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.
The current Chairman ATM Fazle Kabir replied that at that time he was a sitting member of Tribunal-1 and said that he himself and Zaheer had prepared the order. Justice Kabir also said that he had no idea whether former Chairman sent it to someone for scrutiny or not. The Judge further noted that the style and structure of the Indictment order are similar to other indictment orders as drafted in the subcontinent and are quite different from the European style that one would assume a Brussels based lawyer such as Dr. Ziauddin would use. Mizanul Islam reiterated that the order was nontheless sent to Ziauddin for further scrutiny and input and that it was published with his influence.
Improper Cooperation between Judges, Prosecution and Dr. Ziauddin
The Defense then enumerated various irregularities that have taken place through out the trial and connections between the tribunal and Dr. Ziauddin. He said that Shawkat, a deputy registrar of the Tribunal, was a member of International Crime Sstrategy Forum, an organization that has advocated for the prosecution of the accused and of which Dr. Ziauddin is the head. He alleged that in skype conversations Ziauddin and the former Chairman talked several times about the ultimate structure of judgment. The defense further alleged that Ziauddin and former Chairman talked over skype about how to restrict foreign lawyers from assisting the defense by changing the Bar Council Act. Mr. Islam further noted that while the Defense was blocked from bringing a foreign lawyer to represent Defense it was evident from skype conversations that the former Chairman was aware of and supported the appointment of an Italian lobbyist group to assist the prosecution and that Dr. Ziauddin served as the main contact person for the prosecution and that group.
Interference by the Executive Branch and Evidence of a “Show” Trial
The Defense also cited certain instances as evidence of executive interference with the tribunal. Namely that the Minister for Law visited the former Chairman and asked him to provide judgment quickly. Mr. Islam also alleged that the Law Minister was responsible for forcing the former judge Zaheer Ahmed to resign and that the former Chairman instructed Zaheer to tell the public and the media that he was resiging based on health concerns.
The Defense alleged that Ziauddin and the former Chairman had discussed the trial as a Show “bichar” or show trial. In particular, Mr. Islam noted that under this act Prosecution was allowed to re-submit the Formal Charge, which according to him is not normal. He noted that given the tribunal’s power to allow the resubmission of the formal charges it must be legal to order re-trail under the same act.
The Defense also noted that Dr. Ziauddin and the former Chairman over skype had discussed that they would avoid charging the accused with war crimes because it would be difficult to prove that crime under the act. Mr. Islam then demanded why the government is claiming that they are trying war criminals. Mizanul Islam cited 48 DLR page 171 relevant para 26 and talked about complete justice.
§6(6) Does not apply because of evidence of actual bias
Mizanul Islam then argued that §6(6) of the ICT Act of 1973 is not applicable here because it provides only that “The Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it,” because the resignation of the Chairman was on the basis of clear evidence of bias and misconduct and cannot be considered a “mere change.”
The Defense also submitted arguments in response to the prosecution’s written reply to the application for retrial. They argued that the prosecution has accused them of bringing the application for retrial with malafide intension to hinder the trial processes but that the evidence of conspiracy between the Chairman, the Prosecution, and Dr. Ziauddin clearly provide the grounds for their application.
At this point the prosecution objected to some of Mr. Islam’s commentary and stated that he should follow Mr. Razzaq’s (the Chief Defense Counsel) example of submission and learn decorum. Mr. Islam responded that he was not interested in learning decorum from individuals who are implicated in the conspiracy at hand. He cited the Supreme Court ruling in 48 DLR (AD) 171 where they defined the meaning of “complete justice.”
Response of Prosecution as Submitted by Attorney General Mahbubey Alam
Attorney General Mahbubey Alam prayed before the Tribunal to dismiss the petition filed by the Defence seeking re-trial.
Right to Privacy Protects the Skype Conversations
Attorney General Mahbubey Alam argued that the Tribunal should not take into consideration the alleged skype conversations and e-mails as they are prohibited under law and were illegally obtained by hacking. He noted that the personal communications between two individuals are protected under Article 43(b) of the Constitution, the Information and Communication Act of 2006 which criminalizes hacking, and by the Order issued by Tribunal 2 prohibiting the republication of the skype and email conversations between the former Chairman and Dr. Ziauddin.
