Hypocrisy in the name of Fair Trial: A Case Study of ICT Trial of Allama Delawar Hossain Sayedee

লিখেছেন লিখেছেন আব্দুল্লাহ আল আববাদ ০৩ মার্চ, ২০১৩, ০৭:৫০:৫২ সন্ধ্যা

A. Introduction:

The first trial in the International Crimes Tribunal No. 1(ICT-1), Bangladesh is the trial of Mr. Delawar Hossain Sayedee who is Nayeb-e-Amir of Jamaat-e-Islami Bangladesh which is now awaiting judgment. This trial has attracted huge interest in national and international circle due to the gross unfairness in the trial process and conspiracy of the government. People will remember this trial as an extreme example of hypocrisy in the name of fair trial.

The investigation officer has conducted the investigation fraudulently to confirm Mr. Sayedee’s conviction. The defence was given very short time to prepare his defence before the trial. ICT-1 did not take any note that the prosecution did not make full disclosure of their case to the defence. It restricted the defence counsel from cross examining the Prosecution Witnesses on their previous inconsistent statements and relevant documents. Prosecution witnesses were either rewarded or forced to give false evidence against Mr. Sayedee. When they denied, the Investigation Officer submitted written statements in their names and ICT-1 received them as evidence against Mr. Sayedee without allowing him any opportunity to challenge. ICT-1 closed its eyes to the clear evidences (Safe house documents) showing that the Investigation Officer committed fraud upon the tribunal by falsely reporting that these witnesses were unavailable. The defence was not allowed to exhibit these Safe House documents as that would prove the fraudulent nature of the investigation. The defence case was substantially limited and forced to close in one fifth time of the prosecution case. Almost all the defence witnesses and their family members were threatened so that they cannot give evidence for Mr. Sayedee. A proposed prosecution witness (Mr. Shukhoronjon Bali) showed the courage to tell the truth by testifying as a defence witness. But the members of the law enforcing agencies abducted him in the tribunal premises and this person remains traceless. Finally, the recent publication of the Skype and Email communications of the former Chairman of ICT-1 reveals that he was conspiring with the Ministers of the Government to fast tract the case and convict Mr. Sayedee. He was found to have been taking secret assistances from an expatriate Bangladeshi, Dr. Ahmed Ziauddin, who was drafting orders and judgment for the Chairman.

B. Short profile of Allama Delawar Hossain Sayedee:

Allama Delawar Hossain Sayedee is the most popular Islamic scholar of Bangladesh. He devoted his life to disseminate the light of the Qur'an all over the world. He is an eloquent speaker, popular leader and organizer. He joined Bangladesh Jamaat-e-Islami (Jamaat) as primary member in 1979. In 1989 he was selected as member of Central Committee of that party. He was elected as a Member of Parliament from his Pirojpur Sadar Constituency twice 1996 and 2001. He authored 72 Islamic Books including Tafsee of Quran, Biography of Prophet Mohammad (PBUH), Quraan & Science, Women Rights in Islam, Labor's Right in Islam, Political Views of Islam etc. He is also actively involved in many charitable activities and educational institutions.

C. Background of the Case:

In the 1996 Awami League won the national election and Jamaat was its political alliance. In the next national election in 2001 Awami League suffered a huge defeat due to Jamaat’s alliance with Bangladesh Nationalist Party (BNP). From then Awami League started propaganda against Jamaat and its leaders to break its alliance with BNP. It started false accusation against Jamaat leaders for atrocities during the liberation war in 1971. Awami League won the last election and formed the government in the beginning of 2009. Thereafter Awami League started a crackdown operation on the leaders of Jamaat.

On 24th July 2009 Mr. Sayedee was stopped in Dhaka Airport and prevented from going to Saudi Arabia to attend a seminar where he was to be the Chief Guest. Mr. Sayedee filed Writ Petition No. 5127 of 2009 before the High Court Division for direction upon the Government to allow him to leave and reenter Bangladesh. The Government seriously opposed the writ petition and the Attorney General informed the court that Mr. Sayedee may be committed to trial for war crimes. On 12th August 2009 the High Court division rejected the government’s plea and found that ‘[the learned Attorney General] could not show a single scrap of paper involving the Petitioner in acts which may be called war crimes.’ The High Court Division directed the government to allow Mr. Sayedee to leave and re-enter Bangladesh. The judgment was passed in the noon and the Attorney General informed the press that cases alleging war crime may be filed against Mr. Sayedee at any time. On the same evening i.e. on 12th August 2009, at the instruction of the Government, Mr. Manik Poshari (who later on testified in trial as PW-6) filed a case alleging war crime against Mr. Sayedee. This is the first ever complaint in the last 40 years against Mr. Sayedee alleging atrocities during the liberation war in 1971. The government appealed to the Appellate Division (CMP No 1652 of 2009) to stop Mr. Sayedee leaving the country. But on 24th August 2009 the Appellate Division of the Supreme Court of Bangladesh dismissed the appeal accepting the observation of the High Court division that ‘[i]f the Government wants to stop the Petitioner from leaving the country then it must start a specific criminal case against him and get custodial order by a court of law’. On the next week on 30th August 2009 the Government caused Mr. Mahbub Alam Hawlader (who later on testified in trial as PW-1) to file the 2nd case against Mr. Sayedee alleging war crimes. The government also filed 14 other false cases against him on flimsy grounds. Despite all these Mr. Sayedee could go abroad and return back in December 2009.

