Monthly Archives: January 2013

3 Jan 2013: Kamaruzzaman Retrial Application Hearing

Chief of Prosecution vs. Kamaruzzaman
Tribunal 2 heard the Defense’s application to recall the order taking cognizance of the charges against Kamaruzzaman and to order a full and complete retrial by a new and reformed bench. The Defense’s arguments focused on the following issues:

  • Issue of bias, breach of natural justice, and the necessity of retrial following the Skype controversy.
  • Public opinion and perception of judicial fairness, independence and neutrality of ICT-2 is an essential aspect of fair trial.
  • Doctrine of procedural bias and its relevance to the instant case.
  • Admissibility of evidence obtained through impropriety or illegality.
  • Contempt proceedings issued against Dr. Ziauddin for attempting to obstruct the independent proceedings of the Court.

Key Arguments of the Defense

Perceived Bias Jeopardizes Fair Trial
The Defense asserted that the present bench of Tribunal 2, with the presence of Judge Shahinul Islam, should not try the instant case and there should be a complete retrial based on the perception that he may have been influenced while working in close proximity with the former chairman of ICT-1 Mr Justice Mohammad Nizamul Haque, who resigned following the Skype controversy. The Defense did not allege that actual bias was present, but focused on the importance of perceived neutrality and independence on the part of the judiciary in order to insure fair trial. The Defense stated that even if the record of the Skype conversations was illegally obtained or the contents are untrue (though they noted there has been no such allegation), the public confidence on all associated with the instant benches of ICT has been adversely affected, requiring a retrial to uphold the legitimacy of the entire trial. They cited the judicial maxim “justice need not only be done but be seen to be done”. In the event that the judiciary or a particular trial is perceived to involve bias or breach of natural justice, The Defense argued there should be rearrangement in the Bench. The Defense drew an analogy to the case Re Pinochet (1999) HL, involving the trial of Senator Pinochet who was the head of State of Chile from 1973 until 1990 for various crimes against humanity. In this case, the House of Lords unanimously opined that there was a real danger or reasonable apprehension or suspicion that the  presence of Lord Hoffmann sitting in judgment could give rise to the appearance of bias because his wife worked for Amnesty International and he served as a Chairman for the organization and the organization had intervened and effectively become a party to the litigation. Counsel for Senator Pinochet submitted that such links gave rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that Lord Hoffmann might have been biased. Giving importance to the possibility of such perception, their Lordships held that it was appropriate to direct a re-hearing of the appeal before an entirely different committee that shall neither include Lord Hoffmann nor the others who had already expressed their conclusion of the points at issue.

Reply by the Prosecution
The prosecution argues that the Skype conversations are material obtained through hacking, which in itself is a crime, and therefore should be considered inadmissible.

Secondly, the Prosecution alleged that the focus on the Skype conversations and their initial leak is a part of a plot to attack the sanctity of the tribunal and disrupt the proceedings. They urged the Tribunal not to allow any such interference, implying that they should deny applications for retrial based on the skype controversy. The Prosecution noted that one of its own members (Prosecutor Saiful Islam) was also referred to in the Skype conversation and that the Prosecution Counsel will soon take appropriate actions. What kind of action they plan to take was not specified.

Conclusions of Tribunal 2
Having heard the Defense’s application and the reply of the Prosecution, Tribunal 2 stated issued its order. It noted that it is agreed that people’s perception of justice and the tribunal is very important to upholding the reliability of the orders of the tribunal. However, the application for retrial based on the perception of there being bias is not appropriate.

Tribunal 2 rejected the application by stating that it is not maintainable under law as no provision exists  in the rules of procedure for the ICT that allow for an order of retrial. Additionally, the tribunal noted that Judge Shahinul Islam was never a judge at Tribunal 1, he was only the then acting Registrar for the ICT. Therefore the allegation that he could be biased by the actions of the former Chairman of Tribunal 1 are unfounded. Furthermore, the Skype conversations, if at all true, reflect the dislike of the former Chairman and Dr. Ziauddin towards Judge Shahinul Islam, which further exemplifies that he was not a part of any bias or collusion etc. Finally, the decision to take cognizance of the charges against Kamaruzzaman was not taken by the single former chairman of ICT-1, but by the entire bench upon consultation with each other. This decision is based on the presentation of evidence and formal charges by the Prosecution and was not influenced by bias. Therefore the application for retrial based on alleged bias is without merit and must be rejected.

