A storm in a tea-cup? SQC’s draft judgement ‘controversy’

BNP-leader-Salahuddin-Quader-Chowdhury

What conclusions can be drawn from the ‘controversy’ concerning the availability of the draft of a judgement relating to the trial of Salauddin Quader Chowdhury’s trial prior to it being read out in court on 1 October, and which it is claimed was ‘written in the ministry.’

This issue first came into the public domain soon after the tribunal pronounced a death sentence  on Salauddin Quader Chowdhury. The accused himself made the claim in court and it was repeated outside the tribunal gates by his family members.

Some journalists had been sent a copy – or a link to a website where the ‘draft’ could be downloaded – on 31 September, and that same evening a website of the organisation ‘Justice Concern’ provided further details about the claim that it was written by the ministry of law

Yesterday (2 October 2013) the tribunal authorities confirmed that an early draft of the judgement had been ‘leaked’ – but said that it came from the ICT, and had informed the police about it. One of the judges is reported in some papers as saying that the family must have spent a lot of money to access it.

Here are my thoughts on all of this.

1. The leak of such a document is only a ‘scandal’ if it was infact found on a computer that was not belonging to the ICT. The fact that a draft judgement was leaked prior to the actual judgment may be embarassing to the authorities – but it is from where it was leaked that is significant.

2. Even if it was concluded that judgement was found on a law ministry computer  – that does not necessarily mean that it was drafted by government officials. Someone could have simply sent the document from the ICT to the ministry, without even the judges knowing about it. Whilst no tribunal draft should have been sent outside the jurisdiction of the tribunal – and this in itself could be suggestive of in appropriate governmental influence, it is quite another thing to suggest that it was drafted in the ministry.

3. There appears to be two drafts of the judgement that have been placed in the public domain. The first one is a PDF of a scanned document with somewhat blurry text. The second document is a word/pdf document where the text is clear. (I am having technical difficulties putting up screen shots of these two documents at present, but will try to do so as soon as I have worked out how!)

Whilst the text in the two documents are similar, the scanned PDF is clearly an earlier version since from p.35 of the 126 page document (when it starts discussion of the charges), there is only limited numbering of the paragraphs. Moreover the other document is longer at 172 pages.

4. There is also another significant difference. At the bottom of each page of the scanned PDF there is a document locator – that is to say a line of text and backward slashes apparently setting out where the document was located within the computer from where it was obtained.

In the copy that I have seen this line is not clear – but it can be made out. It states the following:

D\Alam\DIFFERENT COURTS n POST CREATION\War Crimes Tribunal\Chief Prosecutor\War Tribunal/Saka final- 1.doc

5. This document could of course have been meddled with. Someone could have obtained the document and put this text in there. But for the moment, let us assume that this is a scan of a genuine document.

The most interesting part of the document locator is that one of the sub-folders says ‘Chief Prosecutor’. That would seem to suggest that this was a folder within a computer related in some way to the ‘chief prosecutor’. Clearly, if the document had in any way been drafted or seen by the chief prosecutor or any member of his team before delivery, this would not be appropriate – and could suggest collusion. However, it is important not to jump to conclusions and there could of course be some other innocent explanation for the name ‘chief prosecutor’ being given to a folder.

There is nothing in the locator text to suggest any connection with the ministry of law

Other than the name of the ‘Chief Prosecutor’ sub-folder, there is nothing that is particularly concerning about this document.

6. Now lets look at the Justice Concern website. It is important to note that Justice Concern is a ‘Jamaat’ organization, or at least an organisation with close links to the party. I know a little about the group as they were involved in sponsoring a meeting at the House of Lords on the war crimes tribunal sometime back, and I researched it for an article which I wrote for bdnews24.com. I mention its link to the Jamaat, not as a way to simply discredit what is stated on the website – what the Jamaat say can also be true (though of course many refuse to believe this is possible!) – but so that one knows the material is written on a website with very much a vested interest, and it needs to be considered with caution.

7. The webpage states the following (emphasis added). I can’t link to it as the website is now down.

It has now transpired that the verdict to be delivered by the Tribunal against Salahuddin Quader Chowdhury was prepared in the Ministry of Law and Parliamentary Affairs. A copy of the verdict that is to be delivered today by the International Crimes Tribunal-1 was recovered from acomputer in the office of the Secretary-in-Charge of the Ministry of Law of Parliamentary Affairs, Abu Saleh Sheikh Zahirul Haque. What is more surprising is that the verdict was being drafted from 23 May, 2013, when the prosecution was still examining its witnesses.