D. Summary of the Sayedee proceeding in ICT-1:

In March 2010 the government appointed the Investigation Agency to investigate crimes under the International Crimes (Tribunal) Act 1973. On 29th June 2010 police arrested Mr. Sayedee in a different case. On 20th July 2010 PW-1 filed a complaint before the Investigation Agency against 11 persons including Mr. Sayedee for alleged atrocities in Pirojpur during 1971. But the Investigation Agency appointed Mr. Helal Uddin as Investigation Officer to investigate against Mr. Sayedee only. Form the evidence on record it becomes crystal clear that the Investigation Officer dishonestly carried out the investigation with malafide intention to falsely incriminate Mr. Sayedee with the alleged occurrences. He refused recording statements of eye witnesses who were not willing to accuse Mr. Sayedee. He conducted the investigation as a party man of Awami League. On 31st May 2011 he submitted investigation report to the Prosecution. During this long period of investigation Mr. Sayedee was detained in jail custody which was termed as ‘arbitrary’ by the United Nationals Working Group on Arbitrary Detention.

On 11th July 2011 the Prosecution filed formal charge against the Accused and on 14th July 2011 ICT-1 took cognizance of the offences. Thereafter on 3rd October 2011 ICT-1 indicted Mr. Sayedee with 20 counts of crimes against humanity and was genocide. Mr. Sayedee pleaded not guilty to all the counts. The trial commenced on 20th November 2011 with the Prosecution opening statement. Thereafter the Prosecution examined 28 witnesses of its list of 138 witnesses. On 29th March 2012 ICT-1 allowed the prosecution application under section 19(2) of the 1973 Act and received in evidence purported statements of 15 witnesses alleged to have been recorded by the Investigation Officer during Investigation. The Prosecution closed its case on 13th August 2012. On the next day i.e. on 14th August 2012, ICT-1 ordered limiting the defence to 20 witnesses only though Mr. Sayedee wished to call 46 witnesses in his defense. On 2nd September 2012 the defence case started and on 23rd October 2012 it was forced to close after examination of 17 witnesses. ICT-1 did not bother to give any valid reason for hurrying to close the defence case. On 5th November 2012 the summing up of the parties commenced and continued until 6th December 2012 when ICT-1 ordered to pass judgment on any day.

On this last day i.e. on 6th December 2012 the former Chairman of ICT-1, Mr. Nizamul Haq revealed that his Skype and email accounts had been hacked. He also told that the well reputed international Journal, The Economist, called him to question on the Skype and email communications. Thereafter 17 hours Skype conversation and 230 emails of the former Chairman became public which reveals that he was conspiring with Dr. Ahmed Ziauddin, Ministers of the Government and the Prosecutors to fast track the case to convict Mr. Sayedee. On the wake of controversy on 11th December 2012 Mr. Haq resigned from ICT-1. On 13th December 2012 the government reconstituted ICT-1 with a new Chairman. On 23rd December 2012 the defece filed an application for retrial as the former Chairman conducted the trial to the highest prejudice of Mr. Sayedee. The newly constituted ICT-1 refused to look into the Skype and email communications of the former Chairman and rejected the retrial application on 3rd January 2013 though it wanted to re-hear the summing up part of the case in five days. Thereafter the 2nd time summing up of the case concluded on 30th January 2013 and ICT-1 ordered to pass judgment against Mr. Sayedee at any day to be fixed later on.

E. Assurance of the Government for fair trail:

The ministers of the Government have repeatedly said in public that the Tribunal will ensure fair trail. They have confirmed that all the accused in ICT would get every opportunity to defend them despite the fact that the 1973 Act and the Rules of ICT 1 & 2 lack basic criteria of a fair trial. The legal jurists, international communities, human rights organizations and the civil societies have severely criticized the Act and the Rules for their inherent defects. A close scrutiny of the trial process has revealed that Mr. Sayedee’s trial continued disregarding his rights even under the 1973 Act and the Rules. He was denied a fair trial.

