Mr Modud Ahmed, Senior Advocate and Postmaster General of Bangladesh during the Bangladesh Liberation War of 1971, submits an application for retrial of Prof Ghulam Azam, Maulana Sayedee and Maulana Nizami. [source: ICTBDWatch
Moudud Ahmed, Senior Advocate of Supreme Court of Bangladesh and former Minister for Law and Parliamentary Affairs appeared on 23rd December 2012 as counsel for placing the Legal Arguments for the Defence Application for Re-Trial on behalf of the Defendants Mr Delwar Hossain Saydee, Prof Ghulam Azam and Mowlana Motiur Rahman Nizami. Following are summary of his submissions before the International Crimes Tribunal No.1, Dhaka. He is a current member of Parliament and a member of standing committee of Bangladesh Nationalist Party (BNP). Mr Ahmed was the Postmaster General of Bangladesh during the Bangladesh Liberation War of 1971. He became personal secretary to Sheikh Mujibur Rahman, first President of Bangladesh.
Moudud Ahmed: thanks for accommodating me. Following are my submissions:
Section 6(6) of 1973 Act provides that “A Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it.” This is normal practice. But section 6(6) does not apply here. Here the formal Chairman has resigned accepting that he was regularly discussing and taking help about this case from with a third party. That third party was drafting orders for the Chairman. He has drafted the charge framing order against the accused, 19(2) order and the recusal order. The conducts of the former Chairman has contaminated the whole process. This is why you should order for a retrial.
Section 6(2A) provides that the judges of the tribunal shall independently exercise their judicial functions to ensure fair trial. But it is now clear that the former chairman is in breach of this provision.
The independence of the tribunal was not maintained by the former chairman. He was not independent in exercising the judicial functions. He was forced to resign in an abnormal / exceptional situation. There is not scope to follow Section 6(6) to continue the case from the stage left by the former chairman.
According to Lord Denning – the stream of justice should be clear and pure. Due process of law must be there to ensure fair trial. But after disclosure of the conducts of the former chairman it is clear that he did not allow to flow the stream of justice clear and pure.
According Article 94(4) of the Constitution – the judges shall be independent in exercising their judicial function. The former chairman is oath bound to uphold the constitution. But the recent publications in the Economist and the Daily Amar Desh clearly shows that the former chairman was in breach of Article 94(4) of the Constitution.
We annexed document to prove that the charge framing order against DHS was in fact drafted by Dr. Ahmed Ziauddin for the Chairman. This has not happened in the history of the whole world. We will show you proof from his email communication and skype conversation with Dr. Ziauddin that the important orders were drafted by Dr. Ziauddin. How an undisclosed third party who is also advising the prosecution can draft court orders for the Tribunal. This person has also started drafting judgment against DHS. How the former Chairman could allow this to happen.
You may proceed to pass judgment considering section 6(6). But in my submission you should follow other provisions I have mentioned earlier. If you pass any judgment with this background, will this bear any credibility? This is a special circumstance. We appreciate trial for war criminals. But the process must be fair. After 20/25 years people will discuss your judgments.
- There is no other alternative but to start the case from beginning. If you are concerned about time then you may order for expeditious trial within a time frame. But you should order for a retrial.
The Daily Star reports that the defense team for Professor Ghulam Azam have submitted a 600 page document seeking a retrial in view of the clear evidence of collusion between the former judge Nizamul Haque and the prosecution as revealed by the recently leaked Skype conversations.
Two recordings of conversations between ICT Judge Nizamul Haque and Ahmed Ziauddin have appeared on Youtube today with English translation. They reveal that Ahmed Ziauddin has been directing the judge’s actions in secret.
See also Amar Desh’s detailed transcripts of recordings here
The Economist has today published a hugely significant blog post confirming they have obtained recordings of conversations and emails between Ahmed Ziauddin and Nizamul Haq, the judge of the International Crimes Tribunal. See below for the reproduced text:
ON 6th DECEMBER 2012 the presiding judge of Bangladesh’s International Crimes Tribunal, Mohammed Nizamul Huq, passed an order requiring two members of The Economist to appear before the court, demanding that they explain how we have come by e-mails and conversations between himself and Ahmed Ziauddin, a lawyer of Bangladeshi origins based in Belgium. The tribunal was established in 2010 to consider accusations of war crimes committed in 1971, during Bangladesh’s war of independence from Pakistan.
