File Photo: Eshan Kalyanikar

Palau Appellate Court cancelled Mr. Zakir Khair convictions and sentence after his appeal on June 14th and an order was issued for his release from Koror jail where he has been incarcerated since July 2018.

In addition, in the accompanying notes in its decision, Palau Appellate Court admonished the Office of Attorney General and the Office of Public Defender for inadequate performance in their duties.

“As representative of the people of the Republic of Palau, the Office of the Attorney General is tasked with ensuring violators of the law are brought to justice and at the same time, innocent people are vindicated.  However, the inadequate performance by the office of the Attorney General, beginning with the convoluted charging information continuing to poorly worded jury instructions  and verdict form and failing to file the appellate brief – results in a miscarriage of justice and damages the fairness and integrity of our criminal justice system”, noted the Appellate Court.

Furthermore, it stated, “Similarly, the Office of the Public Defender has a responsibility to zealously and competently safeguard the constitutional rights of defendants.  By failing to challenge the serious deficiencies in the information and jury instructions, it is clear the Public Defender also failed its obligations.”

Mr. Khair was convicted in July of 2018 on four counts of Human Trafficking in the First Degree, two counts of Human Trafficking in the Second Degree, two counts of People Trafficking and two counts of Exploiting of Trafficked Person and was serving a 25 year imprisonment sentence.

Mr. Khair had appealed his conviction citing insufficiency of evidence supporting his convictions.

In 2017, Mr. Khair was charged in two separate criminal cases on various counts of Labor Trafficking, People Trafficking and Exploiting of Trafficked Persons.  The two cases were combined and presented to jury for deliberation.

In the two cases, Mr. Khair was said to have committed these crimes against four different people, Roman Hossain, Ariful Islam, Abdul Kalam or MD Juel Rana.

According to court documents, when the cases were merged, the charges of Human Trafficking, People Trafficking and Exploiting of Trafficked Person were made with at least 3 of the cited people’s names in alternative.  In other words, Jury was asked to convict Mr. Khair on each crime charged without a clear victim of the said crime.

Furthermore, court stated that the jury was given a generalized “unanimity” instruction saying that its verdict must be “unanimous” but it was not told that its verdict must be based on a factual basis such as which victim or victims are related to what charge.

An example cited was the charge of Labor Trafficking where it states that “Defendant Zakir Khair stands charged in Count One of Criminal Case ..with Labor Trafficking in the First Degree…the government must prove each of the following elements beyond reasonable doubt:….(5) by making false statement and misstatements; to induce Roman Hossain, or Ariful Islam, or Abdul Kalam or MD Juel Rana…”

“Critically, the jury instructions did not indicate that the jury needed to be unanimous on which victim or victims it was basing its conviction on”, stated the Appellate Court opinion.

Appellate Court also found that there was insufficient evidence to convict Mr. Khair in each of the five counts.

On count of Labor Trafficking in First Degree, the law says a person violating this must “intentionally or knowingly provide or obtain another person for labor by making false statement, misstatements or omissions to induce a person to engage in labor..”.  According to testimony of Mr. Islam who was named as victim in all the counts, he was given an employment contract by Mr. Khair’s father but he was informed that he was not going to be working where the contract says but a different job will be found for him.

Court says this violation was not met by Mr. Khair because statements were not made by Mr. Khair himself and that the Mr. Islam knew that he won’t be working for the company that is stated in the employment contract.

On the second count of Labor Trafficking  in First Degree, a violator must use a scheme or plan to make the victim believe that person or friend or family member would suffer serious harm if they did not provide labor or service.   Again the court says, Islam’s testimony shows no evidence of him or his family threatened to suffer serious harm if he did not perform.

On the count of Labor Trafficking in Second Degree, court says evidence did not prove that Mr. Khair benefited financially from Mr. Islam.  Again, Mr. Islam testified he never gave money to Mr. Khair and that in fact, Mr. Khair loaned him $900.

On the last counts, People Trafficking and Exploiting of Trafficked Person, no evidence was on record to show Mr. Islam being forced to work and again, according to Islam’s testimony, he found a job through a friend of his.

For lack of sufficient evidence in each of the charges and the jury unanimity problem, the Appellate Court vacated the convictions and sentence of Mr. Zakir Khair. (By L.N. Reklai)