Saturday, March 23, 2013

15 Jan 2013: Skype order review application

After dealing with the contempt application, the tribunal then moved onto the defense review application concerning the tribunal order rejecting a retrial

One of the lawyers read out the key parts of the written application, which is here.

Abdur Razzaq made the following comments, summarized below
- Normally the scope of a review application is very narrow. E.g. in section 114 and Order 47, Rule 1 of Code of Civil Procedure the test is ‘error apparent on the face of record’. But in Rule 26(3) of the Rules of Procedure of ICT the scope of very wide. You have power to review ‘in the ends of justice’. It is really very wide power.

- The word ‘justice’ is not an ornamental word. So if you think that some injustice has been done you have ample power to cure it by reviewing the impugned order. I submit there are strong grounds for review. The accused are denied justice and as such the impugned order rejecting our application should be reviewed in the interest of justice.

- In our retrial application we showed you the Skype and email communications between the former Chairman and Dr. Ahmed Ziauddin. We showed you how the Dr. Ziauddin was helping the prosecution and the former Chairman at the same time. But in the impugned order you have said that you would not look into these Skype and email communications for three reasons (1) these are hacked materials, (2) these materials are illegally obtained and (3) these materials cannot be used as they are not admissible. I will deal with them one

(1) Hacked material
- how can you say that these are hacked materials? Do you have any evidence of this? This is purely a question of fact. Only a cyber Tribunal under the Information and Communication Technology Act 2006 is competent to come to this finding after considering relevant evidence. How can this Tribunal say that the skype and e-mail communications are hacked without any finding of fact? If it was recorded and revealed by any of the parties concerned i.e. the former Chairman and Dr. Ziauddin then it is not hacked. If they are recorded with their consent then also it cannot be said that they were hacked. Without any evidence you cannot just presume that these materials were hacked.

Chairman stated that the former Chairman in his order dated 6th December 2012 has said that his computer, email and Skype account had been hacked. This is how we thought that the Skype and email communications between the former Chairman and Dr Ziauddin must have been hacked.

Razzaq then asked whether any evidence that it was not recorded by Dr. Ziauddin or by anyone with his consent. There is no enquiry into this. You cannot just presume that these materials were hacked. These are now available in public domain. The Economist and the Daily Amar Desh and some other national daily newspaper has also published part of it. There is no evidence before you to find that these materials were hacked.

- In the impugned order you have said ‘alleged’ hacked materials. How can you say that these are ‘alleged’ materials? The former Chairman did not deny any of these communications. In fact in his order dated 6th December he admitted having Skype and email communications with Dr. Ziauddin. He resigned admitting his liability. Dr. Ziauddin also expressly admitted these Skype and email communications in his press statement published in the on 19th December 2012. In fact he felt proud for being able to assist the former Chairman and the prosecution in this war crime issue. In that press statement he said that he would continue assisting this tribunal and the prosecution. So the parties concern have admitted these communications

- But I want to be fair with Dr Ziauddin. In his press statement he said that there were evidences of manipulation in his Skype and email communications. But until today Dr Ziauddin could not show a single event as to which part was manipulated. You may recall that the Daily Amar Desh has published this without any change. You have admitted this in the impugned order also.

Mr. Justice Jahangir Hossain asked why Daily Amardesh so many headline and sub-headline in their report. Was there any mala fide intension?

Razaq said that he did not know. It appears that the Skype materials are so huge that they had to use sub-headings. You should remember that Amar Desh has published it in public interest.

(2) Obtained Illegally– this Tribunal is not competent to say that these materials were recorded illegally. According to the Information and Communication Technology Act 2006 a Cyber Tribunal is to decide on illegality of any such materials. Without such finding from a competent authority how this Tribunal can say that these materials were recorded illegally. Your lordships may have respect to the former Chairman. But you must act in accordance with law. Only because the former Chairman has said that it was hacked and illegally recorded, you should not accept it. You should look into the matter in great detail.

