15 Jan 2013: ICT 1 Daily Summary – Sayedee,Chowdhury, Gholam Azam, Nizami

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs Gholam Azam (Accused Not Present)
  2. Chief Prosecutor vs Salauddin Qader Chowdhury  (Accused Present)
  3. Chief Prosecutor vs Delwar Hossain Sayedee (Accused Present)
  4. Chief Prosecutor vs Motiur Rahman Nizami  (Accused Not Present)

Today Tribunal 1 passed an order exonerating Sayedee’s Defense Counsel, Tajul Islam, Mizanul Islam and Tanvir Ahmed Al-Amin, from the contempt charge pending against them and withdrew the bar against Tajul Islam’s attendance in Tribunal 1.The Tribunal warned Tajul Islam to maintain the decorum of the Tribunal in future.

The Tribunal rejected an application filed by the Defense counsel on behalf of Gholam Azam on January 10, 2013, seeking to have the alleged skype documents and e-mails admitted as exhibits. The Order stated that in its January 3rd order rejecting the Defense applications for retrial the tribunal had already addressed the issue, stating that those documents are inadmissible as the product of illegal hacking.

On behalf of Chowdhury, Defense counsel Ahsanul Huq Hena continued his submission for removal of the conducting Prosecutor Zead-al-Malum. The Tribunal fixed January 20, 2013 for passing its order on the matter.

The Tribunal began hearing arguments in the Defense’s application for review of their order rejecting their request for retrial. Abdur Razzak completed his arguments on behalf of Gholam Azam, Delwar Hossain Sayedee, and Motiur Rahman Nizami.

For more detail continue reading here:

Chief Prosecutor vs Salauddin Quader Chowdhury
Arguments for the Removal of Prosecutor Zead-al-Malum
Defense counsel Ahsanul Huq Hena continued his submission for the removal of the conducting Prosecutor Zead-al-Malum. On December 19, 2012, Defense counsels for Salauddin Quader Chowdhury filed this application. They submitted that under Rule 44 of International Crimes Tribunal Rules of Procedure, 2010 Tribunal can admit any evidence it deems relevant. The Defense further submitted that under section 19(1) of the ICT Act a Tribunal shall not be bound by technical rules of evidence and may admit any evidence which has probative value. They argued that the alleged skype documents and e-mails need not be proved since these matters are in the common knowledge and may be judicially acknowledged under section 19(3) of the ICT Act.

The Defense emphasized that the Tribunal 1 had acknowledged the skype conversations on 6 December 2012 as part of the former Chairman’s order enjoining the Economist from publishing their content, and that Tribunal 2 took cognizance of them on 3 January 2013. They argued that section 26 of the ICT Act 1973 stated that the provisions of this act shall have effect despite any inconsistency with any other law. Defense counsel submitted that Ziauddin made comments published on bdnews24.com stating that he wished to continue providing similar input in the future. The Defense requested that the Tribunal take action against Prosecutor Zead al-Malum so that he does not continue his misconduct in future.

During the submissions, Defense counsel Hena additionally notified the Tribunal that Shawkat (whose name is referenced in the alleged skype conversation)has his room just beside the Defense room and that the glass that should be above the door separating the two chambers was recently discovered to be missing. The Tribunal said they would direct the court administrative personnel to take proper steps to correct the situation.

Prosecution’s Response
Prosecutor Haider Ali submitted that Prosecutor Zead-al-Malum did not directly participate in the alleged skype conversations. The alleged parties to the conversations (Ahmed Ziauddin and the former Chairman) only talked about him. Haider Ali argued that the Tribunal should not punish al-Malum on the basis of such references alone. Haider Ali further submitted that following section 2, 16 and 17 of the Information and Telecommunication Act 2006 the skype conversations cannot be verified as authentic because they have been outside the control of the creators due to the hacking.

Reply by Defense Counsel for Gholam Azam
In reply Defense counsel Mizanul Islam submitted that section 23 of the ICT Act 1973 stated that Criminal Procedure Code (‘CrPC’) shall not apply in any proceedings under this Act, and that because the Information and Telecommunication Act 2006 is guided by CrPC, it too is not applicable. He requested that the Tribunal suspend or bar Prosecutor Zead-al-Malum from participating in the case of Gholam Azam.

Chief Prosecutor vs Sayedee, Gholam Azam, and Nizami
Request for Review of Order Rejecting Application for Retrial
The Defense submitted arguments requesting review of the Tribunal’s order rejecting the application for retrial. On behalf of Sayedee, Gholam Azam and Nizami, Defense counsel Tanvir Ahmed Al Amin read out the Review application. Thereafter, Senior Defense counsel Abdur Razzak submitted arguments. He submitted that normally the scope of review is narrow and Section 114, Order 47, rule-1 of the Code of Civil Procedure limited it to the error apparent on the face of record. He further submitted that Rule 26(3) of the International Crimes Tribunal Rules of Procedure 2010 made the scope of review wider and stated that the Tribunal may review any of its orders where it is in the interest of justice. He argued that for the interest of justice the January 3, 2013 order rejecting three applications for retrial should be reviewed, as justice had been denied.

Razzaq submitted that the January 3rd Order rejecting the application for retrial described the skype and email documents as hacked documents. The Order raised the question of the identity and location of the alleged hacking but did not provide any resolution. Razzaq submitted that no one has been designated to resolve these questions. He further argued that the skype conversations and e-mails are not actually hacked materials and that the Prosecution failed to provide any evidence of hacking. He alleged that the materials were recorded and revealed by some involved party.

