31 December 2012: Detailed Summary of Retrial Arguments

4 Items were scheduled for hearing:
1.Chief Prosecutor vs Motiur Rahman Nizami 
– for hearing application and Prosecution Witness
2. Chief Prosecutor vs. Delawar Hossain Sayedee – for hearing application
3. Chief Prosecutor vs. Golam Azam – for further hearing of applications and arguments
[NOTE: It appears that as with many of the arguments made for  and against retrial in the Sayedee and Golam Azam cases, the arguments made today in the Sayedee case are also applicable to the Golam Azam case]
4. Chief Prosecutor vs Salauddin Quader Chowdhury
– for in-camera hearing of Prosecution Witness                                     

Chief Prosecutor vs. Nizami
Submissions on Behalf of the Defense in the case of Nizami
Chief Defense Counsel Abdur Razaq requested permission to respond on the legal points of the application tomorrow.

Bar Council Vice Chairman Khandakar Mahbub Hossain placed his argument on behalf of Nizami.

Retrial Necessary Because Charge Framing Order is Void Ab Initio
He alleged that the Indictment Order was not the product of the judicial mind because it was in fact generated by a non-court official, Dr. Ahmed Ziauddin. He stated that other two judges signed the Indictment Order based on their faith in the former Chairman’s independence. He argued that the ICT Act of 1973 does not prevent the Charges from being amended or altered at any time of the trial, even at the end of the trial. He added that in the given situation it was not adequate for the Tribunal to merely call all the witnesses again. He stated that because the former Chairman was not independent and the Charges were not framed independently, the entire proceeding must be considred void ab initio.

Chairman’s Resignation and Replacement are not “Mere Changes” Under §6(6)
Mahbub Hossain argued that §6(6) of the ICT Act does not apply here because the Chairman’s resignation was not a mere change of members of the bench. He argued the Chairman’s behavior was an “unholy act” that required an entirely new trial in order to uphold the image of the judiciary.

Skype Conversations and Emails are Reliable Evidence of Malafide Intent
Mahbub Hossain countered the argument presented by the Attorney General that the emails and Skype communications could not be trusted because they could have been manipulated. He requested that all the Skype recordings be played and all the emails shown stating that these easily prove that the former Chairman, a senior judge, was acting with malafide intention.

The Bar Council Vice Chairman further warned that Dr. Ziauddin is being treated as a scape-goat when in fact the entire machinery of the tribunal has been flawed by political will and the desire for vengeance.

Mahbub Hossain also commented that while there may be reservations about Jamaat-e-Islami, they are a legally established political party in Bangladesh, and their leaders cannot be unfairly treated. The Attorney General should not act for any particular political party, but instead on behalf of justice for the whole of Bangladesh. His support of the former chairman in this case is unacceptable.

In conclusion Mahbub Hossain stated that in 20 or 30 years the next generation will evaluate the conduct of the tribunal and that it is our duty to act in such a way that that generation can feel pride in our actions. The Attorney General should show that he stands for justice, not for any political party. No trial can stand on a charge drafted by Dr. Ziauddin because he is not a judge. The prosecution should have nothing to fear from framing new charges, it is merely a question of time. The seizure list of witnesses (formal witnesses) does not need to be recalled, only the factual witnesses should be recalled. But here where the charge is defetive the trial will also be defective.

Reply by the Prosecution
In reply, the Attorney General attacked the credibility and neutrality of the Bar Council Vice Charman, stating that Mahbub Hossain was a prosecutor in the cases against the collaborators of the Pakistani Army during Liberation War but now stood up on behalf of the accused. He stated that this position is self-contradictory and a conflict of interest. Mahbub Hossain said in answer that there is a huge difference between collaborators under Collaborators Act and war criminals under International Crimes Tribunal Act 1973. Mahbub Hossain said that Golam Azam, Nizami and Sayedee were not accused under Collaborators Act.

The AG also argued that the retrial applications were submitted only to delay the tribunal. Further he argued that under the ICT Act there was no requirement that the charges be framed. The formal charge as submitted by the prosecution provides a sufficient basis for the trial. So even if the charge framing order was corrupted there would be no defect in the trial as long as the formal charge is presented. Here there is no allegation that the formal charge was corrupted.

Here, even though the tribunal may have the power to order a retrial the circumstances are not appropriate for such an order. The AG again stated that under §11(1)(d) of the ICT Act of 1973 the tribunal has the power to appoint anyone and designate any job to that person in conjunction with the administration and effective functioning of the tribunal. If any advice was given by Dr. Ziauddin then it was the property of the tribunal and could be relied on by the judges without any harm to the trial.

Chief Prosecutor vs. Sayedee
The Charge Framing Order was not Substantially Altered and the Defense was not Prejudiced
Haider Ali noted that Dr. Ziauddin had not substantively changed the Charge Framing Order. He cited to paragraph 27 of the Retrial Application stating that Dr. Ziauddin in fact only changed “other inhuman acts” to “persecution” under one of the charges. This change cannot be used as grounds to vitiate the Charge Framing Order.