- In the impugned order you have praised The Economist for publishing only part of these materials. On the other hand you have criticized the Daily Amar Desh for publishing full. But in fact the Economist has made serious criticism of the flawed process of this tribunal. Let me show you. Amar Desh only reported on the Skype Conversations. They did not report on the 230 emails of the former Chairman and Dr. Ziauddin. But the Economist reported on both the Skype and the email communications.

- In its report dated 8th December 2012 titled ‘Discrepancy in Dhaka’ there were discrepancy in the statements of the former Chairman. They reported that on 5th December 2012 the former Chairman denied with the Economist over phone any communication with Dr. Ziauddin. The former Chairman was reported to have said that as a judge of the Supreme Court he do not talk about a pending case with anyone, not even his wife. But on the next day he issued a show cause notice upon the Economist admitting email and Skype communications with Dr. Ziauddin. He also passed a restraining order so that the Economist cannot publish those materials. In that report the Economist has raised some serious question about this process. They have revealed that the integrity of the former Chairman was doubtful. Since you have praised the Economist in the impugned order, you should not disbelieve this article. The Economist being fair did not published the Skype and email communication at that time and they investigated the matter.

- After investigation on 15th December 2012 the Economist published a summary of the 17 hours Skype Conversation and 230 emails between the former Chairman and Dr. Ziauddin. This is a three full page report in a worldwide reputed journal like The Economist. They have revealed that the former Chairman was regularly discussing about the cases in the Tribunal with Dr. Ziauddin and was taking his assistances. The orders of the tribunal were being drafted by this Dr. Ziauddin who was also helping the prosecution at the same time. It was reported that though the former Chairman denied working on Sayedee judgment in October 2012, the Skype and email communications revealed that Dr. Ziauddin sent him structure of conviction judgment on 14th October 2012 though the defence case was not closed until then. The Economist concluded that ‘“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.”

- How can you say in the impugned order that the Amar Desh published the Skype materials unethically when you have praised the Economist for doing the same thing? In fact the Economist was more critical. They reported on the 230 email also. If you believe the reports of the Economist then you should order for a retrial.

- The Daily Amar Desh only published tips of the ice berg. But the Economist has published the summary of the 17 hour Skype conversation and 230 email communications between the former Chairman and Dr Ziauddin. This report clearly show how the Accused were prejudiced. The prosecution witness was seen to be tutored by the former Chairman and Dr. Ziauddin. The formal charge and the cognizance order was also drafted by Dr. Ziauddin in PGA case. The former Chairman ordered to reduce the defence witnesses on the instruction of Dr. Ziauddin. They were conspiring to convict all the Accused. How can you imagine these in a civilized world? This is not a disputed question of fact. The parties of these communications have admitted this. There is no denial from them. The Economist acted only in public interest. Now I leave it to your good conscience.

- In the impugned order you have decided to take the burden of the former Chairman on your shoulder. This is not in the interest of justice.

- In Sayedee case the chairman said that you with other member Mr. Zahir Ahmed have drafted the charge framing order. If this was the case, then why it was sent to Dr. Ziauddin for final approval. The email clearly show that the charge framing order (indictment) was drafted and sent by Dr Ziauddin as email attachment on the day before it was delivered in the open court. In PGA case all the formal charges were drafted and sent by Dr. Ziauddin. This is also evident from the email communications. The Skype communications clearly show that the prosecution witness, Sultana Kamal was being tutored.

Chairman – a party has a right to test its witness. There is nothing wrong in it.

Razaq: if you want to say that the former Chairman can tutor a prosecution witness then I have nothing to say. They were deciding who could be the next prosecution witness. They were suggesting how to fill up gaps in the prosecution case. Can they do this? Even then you will show that the trial was not vitiated? This is a gross example of unfairness. This is why we have prayed for a retrial. This is a very reasonable prayer. We should have prayed for staying the proceeding because the whole process was contaminated by the government. There is clear evidence of executive interference in the Skype and email communications of the former Chairman and Dr. Ziauddin.