F. Non-disclosure of Prosecution documents:

(1) Illegible prosecution documents –

Sections 9(3) and 16(2) of the 1973 Act and Rule 18(4) requires the Prosecution to furnish to the Tribunal and the Accused copies of the documents which the prosecution intends to rely upon at least three weeks before the commencement of the trial. The defence is then expected to review the disclosure made by the Prosecution, formulate its case and make full disclosure to the Tribunal and Prosecution all within three weeks. Before commencement of the trial the Prosecution served upon Mr. Sayedee 397 pages prosecution documents out of which 97 pages were illegible. On 10th August 2011 the defence filed an application for service of legible copies of these documents. Though the prosecution was ordered to serve legible copies, they only served few legible copies and 72 pages remained illegible. On 18 August 2011 the defence filed another application for legible copies of the prosecution documents and the tribunal ordered that ‘the documents which will remain illegible and cannot be supplied by the prosecution at this moment, there cannot be any consideration of those documents by the Tribunal’.

Despite this clear ruling the Tribunal allowed the prosecution exhibiting those illegible documents. The Defence seriously objected to this and reminded the Tribunal about its order dated 18th August 2011. But ICT-1 did not bother to record objection of the Defence. As a result the Mr. Sayedee was unable to offer any explanation or defece against those documents.

(2) Non Disclosure –

The Investigation Agency submitted Investigation Report consisting of 14 volumes in 4074 pages. But the prosecution chose to rely upon only 397 pages documents stated above. The remaining (4074 – 397) 3677 pages of documents were not served upon the defence which include some seizure list documents. On 7th December 2012 Mr. Sayedee filed an application for disclosure of 41 undisclosed seizure list documents. On the same day he filed another application for disclosure of the exculpatory evidences that the Prosecution was not intending to use. ICT-1 rejected both the applications holding that the defence was not entitled to get copies of those documents. The former Chairman of ICT-1 verbally assured Mr. Sayedee that the prosecution would not be allowed to rely upon those documents at the time of trial. But on 10th April 2012 ICT-1 allowed PW 28, the Investigation Officer, to exhibit these documents. Mr. Sayedee’s counsel seriously objected and ICT-1 rejected the prayer holding that the defence ‘have not come with any petition claiming copies those documents by specifically mentioning them’.

It is clear that at the time of making the above observation ICT-1 forgot the fact that on 7th December 2011 Mr. Sayedee did file an application by specifically mentioning these undisclosed documents. The Tribunal thereafter allowed the prosecution to exhibit huge amounts of new documents (about 2500 pages) the copies of which were not given to Mr. Sayedee before commencement of Trial as required under the 1973 Act and ICT-1 Rules. These provisions are there for some reasons and their non-compliances result serious miscarriage of justice. Though the copies of these new documents were served upon Mr. Sayedee at this last stage of the prosecution case he was not given any opportunity to defend these documents. As a result Mr. Sayedee was deprived from making an effective defence before the tribunal.

(3) Non disclosure of Investigation Report –

The Investigation Report of the Investigation Officer is a crucial document to show the mode and authenticity of the Investigation. Mr. Sayedee should have been allowed to peruse the Investigation report to understand nature of the allegation brought against him. As per Rule 29, ICT-1 took cognizance of the offences against Mr. Sayedee considering the Investigation Report and other documents. According to Rule 35 ICT-1 again considered the Investigation Report at the time of framing charge against Mr. Sayedee. According to Sections 9(3), 16(2) of the 1973 Act and Rule 18(4) Sayedee was entitled to get a copy of the Investigation Report since the same was being used against him. On 7th December 2011 Mr. Sayedee prayed for service of the copy of the Investigation Report which was rejected without affording any reason. On 22nd January 2012 ICT-1 against rejected Mr. Sayedee’s application for copy of the Investigation Report holding that ‘the investigation report of each case of this Tribunal contains full particulars of the witnesses and under such circumstances if the copy of the investigation report is supplied to the defence the identity of the witness will be disclosed and the safety and security of those witnesses will be endangered.’

Mr. Sayedee was badly in need of copy of the investigation report as his lawyers would require this to cross examine the Investigation Officer. Thereafter on 27th March 2012 defence filed an application to inspect the Investigation Report excluding the parts containing particulars of the Prosecution Witnesses. But ICT-1 rejected this application also without any valid ground. It is difficult to understand why ICT-1 rejected this application though in every criminal procedure in Bangladesh the accused is entitled to get copy of the investigation report. This order has seriously obstructed Mr. Sayedee from adequately preparing his defence case. Perhaps this is the reason for the Tribunal’s not allowing a copy of the Investigation Repot to Mr. Sayedee.

G. Inadequate time for preparation of Defence:

Though the Investigation Officer was appointed in July 2010, he admitted in cross examination that he commenced investigation from March 2010. He took more than a year to investigate the case against Mr. Sayedee. The Act and the Rules of the Tribunal provides for ‘at least’ three weeks time for an accused to prepare his defence. This was clearly inadequate considering the wide ranging allegations and the fact that they are 40 years old. The other international crimes tribunal of the world provided for at least six months time for preparation of defence of an accused. This inadequate time for preparation of defence in the Tribunal has been seriously criticized by the international communities and human right organizations as being very unreasonable and opposed to the ‘principality of equality of arms’ in criminal proceedings. When this matter was raised before ICT-1, the members of the Tribunal confirmed that it was ‘at least’ three weeks time which may be extended even for a year if the Accused so require. But Mr. Sayedee was allowed only 9 weeks to prepare his defence. He filed several applications to extend the time. But the Tribunal forgot its earlier assurance of providing adequate time for preparation of defence and forced Mr. Sayedee to face the trial with inadequate preparation.

