Ghulam Azam's counsel Abdur Razzaq said even though there was no provision of retrial under the International Crimes (Tribunals) Act, 1973, the tribunal could exercise its inherent power to reinitiate the case.
Former Jamaat ameer Ghulam Azam, thought by many to be the symbol of war crimes during the Liberation War, is facing five charges of crimes against humanity, genocide and other grievous crimes.
His counsel Razzaq yesterday gave his submission before the International Crimes Tribunal-1 on Azam's petition for retrial of his case.
The petition was filed on December 19 after a Bangla daily this month published the â€œtranscriptâ€ of alleged Skype conversations between former Tribunal-1 chief Justice Nizamul Huq and expatriate legal expert Ahmed Ziauddin.
Justice Huq resigned amid the controversy.
Defence counsels had filed three petitions to reinitiate the war crimes cases against Ghulam Azam, Jamaat chief Motiur Rahman Nizami and Nayed-e-Ameer Delawar Hossain Sayedee.
The defence had been placing its arguments on the petitions for the last two days.
On Monday, Razzaq mentioned sections of the alleged Skype conversations. Razzaq claimed that different orders, including taking charges into cognisance, formal charges and recusal (voluntary abstention from trial proceedings) had come from abroad.
Quoting 46 (A) of the International Crimes Tribunal Rules of Procedure (Amendment), 2011, Razzaq in his submission on the second day, said the rule gave inherent power to the tribunal.
The 46 (A) was inserted after the rule 46 regarding powers and functions of the tribunal. It said nothing in these rules shall be deemed to limit or otherwise affect the inherent power of the tribunal to make such order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process.
Razzaq said they were not asking to recall and re-hear any witness. Rather, they asked the court to recall orders on cognisance and formal charges as per 46 (A).
Chairman of the three-member tribunal Justice ATM Fazle Kabir then asked the defence counsel, â€œWhat will be the position of the case then?â€
Razzaq said under that circumstances the case would be reinitiated.
â€œWhere is the provision?â€ asked Justice Kabir.
1According to 6 (6) of the International Crimes (Tribunals) Act, 1973: 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.
A total of 16 prosecution witnesses, including seven "seizure-list" witnesses and investigation officer Additional Superintendent of Police Matiur Rahman testified before the court and was cross-examined by the defence while Ghulam Azam's son testified as the first defence witness.
The defence counsel again asked for ensuring a fair trial and that the case be reinitiated.
Justice Kabir said the tribunal could review an order but could not recall it.
Razzaq is supposed to complete his argument today.
During yesterday's proceedings, Ghulam Azam fell sick. He was later sent to Bangabandhu Sheikh Mujib Medical College Hospital.
Meanwhile, counsel for the war crimes accused BNP leader Salauddin Quader Chowdhury filed a supplementary petition with the tribunal office to summon Justice Huq to testify in connection with â€œcriminal conspiracy committed by Law Minister Shafique Ahmedâ€.
On Monday, Salauddin Quader filed a petition with the tribunal to initiate contempt of court charges against the law minister.
In the petition, Salauddin Quader claimed that Justice Md Nizamul Huq, former chairman of Tribunal-1, had regular meetings with the state minister for law and discussed government â€œdictatesâ€ regarding judgment in an ongoing case.
State Minister Qamrul acted under the authority of his senior Law Minister Shafique Ahmed, he had said. Quader claimed the law minister had prejudiced the tribunal's proceedings.