- In the impugned order you have said that there is no express provision to hold a retrial. You have also held that inherent power of the Tribunal cannot be exercised unlcess there is a express provision. Then you hold that in Section 6(6) of 1973 Act in case of ‘any’ change in the member of the tribunal the remaining judges are not bound to rehear the evidence. Your interpretation of section 6(6) is clearly mistaken. The section used the word ‘merely’ not ‘any’. Section 6(6) even in case of mere change you have discretion to rehear the evidence. There is no provision in the 1973 Act about what would happen when the Chairman resigns accepting wrongdoing. So this is the perfect case for your to exercise you inherent power under Rule 46A for ends of justice. No one will be prejudiced if you order for a retrial. But, I understand, only some executive will not be happy by such order as they want expeditious judgment.

(3) Admissibility of illegally obtained evidencein the impugned order you hold that we could not show a single decision to support that the illegally hacked materials are admissible as evidence. But in other place of the order where you recorded my submission on the retrial application you mentioned that I relied up at least ‘48 DLR 86, (1994) Supreme Court cases 632 (R.Raja Gopal Vs. State of T.N. India) and other citations’ to support this point. This is self contradictory and an error apparent on the fact of the record. We showed you decisions one from Privy Counsel othes are reported in 1955 1 ALL ER PC 237, AIR 1974 SC 348 and 48 DLR 108.

- We are not saying that these materials were hacked or illegally obtained. We are submitting that even if these documents were illegally obtained they are admissible. The only test is relevance. If you can see that there are probative value that outweigh prejudicial effect then you should admit these materials.

- In an ICTY Case Prosecutor v BrÄ‘janin –(“Decision on Defence Objection to Intercept Evidence” dated 3 October 2003,) the issue was whether hacked telephone materials were admissible as evidence. After detail discussion of the English law and other international law the trial Chamber decided that they are admissible.

- In another ICTY Case Prosecutor V Mico Stanisic and Stozan Zupljanin – (Decision denying the Stanisic Notion for exclusion of recorded intercepts) the trial chamber passes similar decision in relation of recorded intercepts. \

- You cannot say that the Skype and email communications are hacked or illegally obtained as there is no evidence to come to that conclusion. You cannot say them to be ‘alleged’ materials as they are admitted by the parties. It is now available in public domain. These are admissible evidence. There is no allegation that they were hacked by the accused. So there is no restriction on their use.

- According section 19(1) of the 1973 Act you are not bound by technical rules of evidence. This provision empowers you to admit any tape recorded materials. You have received huge prosecution materials in this way. So you should admit these evidence for having probative value. Despite our serious objection to the 19(2) statements of 16 witness showing you the safe house documents you have received them as evidence in DHS case. Why cannot you take similar approach to the defence documents.

One of the judges said that the tribunal has merely received the 19(2) documents as evidence. We are not saying that we have accepted them to be true.

Razaq said that in the same way you can admit these Skype and email communication. You may finally decide how much credit you want give to them. These documents are admissible. This Tribunal is duty bound to do fair trial. So you should order for a retrial for ends of justice.
Specifically in relation to Nizami, the prosecutor made the following arguments
- The review application is merely repetition of the allegations in the Retrials application. There is nothing new.

- It cannot be said that justice was denied to the accused. Can they make such allegation against the Tribunal?

- In exceptional circumstances these materials may be admitted. The defence need to show that they fall under any of such exceptional circumstances.

- Hacked documents are violative to Article 43 of our constitution that ensures right to privacy of individuals. The Economist has violated these rights. Even the defence counsels have also violated this right since they have presented these hacked materials before this tribunal.

- How far you can use your inherent power. This is not limited upto sky. The power which is not expressly given that cannot be exercised as inherent power.

- There is no scope to review the impugned order.

- The Skype and email communications are being used against the Tribunal.
Prosecution Haider Ali said that he would argue relating to the Sayedee case the following day

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