Category Archives: Trial of Delwar Hossain Sayedee

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.

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.

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31 December 2012: Detailed Summary of Retrial Arguments

4 Items were scheduled for hearing:
1.Chief Prosecutor vs Motiur Rahman Nizami  – for hearing application and Prosecution Witness
2. Chief Prosecutor vs. Delawar Hossain Sayedee – for hearing application
3. Chief Prosecutor vs. Golam Azam – for further hearing of applications and arguments
[NOTE: It appears that as with many of the arguments made for  and against retrial in the Sayedee and Golam Azam cases, the arguments made today in the Sayedee case are also applicable to the Golam Azam case]
4. Chief Prosecutor vs Salauddin Quader Chowdhury – for in-camera hearing of Prosecution Witness                                     

Chief Prosecutor vs. Nizami
Submissions on Behalf of the Defense in the case of Nizami
Chief Defense Counsel Abdur Razaq requested permission to respond on the legal points of the application tomorrow.

Bar Council Vice Chairman Khandakar Mahbub Hossain placed his argument on behalf of Nizami.

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30 December 2012: Detailed Summary for Sayedee and Nizami

The Tribunal heard arguments from the Defense regarding their application for retrial in the cases of Chief Prosecutor vs Delwar Hossain Sayedee   and Chief Prosecutor vs. Motiur Rahman Nizami. After these arguments the court heard Attorney General Mahbubey Alam’s response to the three retrial applications (Sayedee, Golam Azam, and Nizami respectively).

Defense Submissions
Mizanul Islam, arguing on behalf of Sayedee, continued his arguments for retrial by pointing out specific instances of bias or collusion on the part of the former Chairman and the prosecution, as well as alleged incidents of violation of fair trial requirements. He later stated that he would not repeat his arguments in the case of Nizami, as they applied in the same way.

Charge Framing Order not written by Judges
He began by stating that it is usual practice for the charge framing order to be  based on a charge hearing and alleged that the Tribunal did not follow this normal rule. He alleged that the draft copy of the Indictment order had come from Ahmed Ziauddin on October 10, 2011 and that the Tribunal passed a nearly identical order on October 3, 2011. He presented an e-mail dated October 02, 2011 alleging that Ziauddin sent it to former Chairman of Tribunal-1 Justice Nizamul Huq and Judge Zaheer Ahmed.

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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.