Category Archives: Trial of Motiur Rahman Nizami

3 January 2012: Tribunal 1 Daily Summary – Rejects Application for Retrial in Sayedee, Golam Azam and Nizami Cases

The Tribunal Issued Its Order on the Application for Retrial in the Sayedee, Golam Azam and Nizami Cases:

The Tribunal read out its order rejecting the retrial application of Golam Azam and said the same order would apply for the retrial applications of Motiur Rahman Nizami and Delwar Hossain Sayedee since the facts and legal points were same. The Tribunal stipulated separately for Sayedee’s case that it would rehear the closing arguments from both the Prosecution and Defense as Tribunal-1 had been reconstituted after former Chairman Justice Nizamul Huq’s resignation and therefore the current Chairman had not heard closing arguments. The Tribunal fixed 13-14 January for the Prosecution to present its arguments and 15-17 January for the Defense.

For a more detailed examination of the order and a copy of the order itself, please see here.

Case: Chief Prosecutor vs Salauddin Quader Chowdhury
On 1 January 2013, Fakhrul Islam filed three applications on behalf of Chowdhury, including one asking the Tribunal for an order clarifying that its judges were not party to any of the skype or email conversations that took place between the former Chairman Nizamul Hoque and Dr. Ziauddin. Other applications included initiating contempt proceedings against the Law Minister for influencing the proceedings and summoning the former Chairman of the Tribunal 1 to testify. To avoid contempt proceedings Ahsanul Huq, Defence counsel of Salauddin Quader Chowdhury prayed to consider them as ‘not pressed’ and offered unconditional apology.

The Tribunal said it needed further time to consider the application regarding the question of their involvement in the skype conversations and fixed January 10 for issuing an order. The Tribunal allowed the prayer of ‘not pressed’ on two other applications.

Observations Outside the Court
At the lunch break some High Court lawyers, supporters of Salauddin Quader Chowdhury, were seen in front of the Tribunal. They were attempting to obtain a pass for entry into the Tribunal. The Tribunal authority refused to give them pass, which made them angry. They were shouting some slogans and engaged in an altercation with the registrar. After a short time they departed.

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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