It goes on

The file containing the verdict was found in the D Drive of a computer located at the 6th floor of the Secretariat Building of the Ministry of Law and Parliamentary Affairs. In this drive there was a folder entitled ‘Alam’ within which there was a subfolder ‘Different Courts n Post Creation’ within which there was another subfolder titled ‘War Crimes Triubunal’. In this subfolder there was yet another subfolder titled ‘Chief Prosecutor – War Tribunal’. This subfolder contained a file titled ‘saka final – 1’ which contained the draft verdict against Salahuddin Quader Chowdhury. When the verdict was finalised the name of the file was changed from ‘saka final – 1’ to ‘ICT BD Case NO. 02 of 2011 (Delivery of Judgment) (Final)’. The folder titled ‘Alam’ belongs to a computer operator (by the same name) of the Secretary in Charge of the Ministry of Law.

The properties section of the file containing the verdict shows that work on the verdict began on 23 May, 2013 at 12.01 in the morning, when the examination of prosecution witnesses was still going on. The file size is 167 KB and contains 164 pages. The verdict has been prepared over 2587 minutes.

The webpage also had a link at the bottom to allow one to download a word file called ‘ICT BD Case NO. 02 of 2011 (Delivery of Judgment) (Final)’.

8. It seems that the two files mentioned in the article refer accurately to the two files that are in the public domain (see my notes 3-4 above).

It is also the case that the location of the folder as described in the article matches the folder location in the scanned draft (see note 4).

However, there is no evidence provided to support the contention that the document was found in the ‘ministry of law’ computer mentioned in the article. It is simply a claim.

It would of course be interesting to find out if there is a computer operator called ‘Alam’ who is aid to have worked for Abu Saleh Sheikh Zahirul Haque (the department secretary). If there was such a person, that would certainly be interesting, but even them Alam is not an uncommon name, so that would not prove anything in itself. There could also of course be a person called Alam who works in the ICT! (Of course a person called Alam might have named the hard disc of the computer and then moved on, leaving the computer operated by another person.)

9. If there was a proper independent investigation into this, that looked into all the relevant computers one could find out whether there is/was such a folder in a computer in the ministry, the prosecutor office, or indeed at the ICT.

10* The Justice Concern website states that ‘What is more surprising is that the verdict was being drafted from 23 May, 2013, when the prosecution was still examining its witnesses.’  Assuming it is correct that the document draft was started on 23 May, this in itself is not a problem – in that there are many portions of the judgement that could quite appropriately be written prior to all the evidence being heard, for example, all the preliminary sections relating to various non-charge related matters. The only problem would be if the sections of the judgement dealing with the ‘charges’ were drafted prior to the evidence having been taken – and as far as I understand that cannot be known.

11. In conclusion, we are not left with very much to help one take a clear view about this document. If anyone knows of any further information that takes us any further, do please send a comment.

12. It is important however to recognise the reason why some people have suspicions that such a document was drafted from outside the tribunal – that is because this is not the first time that orders have been drafted by people not involved in the tribunal. The whole so called ‘skype’ scandal also involved e-mails – and these e-mails showed clearly that Ahmed Ziauddin (a lawyer based in Belgium) had been involved in drafting tribunal orders and sending them to the tribunal.

13. This is of course not to say that it happened this time. It is only to note that it has happened in the past.

14. Having read the judgement, it is my speculative view, that it is rather unlikely to have been drafted by the law ministry/prosecutors. If – and I emphasize only ‘if’ – there is any untoward business here, it is more likely that it was sent out from the ICT for someone to look at/comment on.

15. I should just end this by adding that in some ways the issue about the judgement draft is a bit of a diversion from other more substantive and provable concerns about the trial and judgement. You don’t have to be a human rights lawyer to understand that there is something very very wrong in a trial in which the judges do not limit the prosecution to any specific number of witnesses it can bring to court (the prosecution in fact brings 41) but where the defence is limited to 5 witnesses.

Yes, that is right. The prosecution had ten times as many witnesses as the defence – 41 to 4! Not much more really needs to be said.

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