H. Restriction in cross examination of Prosecution Witnesses:

Despite the limited preparation Mr. Sayedee’s lawyers were able to expose the prosecution witnesses in cross examination showing contradictions in their statements and weaknesses in the prosecution case. But this was seriously hampered by frequent interruption by ICT-1 in the cross examination of the Prosecution witnesses. Mr. Sayedee’s counsels were not allowed to cross examine on the previous inconsistent statements of the prosecution witnesses. This has obstructed Mr. Sayedee from attacking the credibility of the prosecution witnesses. The Tribunal also did not allow the defence to cross examine the Investigation Officer on at least 200 documents exhibited by him. The Tribunal kept regular pressure to shorten the cross examination of the prosecution witnesses. This is against the right of an accused to cross examine a prosecution witness as guaranteed under Section 10(1)(e) of the 1973 Act. This has seriously restricted Mr. Sayedee from adequately challenging the prosecution case.

I. Unwilling prosecution witnesses and receiving as evidence written statements in their names under Section 19(2):

During February and March 2012 the Prosecution miserably failed to bring new witness. The Prosecution could bring only four witnesses during these two months. On 18th March 2012 the Prosecution informed the Tribunal that they were having difficulty bringing new witnesses. On the same day the former Chairman advised them to file an application to inform the Tribunal about the other prosecution witnesses. This prompted the prosecution on 20th March 2012 to file an application under section 19(2) of the 1973 Act to receive as evidence the purported statements of 46 prosecution witnesses claiming that these witnesses were unavailable and could not be brought to the Tribunal without an amount of delay and expenses. These were the remaining witnesses in the prosecution list who were to give evidence on the act and conduct of the accused relating to the charges. A report of the Investigation Officer was annexed to the Application about the missing witnesses, but despite repeated request copy of that report was not given to Mr. Sayedee.

Thereafter many national daily news papers reported that these witnesses were available but not willing to give false evidence against Mr. Sayedee. It was reported that these witnesses never gave any statements to the IO and that he had concocted statements in the names of those 46 witnesses. On 28 March 2012 Mr. Sayedee filed his reply to the Prosecution Application under Section 19(2) annexing these news paper reports and praying that these witnesses should be called before the Tribunal so that they can tell the truth.

Though the Prosecution applied for receiving as evidence the purported statements of 46 prosecution witnesses, at the time of hearing of the application they informed the Tribunal that they would press the application for 15 witnesses only. On 29th March 2012 ICT-1 allowed the prosecution application receiving the purported statements of 15 witnesses allegedly recorded by the IO (‘19(2) order’). This was severely criticized in national and international arena since Mr. Sayedee was not given any opportunity to controvert these statements. Moreover this is unprecedented in International Criminal Law to receive as evidence the written statements of witnesses allegedly recorded by the IO concerning ‘act and conduct of the accused relating to the charges’.

J. Fraud by the Investigation Officer and the Prosecution with the Tribunal:

On 12th April 2012 one of the renowned nationals dailies, The Daily Amar Desh published a news reporting that the Prosecution has in fact mislead the Tribunal by saying that Prosecution witnesses are unavailable in their application under section 19(2). It was reported that these witnesses were in fact in control of the Prosecution and the Investigation Agency. It was also reported that the General Diary, Attandance Register and Food register (jointly as ‘Safe House Documents’) kept in the Safe House show that these witnesses were brought to the witness Safe House in Dhaka on different dates and were returned back as they did not want to give false evidence against Mr. Sayedee. It revealed that the Investigation Agency and the Prosecution were lying about the whereabouts of the Prosecution witnesses. It is notable here that the neither the Prosecution nor the Investigation Agency gave rejoinder to the Daily Amar Desh Report denying the allegation.

On 9th May 2012 Mr. Sayedee filed an application for review of the 19(2) order annexing the report of Daily Amar Desh. On 11th and 15th May 2012 some local TV channels telecasted interviews of some of those 15 witnesses where the witnesses confirmed that they never gave any statement to the Investigation Officer against Mr. Sayedee. On 23rd May 2012 these TV interviews were presented before the Tribunal. Thereafter on 3rd June 2012 the Safe House Documents were also filed before ICT-1 which conclusively proved the presence of the 19(2) witnesses on various dates in the Safe House whom the prosecution claimed to be unavailable. So, the frauds of the Investigation Officer and the Prosecution have been made public. ICT-1 was shocked looking into these Safe House Documents. But they disregarded these evidences and rejected the 19(2) Review Application on 12th July 2012. In the rejection order ICT-1 observed that it would not adjudicate on the genuineness of the Safe House documents and the Defence might take steps to prove those documents at the time of trial and that the onus of proving those documents was upon the defence.

