1 January 2013: Detailed Summary Golam Azam, Nizami, and Sayedee

Today the Defense Chief Counsel Abdur Razzaq submitted his response to the arguments of the Attorney General against the applications for retrial in the cases of Golam Azam, Nizami and Sayedee. After making these arguments Barrister Rafiqul Islam Miah made further submissions on behalf of Golam Azam.

Response to the Attorney General’s Submissions in the Cases of Golam Azam, Nizami, and Sayedee
The Skype and Email Communications between the former Chairman and Dr. Ziauddin are not Extraneous
Defense Counsel Abdur argued that the Attorney General was mistaken in arguing that the communications were an extraneous matter that should not be considered as these conversations go to the root of the matter and show that the trial has not been fair. While the AG argued that the formal charge rather than the Charge Framing Order is the crucial document, Razzaq stated that Ziauddin is also responsible for the formal charge. As shown by the Skype and email conversations he sent 7 drafts of the formal charge and the 7th draft was the one that was submitted by the prosecution. Therefore the formal charge is not valid under law and the entire trial process is vitiated.

Additionally, while the Prosecution replied to the application for retrial requesting that it be rejected, they never denied any of the allegations contained in the Defense’s application. None of the conversations via Skype or email have been contested as falsified and the Prosecution has not denied that the formal charge and the Charge Framing Orders were prepared by Dr. Ziauddin. The formal charge and Charge Framing Orders are an act of fraud committed against the tribunal.

Under §11(1)(d) and 11(6) of the ICT Act Dr. Ziauddin could only be appointed for administrative support, not for legal expertise
Regarding Ziauddin’s appointment under 11(1)(d) and 11(6) of the ICT Act 1973 Razzaq said that on December 6, former Chairman admitted that he occasionally talked with an international criminal law expert about international law; which indicates Ziauddin gave him judicial support not administrative support. He further argued that a lawyer cannot imagine or invent a fact.

The Defense is not Benefitting from Its Own Wrongful Act in Submitting the Skype and Email Conversations
In response to the Prosecution’s accusations that the Defense was benefitting from its own wrong act (implying the hacking fo the skype and email conversations) Razzaq said that on December 6, 2012 through the order passed by the former Chairman the Defense came to know about the alleged skype conversations. Later, Amar Desh, the Economist, the Wall Street Journal and other sources published the alleged skype conversations. The defense collected the conversations from these public domain publications and filed applications for re-trial. He argued that they did not delay to file the applications and were not involved with hacking or other violation of the right to privacy. Therefore the skype and email conversations should be admitted and taken into consideration. The maxim ‘No one can take advantage of his own wrong’ does not apply here.

The Right to Privacy should not Bar the Skype and Email Conversations
The Defense countered the Attorney General’s assertion that reliance on Indian case law regarding the right to privacy was misplaced because the Indian Consitution does not have a right such as that guaranteed under Article 43. Razzaq stated that this right has been developed through precedent and is well established but still subject to reasonable exception.

The Defense stated that the injunction issued by Tribunal 2 does not affect the Defense’s application for retrial because it was directed against the publication of the conversations in electronic and print media. Here the application was submitted only before the court.

Furthermore Razzaq argued that the Information and Technology Act of 2006 contains nothing to prevent the Defense from using hacked materials in evidence. Razzaq again referenced the decision of the Privy Counsel and the Bangladesh Supreme Court stating that even where a document is stolen a court may consider it if it is relevant.

Points on Fair Trial:
Razzaq presented six examples of how the former Chairman compromised his independence as evidenced by the Skype and email communications, showing that two ingredients of 6(2A) of the ICT Act 1973 independent exercise of the judicial function and fair trial had been compromised:

  • The formal charge in the Professor Golam Azam case was prepared by Dr. Ziauddin for the prosecution
  • The Charge Framing Orders in the Golam Azam, Nizami and Sayedee cases were prepared by Dr. Ziauddin for the former Chairman
  • The review order on the framing of charges in the Golam Azam case was also drafted by Dr. Ziauddin
  • The orders relating to the transfer and recusal of judges were also drafted by Dr. Ziauddin
  • The application for a summons for two foreign defense witnesses in the Golam Azam case was rejected as per the advice of Dr. Ziauddin
  • The orders limiting the number of defense witnesses to be allowed was passed as per the advice of Dr. Ziauddin

