The war crimes trials were rocked by a controversy earlier in December, forcing the International Crimes Tribunal-1 Chairman to step down.
Justice Mohammad Nizamul Huq quit on Dec 11, 2012 after 'transcripts' of an alleged Skype conversation between him and a Brussels-based academic were published by the BNP-leaning daily Amar Desh.
The judge admitted to his communication with an international law expert, Ahmed Ziauddin, living in Belgium, in an order of Dec 6.
The London-based The Economist had apparently called him the evening before, claiming to have acquired over 17 hours of Skype conversation and 230 emails.
Justice Huq said in his order that he had only realised a few days before that his accounts with Gmail and Skype had been hacked and he barred the British periodical from publishing any material it had got it hands on.
Amar Desh began to run the allegedly leaked conversations on Dec 9 and continued until Dec 13. The Economist published a story citing only snatches of the alleged Skype conversation.
Justice ATM Fazle Kabir, who had served alongside Justice Huq until March and gone on to head the second tribunal, was brought back as Chairman. Judge AKM Zaheer Ahmed, one of the founding judges, resigned last year citing poor health and was replaced by Justice Jahangir Hossain.
Of the four trials going on at the first tribunal, three are against Jamaat-e-Islami leaders. Jamaat guru and former chief Ghulam Azam has been indicted for five war crimes charges, current Jamaat chief Motiur Rahman Nizami for 16 and executive council member Delwar Hossain Sayedee for 20 charges.
Sayedee's trial, having begun first with his indictment on Oct 3, 2011, is the most advanced and awaits verdict while in Azam's case the defence is still deposing its first witness. Nizami's case has only seen the second prosecution witness being deposed.
The second tribunal has two Jamaat assistant secretaries general and the party's secretary general on trial while investigations are underway against three more of its leaders including Mir Quasem Ali, a Jamaat financier and owner of Diganta Media which runs a daily newspaper and a television station.
Heading the party's defence team at the tribunals, Abdur Razzaq is also an Assistant Secretary General of Jamaat.
bdnews24.com's Tanim Ahmed caught up with Abdur Razzaq on Jan 1, two days before the retrial applications were rejected: The Interview
Q. Have you ever emailed Justice Huq?
A. No. The question doesn't arise.
Q. How do you then know that a certain email address belongs to him?
A. There is no question of my knowing it. It is in the public domain. First of all it was disclosed in the Economist and then in Amar Desh. And now it is on YouTube and various other sites.
Q. You also have no way of knowing that the Skype conversations were actually his except that they are also available in the public domain.
A. Well, it is available in the public domain; it has been available for the last three weeks. There are 23 players, including Justice Huq and not a single person has denied it. We filed an application and the government has given a reply and they have not denied it either. Neither the ministers, nor the judges denied it. There has been no denial.
As such, it is an accepted thing that what has been reported is true. And perhaps you should take into consideration that The Economist is a very prestigious newspaper, almost 200 years old. They have published it. Of late, the Wall Street Journal has published certain portions and Foreign Policy has also quoted a certain portion.
One person who could have denied it is Justice Huq and the other could have been Ahmed Ziauddin. But no one has denied the conversation.
Q. Could it then be presumed that the absence of denial is your only premise to counter the claim that this conversation is not genuine, a point you have made several times in court.
A. It is not my point. It is a universally accepted point. If I make an allegation against any person, the first reaction would be 'Ahh! Mr Razzaq you are untruthful.'
I am sure you have seen the editorial comments by The Economist. I believe it is correct. We know only a portion of the conversation. Only a tip of the iceberg, only 17 hours of conversation, 230 emails.
Q. So you have the same answer to the contention that these Skype conversations were digitally produced, that they were doctored, edited, or that they were not properly transcribed. The answer is basically that there has been no denial and if these were indeed untrue then there would have been one.
Q. It is not only Amar Desh that published transcripts of the alleged conversation, there have been other publications that did too. And thus, it is your position that we must presume these were not doctored or edited.
A. The question of presumption does not arise. This is an established fact. If any of the western newspapers had misrepresented it, people would have gone and sued them. I said in open court that the law of defamation is very weak in Bangladesh but not so in Europe and America. This speaks volumes. And this is entirely true, no doubt about it.
Justice Huq also said on Dec 6 that he had indeed spoken to Ziauddin. Another thing I must say with respect to the judge is that he was not consistent with his reply to The Economist. Once he said, 'I have had no conversation with anybody. We don't even discuss it with our wife.' And on the next day he says, 'No, I have had discussions with him on points of law.'
