Thursday, March 21, 2013

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.

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