Friday, July 6, 2012

31 May 2012: Chowdhury lawyer contempt order

Fakhrul Islam came upto the dais and said that his item has been posted as the first case. This relates to an order of the court made on 15 May

Justice Nizamul Huq asked the Prosecutor if he would like to say something.

Zead Al Malum came up and stated: No one is permitted to use any words which are offensive against the Tribunal. The impact of the word upon the whole community should be taken into the consideration. Respectable Professor Anisuzzaman came before the Tribunal as the Prosecution Witness. But he has returned from this Tribunal with a title given by the defence counsel of “Liar.” Does he deserve thiss? What kinds of messages does this spread towards the community by these types of words? Before taking any decision the Prosecution would like to pray that- the dignity of the tribunal should be raised up by the decision. Is there any scope to given an exemption in a contempt matter to simply because a person is a lawyer?

Justice Nizamul Huq asked Mr. Ahsanul Haque Hena whether he would like to say anything in favor of defence counsel Mr. Fakhrul Islam?

Ahsanul Haque Hena replied by saying that as the Tribunal thinks his words are inappropriate and he has prayed for an apology, there is not anything left to say, I think.

Justice Nizamul Huq: Before passing the order the Tribunal would like to talk with about a matter; Mr. Fakhrul Islam. You have mentioned it in your reply that ‘as the Tribunal did not like so you are apologisingg. Is that so?

Fakhrul Islam: No the matter is not like that My Lord. I am not saying tell that- “I didn’t deliberately violate the order.”--- But I have said the aforesaid sentence as I think it as more modest.

Justice Nizamul Huq: Another matter is that you have apologized towards the Tribunal; but your mistake was directed at the Prosecution Witness. You will add a minimum one sentence by stating an apology in the reply towards the Prosecution Witness by mentioning his name.

Fakhrul Islam: As I have violated the order of this Tribunal, so I plead mercy to the tribunal.

Justice Nizamul Huq: No; you have to add minimum one sentence by apologizing towards the Prosecution Witness.  On the advice of the Tribunal, Mr. Fakhrul Islam added one sentence to his reply to the effect that his statement was unintentional and he expressed his regret to the Prosecution Witness, Mr. Anisuzzaman.]

Justice Nizamul Huq, passed order (summary)
By the order dated 15-5-2012; this tribunal has issued a verbal notice upon Mr. Fakhrul Islam; the defence counsel- who is appearing on behalf of accused Salahuddin Quader Chowdhury in the case of ICT-BD case No- 02 of 2011; to show cause as to why action should not be taken against him under section-11(4) under the ICT Act- 1973 for causing contempt matter against the Tribunal.

The fact of the case in short is that Mr. Fakhrul Islam while appearing in the tribunal on 14-5-2012 on behalf of Mr. Salahuddin Quader Chowdhury, repeatedly used the word “Liar” to the Prosecution Witness Mr. Anisuzzaman. For this; the tribunal has repeatedly cautioned him. But even after that he has given a press statement and repeatedly said the same word again. A statement made to the Television journalist has came before the notice of the Tribunal.

Prosecutor Zead Al Malum has raised this matter on 15-5-2012 by stating it before the Tribunal that- the learned defence counsel has not only violated the section- 11(4) of the ICT Act- 1973 but also has threatened the witness and the witness was insulted.

On this point when the tribunal has asked Mr. Fakhrul Islam, he has admitted that he did this and instantly a verbal show cause notice has been issued upon him.

In reply to the show cause notice Mr. Fakhrul Islam submitted a written reply by stating that in the process of cross examination he has unintentionally used the word. He has expressed unconditional apology to the tribunal and the Prosecution witness. He has also expressed regret by stating that- in future he would be cautious and he prayed for exemption.

We have heard Mr. Fakhrul Islam, the defence counsel, Zead Al Malum, the Prosecutor andMr. Ahsanul Haque Hena in support of Mr. Fakhrul Islam and perused the show cause notice and reply. Now we are of the view that. This is a matter of contempt. The section- 11(4) of the ICT Act-1973 has been brought under statute to protect the tribunal from the outside attacks. It is the duty of the counsels to conduct the cases by maintaining the highest dignity of the Tribunal. And we have repeatedly asked cooperation from everyone. We are happy that immediately after the show cause notice, Mr. Fakhrul Islam has expressed apology. In a television interview he has uttered the same words.

Mr. Fakhrul Islam has been coming for a long time to the tribunal. So, it was not expected from him. We want all the people will cooperate for proper dispensation of the tribunal.

However, Mr. Fakhrul Islam has expressed unconditional apology. He is a practicing lawyer. We know if we take action against him, then it will hamper his professional life. So, we would like to exonerate him from the matter of contempt.

Orders were then given on the two applications made by Salauddin Quader Chowdhury relating to his application to attend the session of parliament and also for bail.

These are two application to get the permission to attend the session of parliament and for the bail of Salahuddin Quader Chowdhury.

It appears that on 27-05- 2012 the application for attending the session of parliament was filed and on 20-5-2012 the application for the bail was filed.

Mr. Fakhrul Islam appearing on behalf of the accused petitioner has submitted that the petitioner has received a notice on 25-5-2012 by the Jail authority to attend the Parliament on 27-05-2012 at 5:30 [by Presidential Summon]. As the accused is detained in Jail so he has prayed for an order for bail. It has also been stated in the application that the petitioner is not urging for any adjournment and thus to hamper the process of the Tribunal.

Second application is about bail. He is a member of the Parliament under constituency No 279 of Chittagong-2 and he intends to attend the parliamentary proceeding. It was also contended that as per Article-68 of the Constitution he is also entitled to get the privilege as the parliamentary member. He is also entitled to get the privilege under Members Privilege Act, 1965.

They have also mentioned the case of Hussein Muhammad Ershad who attended the Parliament on 1996 from the Jail custody.

Mr. Zead Al Malum; appearing on behalf of the Prosecution says that the ICT Act does not allow that and this is a case where the proceeding is ongoing, If the accused is allowed bail, then the case would be hampered. Considering this matter he has expected the bail to be rejected.

We have heard both the parties. About the first one- the accused has received a Presidential Summons and his summons in the form of notice annexed in his application for bail.

All the order of Government is passed by the name of the President. So he cannot say that President has summoned him individually.

The second one says that if he should get privilege as a parliamentary member. [Then the Justice has stated the contents of section- 7(1); 7(2), 7(3), 8(1), 8(2) of the Members Privilege Act- 1965.]

Upon perusal if we consider section- 7 & 8; then law does not permit him to attend the session. So, the application of the bail should not stand. So the petition is rejected.

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