Professor Ghulam Azam

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Legal Submission Made for Retrial

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Prof Ghulam Azam

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.

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