Category Archives: Trial of Md. Kamaruzzaman

23 January 2013: ICT 2 Daily Summary

The Tribunal heard the following cases:

  1. Contempt Proceedings against Suranjit Sen Gupta
  2. Chief Prosecutor vs.  Abdul Alim: Cross examination of Prosecution Witness (Accused Present)
  3. Chief Prosecutor vs. Muhammad Kamaruzzaman: Examination-in-Chief of Prosecution Witness  (Accused Present)

At the beginning of the day’s proceedings, Mr Rana Das Gupta, counsel for the prosecution brought to the court’s attention the comments made by MK Anwar, a member of BNP standing committee on January 20th, a day before the announcement of ICT-2’s first judgment. Mr Gupta submitted that the BNP veteran’s comment – that the ongoing trials of the war criminals have been staged by the government to serve its political purposes – will adversely affect the public perception as to the tribunal’s independence. The chair of the tribunal in response to the prosecution’s averment opined that such a statement is purely a political one and it is correct to say that the Government’s decision to form the International Crimes Tribunals was an executive decision and that is a part of the ruling party’s political manifesto. The Tribunal asked the prosecution to submit a written application precisely enumerating questionable statements made by Gupta.The court made it clear that it will only proceed with contempt proceedings if MK Anwar’s comment appears to be on a sub-judice matter. At this point, the court expressed its appreciation for Defense counsel Tajul Islam, for his comment to the media whereby he stated that the judgment in the case against Abul Kalam Azad Bacchu will not affect the decision of other pending cases.

Counsel for Mr Suranjit Sen Gupta requested adjournment of the hearing due to the unavailability of senior counsel. The court accepted the request and stated that it will fix and notify the next date for hearing.

The court then moved to Abdul Alim’s case wherein the prosecution witness PW-9, Mr Jahidul Islam was cross examined by the defense counsel, whose core line of questioning was aimed to undermine the credibility of the witness, suggesting that the testimony has been concocted at the Prosecution’s direction and that the witness could not have seen or heard of the participation of the accused. The case was then adjourned until 4 February 2013.

In the Kamaruzzaman case, Mr Md Azabuddin Miah, the Assistant Librarian of Bangla Academy testified as Prosecution Witness 16. He stated that Mr Abdur Razzak Khan, the Investigation Officer of the case collected a total of 257 paper extracts from daily and weekly papers published during the 1971 liberation war. Of these documents, only 6 extracted items have been exhibited for the tribunal’s perusal in support of the prosecution’s case against the accused. The tribunal disallowed the defense from referring to any other newspaper extracts from the bundle that has not been so exhibited.
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3 January 2013: Tribunal 2 Daily Summary

Tribunal 2 heard matters in the following cases:

  1. Chief Prosecutor vs. Qader Molla -Defense petition for review of order dying permission to produce additional witnesses
  2. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid – Cross examination of Prosecution Witness #11 [See here for more detail]
  3. Chief Prosecutor vs. Muhammad Kamaruzzaman – application for retrial hearing [see here for more detail]
  • The Counsel for Defense made request for a later hearing date of the review application filed a for reconsideration of the tribunal’s decision denying the permission to produce additional defense witnesses. The request was immediately denied orally, along with the request for two hours of time for enabling the Senior Defense Counsel to appear. The Tribunal required the Counsel for Defense to make submissions instantaneously. The Tribunal rejected the review application reasoning that the ICT rules of procedure contain no provision allowing the defense to call additional witnesses and noting that only the prosecution may do so. The Tribunal further stated that the application was virtually identical to one rejected earlier, and that it must have been submitted in order to cause delay in the proceedings. The rejection was accompanied by a sanction of 10,000 BDT imposed on the Defense for submitting repetitive applications.
  • The court then moved to Mujahid’s case wherein the prosecution witness PW-11, Mr Foyez Uddin Ahmad, was cross examined by the defense counsel. The core line of questioning was aimed at attacking the reliability and credibility of the witness’s testimony, suggesting that the testimony is fabricated and based on the coaching of the Prosecution, and that the witness neither knew the accused, nor was he capable of recognizing him.
  • Finally, the Court heard at length the application filed on behalf of Muhammad Kamaruzzam for the recall of the order by which the Tribunal took cognizance of the charges against him and for a full and complete retrial. The Defense argued that the perception of bias created by the leaked Skype and email conversations between the former ICT 1 Chairman and outside legal expert Dr. Ziauddin prejudiced the Accused’s right to fair trial and therefore necessitate a retrial. They supported these arguments with international legal precedents.  The court denied the application, firmly rejecting any such possibility of bias and condemning the content of Skype conversation. They stated that the statements in the Skype conversations were at all true, they reflected only on the former Chairman and Dr. Ziauddin. The Tribunal then passed  a suo moto order requiring Mr Ziaduddin, the Brussels based Bangladeshi international law expert, to explain, within 30 days from the receipt of this order, why contempt proceedings shall not be commence for his Skype conversations with the retired chairman of ICT-1 and the appearance that he was attempting to interfere with the independence of the tribunal. Prosecution witness PW-16 who was present expressed his inability to give testimony on that day due to his sudden illness.