Q. Let me put forth a situation. I write a report, for instance, this interview and send it to my editor who edits it and mails it back. Of course, the editor's version would be the one that eventually goes up on the web. Now if that mail from my editor were taken out and pointed out that this was where the report came from and thus the editor had written the report, it would be taking it out of context. Wouldn't you agree?
A. Not at all. What you are saying is (you are making) an analogy (between) what has been done by Justice Huq and (what your editor may do). He cannot confer with anybody outside the lawyers in the manner he has done it. He could have taken advice from Dr Ziauddin in two manners. One, he could have said that Dr Ziauddin is an amicus curiae. We would have no objection to that.
Alternatively, he could have been appointed as a court associate. His name would have been there. The prosecution and the defence would have known him.
So the analogy that you are drawing with your report, with one side being taken out, does not apply because as a judge of the Supreme Court, he is under oath not to do anything behind the scenes. That is why no lawyers have come to defend him.
What he has done is a violation of the constitution, violation of the code of conduct, a violation of the oath of office.
The Attorney General has tried to argue that the judge could in fact take help from an outsider. But he is not correct.
Q. And why not?
A. You see 11 D (a section of the International Crimes Tribunal Act 1973) says that the tribunal shall have the power to appoint persons to carry out tasks designated by the tribunal. So the appointment must be by the tribunal. Not by the Chairman.
A tribunal is defined as consisting of a chairman, and two to four members. So the Chairman has no power to appoint someone. In this case, the tribunal has not appointed him. Even the Chairman has not appointed him.
Because, if there were one, there would be an appointment letter. There would be terms and conditions. He would be paid. How much is he getting paid? Who has authorised the payment? Has the finance ministry approved it? Moreover, everything must be transparent. When was he appointed? Officially we came to know about him only on Dec 6 when Justice Huq passed an order. So the analogy does not apply.
The Attorney General also tried to argue that the Chairman may make administrative arrangements that he considers necessary for the functions of the tribunal. But this arrangement behind the scenes was a judicial arrangement.
Let me give you an example of what this gentleman has done. I have said this in court today (Tuesday) too. This is regarding a formal charge which is very important in this law. It is upon submission of the formal charge that the proceedings begin. And there were six drafts of this formal charge (of Ghulam Azam). All of them came from Brussels. The first came on Dec 10, 2011 and the sixth draft was ten pages and there was a structure. The seventh and final draft was submitted on Jan 5, 2012 by the Chief Prosecutor. These are not administrative arrangements but legal arrangements.
The formal charge is the starting point of the proceedings. If one claims this to be administrative arrangement then one would also have to change the dictionary meaning of the word. This is pure and simple judicial arrangement.
It does not end there. The charge-framing order also came from Brussels. It was about 100 pages and the order passed was verbatim. The word 'wife' was written twice and the court order had that too. And then as many as four orders were passed by Justice Huq as Chairman, all of which were drafted in Brussels. These are purely judicial orders. And he cannot do that.
Q. It is one point that these things were being done behind the scenes. But you also claim that these orders had originated from Brussels. How can you know that for sure if the entire thread of exchange, like the hypothetical one between my editor and me, is not there but the material available is only what someone has received? How would you know what has been sent off if there is nothing from 'Sent Mail'? One cannot then compare between what has been sent off and what has come back.
A. The question is, this email should not be seen in isolation. This should be seen together with the 17 hours of talks. And we have brought this in court. From that context we come to the conclusion that Justice Huq completely relied on the person called Ahmed Ziauddin for drafting everything for him.
Let me give you another example. We made an application for issuing summons on two foreign witnesses. We had served copies to the prosecution before filing them with the court. Now, these two applications went to Brussels. Now how they went to Brussels, we have no idea. But through the Skype conversations we know that there was a discussion between the judge and Ahmed Ziauddin. They were read to him. Apparently, you could see from the conversation that the judge did not know about them.
I have no doubt in my mind. It has been proved beyond any shadow of doubt. The prosecution did not open its mouth. The attorney general was there. He is the highest law officer, he would have been shouting at us in protest if this were not true.
I ask a question. Why have the prosecution, the administration, the judges, the judge himself not denied it?…Because they simply can't.
Q. So you are saying that it is totally out of the question that Justice Huq or the other judges, had, in fact, drafted any kind of order and sent it off and Ahmed Ziauddin was the one who merely edited it and sent it back? That all these orders have originated in Brussels?