Razzaq stated he felt shame in presenting these examples. The Attorney General objected to the use of the owrd shame. Razzaq said that one should truly feel shame when discussing such conduct. He concluded that the former Chairman had violated the obligation to exercise his judicial function independently and that the skype conversations reveals that he wanted promotion to the appellate division at any cost. All these factors have impacted the tribunals ability to provide a fair trial. Razzaq stated that a retrial should be ordered and that there is no bar against such an order.

Further, the Defense argued that resignation of the former Chairman was not a mere change under §6(6). Former Chairman has committed fraud not only to the Tribunal but also against the judiciary. The Attorney General then objected saying Razzaq was not being respectful to the judges. Razzaq responded that he was respectful but could not ignore the actions of the former Chairman.

Razzaq cited some Privy Council cases, one of them was accepted in 48 DLR, and a case from AIR and prayed the Tribunal to ensure fair trial and do justice [WCSC is attempting to obtain the specific citation for these cases]. Razzaq produced some newspaper to show the concern of entire community and talked about international customary law.

Razzaq stated that under Rule 46A the Tribunal has the power to pass any order in the interest of justice or to prevent abuse of process. Similar power is provided under 561A of the Code of Criminal Procedure and to the civil courts under section 151 of the Code of Civil Procedure.

Justice Jahangir stated that there is a decision of the Appellate division that this power of the Tribunal may not be misused. Razzaq responded that of course the court must be very careful not to disregard that prohibition but here there is no bar against retrial and that it is the proper response given the circumstances.

Secret Appointment of Dr. Ziauddin under §11(1)(d) and (6) of the ICT Act is not Allowed and Dr. Ziauddin was a Biased Influence
Razzaq stated that §11(1)(d) and (6) provide only for the appointment of persons for administrative purposes and that a lawyer cannot be hired to “imagine facts.” There is no letter of appointment or disclosure of Dr. Ziauddin’s salary and so there is no basis on which the Attorney General can say that Dr. Ziauddin was appointed under either of these rules. Rule 41 allows the Tribunal to appoint amicus curie to assist the Tribunal, however they did not use this provision. Furthermore it is clear that the prosecution would have been reluctant to reveal that they and the judge were receiving assistance from someone with a history of advocating against the Accused.

Supplementary Statement: Even though the ICT is a Domestic Court its Decision will be Internationally Reviewed
Razzaq submitted a supplementary statement on behalf of Golam Azam and stated the offenses charged are defined in customary international law. He then noted concern registered from the international community and read from reports from the Wall Street Journal, Foreign Policy, and the September 2011 decision of the UN Working Group on Arbitrary Detention. The Attorney General objected to this submission as new facts.

Statement of Senior Advocate and Barrister Rafiqul Islam on Behalf of Golam Azam, Nizami and Sayedee
Barrister Rafiqul Islam Miah placed his submission before the Tribunal. He argued that the Tribunal’s inherent power under 46A of the International Crimes Tribunal Rules of Procedure 2010 has no limits. There is only one limitation that the Tribunal will not be able to exercise his inherent power where it is not necessary for the ends of justice or to prevent abuse of process. He further argued that ‘justice should not only be done but must be seen to be done’, a legal maxim.

Furthermore, he argued that under §6(2) of the ICT Act the Tribunal must ensure fair trial. He stated that here the prosecution does not deny the contents of the Skype and email communications and the Defense is entitled to use the documents for the basis of its applications.

In reply Attorney General said that the Tribunal is not bound to pass an order for the ends of justice. He further argued that fair trial is the forum of the Appeals Court and should not be addressed by the Tribunal.

While Razzaq was keeping submission Attorney General was trying to say something, observing that Razzaq said him to keep patience. Regarding concern of the international community and international customary law Attorney General argued that Bangladesh is a sovereign country and the concerned of the international community will be considered as interfering into our internal matters.

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