Before describing these documents as illegally hacked documents, Razzaq asserted that it must be established where the alleged recording or hacking took place, and whether such recording was illegal in that country. He referred to the example of Wikileaks and submitted that in Australia hacking was not an offense. In support of his arguments he presented a Media statement from the Australian Federal Police dated 17 December 2010 before the Tribunal. He submitted that if the alleged recording or hacking occured in Bangladesh that, until proceedings are brought under the Information and Telecommunication Act 2006 and proved, it cannot be said that the documents are the product of hacking. He argued that the Tribunal has no jurisdiction to decide the matter of hacking. The Chairman of the Tribunal interjected, stating that on December 6, 2012 the former Chairman had announced that his computer was hacked.

Thereafter, Razzak submitted that theTribunal’s  orders use the word ‘alleged’ before the referring to the skype conversations and emails between the former Chairman and Ziauddin. He argued that the term ‘alleged’ is inappropriate, as the former Chairman admitted to having skype and e-mail communications with Ziauddin in his December 6th order, and that Ziauddin admitted in his press statement published on bdnews24.com on December 19, 2012.

Razzaq presented a copy of Economist to show that it had published a three page report regarding these materials. Razzak compared this report to that published in Amar Desh and argued that Amar Desh published only skype conversations whereas the Economist published an analytical article upon the skype conversations and e-mails. At that stage, Justice Jahangir Hossain interjected, commenting on the headings of the Amar Desh and intention behind these types of headings.

Thereafter, Razzaq talked about the skype conversations and nexus between the former Chairman, Ziauddin and Prosecutor Zead-al-Malum and the alleged influence of Ziauddin over former Chairman and Prosecutor Zead-al-Malum. Razzaq argued that the Defense admitted that there is no express provision in law to hold re-trial and that is why they sought remedy under Rule 46A of the International Crimes Tribunal’s Rules of Procedure. This rule allows the court to pass any order necessary to further the ends of justice or to prevent abuse of the process.

Razzaq then argued that there were incongruencies in the order rejecting the retrial application. In one place the Tribunal stated that the Defense could not produce any document to show that hacked documents are admissible in evidence. However, Razzaq noted that in another place the Order stated that the Defense had referred to a decision where hacked documents were considered as admissible evidence even if obtained illegally. In support of his argument that the documents are admissible he cited to Moudud Ahmed vs State 48 DLR 108 (1996); R.Raja Gopal vs State of TN India 48 DLR 86 (1994); Privy Council decision in Kuruma Son of Kaniu vs Reginam 1955 1 ALL ER PC 237; and Pooran Mal vs Director of Inspection (1973) AIR 1974 SC 348, where illegally obtained evidence was considered as admissible.

Razzaq argued that section 19(1) of the ICT Act 1973 stated that the Tribunal shall not bound by technical rules of evidence and may admit any evidence which it deems to have probative value. He argued that the alleged skype conversations and e-mails have probative value. He said that the Tribunal accepted 16 Prosecution Witness Statements as evidence considering 19(1) and 19(2) and argued that they must accept these materials as well.

Abdur Razzaq read out a decision of Prosecutor vs Radoslav Brdjanin dated October 3, 2003 regarding the admission of illegally obtained evidence, where several transcripts of intercepted telephone conversations were admissible as evidence. Following the discussion of Radoslav, he argued that under English law the judge has discretion to exclude admissible evidence where its prejudicial effect outweighs its probative value. He further stated that the function of the judge is to ensure that the accused has a fair trial. Following the discussion of this case, he argued that in the Defense case there is no prejudicial effect, since, if Tribunal accepts the alleged skype materials and e-mails Prosecution will not be prejudiced. According to Razzaq these materials have probative value and the Tribunal should allow them as part of their responsibility to ensure fair trial. Based on case law Razzaq stated that evidence obtained illegally is not a priori inadmissible, but rather that the manner and surrounding circumstances in which evidence is obtained, as well as its reliability and effect on the integrity of the proceedings, will determine its admissibility.  Razzak submitted that in this case the alleged skype materials and e-mails are fully reliable given both Ziauddin and the former Chairman have accepted their involvement.

Razzaq additionally cited the Prosecutor vs Mico Stansisic and Stojan Zupljanin decision dated 16 December 2009 as support for the admission of the skype documents and e-mails, noting that it is in the interest of preserving the integrity of the Tribunal’s proceedings.

Prosecution’s Reply
Mir Iqbal Hossain gave reply on behalf of the Prosecution. He argued that the Defense’s review application is a repetition of the allegations made in the Retrial application. He submitted that Article 43 of the Constitution ensured the Right to Privacy. He argued that the Economist, Amar Desh, and even Defense Counsel’s arguments violated this right by presenting hacked materials before the Tribunal. (Hearing this senior Defense Counsel Abdur Razzak raised objection and advised him to file a case against him. Thereafter, Mir Iqbal apologized for his argument.) Mir Iqbal submitted that there is a limitation to the court’s right to exercise its inherent power under Rule 46(A) and that there is no scope to review the order. He questioned why the skype and e-mail communications were being used against the Tribunal after the judges had already deemed them inadmissible.