K. ICT-1 refused Mr. Sayedee every opportunity to prove the Safe House Documents:

Mr. Sayedee undertook the following steps to prove the Safe House Documents and ICT-1 prevented him from doing so in every step:

(i) The Safe House documents contained telephone numbers and badge numbers of the police constables and officers in the Safe House. On 7th June 2012 the defence filed an application for call for records to confirm the mobile numbers and badge numbers of these persons which could have easily proved the genuineness of the Safe House documents. But on 19th July 2012 ICT-1 rejected this application without affording any reason.

(ii) On 19th July 2012 ICT-1 also rejected the defence prayer to draw up proceedings against the Investigation Officer (IO) for committing fraud upon the tribunal by falsely reporting that the 19(2) witnesses were unavailable. This has encouraged the Investigation Officer to further mislead the tribunal during his examination.

(iii) On 1st July 2012 the defence filed another application for copies of the IO reports dated 17.03.12 & 19.03.12 which ICT-1 relied to find that the 19(2) witnesses were unavailable though the Safe House documents proved otherwise. This application was also rejected. On 8th August 2012 ICT-1 rejected the defence prayer to cross examine the IO on these two reports.

(iv) On 22th July 2012 the defence filed an application for issuance of summons upon 38 persons relating to the Safe House and direct them to attend and testify as Court Witnesses since their names appeared in the Safe House documents for performing their duties in the Safe House at the relevant times. The provisions of ICT-1 empower it to summon relevant witnesses as Court Witness and ask them necessary question. But ICT-1 rejected this application for unknown reason. The defence tried to call these Safe House officials as defence witnesses, but they denied to testify without summon from ICT-1. Thereafter on 7th October 2012 the defence filed an application for issuance of summons upon these persons and direct them to attend and testify as Defence Witnesses. This application was also not allowed. After reconstitution of ICT-1 due to the resignation of the former Chairman this matter was re-agitated on 13th January 2013 to the newly constituted bench with a hope that it might come to a different conclusion. But on 14th January 2013 the newly constituted bench also rejected the prayer.

(v) On 24th July 2012 the defence filed another application for direction upon the concerned mobile phone operator companies for supplying telephone call list of the mobile numbers of the concerned officers of the Safe House. This was necessary to prove genuineness of the entries in the Safe House documents. But ICT-1 rejected this application on 29th July 2012 holding that it would violate ‘privacy’ of those safe house officials. Clearly ICT-1 was more concerned about ‘privacy’ of the Safe House officials than to find out the truth.

(vi) By an application dated 7th October 2012 the defence prayed to admit the Safe House documents under Section 19(1) of the 1973 Act read with Rule 54(2) and 44 of the Rules of Procedure and mark them as exhibit. On 09th October 2012 ICT-1 observed that these documents should be exhibited through a Defence Witness. Thereafter Mr. Sayedee’s son, Mr. Masood Sayedee (DW 13), wanted to exhibit the Safe House documents. But ICT-1 rejected the prayer with observation that the Safe House Document should be exhibited through the person who supplied these documents to the defence. On 21st October 2012 the defence filed an application to allow DW-13 to exhibit these documents. But on 22nd October 2012 ICT-1 passed an order to keep the application on record and as a result the Safe House documents could not be exhibited. The Safe House Documents were in fact collected from Mr. Oliullah Noman, Senior Reporter of Daily Amar Desh. On 31st October 2012 the defence filed an application to allow Mr. Noman to testify as Defence Witness and to exhibit the Safe House Documents. This application was also rejected on 5th November 2012 without any valid reason. After reconstitution of ICT-1 the defence filed another application on 13th January 2013 to recall DW 13 to exhibit the Safe House Documents. But the newly constituted bench rejected the application on the ground that similar application was rejected earlier by the former Chairman. The Safe House Documents could only benefit the Tribunal to come to a right conclusion regarding the 19(2) witnesses. But ICT-1 acted strangely preventing Mr. Sayedee from exhibiting these documents.

(vii) The defence filed several applications to summon and/or to allow the 19(2) witnesses to give evidence to prove genuineness of the Safe House documents. But ICT-1 rejected all these applications.

(viii) On 13th January 2013 the defence filed an application to inspect all the processes/summons issued to the Prosecution Witnesses. This was necessary to show that the Investigation Officer got summons in the names of the 19(2) witnesses and brought them to the Safe House on relevant dates. This could have proved that the entries in the Safe House Documents were accurate. But the newly constituted ICT-1 rejected the application on 14th January 2013 on the ground that similar application was rejected earlier by the former Chairman. On 20th January 2013 the defence filed a Review application stating that the Tribunal’s finding was incorrect as no such application was ever filed during the tenure of the former Chairman. But ICT-1 rejected the review application on 23rd January 2013 without hearing the defence.