He countered the Defense argument that the right to privacy must be weighed against public interest in the disclosure of the information by stating that the Defense had relied on Indian caselaw but that the Indian Constitution does not contain a similar provision to that in Article 43(b).
In discussing the Information and Communication Act of 2006, the Attorney General attempted to prove that the alleged skype conversation and e-mails were actually hacked. He argued that the creator of a document or communication must have control over that document in order for it to be attributed to him. But here, because the skype and email accounts of the former Chairman were hacked, neither he nor Ahmed Ziauddin had control over the contents of the conversations and they cannot be attributed to them. He produced a report by the Daily Jonokhontho dated December 24, 2012 as evidence to show how many editors in United Kingdom went to jail just for hacking.
Conversations between the former Chairman and Dr. Ziauddin do not violate ICT Act of 1973
Additionally, he stated that under 11(1)(d) and 11(6) of the ICT Act of 1973 the former Chairman Nizamul Huq’s actions in conversing with Dr. Ziauddin were allowed as an administrative arrangement considered necessary for the performance of the functions of the Tribunal. Therefore he stated that the former Chairman did not violate his oath of office.
Attorney General argued that ICT Act 1973 is a protected law and Article 47A of the Constitution gave protection for this law. In support of his argument he referred some sections of this act and some writ petition and argued that several writ petition were filed challenging the Constitutionality of this act but none of them was successful due to its protective nature.
Defense counsel objected to this line of argument, stating that it was irrelevant and not related to their application for retrial.
The Attorney General submitted that the trial cannot be in any way be started afresh just because of alleged skype conversations. He argued that there is no reason to find that the trials had been vitiated. He argued that by virtue of section 6(4), 6(6) and 6(8) of the ICT Act there is no problem with a new judge sitting in place of another judge and giving judgment based on the record. Therefore he argued the trial must continue.
Prosecutors may act as Investigators
Regarding the allegations of collusion that have been lodged against Prosecutor Zead-al-Malum, the Attorney General argued that by virtue of section 8(2) of the ICT Act 1973 a prosecutor can act as an Investigation Officer. Attorney General said that 10(1)(e)- providing that the defense may cross examine all prosecution witnesses, and 10(1)(f) – providing that the defense may present witnesses who can be cross-examined by the prosecution, are the main criteria of fair trial. He argued that fair trial has been ensured in these trials as per 10(1)(e) and 10(1)(f), and therefore the question of re-trial does not arise.
The Attorney General continued his argument by differentiating between “trial” and “proceedings” and argued that even if something was sent by Ahmed Ziauddin it would not affect the trial.
Defense Should not Benefit from Illegally Obtained Evidence
He cited a Bangladeshi legal principle where the well-know maxim ‘No one take advantage from their own wrong’ was applied. He argued that the Defense cannot be allowed to benefit from illegally obtained documents. Additionally, the Attorney General reasoned that the skyped conversations are not determinative of the trial. The outcome of the trial willb e based on 1) the Charge Framing Order 2) documents and testimony presented by the Prosecution and 3) documents and testimony presented by the Defense. Because there are three judges on every bench the conduct of one cannot disqualify the input of the other two independent judges. Additionally, the Attorney General stated that the former Chairman is no longer a sitting judge in the tribunal and therefore cannot affect the outcome of the trials. He stated that the accused are being tried on charges of crimes against humanity during the Liberation War and the only matter that can determine their guilt or innocence is the evidence produced against them. He argued that the alleged conversation did not affect the trial in any way and that furthermore there is no provision of re-trial in this act.
Attorney General said that the interpretation of the word ‘merely’ by the Defence is not correct in their interpretation of §6(6) and that the resignation of the Chairman does indeed constitute a “mere change” in the membership of the tribunal. Regarding cases cited by the Defense, the Attorney General said the cases dealt with different issues and are distinguished from the matter at hand and therefore not applicable. He further argued that under this act there is no mandatory provision for Indictment Order and that the intention of the Defence is malafide and designed to delay and hamper the trial process. He alleged that the Defence did not raise any objection when they first came to know about the alleged skype conversation, and are only using it to frustrate the judicial process.