Today the Tribunal heard matters in the following cases:
- Chief Prosecutor vs Delwar Hossain Sayedee: Response to Yesterday’s Applications (Accused Present in Court)
- Chief Prosecutor vs Salauddin Quader Chowdhury: Contempt Proceedings against Defense Counsel, Hearing of Application for Removal of Prosecutor (Accused Present in Court)
- Chief Prosecutor vs Golam Azam: Defence Case-in-Chief (Accused Not Present)
In the Sayedee case the Tribunal rejected the six applications filed by the Defense yesterday, January 13. The Tribunal stated that it had already given orders pertaining to the issues raised and that it would be redundant to deal with them again.
In the Chowdhury case, the court issued an order to show cause for contempt against Defense counsel Fakhrul Islam. The Tribunal also rejected an application from Defense counsel Ahsanul Huq Hena requesting the adjournment of the tribunal until the contempt proceedings against foreign lawyer Dr. Ziauddin (implicated in the Skype controversy) had been disposed of.
The Tribunal heard joint arguments from the defense for Chowdhury and Golam Azam in favor of their application to remove lead Prosecutor Zead al-Malum.
The Tribunal then heard arguments from the Golam Azam Defense team in favor of their application to allow the skype conversations and emails between the former Chairman Nizamul Hoque and foreign lawyer Dr. Ahmed Ziauddin to be exhibited before the court.
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Chief Prosecutor vs. Sayedee
Today the Tribunal issued orders in response to the six applications filed yesterday, January 13, 2013, on behalf of Sayedee. The Tribunal rejected all of these applications. It issued an Order stating that Tribunal has already issued orders regarding these issues and therefore there is no need to explore the applications further.
Thereafter, Mizanul Islam submitted that among the applications was one regarding inspection of the summons process for witnesses and another application was to recall the Investigation Officer for further cross-examination about some documents. He noted that these were new applications that had not been disposed of earlier.
Chief Prosecutor vs Salauddin Quader Chowdhury
Contempt Proceedings Against Defense Counsel Fakhrul Islam
The Tribunal passed an order against Defense counsel Fakhrul Islam, requiring him to show cause as to why contempt proceedings should not be brought against him. The order stemmed from an application that Fakhrul Islam and fellow Defense counsel Ahsanul Huq Hena had filed on behalf of Chowdhury on December 30, 2012. The application sought an order clarifying that the current judges of Tribunal 1 were not party to any of the alleged skype conversations that took place between the former Chairman and foreign lawyer Dr. Ahmed Ziauddin. On January 3, 2013 to avoid contempt proceedings Ahsanul Huq Hena, Defence counsel of Salauddin Quader Chowdhury prayed to consider them as ‘not pressed’ and offered unconditional apology.
Today’s order asked Fakhrul Islam to reply within three weeks as to why he should not be held in contempt. It further stated that Fakhrul Islam the application filed by Fakhrul did not cite any relevant law as the basis of the complaint. The Tribunal questioned whether a defense counsel has any right to ask the Tribunal to clarify the position of its judges or their independence. The order stated that the Defense application was filed with malafide intent and is considered clear interference with the Tribunal’s proceedings. The Tibunal fixed February 6, 2013 for hearing the matter.
Application for Adjournment Until Disposal of Contempt Proceedings Against Ziauddin in Tribunal 2
Ahsanul Huq Hena, defense counsel for Chowdhury, filed an application to adjourn the case until Tribunal 2 disposes pending contempt proceedings against Dr. Ahmed Ziauddin. Tribunal 2 has issued a show-cause notice against Ziauddin, requiring him to explain why he should not be held in contempt for making derogatory comments about tribunal and interfering in its judicial function. The Tribunal summarily rejected this application saying that the ground mentioned in the application cannot be a ground of adjournment.
Chowdury and Gholam Azam
Application for Removal of Prosecutor Zead-al-Malum
The Tribunal heard arguments regarding two applications filed (on December 19) by Defense Counsel for Salauddin Quader Chowdhury and Gholam Azam requesting the removal of conducting Prosecutor Zead-al-Malum because of his alleged involvement in the skype controversy. The Tribunal decided to hear both the applications jointly.
Defense counsel Fakhrul Islam, on behalf of Chowdhury, alleged that conducting Prosecutor Zead-al-Malum trained, tutored, and tempered the prosecution witnesses and interfered with the Tribunal’s proceedings. He further submitted that the Tribunal, Prosecution and Ahmed Ziauddin were acting in collusion. Referring to the alleged skype conversations between the former Chairman and Ziauddin, the Defense submitted that there was evidence of collusion and that Prosecutor Malum had breached the Bangladesh Bar Council Code of Conduct.