Haider Ali then argued that the Accused could not have been prejudiced, noting that several days of adjournment were provided at the time of the framing of the charges – specifically August 10, 18, 23, and 24th; September 4, 13, 20, 21, 25, and 27th; and October 3 and 30th of 2011. Additionally, Haider Ali then listed the benefits that were given to the Accused in order to ensure fair trial:

  • Allowed to recall Prosecution Witnesses 1 and 6
  • Accused was provided with a health friendly vehicle
  • Medical treatment was provided in jail custody
  • Court room computer monitors have been installed to allow the defense and the accused to see what is recorded into evidence
  • The Defense cannot show a single order proving that they have been prejudiced
  • They have been provided sufficient time to cross examine prosecution witnesses

Haider Ali stated that the Victims of 1971 deserve justice and the tribunal has done everything possible to provide fair trial to the accused. Furthermore he stated that a de novo retrial is not permitted by law as this provision was repealed in 1978 by an order that amended Criminal law.

Skype Conversations and Emails cannot be Relied On because they are not Verified
Haider Ali then again noted that after “hacking” the owner of the email no longer has control over his own e-mail and so those documents are not verifiable under the Information and Technology Act of 2006. Therefore these conversations cannot be relied on to reach a decision. Haider Ali then stated that the Defense has admitted that these documents are “stolen” documents. Defense counsel objected to this and Haider Ali withdrew that claim. He then stated that the Skype conversations were a mere discussion between friends and did not concern the trials.

The Tribunal adjourned for lunch from 1pm to 2pm

There is no Provision for Retrial
Haider Ali continued his arguments. He stated that the ICT Act of 1973 does not provide the scope for retrial. There is no requirement that all judges sit every day and even one judge is sufficient for proceedings to continue. Therefore the resignation of the chairman should not have any effect on the trial. Additionally the ICT Act has no provision requiring that there be a Charge Framing Order. Therefore even without that document the trial may proceed based on the formal charges submitted by the Prosecution. Additionally, all orders subsequent to the Charge Framing Order have been passed as per law.  And even if the former Chairman did converse with Dr. Ziauddin he has resigned and can no longer affect the trial process. Finally, 28 prosecution witnesses and 17 defense witnesses have provided their testimony and been legally examined and cross examined. The trial should proceed from where the trial stopped.

Reply from Defense Attorney Mizanul Islam
The Defense replied and stated that the Attorney General had admitted that the accused is to be allowed the charges against him under section 17(1) and that retrial is allowed in special circumstances.

While Hacking is Illegal, Evidence Obtained by Hacking is Still Admissible
Mizanul Islam countered the prosecution’s reliance on the Information and Technology Act of 2006 Act, arguing that under that act the proper authority to complain to about hacked material is the Regulator/Controller. Here the prosecution made no application to that authority to prevent the publication of these communications. He argued that the ICT-2’s passage of an injunction against the publication of those materials was improper because they were not the designated authority. The Chairman (who was the Chairman of Tribunal 2 at the time the injunction was passed) argued against Mizanul Islam said that the role of the Controller does not take away from the power of the Tribunal to pass any necessary order. Mizanul Islam stated that the aggrieved persons were not give any chance to defend themselves and were not put on notice regarding the passing of that order. Furthermore, Mizanul Islam argued that while hacking may be an offense under the 2006 act the use of hacked materials is not there. §19(1) of the ICT Act allows the admission of news paper reports. The news paper clippings of the Daily Amar Desha and the Economist therefore should be admitted and considered in rendering a decision on the retrial applications. Mizanul Islam argued that section 19 of the ICT Act 1973 did not impose any restriction preventing the tribunal from acting where it believed it necessary in the interest of justice and here retrial is necessary.

The Tribunal cannot exercise power under §11(1)(d) Secretly
Additionally, he argued that even if the Tribunal had the power under section 11(1)(d) of the ICT Act 1973 to appoint someone like Dr. Ziauddin to provide advice to the tribunal, it could not do so secretly. He further argued that the change would be mere if former Chairman Justice Nizamul Huq contact with Ziauddin occasionally. He alleged that former Chairman sent Ziauddin the Sayedee case Charge Framing Order with 22 proposed charges for correction and confirmation and Ziauddin limited it to 20 charges and returned it to the former Chairman.

The Defense has been Prejudiced by the Interactions between the Former Chairman and Dr. Ziauddin
Mizanul Islam additionally talked about some irregularities that occurred as a result of the communication between the former Chairman and Dr. Ziauddin. He alleged that the Defense was not given the opportunity to cross-examine more than 200 of the 276 prosecution exhibits. He alleged that Tribunal did not issue summons for some of the Defence witnesses despite the provisions under 11(1)(a) allowing them to do so and stated that because of this limitation the Defence was unable to present them as witnesses. He stated that the Skype conversations showed that the former Chairman and Dr. Ziauddin discussed that the Investigation Officer should be advised to provide evasive replies during the cross examination and that the former Chiarman should guide the rest of the testimony. Additionally, Mizanul Islam argued that while the prosecution was allowed to present its case for more than 9 months, the defense was given only one and a half months.

Mizanul Islam concluded that the only remedy for the unfair manner in which the trial has proceeded thus far was to order a retrial after fresh investigation.

The  court then adjourned for the day.

Chief Prosecutor vs. Salauddin Qader Chowdhury
The Tribunal granted an adjournment until tomorrow at the request of the defense.