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 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 2 Daily Summary – Alim, Kamaruzzaman

The Tribunal heard arguments in two matters:

1. Chief Prosecutor vs. Abdul Alim – Cross-examination of Prosecution Witness #8
2. Contempt Proceedings Against Suranjit Sengupta – a government minister

The cross-examination of Beauty Khanam, eighth prosecution witness in the case against Abdul Alim, was completed. The case wa then adjourned until January 15th. Out of court, Defense Counsel for Kamaruzzaman submitted an application for retrial to the Registrar.

Cross Examination of Prosecution Witness #8 Completed in the Case of Abdul Alim
Ahsanul Haq Hena and AEM Khalilur Rahman, Alim’s counsels, cross-examined Beauty, daughter of a martyr subeder major. She testified that the Shanti [Peace] Committee and members of the Razakars had acted upon Abdul Alim’s order and had killed her father in Joypurhat because he was fighting against the Pakistani army.

Beauty had already been cross-examined briefly on several other days, but not for long on each occasion. At one stage of yesterday’s cross-examination, the witness expressed discontent over Hena when he repeated the same questions he and his colleagues had asked her earlier.

The tribunal requested the Defence to decide among themselves who would ask what questions.

Contempt Proceedings Against Suranjit Sengupta
Upon his request, The tribunal then extended time  for Suranjit Sengupta, a minister without portfolio, until January 14 to explain his comments regarding the date verdicts in the cases pending with the tribunal could be expected.

On December 24, the tribunal on its own motion issued the show-cause notice on Suranjit following a report in a Bangla daily. Suranjit was quoted in the report as saying, “Verdict of 14 identified war criminals has already been finalised. Trial of these 14 war criminals would be completed anytime within 2013.”

Defense Counsel files Application for Retrial on behalf of Kamaruzzaman
The Defense filed an application on behalf of Accused Muhammad Kamaruzzaman for a retrial based on Skype and email communications between the former Chairman of Tribunal 1 and foreign legal expert Dr. Ahmed Ziauddin that allegedly show collusion between the prosecution and the judges as well as pressure from the executive branch of the government to provide verdicts before December 17 of last year.

The case against Kamaruzzaman is in ongoing and the Prosecution is presenting its case-in-chief. Fifteen prosecution witnesses have so far testified in the case against Kamaruzzaman. The Defense told the media that they are preparing  retrial petitions in the cases of the three other accused: Ali Ahsan Mohammad Mojaheed, Abdul Quader Mollah and Abdul Alim, all of which are pending in Tribunal 2. The Defense asserted that the Skype and email conversations show that the formal charges of the first eight cases pending with the two tribunals were prepared by Dr. Ahmed Ziauddin and his associates and came from Brussels.

The Defense told the media that they were not alleging any direct involvement in the controversy on the part of the judges of tribunal 2, however they claim that the appearance of bias prejudices their clients cases and so they see fit to file the petition.

The Defense cited the authority of the Tribunal under §46 (A) of ICT  rules of procedure to pass orders in the furtherance of “the ends of justice or to prevent abuse of the process.”