In reply to this application the Prosecution submitted a written objection. Fakhrul Islam asked who had filed the objection as there was no signature on the document. The Defense argued that in the written objection Prosecutor Zead-al-Malum did not deny that he was involved in the collusion. He further submitted that Zead-al-Malum was attempting to justify the conduct of the former Chairman by relying on the Information and Telecommunications Act of 2006 and the Right to Privacy rather than addressing his actions.
Fakhrul Islam submitted that under section 19(3) the Tribunal shall not require proof of facts of common knowledge but shall take judicial notice of them. He argued that the alleged skype conversation is in the public domain and within the common knowledge of public and as such is something of which the Tribunal should take judicial notice. He further argued that while a ruling was issued against the newspaper Amar Desh and its acting editor, Mahmudur Rahman, for publishing the alleged skype conversations, the ruling was stayed by an Appellate Division Chamber Judge.
The Defense argued that the Prosecution mentioned in its written objection that alleged skype conversations and e-mails were obtained by illegal hacking and therefore are inadmissible documents. However, Fakhrul argued that the Prosecution failed to produce any evidence supporting their claim that the skype conversations and e-mails were obtained by hacking. He noted that no one had denied leaking the skype and e-mail conversations.
The Defense additionally highlighted that an order issued by the former Chairman demanding that the Economist show-cause for possible contempt has still not been disposed of. They argued that in that order, dated 6 December 2012, the former Chairman clearly admitted that he had conversations with an international law expert, namely Dr. Ahmed Ziauddin. Fakhrul noted that Tribunal-2 had also acknowledged the conversations when, on January 3, 2013, it issued a suo moto rule against Ziauddin stating that his comments in the Skype conversations maligned the independence of the Tribunal and constituted gross contempt.
Defense counsel Ahsanul Huq Hena made further submissions, arguing that no one denied the reality of the Skype conversations and that Ziauddin had admitted to his role and even expressed his wish to continue providing such input. He argued that even the Ghatok Dalal Nirmul Committee, a group campaigning for the punishment of war criminals, had described Ziauddin’s actions as misconduct.
Hena submitted that the order of Tribunal-2 issued against Ziauddin is not binding upon this Tribunal, but should be given persuasive value as coming from a court of equal jurisdiction. He stated that the conduct of Zead-al-Malum violated fair trial standards. He submitted that that under 6(2)(A) of ICT Act the Tribunal should be independent in the exercise of its judicial functions and must ensure fair trial. He argued that if the conducting Prosecutor Zead-al-Malum remained as a Prosecutor, fair trial could not be ensured. As an example of a double standard between the defense and the prosecution, Hena stated that the Prosecutor always objects to any reference to the CrPC (Criminal Procedure Code), Evidence Act, or Article of Constitution – as these are expressly excluded under section 23 of the ICT Act 1973. However, the Attorney General himself has made such references before the tribunal.
Hena stated that the legal maxim ‘Justice must not only be done but must be seen to be done’ must be followed in this case. He alleged that Ziauddin frequently referred to “we five” in the skype conversations and that the five were Ziauddin himself, the former Chairman, Prosecutor Zead-al-Malum and two others who remain unknown. Hena cited 38 DLR, 31 DLR and the Pakistan Criminal Law Journal in support of his arguments for al-Malum’s removal.
The Attorney General submitted a reply on behalf of Prosecutor Zead-al-Malum. He said that Zead-al-Malum was not a party to the alleged skype conversations and that the Tribunal will continue its proceedings based on formal charges as originally submitted. He said that the Daily Azad and Shongram published reports of the activities of Gholam Azam during Liberation War in 1971. He argued that the Trial is based on such historic documents, not on anything created Zead-ai-Malum. Therefore he argued, the application against Prosecutor Zead-al-Malum should be rejected.
The Attorney General concluded by stating that if the Tribunal thinks that Prosecutor is obstructing or interfering in the Tribunal’s proceedings then action can be brought against him like any other under section 11(4). He further claimed that the Defense is filing applications with the sole purpose of obstructing the Tribunal’s proceedings. He requested the Tribunal to impose heavy fines for such behavior.