The Economist has heard 17 hours of recorded telephone conversations and seen over 230 e-mails between the two men. This material is confidential and we are bound by law and the British press’s code of conduct not to reveal such information except in matters of the most serious public interest. We did not solicit the material, nor pay for it, nor commit ourselves to publish it.
These e-mails, if genuine, would indeed raise questions about the workings of the court and we are bound to investigate them as fully as we can. It was in the course of those investigations that we contacted the two men.
Our investigations are continuing. Once they are concluded and if we consider the allegations contained in them to have merit, we will publish them. Meanwhile, we are publishing a short account of our dealings with Mr Huq and Mr Ahmed. These, we believe, have a bearing both on the tribunal’s proceedings and on the order of December 6th.
Mr Huq is a Supreme Court judge and “chairman” of a trio of judges on the tribunal. There is no jury and the court can impose the death penalty. The verdict in its first case could come within days. Mr Ahmed is an expatriate Bangladeshi who is an academic specialising in international law who lives in Brussels. The two men have known each other for 25 years, as they were human-rights campaigners and Mr Ahmed’s late brother had been a student friend of the judge. Mr Ahmed is not just an international lawyer, he is also the director of the Bangladesh Centre for Genocide Studies in Belgium, which is dedicated to ending what he has called “the ingrained culture of impunity” surrounding the war crimes in Bangladesh.
The order includes a description of Mr Huq’s relationship with Mr Ahmed. It explains that the tribunal is based on “new law”, so the judges need to “take assistance of researchers from inside and outside the country”. It names Mr Ahmed as just such an expert. “During the proceedings of the trial and orders the Chairman also took assistance from him,” it says.
Speaking to The Economist in Brussels on December 4th, Mr Ahmed had said something similar, “It’s up to judges to decide where they are going to get research support or other support they need. They are quite entitled to do it. The more so when they really don’t have that research backup [in Bangladesh]. [They ask for help] if they feel if there are people more informed about the issue, especially where [international law] is so new in Bangladesh. I’m not really advising him, but if there is a question then I try to respond.”
But the characterisation in the order and from Mr Ahmed contradicts what the judge told us in a taped interview. On 5th December, the evening before the court issued its order, Mr Huq insisted that Mr Ahmed was not helping him. He admitted that they talk, but denied that he had a part in helping prepare documents or doing anything in any official capacity. He said that for anyone to play such a role would be quite wrong.
“As judges, we cannot take help from third person and outsiders,” Mr Huq said. Asked whether they sometimes exchange e-mails about the tribunal, he says “No, no, no, regarding tribunal, no talks regarding the judgment or regarding the proceedings, no.” “Later, he said, “A Supreme Court judge, we do not talk even with our wife regarding the tribunal.”
Judges generally have to be careful if they discuss cases with third parties, because to do so could lead to bias or the impression of that they have come under the influence of someone who has nothing to do with the proceedings.
In his interview in Brussels on the previous day, Mr Ahmed had likewise told us that he has “no relationship whatsoever” with court. He can send the judge messages if he wants—but “generally though I don’t,” he says, “he’s a judge after all.”
Several questions are raised by all this. On what bases did the judge select the experts who would help him? Why was Mr Ahmed’s role not revealed to the court and to the public until the tribunal order on 6th December, after we had contacted him? The order refers to the presiding judge of the tribunal “receiving the support [of Mr Ahmed] on the developments on International Criminal law throughout the world” and taking assistance “during the proceedings of the trial and orders”. Why then did he tell us on December 5th that the two men had had no talks regarding the tribunal or regarding the proceedings? And why did he say that it would not be appropriate for a Supreme Court judge to talk to others about the proceedings?
Daily Naya Diganta reported on the harassment of the defence counsel byh the police. On approaching the tribunal for protection they were dismissively told to ‘tell Human Rights Watch’.