A. Yes…Let me say this. The charge-framing order for Sayedee, and this was said in court, Justice Kabir said he and Judge Zaheer Ahmed had drafted it, and I take that to be true. But even if it is so, it cannot be sent to Ahmed Ziauddin. Because Justice Huq, if he has drafted it, is the author and he has finalised it. He cannot send it to a supra judge. This is a violation of the constitution, violation of the independence of the judiciary.
If there is one concept in the entire judicial process, it is the independence of judiciary. My lord Justice Nizamul Huq Nasim has violated that provision.
And I say this, even if your analogy is correct, which it is not in other cases, we should have been informed. Why can't the prosecution say, 'No no no, Mr Razzaq you are wrong.' That this formal charge had originated in Dhaka, that Justice Huq had drafted it and Ahmed Ziauddin only edited it. And I say again he has no right to edit it. I would say this is a cock and bull story. This is merely a figment of imagination.
Q. Let me present you with another scenario. In your line of work there would be occasions when junior lawyers show you several drafts of petitions, one after the other. And you would reject them until one meets your satisfaction. It does not mean that your junior is actually the brain behind it. It is rather yours. And it is your junior who is acting on your dictates, not the other way round. Now in this case, as you have said in court several times, it was Ahmed Ziauddin who was sending draft after draft.
A. The question is what is the authority or legal standing of Ahmed Ziauddin. Had he been appointed by the court with the knowledge of everybody, there would have been nothing wrong. I said in court today that there is such a provision in Cambodia and other countries as well. We would know the persons. And if Mr Ahmed Ziauddin had been appointed by a provision of law then we would not have been able to open our mouths. Then the question of transparency and accountability would not have been there. We would have known who this Ziauddin was and what he was doing. He is manipulating everything behind the scenes, which is not permitted by our law. Not by any civilised standards.
Q. One of your points for retrial based on the allegation that the trial has been vitiated and prejudiced is that there was collusion between the judge and the prosecution. The only means to establish that is through the alleged Skype conversations. Am I correct?
A. We don't know if there is anything else but what we have is the Skype conversation, through which it has been established that there is an unholy alliance between the prosecution and the judge.
Q. And in that alleged Skype conversation it is what the speakers claim through which you gather that there is collusion?
A. We are not gathering anything. We are reading into what has been said in the conversation.
A judge can only see a prosecutor or a defence counsel in the presence of both parties. This is a violation of the code of conduct for the judges and also the lawyers.
Q. But hadn't Justice Huq seen counsels of Jamaat's defence team or other defence counsels in his chambers? He had also openly invited counsels to his chambers for a cup of tea and they had visited him and conversed with the judge in his chambers without the presence of their opposite numbers from the prosecution.
A. I did not visit Justice Huq's chambers any time without the presence of lawyers from the other side. Now if it is a social visit for a cup of tea or coffee, well perhaps that may be different, but it is not advisable that one lawyer should see a judge in chambers when the lawyer from the other side is not present. Although it is not strictly forbidden, it does not look nice.
Now it is not the question of mere going and seeing him but it is about discussing a case and merit of witnesses. One thing is very clear. A judge is not supposed to open his mouth about an ongoing case only with the lawyer of one party. This is totally unacceptable and immoral.
Q. So your contention, although the Attorney General has argued against it, in these applications is that the judge is in no way entitled to seek such assistance as has been shown through the alleged Skype conversation and email exchange presented?
A. Very much so. And that is precisely why he has resigned.
Q. These email exchanges, however, are not really exchanges but only what Justice Huq had received and not what he had sent off that was produced before the tribunal.
A. I think there were one or two.
Q. There was one or two that he had been sent off, out of 230 emails?
A. Yes. You see 230 emails only for a period of one month and a half between Sep 19 and Oct 2 or so. And the 17 hours started on Aug 27 and ended on Oct 20. So it is less than two months. As I said this is only a tip of the iceberg.
That is why I have made a demand that in the interest of justice to ensure the independence of judiciary, let there be an international judicial enquiry to find out what has happened.
Q. Then what you completely depend on for evidence is what you find in the public domain?
Q. And that may not be the complete record.
A. Perhaps it is not.
Q. The prosecution and the Attorney General repeatedly argue that you cannot benefit from your wrong. That you cannot benefit from your wrong that you cannot argue a case based on what is stolen.
