The Tribunal heard arguments from the Defense regarding their application for retrial in the cases of Chief Prosecutor vs Delwar Hossain Sayedee and Chief Prosecutor vs. Motiur Rahman Nizami. After these arguments the court heard Attorney General Mahbubey Alam’s response to the three retrial applications (Sayedee, Golam Azam, and Nizami respectively).
Mizanul Islam, arguing on behalf of Sayedee, continued his arguments for retrial by pointing out specific instances of bias or collusion on the part of the former Chairman and the prosecution, as well as alleged incidents of violation of fair trial requirements. He later stated that he would not repeat his arguments in the case of Nizami, as they applied in the same way.
Charge Framing Order not written by Judges
He began by stating that it is usual practice for the charge framing order to be based on a charge hearing and alleged that the Tribunal did not follow this normal rule. He alleged that the draft copy of the Indictment order had come from Ahmed Ziauddin on October 10, 2011 and that the Tribunal passed a nearly identical order on October 3, 2011. He presented an e-mail dated October 02, 2011 alleging that Ziauddin sent it to former Chairman of Tribunal-1 Justice Nizamul Huq and Judge Zaheer Ahmed.
3 Items were scheduled for hearing: (for detailed summary visit here)
- Chief Prosecutor vs. Delwar Hossain Sayeedee – for hearing application: Defense application for retrial
- Chief Prosecutor vs. Motiur Rahman Nizami – for hearing application and PW: Defense application for retrial
- Chief Prosecutor vs. Golam Azam – for hearing applications and Prosecution argument
Submissions by the Defense
Mizanul Islam, on behalf of the Defense, completed arguments for re-trial in the of Chief Prosecutor vs. Delwar Hossain Sayedee. He alleged that the draft copy of the Indictment order was generated by Ahmed Ziauddin on October 02, 2011 and the Tribunal passed the order on October 03, 2011 – therefore showing that there was inadequate time for them to substantially alter the draft to reflect their independent opinion. The chairman noted that he remembered drafting the Charge Framing Order with the former tribunal Judge Zaheer but did not know whether the former chairman sent it to anyone else. However, the Defense countered that it was clear that the Charge Framing Order as passed directly followed the instructions of Dr. Ziauddin. As the Charge Framing Order was therefore not the work and opinion of a judge, the Defense argued that it must be recalled.
After submitting arguments in the Sayedee case, Mr. Islam began arguments on behalf of Motiur Rahman Nizami because Bangladesh Bar Council Vice Chairman Khandakar Mahbub Hossain, who is expected to make a submission on behalf of Nizami, was not present at the Tribunal before lunch. The Defense stated that they would not repeat themselves and that the points made in the Sayeedee case also applied to the Nizami and Golam Azam cases. He reiterated that the Nizami and Golam Azam Charge Framing Orders were also drafted by Dr. Ziauddin and therefore were not a proper judicial opinion. Mr. Islam gave his assent to allowing the Attorney General Mahbubey Alam to respond given and rescheduling Khandakar Mahbub Hossain for Monday morning.
Submissions on behalf of the Prosecution
After the submissions from the Defense, Attorney General Mahbubey Alam requested that the Tribunal dismiss the petition for re-trial. He submitted that the Defense relied on the illegally obtained evidence and that the contents of skype and email conversations between the former Chairman Nizamul Hoque and the Brussels based lawyer Dr. Ziauddin were inadmissible as the products of hacking. He argued that such documents cannot be considered by the Tribunal on three grounds: 1) The Constitutional prohibition contained in Article 43 which protects every citizen’s right to the privacy of his correspondence and other means of communication; 2) Prohibitions contained in the Information and Communication Act 2006 criminalizing hacking; 3) The order passed by ICT-2 prohibiting publication of the skype and email communications between the former chairman and Dr. Ziauddin. Attorney General Mahbubey Alam further argued that the procedural rules of the Tribunal permitted the former Chairman’s actions. Referring to §11(1)(d) of the ICT Act 1973, which provides that “the tribunal shall have the power to appoint persons for carrying out any task designated by the tribunal,” and under §11(6) which provides that the “Chairman of a Tribunal may make such administrative arrangements as he considers necessary for the performance of the functions of the Tribunal under this Act,” the Attorney General argued that the former Chairman Nizamul Huq was within his legal capacity in communicating with Dr. Ziauddine as these communications were part of an administrative arrangement considered necessary for the performance of the functions of the Tribunal. He additionally argued that the Defense’s submissions were obstructionist and counter to §19(1) of the ICT Act which states that the Tribunal “shall adopt and apply to the greatest possible extent expeditious and non-technical procedure.”