Suggestion to approach HRW while counsels approached Tribunal for protection
Detective Branch Police raids residence of Abdul Qader Molla’s counsel
Daily Naya Diganta, Back Page, 4th December 2012
The Defence Counsels for Accused Abdul Qader Molla have brought the incidence of Detective Branch Police raiding the house of Defence Counsel Sazzad Ali to Tribunal-2 yesterday. Defence Counsel Tajul Islam raised the issue in the morning stating that “We need protection of this Hon’bl Tribunal to discharge out duty without fear of intimidation”.
After hearing out the defence counsel, Chairman Justice Fazle Kabir said “We do not see any thing serious and hence we shall not pass any order at this moment”. Whereas Mr Justice Obaidul Hassan Shaheen said, “please bring forward a written complaint, we shall see the matter”. The other member of Tribunal Mr Shahinur Islam (former Registrar of the Tribunal) said to Mr Tajul Islam “Why are you not telling this to Human Rights Watch? Go tell Human Rights Watch!”. Counsel Tajul Islam replied “Why we have to approach HRW where the safety & security is a fundamental right of every citizen under the constitution of Bangladesh, there is court to enforce our right, why we need Human Rights Watch?”.
Tajul Islam informed the Tribunal 2 that, yesterday a witness listed as ‘Prosecution Witness’ testified in Tribunal 2 as Defence Witness for Abdul Qader Molla. On the same night, Detective Branch Plainclothed personnel raided the residence of Sazzad Ali, counsel of Abdur Qader Molla. Counsel Ali was not at his residence during the raid. However, Sazzad Hossain saw police coming out of his resident.
Counsel Tajul Islam said “How can defence counsels discharge their professional duty if we are subjected to intimidation by Police. Police also raided my chambers recently.”
Counsel Tajul Islam submitted a news report published in Daily Amar Desh which gave detailed information about the raid by the police in Defence Counsel’s residence. The Judges after going through the report replied “We don’t find any thing here to take cognizance! Police can raid any one’s residence for their professional reasons. There is noting wrong in that”.
Counsel Tajul Islam replied “Doesn’t it tantamount to harassment and intimidation if police in plain cloth turns up at the counsel’s residence? Particularly when at the same day when a person named in the Prosecution Witness List testifies as the Defence Witness? What can the reason for police raiding the counsel’s residence at 11pm in the night?”
Mr Justice Shahinur Islam replied “You also don’t understand why!”. Mr Tajul Islam replied “However, My lord, I know why they raided.”
Tribunal further enquired “Why the counsel did not go and meet the police and let them know that he is a listed defence counsel. He should have asked the police the reason for the raid.”
Counsel Tajul Replied “Why he should take such a life threatening risk? What if the plain clothed police took him away and later totally denied that they had any thing to do with his disappearance. Such incidences are taking place in Bangladesh almost on a regular basis.”
Chief Defence Counsel Abdu Razzaq during his daily press briefing stated that such raid tantamount to obstruction of justice.
The integrity of the ICT has yet again come under international scrutiny, after the ICT chairman claimed that The Economist had hacked into his private emails and Skype conversations with Ahmed Ziauddin, a Brussels-based lawyer. He has issued an order directing The Economist to explain their actions in order to avoid being charged with contempt of court.
In addition, David Bergman, who has until now avoided criticising the trial directly after being warned about contempt of court himself, has begun to ask questions about the trial. In particular, he highlighted the dubious nature of the prosecution evidence including their failure to produce witnesses who were documented to have entered safe houses during the trial proceedings. He has also questioned the court for accepting the unsigned witness statements as evidence of war crimes in Sayedee’s trial, while refusing to admit the safe house registers as evidence despite appearing authentic. Significantly, he states, ” I have asked a number of independent international lawyers about the significance of all this – and they sugggest that this level of alleged chicanery on the part of the investigation/prosecution team would have raised, in most courts around the world, serious questions about the integrity of the whole trial process.”
These questions have been raised by supporters of the defendants for some time, but it is hoped that more attention will be given to them if highlighted by journalists such as Bergman.