It is therefore clear that Mr. Sayedee took all possible steps to prove the genuineness of the Safe House documents. But ICT-1 prevented him in every step. The Safe House Documents were not merely on the issue of admissibility of the so called statements of the 19(2) witnesses. It has greater impact. These documents conclusively prove that the Investigation Agency committed fraud on the Tribunal. It further proves that other prosecution witnesses were either forced or rewarded for giving false evidence against Mr. Sayedee. PW 13 broke down in tears in witness box while giving evidence about rape of his three sisters. But the Safe House documents show that this person was asking for sweet and gifts for giving false evidence against Mr. Sayedee. Despite being aware of all these things ICT-1 did not ask the Investigation Officer to explain such fraudulent conducts. It was rather more keen to criticize and taking actions against those who reported on the Safe House documents revealing the fraud of the Investigation officer.

L. Gonesh Chaondro Shaha testified as a DW denying the 19(2) statements submitted in his name:

Gonesh Chondro Shaha was one of the prosecution’s 19(2) witnesses and the prosecution relied on his 19(2) statement implicating Mr. Sayedee with murder of his mother Vagirothi. This person later testified as DW 17 on 23rd October 2012 and confirmed that he never made any statement to the Investigation Officer implicating Mr. Sayedee with murder of his mother. He vehemently opposed Mr. Sayedee’s involvement in that incident. This was sufficient to prove that the Investigation Officer concocted the statements of the 19(2) witnesses.

M. Abduction of Shukhoronjon Bali, a defece witness:

Shukhoronjon Bali was another 19(2) witness for the prosecution. Prosecution relied his 19(2) statement to implicate Mr. Sayedee with killing of his brother Bishabali. But Mr. Bali wanted to be a defence witness to confirm that he never made any statement to the Investigation Officer implicating Mr. Sayedee with killing of his brother. On 5th November 2012 he came to the Tribunal with the defence counsels to testify as a defence witness. But when he was entering the Tribunal members of law enforcing agencies snatched him from the defence counsels. This was immediately brought to the attention of ICT-1 who did not take any step to secure his release. The law enforcing agencies has subsequently denied abducting Mr. Bali and the Government claims that this was a ‘fake story’ of the defence. The Tribunal did not feel it necessary to check the CCTV recording of the place from where Mr. Bali was abducted, which could have easily proved the abduction. Since then Mr. Bali has just disappeared.

Thereafter a habeas corpus writ (Writ Petition No 14966/2012) was moved before the High Court Division to release Mr. Bali. The Attorney General of the Government opposed the petition for unknown reason. On --------- the senior judge of a Division Bench of the High Court division was inclined to issue rule upon the government when the junior judge refused to hear the motion. This matter is now pending before another bench for motion hearing.

The conducts of the government clearly indicates that it was involved in abduction of Mr. Bali who is still missing. The government realized that if Mr. Bali could give evidence as a defence witness then it would have revealed the falsity of the allegations against Mr. Sayedee. This prompted the government to abduct Mr. Bali.

N. Number of defence witnesses reduced:

Prosecution submitted lists of Prosecution Witnesses by indicating an intention to call a total of 138 witnesses. This list was accepted with no attempt by ICT-1 to place any restriction or limitation in the case presented by the Prosecution. In reply Mr. Sayedee submitted a list of 48 defence witnesses only.

During the nine and half months of the prosecution case they could produce 28 witnesses only. In addition ICT-1 allowed for the prosecution to receive in evidence 16 alleged witness statements under section 19(2) of the 1973 Act. So ICT-1 had evidence of a total of (28+16) 44 prosecution witnesses. After close of the prosecution case, on 14th August 2012 ICT-1 arbitrarily ordered that Mr. Sayedee could only produce 20 witnesses in his defence. 20 witnesses were far from sufficient to address the vast ground covered by 20 charges of an extremely serious and complex character against Mr. Sayedee. This has substantially restricted him from proving his defence. On 28th August 2012 and 3rd September 2012 the defence filed applications for recall and review of the order. But the applications were rejected as ICT-1 was more concerned to close the defence case in shortest possible time denying his right to a fair trial.

O. Defence case was forcefully closed:

Prosecution was allowed more than nine months time from 7th December 2011 to 13th August 2012 for its 28 live witnesses. But the defence case was forcefully closed in one month and 20 days from 2nd September 2012 to 23rd October after recording only 17 defence witnesses. Mr. Sayeee filed several applications to allow the remaining defence witnesses to testify. But ICT-1 did not give any heed to Mr. Sayedee’s right to get reasonable opportunity to defend him. This has substantially limited his ability to challenge the prosecution case against him.