Chief Prosecutor vs Gholam Azam
Today the tribunal heard arguments for the Defense’s application to submit the alleged skype conversations as exhibits. The application was originally filed January 10, 2013. Defense Counsel Mizanul Islam said that on December 6, 2012, the former Chairman directed the Economist not to publish any information gathered from the skype conversations and e-mails between himself and Ziauddin. Tribunal 2 issued an order on December 13, 2012 prohibiting anyone from publishing or broadcasting anything related to the alleged skype conversations and e-mails. However, he noted that a Ruling from the High Court against Amar Desh for publication of the conversations was stayed by the Appealate Division Chamber Judge.
Mizanul Islam argued that in referring to the Skype conversations the Defense is relying on the reports published in Amar Desh on the 9th,10th,11th,12th and 13th of December, and that at that time there was no ban on publication. He argued that therefore they should be allowed to submit the documents as exhibits. Mizanul Islam reiterated that Ziauddin had admitted to his participation in the skype conversations, thereby confirming their authenticity. He argued that the skype conversations must have been recorded by someone close to the Prosecutor, not hacked, as the Prosecution had failed to produce any evidence to prove hacking.
In reply Prosecutor Zead-al-Malum argued that following section 9(5) of the ICT Act 1973, the Defense can not submit any documents at this stage. He further submitted that Tribunal gave an order regarding the alleged skype conversation on January 3, 2013 – describing these materials as the product of an illegal act and that therefore they should not be allowed to submit these documents as additional documents. He reiterated that the alleged skype conversations are not related to the Charge Framing Order or the basis of the case.
In reply, the Defense said that evidence obtained illegally is not automatically inadmissible and cited Moudud Ahmed vs State 48 DLR (1996); and Kuruma vs Queen, Law Report (1955) AC 197 (PC). They argued that the skype conversations are in fact related to the Charge Framing Order as they provide evidence of outside interference in the drafting of the order. He further alleged that there was clear collusion between the former Chairman, Prosecutors and Ahmed Ziauddin.
Defence Counsel Tanvir Ahmed Al-Amin then read out the application. The application stated that the alleged skype conversations demonstrate a nexus between the Tribunal, Ahmed Ziauddin and the Prosecution. The application further alleged that the skype conversation between the former Chairman and Ahmed Ziauddin on September 12, 2012 – which was reported in the Daily Amar Desh – implicates Prosecutor Zead-al-Malum in improper conduct.
To show the seriousness of the Prosecutor’s improper conduct, the application cited an article published on the Economist’s website on December 12, 2012, where the author stated that the skype conversations and e-mails raise profound questions about the fairness of the trial. As an example of improper conduct, the article referenced an email dated 8 November 2011 which was mailed by Ziauddin to the former Chairman and Zead-al-Malum at the same time. The article also referred to an email dated 11 December 2011 sent by Ziauddin to Zead-al-Malum providing help with the case against Gholam Azam and suggestion of how to present their arguments.
The Defence further alleged in their application that the former Chairman had regular meetings with the Prosecutor Zead-al-Malum, during which they made decisions regarding the filing of petitions and passing of orders. The Defense claimed that subsequent to a conversation dated 6 October 2012 between former Chairman and Prosecution, the Prosecution filed an application and the Tribunal heard this application – issuing an order on 9 October. The Defense cited several other specific skype conversations as evidence of further collusion.
The Defense Counsel for Gholam Azam requested that the Tribunal provide a remedy under Rule 46(A) of the Tribunal’s Rules of Procedure 2010. Rule 46(A) states that the Tribunal has inherent power to make such orders as may be necessary to meet the ends of justice or to prevent abuse of process.
The Prosecution submitted a written objection regarding this application. While Mizanul Islam was giving reply of this objection he said that the Prosecution alleged that re-trial application was filed to delay the proceedings of the Tribunal. He said that Prosecution stated that there is no provision in the ICT Act 1973 to sack Prosecutor, but questioned whether that implies that the Prosecutor will hold his position for his lifetime. The Defense noted that in the Prosecution’s written objection the Prosecution claims that Zead-al-Malum performed his duty with honesty, dignity and good conscience. The Defense expressed doubts regarding such claims and alleged that Prosecutor Zead-al-Malum breached the Bar Council’s Code of Conduct by meeting with the former Chairman while he was an active judge on a pending case and talked with him about the Tribunal’s proceedings without the presence of Defense. Mizanul Islam requested that the Tribunal suspend Zead al-Malum or impose a bar against him entering the Tribunal.