A. I think the Attorney General is wrong there. Because these documents are not discovered or obtained by either Sayedee, Nizami or Ghulam Azam. They were in the public domain. The Economist, Amar Desh, and then Wall Street Journal, Foreign Policy, YouTube and one or two websites. It is not Nizami who has stolen it. But even if he has, and I have shown a case of the Privy Council that if these are relevant then the courts will look into it. If I have stolen it then I will face the music for stealing it.
The Attorney General has said that the court cannot even look into it. But we have cited so many cases.
Q. Which he repeatedly said were irrelevant and not applicable to the applications at hand.
A. Everything is coming from the mouth of the Attorney General without any reference. And we have cited a recent case of the Indian Supreme Court. It is very interesting where NDTV had done an investigative report where the defence was buying off prosecution witnesses recorded on a hidden camera.
The court said if they had done anything wrong then file a defamation case but will look into the material. The Attorney General has not addressed the matter of public interest. We have cited other cases too. We have said that the question of public interest has to be seen. I cannot invade the private space of a public functionary but if it relates to the performance of his duty then public interest is there. Who can deny that this war crimes trials is very important for Bangladesh and when this honourable judge is in unlawful contact, unauthorised contact, it is of public interest. Even the Ghatak Dalal Nirmul Committee, who have been advocating trial of war criminals for long, have said publicly that what Ahmed Ziauddin has done is wrong.
Q. If the retrial applications are rejected, what might we accept in future?
A . We don't prejudge an issue. Let us wait for Jan 3. Once the judgement is passed we will take the next course of action. I am not going to say that they will be accepted or rejected. Once their lordships pass the order, the law will take its own course and we will decide on the next course of action depending on what order they pass.
Q. There are also repeated allegations that the Jamaat defence team through its numerous applications and other tactics is trying to delay the war crimes trials. How do you respond to that?
A. This is not correct. And the allegation is made without knowing the matter to the full. War crimes are not like any other crimes. (Former Liberian President) Charles Taylor's trial ran for three years. Then judgement was delivered one year after the proceedings came to an end. (Former Serbian President) Slobodan Milošević's trial continued for years together. That is the first point.
Now if we look into the facts, we will see that the prosecution is taking much more time than the defence is. In (Jamaat Assistant Secretary General) Abdul Quader Mollah's case, it took the prosecution about three months to call their 12 witnesses between Jul 3 and Oct 8. But defence witnesses took just about a month. That is, three times less than the prosecution. If we come to Sayedee, the first prosecution witness was called on Dec 7, 2011 and the last one on Aug 13, 2012. That is nine months. The defence witnesses (deposition), however, started on Sep 2, 2012 and came to an end on Oct 23, 2012. Just one month and 20 days. Ghulam Azam's 12 prosecution witnesses took five months and we have started the defence witnesses. The prosecution is clearly taking more time than the defence is.
Q. The contention is that it is because of the numerous, irrelevant and trivial applications of the defence and other formalities of the court that the prosecution is being delayed.
A. This is not correct. Justice should not only be done but must be seen to be done. The prosecution is taking time to bring their witnesses and is failing to bring their witnesses. Perhaps you will remember earlier in 2012 when Sayedee's case was listed in court for days together and the prosecution would come to court and say that they were unable to bring witnesses because they were making up their witnesses. And if you consider the other tribunals of Sierra Leone, Rwanda, Yugoslavia you will see that the prosecution is moving rather fast. And the government wanted it even faster. That is why there was pressure on Justice Huq.
Q. But there are similar instances regarding the defence which repeatedly failed to bring its witnesses.
A. Certainly in some cases we could not bring our witnesses because they were intimidated. This is for the first time in the history of the subcontinent and perhaps in the history of the world that a witness was kidnapped. That speaks conclusively that the witnesses were under real pressure. That is why we failed to bring the witnesses.
Q. I was there at the tribunal on that day and it was the first day that the prosecution was scheduled to begin closing arguments in the Sayedee case. I had reached the tribunal at 9:45am and I walked around the premises. I had been in and out and finally came in through the gates at 10:20am from where the witness was allegedly taken away barely five minutes before, around 10:15am. I personally did not see anything unusual and having asked other people, could only find two persons who claimed to have seen the car that allegedly took away the witness. Both of them were reporters of Sangram, which is affiliated with the Jamaat-e-Islami. Other than the defence lawyers and these two, there were no other witnesses. Doesn't that strike you as very unusual?
