Category Archives: Tribunal 1

27 December 2012, Golam Azam Retrial Arguments

Head of Defense, Abdur Razzaq argued for a retrial in the case of Chief Prosecutor vs. Golam Azam. He made the following key arguments:

  • Regarding the admissibility of the alleged skype conversation, the Defense argued that the public interest in admitting the contents of the skype conversations into evidence outweighed the chairman’s privacy interest.
  • Citing Kuruma Son of Kaniu vs. Reginam (1955 1 ALL ER PC 237); Pooran Mal vs. Director of Inspections (AIR 1974 SC 348); and Moudud Ahmed vs. the State (48 DLR 108), the Defense argued that the alleged skype conversations should not be excluded on the basis that they are the product of illegal hacking because the test is whether or not the evidence is relevant, not what method was used to obtain it. Here they claimed that the alleged skype conversation was collected from a website and that later portions of the conversations were published by the Economist, Wall Street Journal and the Daily Amar Desh.
  • The Defense argued that the alleged skype conversation talked about 22 persons; however, none of them had disputed the truthfulness of its contents.
  • Citing to caselaw [WCSC is currently seeking the citation and will update] the Defense claimed that public officials are not entitled to protection of their privacy when the subject matter is regarding their work and when reasonable verification has been carried out. He argued that Economist carried out reasonable verification before publishing the skype conversations; and were therefore justified in publishing it in United Kingdom despite journalist ethics laws. Razzaq also noted that the Economist had cited the public interest in the matter as justification for their publication.
  • The Defense requested that the court accept the conversations into evidence. He prayed for a recall of the Charge Framing Order arguing that the Tribunal took cognizance of the charges on the basis of formal charges which were procured by fraud. Therefore the Charge Framing Order as it is currently formatted was also procured by fraud and should be recalled.
  • As previously requested by Justice Jahngir, the Defense also analyzed two cases (Taylor vs Lawrance (2002); Gillies vs Secretary of State (2006)(HL) and argued that this case should be distinguished because it is not about bias but about actual collusion.   
  • The Defense argued that the alleged skype conversations are relevant evidence and would not be irrelevant only for its alleged illegal source i.e. hacking.

The Tribunal requested that Attorney General Mahbubey Alam, who is expected to reply on behalf of the prosecution, to give reply after hearing all of the three re-trial applications.

27 December 2012: Sayedee Retrial Arguments

Defense Counsel Mizanul Islam submitted arguments for retrial in the case of Chief Prosecutor vs Delwar Hossain Sayedee. The Tribunal instructed the Defense not to repeat the points that his senior colleague Chief Counsel Abdur Razzaq had already made in the Golam Azam case and suggested he make his points specific to Sayedee’s case.  The Defense presented specific instances supporting their request for a retrial:

  • Mizanul Islam claimed that the Tribunal had not acted independently and took Ahmed Ziauddin’s direction Tribunal to curtail the Defence’s right to know about the particulars of the Prosecution Witnesses by amending rule-18 of ICT Act 1973. The Defense cited an e-mail between the former chairman and Mr. Ziauddin dated November 9, 2012 as evidence. 
  • The Defense additionally stated that the Investigation Officer exhibited 269 document and was given 18 sessions to present his testimony. They alleged that after his testimony and with the direction of Ahmed Ziauddin, former Chairman Hoque limited the timeframe for cross-examination and specified documents that the Defense was not allowed to cross-examine. The Defense alleged that they were not given a written order regarding this restriction. Thus Justice Nizamul Huq with the direction of Ahmed Ziauddin deprived Defense team of their rights.   
  • The Defense further alleged that they were not given 3600 pages documents relied on by the Prosecution. Mizanul Islam added that the Defense was not informed of these documents and were told that they have no right to receive copies of these documents or to file any application to obtain said documents.
  • The Defense also stated that they were not given documents relating to an alleged mass graveyard and they were deprived from their rights under sec 16(2) of the ICT Act 1973.
  • The Defense alleged that Sayedee was deprived from his rights under section 17(1) of the ICT Act 1973. He further alleged that after the Charge Framing Order was read out in court Sayedee was asked to plea guilty or not guilty, but that the statement he made in conjunction with his not builty plea was not kept on record.
  • The Defense allged that their witness Sukhorangon Bali was abducted in front of the Tribunal and that the former chairman Nizamul Huq failed to take appropriate action. Mizanul Islam alleged that if the Chairman wished to look into the matter he should view the CCTV camera footage.
  • The Defense concluded that the skype and email conversations made it clear that the former Chairman carried out his duties with the ultimate goal of self promotion. The Defense noted that the Bar Council Order forbids Judges to meet alone with one of the parties to discuss the case. Both parties must be represented in such meetings and therefore the Prosecution and Judge violated the Bar Council Order.
  • The Defense stated that it is unacceptable that the Investigation Officer provided Investigation Reports and submitted the Formal Charge before completing his investigation .
  • The Defense stated that it had previously submitted an application seeking explanation from the former Chairman of Tribunal-1 as to his ability to serve as the Tribunal’s Chief despite his former involvement as a member of People’s Court, Peoples Inquiry Commission and as a war crimes campaigner; and left the matter to his good conscience. The Defense claimed that a 76 pages draft copy of the order was sent by Ahmed Ziauddin and that the former Chairman Nizamul Huq copied the draft copy and passed the order with some minor changes. In doing so the former Chairman of Tribunal-1 broke his oath of office on November 28, 2011 by passing the order when the order had come from Brussels. The Defense claimed that this breaking of his oath meant that the ceased to be a judge and all his subsequent actions must be annulled.
  • The Defense argued that Sayedee was prejudiced by the former Chairman of Tribunal-1 as he worked as per Ahmed Ziauddin’s dictation and did not act as an independent member of the judicialry. Mizanul Islam requested the Tribunal to talk with the former Judge Zaheer Ahmed regarding the writing of the Charge Framing Order. He also requested the Tribunal to listen the recorded skype conversations outside of the media’s presence.

