30 December 2012: Tribunal 1 Proceedings Daily Summary

3 Items were scheduled for hearing: (for detailed summary visit here)

  1. Chief Prosecutor vs. Delwar Hossain Sayeedee –  for hearing application: Defense application for retrial
  2. Chief Prosecutor vs. Motiur Rahman Nizami – for hearing application and PW: Defense application for retrial
  3. 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.”

Court Atmosphere
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.