A. You see this is not only coming from the mouth of Jamaat people. There are blog writers like David Bergman. He has written about this in his blog. He even went to the witness' village home. Bergman spoke to his wife who had spoken to the witness 10-15 minutes earlier that day and then all of a sudden Bali disappeared.
And even the foreign people have said this has happened. Now what is expected and where the first tribunal failed under the leadership of Justice Huq was that there should have been a fully fledged independent enquiry. He should have looked into all the CCTV footage to find out what had happened. And then one should have come to a conclusion. The government faced a barrage of criticism from Human Rights Watch, Bar of England and Wales Human Rights Committee. And no-one has the courage to come out and say that 'Yes we will look into this matter.'
And this is a very serious allegation. Defence counsel Mizanul Islam said that Shukho Ranjan Bali was in his car when the witness was abducted. And if he were not speaking the truth then law should have taken its course and he should have been arrested.
Even the police station refused to record the case.
It cannot be untrue.
Q. It is also pointed out it was the first time that a witness was accompanying defence counsel Mizanul Islam in his car. It is also pointed out that there was no reason for a witness to come to the court because witness deposition had been closed and the day was scheduled for closing arguments.
A. Let me take the last point first. In our system, even it is for argument or final submissions the court has the power to allow witness depositions. Because they say it is your last chance but it is opened again. It happens all the time.
There was another witness of the prosecution who came and testified for the defence and said his mother was not killed by Sayedee. It was a huge embarrassment for Sayedee. And it would be another blow for the prosecution if this witness said his brother was not killed by Sayedee either.
But I challenge. Let there be a fully fledged investigation by an independent judge of the High Court to find out what has happened. I have no doubt in my mind, the civilised world has no doubt in its mind, about who kidnapped Shukho Ranjan Bali.
Q. The Jamaat defence team, which you lead, has produced a bulk of material like these 230 emails and the supposed Skype conversation found on websites like tribunalsleak or other websites where the available materials suggest that it is being done in such a manner that would favour the Jamaat leaders facing war crimes charges. There have been the witness home documents that the prosecution said did not even exist and have been forged. Other organisations and media outlets affiliated and sympathetic to the Jamaat like Sangram, Naya Diganta or Amar Desh have done investigative pieces, speaking to witnesses and publishing such leaks as the present one, that the tribunals did not take well at all. Some were in fact considered tantamount to tampering with evidence, tampering with witnesses. There appears to be a trend of producing unethically obtained material by the Jamaat defence team. This gives a perception that the series of events and leaks are being orchestrated. Now how do you respond to the allegation that the Jamaat defence team is trying to subvert war crimes trials?
A. The first point is Sangram is affiliated with Jamaat. It is the party's mouthpiece, no doubt about that. But as far as Naya Diganta or Amar Desh is concerned it is totally incorrect.
Q. But Naya Diganta is owned by a Jamaat stalwart.
A. A company is owned by its shareholders, by the board of directors. Amar Desh is run by non-Jamaati people. Let me ask you this. Is The Economist owned by Jamaat? The Wall Street Journal? Foreign Policy? Do they belong to Jamaat? Why on earth The Economist, with all its reputation – and I know as well as you do that The Economist is the one single weekly that commands respect on both sides of the Atlantic –have published the story?
We are lucky that it first came to light on Dec 6 and then on Dec 15 The Economist followed it up. That speaks volumes.
It is incorrect. Totally incorrect. This matter has been totally internationalised. If I may put it this way, The Economist is not Sangram, Amar Desh or Naya Diganta. The same goes for Wall Street Journal and Foreign Policy. Truth is truth. This is a fight between truth and falsehood.
Q. One last question. This is about Misbahur Rahman Chowdhury's (first prosecution witness against Nizami) allegations against you. He had said to have seen you present at a meeting attended by other alleged war criminals soon after the war. You had thereafter briefed the press that these were completely false. I had asked you then where you were during the 1971 Liberation War and you had said that you would not answer the question. You had told me that since there were people making these allegations you would let them answer the question. Is your answer still the same?
A. Misbahur Rahman Chowdhury said he met me in a place called 57 Plaistow somewhere in London. This is the age of Google and one can look into it whether 57 Plaistow actually exists.
I have not been mired during 1971. They are trying to bring allegations against me out of thin air. No matter what I say about my location in '71, the investigation agency will concoct allegations centring around that place. If I say I was in Bangladesh, they will manufacture allegations that fit that answer, if I say I was in London they will discover a conspiracy based in London.