Wednesday, March 20, 2013

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.

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