Tension continued in the court and verbal altercations between the defense and prosecution increased. The Judges requested the prosecution to maintain decorum so that the Defense would follow suit.
The War Crimes Studies Center has been in the process of establishing a research and observation project covering the International Crimes Tribunal in Dhaka. Our goal is to provide factual and objective coverage of the ongoing trial proceedings. The tribunal currently does not have an official website or spokesperson, and current accurate information regarding the trials is difficult to access. We hope that this blog can fill this gap and provide useful information to the diplomatic community, academics, those working in the field of international criminal law, victims and other interested parties.
Over the past two months WCSC has worked to establish the logistical framework for our project. In order to introduce ourselves and explain our goals we have been meeting with court officials, the prosecution and defense teams, journalists and other civil society members as well as conducting legal research regarding both international and Bangladeshi legal practice. Additionally, we have hired a team of local Bangladeshi lawyers to conduct daily observation and translation of the proceedings.
Unfortunately we have faced a number of obstacles that have slowed our progress and delayed the launch of our daily reporting. The recruitment process for our local team was carried out cautiously and thoroughly as it is of the utmost importance that our team be able to neutrally assess the proceedings and accurately translate from Bangla into English. Additionally, our recruitment process has been prolonged by court requirements that our researchers go through an extensive background security check. This process took three weeks for one researcher and was still ongoing for another when the candidate decided that, due to concerns about prejudice to his future career, he could not continue to work with us. This meant that we had to again begin the recruitment process for a local Bangladeshi lawyer. We continue to work with the court and are now waiting for the approval of our second candidate. While we understand the the security concerns we regret the long duration of the background check and the intimidating impact that it potentially has on qualified candidates selected by our organization.
An additional factor in the delay of our publications has been our restricted access to official court documents. The tribunal has thus far declined to provide us with certified copies of court orders, including the charge framing orders (indictments). They have cited the ICT Act of 1973, stating that there is no specific provision in the act entitling 3rd parties to request and obtain certified copies of documents. We have been directed to obtain these documents instead from the Prosecution, Defense or from journalists. Despite our urging that our neutrality and objectivity is dependent on our access to official documents the court thus far has not been willing to rethink its position. Therefore, we have had to use additional time to obtain necessary documents and to verify their accuracy.
Despite these obstacles we have been attending proceedings and preparing materials for publication. We have now published overview charts of the cases in Tribunal I and Tribunal II that contain current and accurate information about the status of the trials and which will be updated on a daily basis. In the coming weeks we will be publishing brief summaries on each of the cases, timelines for each trial, as well as links to key documents in each of the trials. Additionally, we will begin publishing daily summaries of the proceedings in Tribunal 1 and Tribunal II. We hope that these materials will be useful to you and we look forward to feedback and questions that can help us make this website more effective.
Thank you for your patience.
Head of Defense, Abdur Razzaq argued for a retrial in the case of Chief Prosecutor vs. Golam Azam. He made the following key arguments:
- Regarding the admissibility of the alleged skype conversation, the Defense argued that the public interest in admitting the contents of the skype conversations into evidence outweighed the chairman’s privacy interest.
- Citing Kuruma Son of Kaniu vs. Reginam (1955 1 ALL ER PC 237); Pooran Mal vs. Director of Inspections (AIR 1974 SC 348); and Moudud Ahmed vs. the State (48 DLR 108), the Defense argued that the alleged skype conversations should not be excluded on the basis that they are the product of illegal hacking because the test is whether or not the evidence is relevant, not what method was used to obtain it. Here they claimed that the alleged skype conversation was collected from a website and that later portions of the conversations were published by the Economist, Wall Street Journal and the Daily Amar Desh.
- The Defense argued that the alleged skype conversation talked about 22 persons; however, none of them had disputed the truthfulness of its contents.
- Citing to caselaw [WCSC is currently seeking the citation and will update] the Defense claimed that public officials are not entitled to protection of their privacy when the subject matter is regarding their work and when reasonable verification has been carried out. He argued that Economist carried out reasonable verification before publishing the skype conversations; and were therefore justified in publishing it in United Kingdom despite journalist ethics laws. Razzaq also noted that the Economist had cited the public interest in the matter as justification for their publication.