Notes Regarding the Demeanor of the Court
The Defense Counsel expressed discomfort in presenting the application and making submissions alleging biasness. Proceedings were polite and apologetic.

The judges agreed on the general point of the public’s negative impression on the role of the tribunals following the Skype controversy, but the Tribunal was firm in denying the possibility of any actual bias whatsoever or finding any legal basis for such an allegation.

3 Jan 2013: Cross-Examination of PW 11 in Mujahid Case

Chief of Prosecution vs. Mujahid
The Defense conducted the cross examination of Mr Foyez Uddin Ahmad, Prosecution Witness 11. The 82 year old witness had previously testified against Mujahid, providing testimony supporting  Charge 2 for abetting and substantially contributing to the actual commission of offense of persecution as crime against humanity and genocide. He stated that Mujahid was the leader of Islami Chatra Sangha and subsequently became the head of Al-Badar Bahini. The witness alleged that Mujahid, accompanied by one Hammad Moulana, 8-10 non-Bengalees, and a Mr. Ishaque went along with the Pakistani Army and launched an attack directed against Hindu populated villages such as Baidyadangi, Majhidangi, and Baladangi. The charge further alleges that they killed 50 to 60 Hindus by gun fire and by setting fire to their houses, and that they carried out these actions with the intent to persecute and destroy the Hindu Community.

The Defense focused its cross-examination on questions designed to challenge the reliability of the identification evidence and undermine the credibility of the witness, leading to an inference that he could not have identified the accused to be connected with the alleged charges because he did not know him during the liberation war.

  • The witness was asked during his cross-examination about his school, Yasin Muslim Hight School, Tepakhola (presently named as Government Yasin College) and about the Head Masters / Principals thereof during different regimes.
  • The Defense asked about the presence of Razakaars in the witness’ locality during the liberation war. He commented that his areas of Dicrichor, Chor Horiram and Gazirtech had none.
  • The witness was asked about the number of areas in Faridpur city named “Komlapur”and answered that there were three, namely, Komlapur, Kuthibari Komlapur and Chorkomlapur.
  • He was asked about the character of Mr Maolana Abdul Ali, the father of the accused, and testified to the affirmative in regard to his piousness, being an Imam and Islamic scholar, and that he was released upon the instruction of Bangabandhu  Sheikh Mujibur Rahman following the arrest in the post-liberation period.
  • He stated that he was not aware about the number of children Maolana Ali had, their education details and that he did not personally know the accused Mr Mujahid at all. He remembers seeing him only once, in the local Sadar Hospital, but admitted that he saw him only from the back side.

3 January 2013: ICT 1 Details of Rejection of Retrial Application in Sayedee, Golam Azam and Nizami

The Tribunal read out its order rejecting the application for retrial in the case of Golam Azam. It stated that the order also applied to the cases of Sayedee and Nizami as the facts and legal points of the applications were the same.

The Tribunal began by noting that it had not yet been determined who hacked and illegally recorded the alleged skype  and e-mails conversations, or when and in which country the recording took place. It said that these relevant questions must be resolved first, before taking the substance of the conversations into account. The order further stated that hacking is a crime committed with a malafide intention and that the court cannot rely on evidence that is the product of hacking.

The order further stated that the the Tribunal has taken evidence through public and transparent procedure. The court stated that evidence adduced in the cases is to be evaluated and is the sole basis for arriving at a decision in a given case. The key matter is how far the prosecution has been able to establish its charges. In the process of such evaluation of evidence the alleged skype conversations and e-mail will not prejudice either party.