27 December 2012: Tribunal 1 Proceedings

Tribunal 1 heard arguments in the matters of Chief Prosecutor vs. Professor Golam Azam and Chief Prosecutor vs. Delwar Hossain Sayedee. For a more detailed outline of the arguments see here (Golam Azam) and here (Sayedee).

Chief Defense Counsel Abdur Razzaq completed his arguments for re-trial of the Golam Azam case. He focused on the admissibility of the skype and email conversations that took place between the former Chairman, Nizamul Hoque, and Ahmed Ziauddin, a Brussels based lawyer of Bangladeshi origin who has worked closely with the prosecution on the trials. These skype conversations and emails, as reported by local and international media sources, are the basis for the Defense’s accusation that the trial has been biased due to collusion between the former chairman, the prosecution and outside parties. Abdur Razzaq’s argument today focused on the necessity of compromising the right to privacy where the information is of great value to the public interest. 

Mizanul Islam, Defense Counsel of Delwar Hossain Sayedee, presented arguments for re-trial before adjourning the case until December 30. Mizanul Islam argued that Sayedee’s case has been prejudiced by the former chairman’s conduct. Mizanul Islam requested the Tribunal to talk with the former Judge Zaheer Ahmed, who resigned on August 28, 2012 reportedly due to health concerns, regarding the origin of the charge framing order, alleging that the document was not in fact created by the tribunal but depended on the outside assistance of Mr. Ziauddin. He also requested the Tribunal to listen the alleged skype conversations in the absence of the media.   

Additional Notes Regarding Proceedings 27 December 2012
Abdur Razzaq requested permission from the court to talk with his client Sayedee. The Tribunal granted him 5 minutes of communication which took place in the courtroom.

Attorney General Mahbubey Alam was present at the Tribunal from the beginning to the end of the hearing. After lunch break Sayedee was feeling sick and left the Tribunal with Tribunal’s permission. 

While Mizanul Islam was placing his arguments before the Tribunal, Attorney General prayed before the Tribunal to take measures under section 11(3) of the ICT Act 1973

There was palpable tension in the courtroom during Mizanul Islam’s arguments on behalf of Professor Golam Azam. Prosecutor Sayed Haider Ali sometimes became angry hearing the arguments mentioning his name. Prosecutors were vocally expressing their own views regarding the arguments made by the Defense. The  Attorney General was trying to keep them calm and quiet. After the proceedings, the Attorney General requested that Defense Counsel make their submissions in such a way  that all present can enjoy the arguments and noted his appreciation for the decorum exercised by Abdur Razzaq. In reply Mizanul Islam said arguments are not for enjoyment.

The Tribunal requested that Attorney General Mahbubey Alam, who is expected to reply on behalf of the prosecution, to give reply after hearing all of the three re-trial applications.