The Skype communication dated 14 October 2012 reveals that the former Chairman and Dr. Ziauddin engaged in a conversation conspiring to fast-track the case against Mr. Sayedee in order to issue a judgment as expeditiously as possible given his high profile. At no point of time ICT-1 was concerned about fairness of the proceeding. The former Chairman was rather found to have started drafting a conviction judgment against Mr. Sayedee even before close of the defence case.

P. Relevant documents not called for under Rule 40:

On 21st October 2012 defece filed an application under Rule 40 of the Rules of Procedure to direct the concerned authorities to produce the listed documents which were very much relevant for proper adjudication of the case. These documents included the first information report of 1972 filed by Mrs. Momtaz Begum, wife of deceased Ibrahim Kutti and sister of deceased Shaheb Ali (concerning charge 8 and 13), cases filed by PW 1 and 6 (charge 7, 8, 10 and 11). On 22nd October ICT-1 rejected this application without affording any reasons. During the prosecution summing up they denied existence of some of these documents.

After reconstitution of ICT-1 Mr. Sayedee re-agitated this matter by filing an application on 13th January 2013 since these documents were crucial to prove his innocence. But on 14th January 2013 the newly constituted bench rejected the application without any valid reason. As these documents were lying with the government agencies, it was simple for ICT-1 to call for records of those documents from the concerned authorities to resolve the dispute. The tribunal did have this power under Rule 40. But ICT-1 chose not to take this course of action which seriously harmed Mr. Sayedee affecting his right to a fair trail.

Q. Mr. Sayedee was not allowed to exercise his right under section 17(1) of 1973 Act to give explanation to the Charges:

Section 17(1) of the 1973 Act allows an accused to explain the charges made against him. At the time of framing charge on 3rd October 2011 ICT-1 did not allow Mr. Sayedee to explain the charges. At that time the former Chairman confirmed Mr. Sayedee that he would be allowed to explain the charges at a later stage. Thereafter at the beginning of the defence case Mr. Sayedee wanted to exercise his right under section 17(1). But at that time the former Chairman told him that they would allow Mr. Sayedee to explain the charges and evidence after close of the defence case. On 23rd October 2012 ICT-1 ordered to close the defence case. Thereafter on 31st October 2012 Mr. Sayedee filed an application to allow him to exercise his right to give explanation to the charges made against him as guaranteed under section 17(1). On 5th November 2012 ICT-1 rejected the application holding that Mr. Sayedee was given chance to explain the charges when he was entering ‘not guilty’. This was a clear contradiction to the promise made to Mr. Sayedee. After reconstitution of ICT-1 following the former Chairman’s resignation Mr. Sayedee re-agitated this matter by filing an application on 13th January 2013. But the newly constituted bench also disregarded Mr. Sayedee’s right under section 17(1) and rejected the application.

R. Conspiracy to convict Mr. Sayedee revealed in Skype & Email Communication and plea for retrial:

The final blow on the fairness of the proceeding of ICT-1 was made when the Skype and email communications between the former Chairman, Mr. Justice Nizamul Huq of ICT-1 and Dr. Ahmed Ziauddin was revealed in early December 2012. This was widely reported in Bangladeshi newspapers and international journals e.g. The Economist. The former Chairman and Dr. Ziauddin have already admitted these communications which reveals the following:

(1) Dr. Ziauddin advising the judges and the Prosecution at the same time –

The former Chairman was regularly meeting Dr. Ziauddin in Skype when the later used to advice on the pros and cons of the proceedings in ICT-1 and 2. Dr. Ziauddin played an important role in advising the judges and the Prosecution at the same time. The Skype conversation reveals that the former Chairman regularly had secret meetings with members of Prosecution and advised them to feel in the gaps in the prosecution case.

(2) Charge framing order drafted by Dr. Ziauddin –

Emails between Dr. Ziauddin and the former Chairman show that the order of the Tribunal framing charges against Mr. Sayedee was in fact drafted by Dr. Ziauddin. In an email dated 2nd October 2011 Dr. Ziauddin sent the former Chairman a document titled ‘20111002-Caseno1ChargesJV.doc’ containing the charge framing order to be delivered against Mr. Sayedee. ICT-1 passed the same order on the next day on 3rd October 2011 to frame charge against Mr. Sayedee. It is surprising how ICT-1 secretly allowed a third party who is engaged with the Prosecution to draft the Charge framing order. This has vitiated the entire trial against Mr. Sayedee.

(3) Recusal Reason order drafted by Dr. Ziauddin –

On 30th October 2011 Mr. Sayedee filed an application for recusal of the formal Chairman for his involvement as a member of the Secretariat of the People’s Inquiry Commission that investigated allegations of war crimes against him. On 14th November 2011 the other two members of the Tribunal passed an order leaving the matter of recusal to the ‘good conscience’ of the former Chairman. Thereafter on 16th November 2011 Mr. Sayedee filed an application asking the former Chairman to provide and record reasons as to why he continued to sit as Chairman of ICT-1 despite the clear evidence of bias (‘Recusal Reason Application’). In an email dated 27th November 2011 Dr. Ziauddin sent the former Chairman a document titled ‘261111-Draft order.doc’ containing the order on the Recusal Reason Application to be delivered in ICT-1. On the next day ICT-1 passed the same order to reject the Recusal Reason Application.

