Wednesday, March 20, 2013

30 Dec 2012: Skype retrial application, day 6

Mizanul Islam for the defense continued with his arguments about why there should be a retrial in the case of Delwar Hossain Sayedee, following on from the previous day's proceedings (Nb; these notes on this particular days draw upon defense notes of the proceedings)

- yesterday I was showing you that Dr. Ziauddin drafted the Charge framing order against the accused. The draft of the order was sent to the former Chairman (Mr. Haq) and the then member of ICT Judge Zaheer Ahmed by e-mail on 2.10.2011. The same order was passed on the next day by the Tribunal. The email is attached with this application. Though the present Chairman was a member of ICT-1 at that time his name is not in the recipient list of the e-mail.

Chairman  I can remember, myself and Judge Zaheer drafted the Charge framing order. Then we gave it to the former Chairman. We do not know whether it was sent to any other person after that. You will see that the charge framing order has been drafted following our local format. It is not similar to other international cases.

Defence – the email communication clearly shows that the draft order which was sent to the former Chairman on 2.10.2011 was delivered by the tribunal on 3.10.2011. It is clear that Dr. Ziauddin’s advice was taken preparing the charge framing. In the email he suggested to use ‘persecution’ instead of ‘other inhuman act of CAH for the looting, torture etc. The certified copy of the charge framing order shows that the accused was charged exactly in the same way prepared by Dr. Ziauddin. The former Chairman did not deny the Skype and email communication. In fact in the order against the Economist he has admitted this. The Skype communication of the former Chairman and Dr. Ziauddin also reveals the following –

- The former Chairman was seeking Dr. Ziauddin’s advice as to how to evaluate DW-1 Shamsul Alam Talukder.

- He was discussing about relationship of Tajul Islam and Judge Zaheer Ahmed.

- On 10.09.2012 he requested Dr. Ziauddin to supply research staff to the prosecution.

- On 11.09.2012 Dr. Ziauddin suggested the former Chairman to prevent the Defence Counsel from long cross examination of PWs in PGA case.

- Dr. Ziauddin sent a member of ICSF (International Crimes Strategic Forum), Mr. Showkat who was appointed as Assistant Registrar of the Tribunal. Mr. Showkat also joined them in the Skype conversation.

- They also discussed how to control the journalists in the Tribunal.

- They also discussed how to prevent foreign Counsel Mr. Toby Cadman to attend the Tribunal. Dr. Ziauddin was advising him that one should file a writ petition in the High Court Division and get a stay order on Mr. Toby Cadman. Mr. Haq told him that it would not be required as he would pass an order in the Tribunal that foreigners cannot attend as counsel in the Tribunal, if needed.

- In their conversation they were calling the defence counsels to be ‘cadres’ and ‘goons’. How the Accused can get justice in the Tribunal if his counsels are considered as ‘cadres’ and ‘goons’ by the judges without any basis. The defence counsels are respectable persons.

- Dr. Ziauddin was advising the Mr. Haq about the structure of the judgment against the Accused.

- Dr Ziaudding was so influential over the Tribunal and the government that he was seen to have been drafting the amendments in the rules and the Act.

Attorney General then intervened and said that he is wasting time by repeating what has already been said. He should be stopped.

The defense lawyer responded by saying that he was not repeating and was showing the summary of the skype conversation and email communication between Mr. Haq and Dr. Ziauddin –

- Mr. Haq told Dr. Ziauddin that if there is any gap in the prosecution witnesses then we will fill up those gaps by taking judicial notice.

- They were discussing  a Italian lobbyist group appointed for the prosecution. Dr. Ziauddin appeared to be main contact person with this lobbyist group for the prosecution.

- Executive interference – state Minister for Law visited the former Chairman’s house and asked him to give judgment early. The Law minister forced the former member Zaheer Ahmed to resign. Mr. Haq told Zaheer that he should tell the public and media that he resigned on health ground.

- He referred to the former Chairman’s foreign visit as part of the conspiracy.

- He referred to tutoring prosecution witness – Sultana Kamal in PGA case.

- Dr Ziauddin was asking Mr. Haq to become less harsh on the defence counsels as there was a danger that the defence counsels might boycott the Tribunal as a result. Mr. Haq replied that it is good if the defence counsel boycott and in that case he could finish the case and pass judgment in short time. He also said that the rules of the tribunal is drafted in such a way that if the defence counsels boycott then they would face contempt charge. Both were laughing on the handicapped condition of the defence counsels.

- if there is any defect in the formal charge then it should be rejected. This is general practice of Bangladesh. But in Azam case this tribunal returned the formal charge for correction. If the tribunal has power to return the formal charge for defect, it can also order for retrial if it can be shown that the trial was conducted defectively and in unfair manner.

–  the resignation of the former Chairman is not a ‘mere’ change. He resigned on clear evidence of bias and misconduct. His resignation is his admission in the involvement in the Skype and E-mail communication with Dr. Ziauddin. He never denied these allegations. Dr. Ziauddin has also admitted these communication with Mr. Haq. In fact he expressed his pride in being able to assist both judge and the prosecution at a same time.

- The former Chairman’s Skype conversation and email communications reveal a tsunami of corruption, misconduct and conspiracy.

He then responded to the prosecution’s written reply –

 – the prosecution alleged that the application for retrial was brought with a malafide intention to hinder the trial process of the tribunal. This is unfounded. In fact the prosecutors are found to be part of the conspiracy of the former Chairman. They regularly met the former Chairman and discussed how to put difficulty upon the defence.

- Though the government is saying that they are trying the accused and others for war crimes, the Skype conversation reveals that war crime was deliberately left out from the charge as they discussed that it would be difficult for them to prove war crimes against the accused.

- Prosecution alleges that hacking of Skype, email of the former Chairman is an illegal act – But does it allow a judge to conspire with an interested party to convict the accuse? Does it allow a judge to act for the prosecutor?

The Attorney General then intervened and said that that the defense lawyer was simply repeating himself to waste time. He said that this tribunal is not equivalent to High Court. This is not a Court of Rajshahi. You should learn form Mr. Razzaq how to submit before a Tribunal.

The defense responded that this is a court of Bangladesh and I may not be as qualified as you, but I know how to submit before a court.

Prosecutor Malum then stated that the defense lawyer should learn decorum. You should not speak when the Attonry General is speaking.

The defense lawyer then responded to Malum by sating that he does not want to learn decorum from him. From the Skype conversation it is clear that you are also part of the conspiracy. The former Chairman and Dr. Ziauddin named you many times as part of their conspiracy. The judge and the prosecutor played a drama of fair trial. If this is your decorum then I do not need to learn this. The tribunal is supposed to do justice. The Supreme Court in 48 DLR (AD) 171 has defined the meaning of ‘complete justice’.

- In their Reply the prosecution did not deny any of the statements of our application. They merely said that the Skype and email conversion should not be used since they are obtained by applying unlawful means. So the allegations are admitted and the application should be allowed.

- He said that his submissions in the Sayedee application are also applicable here. The charge framing order of MRN was also drafted by Dr. Ziauddin.

The Attorney General then responded to the arguments, see here

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