SQ Chowdhury judgement controversy: legal action for political over-reaction

The SQ Chowdhury judgement on 1 October 2013 has caused controversy relating to its alleged leaked segments on the web. This leakage of excerpts of a confidential document should not come to the wonderment of those who have been witnessing persistent attempts by supporters and sympathisers of the accused and convicted to frustrate the trial process.
In the adversarial system of justice, which Bangladesh follows, there is nothing as such called 'draft judgement'. In criminal cases, the determination of legal proceedings becomes a judgement only when it (a) has the order of conviction or acquittal and a sentence (sentencing may follow); (b) is formally authenticated by the judge/s involved in the trial (signing); and (c) is pronounced in an open court. Has anyone seen a valid judgement that does not have these essential legal requirements? All six previous ICT judgements reveal a consistent template of presentation, such as charges for the crimes, names of the parties, judges presiding and present, names of prosecutorial and defence teams, numerical numbering order of structured paragraphs, order of conviction/acquittal, and sentencing. Most importantly, they all mention at the start the specific date of delivery of judgement, which in this case happened on 1 October 2013. Prior to this date, nothing can constitute a judgement. The leaked document may well be judicial observations noted/recorded at the conclusion of each count of charge and its associated evidence taking (witness examination and cross-examination). The leaked document lacks the essential legal conditions of a valid judgement and it is not attributable to ICT-1. There cannot be a judgement without its endorsement and authentication by a legally constituted and mandated judicial authority. Therefore calling the leaked document a 'draft judgement' is legally erroneous.
This is not to trivialise the leakage of a confidential judicial document, which is a serious breach of confidentiality and law enforcement issue. It calls for stringent precautionary measures to protect ICT documents. But highlighting this precautionary failure should not camouflage the illegal act of leakage. Blaming the owner for failure to protect property must not condone the thief who has stolen the property. Does this leakage compromise or dilute the legal quality and force of the judgement? Certainly not because the leakage is not a part of judicial proceedings and has nothing to do with the judgement. An illegal act does not determine or influence the validity of a duly executed legal instrument. The legal issues and expositions embodied in the judgement stand alone on their own merit regardless of the act of leakage, which constitutes a distinct criminal act and is subject to specific legal action.
Over-reactions to the judgement for political expediency from senior lawyers and politicians are outrageous, contemptuous, and unwarranted. Khondker Mahbub Hossain in power would 'try those who are criminals in the real sense ... and those who were involved in the farcical trial, inshallah they will also be tried on the soil of Bangladesh' (The Daily Star 4 Oct 2013). Does he possess a list of 'real criminals' other than those on trials? Who are these criminals? Why does not he plead before ICTs and appeal to the Supreme Court that SQ Chowdhury is not the 'real criminal' and reveal his list of 'real criminals'? Is he going to try all prosecution team, ICT judges, and witnesses? This reckless and irresponsible statement defies all minimum decency expected of a legal mind and potentially inculcates fear in the minds of those involved, thereby interferes with the administration of justice. Mr Mirza Fakhrul Islam publicly alleged that ICT-1 did not allow two important defence witnesses to testify (The Daily Star 3 Oct 2013). If he has read the judgement, he has conveniently ignored paragraph 42. Justice Shamim Hasnain and Salman Rahman were listed defence witnesses, who never indicated in writing or conduct to appear before ICT-1 to give deposition in favour of SQ Chowdhury. The defence only managed to file an affidavit of Justice Hasnain's mother, who was not a listed defence witness (The Daily Star, 24 July 2013). The defence was given several adjournments and repeated opportunities to produce witnesses but failed on three successive days and two additional last chances. 'The examination of defence witnesses was closed for want of further witnesses' (judgement para 42). The blatant lie of Mr Mirza displays his profound ignorance and a desperate bid to politically defend his party-fellow, who is legally indefensible.
The leakage of confidential court information to public domain is not unique in the case of ICTs. The history of international crimes trials is littered with instances of vested interests somehow gained access to confidential trial documents and published them on the media, particularly where the accused and convicted had strong political affiliation and backing. ICTY has experienced the revelation of its confidential documents many times by Serb interest motivated media outlets. It regards breaches of confidentiality as contempt of court.
1. Florence Hartmann, a journalist, convicted and sentenced to a fine of 7,000 Euros for disclosing confidential information pertaining to Prosecution v Slobodan Milosevic case (IT-02-54-R77.5; trial judgement (TJ): 14 September 2009 and appeal judgement (AJ): 19 July 2011 affirming the sentence).
2. Baton Haxhiu, editor of a Kosovo newspaper, convicted and sentenced to a fine of 7,000 Euros for disclosing confidential trial and witness related information (IT-04-84-R77.5; TJ: 24 July 2008 and AJ: 4 September 2008).
