be with signature of the creator. Otherwise it cannot be made public.

- S 2 (4) – hacking/theft of information is not approved.

- S 17 – the creator should have control over the information, then only it cannot be attributed to him. Dr. Ziauddin or the former Chairman had no control over their email and Skype since they could be hacked. So the emails and Skype conversations cannot be attributed to them. Others may have contaminated these things.

- S 54 (Jho) – stealing information for computer is an offence punishable with imprisonment upto 10 years and/or fine of Tk. 10 Lac. Those who have hacked the computer of the former Chairman has committed an offence. The information obtained by such illegal means cannot be used in a legal proceeding.

- The Daily Janakantha of 24th December 2012 reported that the renowned newspaper, News of the World has been closed in UK for hacking information. Its owner Rupert Murdoch is in jail now.

- If the Skype conversation and email communication were admitted before publication then only the defence counsels could have used them.

(c) Prohibition by ICT 2. The ICT – 2 has already passed an order of injunction over the print and electronic media preventing them form publishing the Skype conversation and the email communications. This prohibition is still effective. So these hacked materials cannot be used by the defence counsel. There are 100s of examples to show that emails can be manipulated.

Second set of arguments
In relation to his argument that the alleged communication has not affected fairness in the trial at all, he made the following arguments

- ICTA 1973 is a protected law. Article 47A of our Constitution provided protection to this statute. Any action of the ICTA can only be challenged through appeal.

- Several writ petitions (WP 5391/2010, WP 7353/3010, WP 1750/2012 and a writ petition filed by MRN) were filed challenging the 1973 Act. But all of them were summarily rejected by our High Court Division.

Mizanul Islam said that these are not issues in our retrial application, but the Attorney General argued that that he wanted to show that this tribunal and the law is protected. Their actions cannot be challenged.

- Section 6(4) of the 1973 Act stated that if any of the judge dies or resign then the government can appoint another judge in his place.

- S 6(6) makes it clear that if any judge is replaced then the new judge is not bound to rehear the case. The trial shall continue form where the previous judge left. This is a unique provision of law in the Act for continuation of trial.

- S 6(8) – appointment of the judges cannot be challenged. There is constitutional protection for them.

- S 8(2) – another unique feature of the Act is that the prosecutor can act as an investigator also. It has been alleged that one of the prosecutor (Malum) was engaged in the Skype Communication. Yes he can do that under this law.

- S 9(3) and 16(2) another unique feature is the accused is entitled to get list of prosecution witnesses, documents three weeks before trial. In our traditional trial under Cr.P.C the accused has no such right. The accused does not know what is coming against him. He is usually surprised in trial.

Mizanul Islam then intervened and said how an Attorney General can make this false submission. In our traditional trial under Cr.P.C the accused gets everything long before the trial.

After the adjournment, the Attorney General continued:

- S 11 (1) (d) – the Tribunal has power to appoint any person to carry out any task designated by the tribunal. There is no harm for the former Chairman appointing Dr. Ziauddin for assistance. It is legal. It is permitted by law.

- S 11(6) - the Skype conversation of the former Chairman and Dr. Ziauddin is nothing but an administrative arrangement. This tribunal had got power to make administrative arrangements. By taking help from Dr. Ziauddin no wrong was committed.

- S 19(1) - expeditious and non technical hearing should be availed. But it is not being maintained. Submissions of the Defence counsels are irrelevant and obstruction of expeditious hearing.

- Some pictures and press statement of the accused prove his involvement. Skype conversation doesn’t affect that.

- S 19(3) – the tribunal may take judicial notice of different issues.

- The 1973 Act is the complete code to try war criminals. If fair trial cannot be ensure by law then how it can be ensured? There is no violation of fair trial elements.

- S 9(3)(4) gave privileges to the defence. The defence did not allege their violation.

- S 10(1) (e) - The defence did not allege its violation.

- S 10(1) (f) - Provision of re-examination. The defence did not allege its violation.

- S 9 – there is difference between Proceedings and trial. If anything came from Dr. Ziauddin this is absolutely part of the Proceedings, but not part of Trial. It will not affect the Trial.

- There is a legal principle that ‘No one can take advantage of his own wrong’. So Defence cannot take benefit of illegally collected documents.

- Skype conversation is not the issue here. The sole issue is whether the accused committed the alleged offences or not?

- Even if the conversation is true about one judge then it will not affect other two judges. They are independent. They can write independent judgment. More over Mr. Haq is no more in this Tribunal. No judgment is pronounced as yet. The case will be decided on evidence recorded. No need to re-opens the case.

- In the case of Md. Ershad (former president of Bangladesh) in High Court Division – a judge was reported to have talked with Ershad during proceedings. After this conversation is published the judge resigned and it did not affect the Proceedings. The whole Tribunal cannot suffer by the Act of one.

- The case will be decided on 3 things: Formal Charge; Prosecution Documents and evidence; Defence Documents and evidence.

- The Skype conversation does not affect the trial. These are some personal communication with a friend. Skype conversation cannot be considered at all.

- As Mr. Zia had no control over his own mail, so as per information and telecommunication Act 2006, it should not be considered.

- Discussion about witness Sultana Kamal and Sofi Ulllah does not affect the trial process.

- Even the resignation of Member Judge Zaheer did not affect the trial process.

- There is no political motive behind the Trial.

- Abdur Razzaq alleged that Mr. Haq had violated Art 94(4) + Preamble of the constitution and Oath of the judges – but these are baseless allegations. Section 6(6) provides that merely by change of membership trial process cannot be re opened.

- AR mentioned some cases in favour of his submission –

(a) The first case is relating to Fraud in Bill of Exchange – not applicable here.

(b) Second one is relating to dispute between landlord and tenant- not applicable here.

(c) General Pinochet’s case is not at all relevant here.

(d)  Lord Denning’s decision is not about a special Tribunal - not applicable here.

(e) Another case was on a labour Union matter - not applicable here.

(f) Anothers case on income tax matter, and other cases, are not applicable here.

Reply to the submission of Mizanul Islam

- his submission about section 17(1) is not applicable here.

- Allegation about Sukhranjan Bali abduction is not applicable here.

- His reference to 48DLR 108 is not relevant here.

- The case will be considered solely on evidence recorded not anything else.

- Allegation of importation of Formal Charge is fully denied by the Prosecution. Still there is some discrepancy. The Formal Charge is in different style, form, makeup and get up then the alleged imported one. 

- The trial should be speedy. There is no need to frame Charge.

- No need to make rules. After formal Charge Trial will start no need to go further.

- They had the knowledge of Skype form the August 2012 but they did not publish it. With a Malafide intention they had published it before judgment.

- They have made a trap and the Chairman had stepped on that. The Defence is adopting technicality and delaying proceedings.

- Allegation against Azam is not curbed by Skype.

- The former Chairman’s taking help from Dr. Ziauddin is not illegal.

- Anything that delays the proceedings should be rejected.

- As such the Defence Petition of Retrial should be rejected.