- The Defense requested that the court accept the conversations into evidence. He prayed for a recall of the Charge Framing Order arguing that the Tribunal took cognizance of the charges on the basis of formal charges which were procured by fraud. Therefore the Charge Framing Order as it is currently formatted was also procured by fraud and should be recalled.
- As previously requested by Justice Jahngir, the Defense also analyzed two cases (Taylor vs Lawrance (2002); Gillies vs Secretary of State (2006)(HL) and argued that this case should be distinguished because it is not about bias but about actual collusion.
- The Defense argued that the alleged skype conversations are relevant evidence and would not be irrelevant only for its alleged illegal source i.e. hacking.
The Tribunal requested that Attorney General Mahbubey Alam, who is expected to reply on behalf of the prosecution, to give reply after hearing all of the three re-trial applications.
Defense Counsel Mizanul Islam submitted arguments for retrial in the case of Chief Prosecutor vs Delwar Hossain Sayedee. The Tribunal instructed the Defense not to repeat the points that his senior colleague Chief Counsel Abdur Razzaq had already made in the Golam Azam case and suggested he make his points specific to Sayedee’s case. The Defense presented specific instances supporting their request for a retrial:
- Mizanul Islam claimed that the Tribunal had not acted independently and took Ahmed Ziauddin’s direction Tribunal to curtail the Defence’s right to know about the particulars of the Prosecution Witnesses by amending rule-18 of ICT Act 1973. The Defense cited an e-mail between the former chairman and Mr. Ziauddin dated November 9, 2012 as evidence.
- The Defense additionally stated that the Investigation Officer exhibited 269 document and was given 18 sessions to present his testimony. They alleged that after his testimony and with the direction of Ahmed Ziauddin, former Chairman Hoque limited the timeframe for cross-examination and specified documents that the Defense was not allowed to cross-examine. The Defense alleged that they were not given a written order regarding this restriction. Thus Justice Nizamul Huq with the direction of Ahmed Ziauddin deprived Defense team of their rights.
- The Defense further alleged that they were not given 3600 pages documents relied on by the Prosecution. Mizanul Islam added that the Defense was not informed of these documents and were told that they have no right to receive copies of these documents or to file any application to obtain said documents.
- The Defense also stated that they were not given documents relating to an alleged mass graveyard and they were deprived from their rights under sec 16(2) of the ICT Act 1973.
- The Defense alleged that Sayedee was deprived from his rights under section 17(1) of the ICT Act 1973. He further alleged that after the Charge Framing Order was read out in court Sayedee was asked to plea guilty or not guilty, but that the statement he made in conjunction with his not builty plea was not kept on record.
- The Defense allged that their witness Sukhorangon Bali was abducted in front of the Tribunal and that the former chairman Nizamul Huq failed to take appropriate action. Mizanul Islam alleged that if the Chairman wished to look into the matter he should view the CCTV camera footage.
- The Defense concluded that the skype and email conversations made it clear that the former Chairman carried out his duties with the ultimate goal of self promotion. The Defense noted that the Bar Council Order forbids Judges to meet alone with one of the parties to discuss the case. Both parties must be represented in such meetings and therefore the Prosecution and Judge violated the Bar Council Order.
- The Defense stated that it is unacceptable that the Investigation Officer provided Investigation Reports and submitted the Formal Charge before completing his investigation .
- The Defense stated that it had previously submitted an application seeking explanation from the former Chairman of Tribunal-1 as to his ability to serve as the Tribunal’s Chief despite his former involvement as a member of People’s Court, Peoples Inquiry Commission and as a war crimes campaigner; and left the matter to his good conscience. The Defense claimed that a 76 pages draft copy of the order was sent by Ahmed Ziauddin and that the former Chairman Nizamul Huq copied the draft copy and passed the order with some minor changes. In doing so the former Chairman of Tribunal-1 broke his oath of office on November 28, 2011 by passing the order when the order had come from Brussels. The Defense claimed that this breaking of his oath meant that the ceased to be a judge and all his subsequent actions must be annulled.
- The Defense argued that Sayedee was prejudiced by the former Chairman of Tribunal-1 as he worked as per Ahmed Ziauddin’s dictation and did not act as an independent member of the judicialry. Mizanul Islam requested the Tribunal to talk with the former Judge Zaheer Ahmed regarding the writing of the Charge Framing Order. He also requested the Tribunal to listen the recorded skype conversations outside of the media’s presence.