3. Josip Jovic, editor-in-chief of a Croatian daily, convicted and sentenced to a fine of 20,000 Euros for publishing extracts from the transcript of a testimony (IT-95-14 and 12/2-R77; TJ: 30 August 2006 and AJ: 15 March 20107 affirming the sentence).
4. Domagoj Margetic, a freelance journalist, sentenced to 3 months imprisonment and a fine of 10,000 Euros for publishing on his website the list of confidential witnesses of Prosecution v Tihomir Blaskic (IT-95-14-R77.6; TJ: 7 February 2007).
5. Vojislav Seselj, a writer and publisher, sentenced three times: (a) 15 months imprisonment for disclosing confidential information and excerpts of the written statement of a witness (IT-03-67-R77.2; TJ: 24 July 2007 and AJ: 19 May 2011 affirming the sentence); (b) 18 months imprisonment for disclosing confidential information identifying 10 protected witnesses (IT-03-67-R77.3; TJ: 31 October 2011 and AJ: 28 November 2012 affirming the sentence); and (c) 2 years imprisonment for his website publication of confidential information relating to a protected witness (IT-03-67-R77.4; TJ: 28 June 2012 and AJ: 16 November 2012 affirming the sentence).
6. Evica Marijacic, editor of a Zagreb weekly, and Markica Rebic, head of the Croatian Security Information Service, sentenced to a fine of 15,000 Euros for disclosing and publishing the identity of protected witnesses and their confidential transcripts (IT-95-14-R77.2; TJ: 10 March 2006 and AJ: 26 September 2006 affirming the sentence).
7. Other similar ICTY contempt actions involving interference with the administration of justice: (a) Beqa Beqaj sentenced to 4 months imprisonment (IT-03-66-R77; TJ: 5 May 2005); (b) Kosta Bulatovic to 4 months imprisonment (IT-02-54-R77.4; TJ: 13 May 2005 and AJ: 29 August 2005 affirming the sentence); (c) Bajrush Morina to 3 months imprisonment (IT-04-84-R77.4; TJ: 27 December 2008 and AJ: 23 July 2009 affirming the sentence); (d) Dragan Jovic to 4 months imprisonment (IT-05-88-R77.1; TJ: 27 March 2009 and AJ: 25 July 2009 affirming the sentence); (e) Shefqet Kabash to 2 months imprisonment (IT-04-84-R77.1; TJ: 16 September 2011); (f) Dragomir Pecanac to 3 months imprisonment (IT-05-88/2-R77.2; TJ: 9 December 2011); (g) Ljufisa Petkovic to 4 months imprisonment (IT-03-67-R77.1; TJ: 11 September 2008); (h) Zuhdija Tabakovic to 3 months imprisonment (IT-98-32/1-R77.1; TJ: 15 March 2010); and Berko Zecevic has been indicted for the contempt of court in Prosecution v Radovan Karadzic (IT-95-5/18, indicted on 4 February 2011).
8. Defence counsels are also convicted and sentenced by ICTY for knowingly and wilfully interfering with the administration of justice: (a) Milan Vujin, Counsel for Dusco Tadic: fined 15,000 Dutch Guilders and removed from the list of nominated defence team (IT-98-32/1-R77.2; TJ: 31 January 2000 and AJ: 27 February 2001 affirming the sentence); and (b) Jelena Rasic, a member of Prosecution v Milan Lukic defence team: 12 months imprisonment (IT-98-32/1-R77.2; TJ: 7 February 2012 and AJ: 16 November 2012 affirming the sentence).
9. The violation of rules of confidentiality was also punished with 2 and a half years imprisonment by the Sierra Leone Special Court (SCSL-12-02-A; TJ: 25 January 2013 and appeal rejected on 14 May 2013 with sentence remained unaltered).
10. ICTY orders of 20 September 2005 and 6 April 2006 have declared that the public disclosure of confidential trials information is an offence and interference with the administration of justice. Very recently in Radislav Krstic case, the ICTY has held that it has the inherent power to hold in contempt those who deliberately interfere with its administration of justice (IT-95-5/18-R77.3; TJ: 18 July 2013).
The ICTY has taken disclosures of confidential trials materials seriously through contempt actions with appropriate punishment. Its proactive and staunch legal actions have succeeded in putting a lid on this illegal trend of disclosures of confidential documents in recent days. Seemingly ICTs do not have any palatable options other than to act decisively to prevent deliberate and wilful breaches of the confidentiality rule, over-reactive bullies, and stratagem distortions. Let the rule of law to hold in contempt those powers of cynical ignorance, political opportunism, and financial clout that not only interfere in the judicial functions of ICTs but also assault on the nation's conscience and pride of 1971.

The author is a Professor of Law, Macquarie University, Sydney, Australia.