(4) Rules of the Tribunal drafted by Dr. Ziauddin –

Dr. Ziauddin was so influential on ICT-1 that he drafted amendments to the Rules of Procedure of ICT-1. On 9th November 2011 Dr. Ziauddin sent an email to the former Registrar of the Tribunal, Mr. Shahinur Islam, wherein he sent a draft amendment of the Rules proposing to insert a proviso in Rule 18(4) that curtailed the right of the defence to get particulars of the prosecution witnesses. This was later on implemented in the third amendment of the Rules.

(5) Executive Interference –

In the Skype conversation dated 14th October 2012 the former Chairman stated that the Government had gone mad for a judgment and that they were extremely keen to have a judgment delivered by 16th December 2012. He also said that he was planning to deliver judgment against Mr. Sayedee to ‘cool down’ the Government. On the next day on 15th October 2012 former Chairman told Dr. Ziauddin in Skype conversation that the State Minister for Law had visited his residence and had asked him to deliver judgment quickly. It was revealed from the conversation that the State Minister was organizing a meeting of all the judges of ICT-1 and 2 and the Law Minister to ensure quick judgment.

In Skype conversation on 27th August 2012 Mr. Justice Huq is reported to have said that a former Member of ICT-1, Mr. Zaheer Ahmed had been removed from the Tribunal at the behest of the Law Minister. Mr. Justice Huq stated that the Law Minister had summoned Mr. Zaheer Ahmed to his residence on an earlier evening and had asked him to resign. During Skype conversation of 6th September 2012 the Former Chairman said that he was given promise to be elevated to the Appellate Division of the Supreme Court of Bangladesh if he could give judgment against Mr. Sayedee, Professor Golam Azam and Salauddin Quader Chowdhury.

(6) Conspiracy to convict Mr. Sayedee and drafting conviction judgment even before close of the defence case –

Mr. Justice Huq and Dr. Ziauddin engaged in Skype conversation conspiring to fast-track the case against Mr. Sayedee in order to issue a judgment as expeditiously as possible. Their emails show that Dr. Ziauddin had been preparing judgment for conviction of Mr. Sayedee even before close of the defence case.

S. Resignation of the Former Chairman and Application for Retrial:

The above conspiracy of the former Chairman with Dr. Ziauddin, Government and the prosecution reveals that fair trial has been compromised from the very first Day of Mr. Sayedee’s case. Each of the decisions made by ICT-1 has been adversely affected by the former Chairman’s lack of independence and impartiality. Undoubtedly the trial would have proceeded very differently had Mr. Sayedee’s rights been respected to the degree required by international standards. As such after resignation of the former Chairman Mr. Sayedee filed an application on 23rd December 2012 for full and complete retrial to the newly constituted bench. Copies of the 17 hours Skype conversation between the former Chairman and Dr. Ziauddin, news reports and relevant emails were presented before the newly constituted bench so that they can take cognizance of the severe injustice caused to Mr. Sayedee and order for a retrial.

A retrial was inevitable in this case as none of the judges constituting the new trial panel have heard the entirety of the case against Mr. Sayedee. In these circumstances the Bar Human Rights Committee of England and Wales have called for a full retrial. The Human Rights Watch in its report dated 13th December 2012 has also argued for a full and complete retrial of the case against Mr. Sayedee:

“It would be highly irresponsible and unprofessional for a verdict to be delivered when none of the judges heard all the evidence and were unable to assess the credibility of key witnesses, particularly in a trial involving 40-year old evidence and complex legal issues.”

But the newly constituted ICT-1 did not take cognizance of the Skype and Email communications and the injustice caused by the former Chairman. On 3rd January 2013 they rejected the retrial application. Mr. Sayedee filed an application on 10th January 2013 to review the order. ICT-1 rejected the review application on 21st January 2013 causing serious injustice to Mr. Sayedee.

T. Conclusion:

After Skype Scandal it proved the tribunal is Biased, Unfair and would result Injustice. It is now evident that the former Chairman has had the judgment prepared against Mr. Sayedee by an uninvolved third party. He resigned as a consequence of allegations of judicial misconduct. But the newly constituted bench is also willing to take the burden of the former chairman as they refused to take cognizance of the Skype and Email communications of the former Chairman.

Highest standards of fairness are demanded particularly since the present case may attract Mr. Sayedee’s death penalty. But the ‘concerns are so serious that there is a risk not only of a miscarriage of justice affecting the individual defendants, but also that the wrongs which Bangladesh has already suffered will be aggravated by the flawed process of the tribunal’ .

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