The order said that there is no express provision to hold re-trial or re-call any order of Tribunal under ICT Act 1973. The order stated that there is a settled principle of law that the inherent power of a court cannot be invoked where there is an express provision in the Act giving a remedy and here they find express provision under section 6(6) of the ICT Act 1973. This provision allows for the bench to be reconstituted as necessary and for a newly seated judge to pass a decision based on the record

The tribunal found no reason to exercise its inherent power under 46(a) of the ICT Act. They stated  that all the orders in these cases have been passed by three judges, not by the chairman alone, and that the majority view has prevailed and is insulated from any possible bias that the Chairman might have held. Tribunal said in its order that the Defence did not produce any document to show that hacked documents are admissible in evidence. The Tribunal said that they learnt from the opinion of an IT expert that skype conversations can be manipulated and therefore concluded that it could not rely on the alleged conversations. Tribunal stated in its order no reliance can be placed upon such hacked documents which are inadmissible in evidence, therefore, the prayer for recalling the Charge Framing Order is rejected and the application for retrial denied.

Tribunal Will Rehear Closing Arguments in the Sayedee Case
The Tribunal did state that uniquely in the Sayedee case it would listen to closing arguments by both the Defense and the Prosecution as the former Chairman had resigned after these arguments and therefore the current Chairman did not hear these arguments. It scheduled the prosecution’s closing arguments for January 13-14 and the Defense for January 15-17.

3 January 2013: Tribunal 2 Daily Summary

Cases heard during session:       
1. Qader Molla –  Hearing of Defense Application for Reconsideration of Denial of Right to Call Additional Witnesses
2. Ali Ahsan Mohammed Mujahid  – Cross-examination of Prosecution Witness #11
3. Muhammad Kamaruzzaman   – Hearing of Application for retrial

  • Qader Molla: Defense counsel requested a later hearing date for the review application filed earlier on behalf of Kader Mullah seeking reconsideration of the tribunal’s decision denying permission to produce additional defense witnesses. This request was immediately denied orally, along with a request for two hours of time to enable the Senior Counsel to appear. The Tribunal required the Defense to make its submissions instantaneously. The Tribunal then rejected the review application reasoning that the ICT rules of procedure contain no provision to allow additional witnesses. Only the Prosecution has the power to call additional witnesses. The Tribunal opined that the Defense’s application was the same as one that had been rejected earlier and that the Defense was attempting to cause delays in the proceeding. The rejection was accompanied by a sanction of 10,000 BDT imposed on the Defense for submitting repetitive applications.
  • Mujahid:  Prosecution witness PW-11, Mr Foyez Uddin Ahmad was cross examined by the defense counsel, whose core line of questioning was aimed at attacking the reliability and credibility of the witness’s testimony, suggesting that the testimony is fabricated upon the coaching by the Prosecution and that he neither knew the accused, nor was he capable of recognizing him.
  • Kamaruzzaman: The Court heard at length the application filed on behalf of Muhammad Kamaruzzam to recall the order taking cognizance of charges against him and for a full and complete retrial. The argument for retrial was based on the allegation that the Tribunal has the appearance of being biased due to the leak of the Skype and email conversations between the former Chairman of Tribunal 1 and an outside legal scholar, Dr. Ziauddin of Brussels. The Defense supported their argument that the appearance of bias is grounds for retrial by relying on international precedent.  The court denied the application and firmly stated that there was no such possibility of biasness. The Tribunal further condemned the content of the Skype and email conversations and passed an order suo moto  requiring Dr. Ziaduddin to explain, within 30 days from the receipt of this order, why contempt proceedings shall not be brought against him for his Skype conversations with the former chairman of ICT-1.  Prosecution witness PW-16 who was present expressed his inability to give testimony on that day due to his sudden illness.

2 January 2013: Tribunal 1 Daily Summary – Court Adjourned

Tribunal 1 was adjourned for the day as the judges considered the applications for retrial submitted by Defendants Sayedee, Nizami and Golam Azam. The court stated on January 1, 2013 that they would issue their order on the matter by January 3, 2013.