Category Archives: Trial of Gholam Azam

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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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: 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.