BBC Bengali Service's version of the Bali statement

The BBC Bengali service did a piece on Sukhranjan Bali, the defence witness abducted by law enforcement agencies in November last year, being found in a Calcutta jail, as disclosed yesterday in the New Age article. 

You can read the BBC article here in Bangla (the translation is at the bottom of this post.)

See this for Background on the New Age article that broke the story

I was caught by the last few paragraphs. This stated:

The report published in the New Age of Dhaka claims that Shukhoronjon Bali sent them a written statement from Indian prison. In this statement he describes the incident of kidnap and how he was pushed to India. 

However, Ranvir Kumar, chief of the Prison Division of West Bengal, told BBC that it's almost impossible to take statement from a Bangladeshi prisoner and handing it over to a foreign newspaper. If any relative visits, the authority scrutinizes the Passport-Visa of the visitor. 

However, through a source from West Bengal's intelligence BBC reporter Amitabh Bhatyashali came to know that the Dum Dum prison authority has already interrogated Mr. Bali and Mr. Bali informed the prison officers that he sent the statement through a prison guard by alluring him with money. 

The intelligence sources informed further that according to Mr. Bali, that prison guard went to the border and handed it over to a smuggler. The sources say that the prison authority has already identified that prison guard and started the process of his punishment

First of all it states that 'New Age of Dhaka claims that Shukhoronjon Bali sent them a written statement from Indian prison.' That was not in fact what the New Age article stated. It states as follows:

The paper made contact with an Indian citizen, with access to the jail, willing to meet Bali and take a statement from him. This person, who wishes to remain anonymous for security reasons, is independent of all parties involved in the Bangladesh tribunal — with no connections to either the Jamaat-e-Islami or the Bangladesh Nationalist Party, whose leaders are currently being prosecuted for crimes alleged to have been committed in 1971 or to the Bangladesh government.

Where from that does the BBC get that Bali sent New Age a written statement?

Secondly, the BBC article then quotes a 'source from West Bengal's intelligence [agency]' who says that Bali told them when he was questioned that 'he had sent the statement through a prison guard by alluring him with money.' It then goes onto say that; 'The intelligence sources informed further that according to Mr. Bali, that prison guard went to the border and handed it over to a smuggler.'

Without giving anything away, I can assure the BBC, there were no smugglers, no prison guards, no money exchange in the obtaining of this statement. 

Thirdly, I am rather shocked that the BBC decided to rely on an anonymous intelligence agency person as the source of this information. Perhaps the BBC should use better sourcing in the future - and not simply write down anything that an intelligence agency person told them. If all journalists started doing this, the papers would be fall of completely false and motivated stories - just like this one turns out to be in its last few paragraphs.

This does look like it is a breach of the BBC's own editorial guidelines which states:

'Any proposal to rely on a single unnamed source making a serious allegation ... must be referred to Director Editorial Policy and Standards and Programme Legal Advice.' 

I wonder whether this was done? I would guess almost certainly not. Had it been referred to this person/department, the following issues would then have needed to be considered:

- whether the story is of significant public interest 
- whether the source is of proven credibility and reliability and in a position to have sufficient knowledge of the events featured
- any legal issues
- safety concerns, for example for whistleblowers
- whether a response to serious allegations has been sought from the people or organisations concerned
sensitive and personal issues
- whether the serious allegation was made or substantiated "off the record".

And had they considered these issues, it is pretty likely that this anonymous comment from an intelligence agency would not have been published.

---------------

Here is the translation of the BBC Bangla piece

Missing witness of war crime suite found at Indian prison

BBC has been informed that Shukhoronjon Bali, a prominent witness of the war crime case against the convicted Jamaat e Islami leader Delowar Hossain Sayedee is at an Indian prison.

Shukhoronjon Bali disappeared from the international crime tribunal premise at the Dhaka on 5th November last year. However, Amitabh Bhatyashali from Kolkata informed us that he has been confirmed by the prison authority that one person named Shukhoronjon Bala is staying as a prisoner at Dum Dum prison at Kolkata.

It has been confirmed by Indian prison authority, Court’s documents and through various informations from different sources that the missing Shukhoronjon Bali of Bangladesh and Shukhoronjon Bala of Dum Dum prison is the same person.

One thing is worth mentioning here, previously The New Age, a English newspaper of Dhaka, published a news saying Shukhoronjon Bali has been imprisoned in Indian prison. Through the link of that news, BBC conducted an enquiry and came out with this information.

The Kidnap Controversy
Initially, Shukhoronjon Bali was a state (prosecution’s) witness against Jamaat e Islami leader Delowar Hossain Sayedee at the international crime tribunal.

But later on, he changed his side and agreed to give testimony in favor of Delowar Hossain Sayedee, as informed by the defense lawyers.

Shukhoronjon Bali was kidnapped from the international crime tribunal premise at the Dhaka on 5th November last year.

Jamaat e Islami leader Delowar Hossain Sayedee’s lawyers complained that people from government law enforcement agencies have kidnapped him.

However, the states denied this complaint.

How he ended up in Dum Dum Prison
BBC reporter Amitabh Bhatyashali informs, on 23rd December night, last year BSF detained one Bangladeshi from India-Bangladesh border at Swarupnagar area of North 24 Parganas with a charge of illegally entering into Indian Territory.

Scrutinising the files of Basirhat court, advocate Mosaraf Hossain informed that the person’s name is Shukhoronjon Bala, father’s name: Let Lalit Ronjon Bala, village: Pahar Hati, Thana (PS): Gongarampur, District: Pirojpur, Bangladesh.

Amitabh Bhatyashali informs, Advocate Mosaraf Hossain assumes, since most of the members of BSF are Hindi speaker, they might have mistakenly misspelled Shukhoronjon Bali’s name while recording his name after the detention.

The court records inform further, BSF handed him over to the Swarupnagar police station. The case number of the case filed against him is 713, dated: 25th of December, 2012.

The next day, on 26 December, Shukhoronjon Bali was produced in court with the charge of illegally crossing the Indian border. Charge against him was framed under section 14 and 14 (c) of Foreigners Act.

The Second Additional Magistrate of Basirhat gave judgment against Shukhoronjon Bali on 3rd April. He was at jail custody in the time in between.

Prison guard’s punishment
The report published in the new age of Dhaka claims that Shukhoronjon Bali sent them a written statement from Indian prison. In this statement he describes the incident of kidnap and how he was pushed to India.

However, Ranvir Kumar, chief of the Prison Division of West Bengal, told BBC that it's almost impossible to take statement from a Bangladeshi prisoner and handing it over to a foreign newspaper. If any relative visits, the authority scrutinizes the Passport-Visa of the visitor.

However, through a source from West Bengal's intelligence BBC reporter Amitabh Bhatyashali came to know that the Dum Dum prison authority has already interrogated Mr. Bali and Mr. Bali informed the prison officers that he sent the statement through a prison guard by alluring him with money.

The intelligence sources informed further that according to Mr. Bali, that prison guard went to the border and handed it over to a smuggler. The sources say that the prison authority has already identified that prison guard and started the process of his punishment

Human Rights Watch calls on Indian govt to protect witness

Following on from the New Age article (see previous post) which revealed that an International Crimes Tribunal witness, whom defence lawyers alleged was abducted from outside the tribunal's gates was in a Kolkata jail and had given a statement supporting his detention, Human Rights Watch issued this statement.

India: Protect Bangladesh War Crimes Tribunal WitnessAbducted in Bangladesh, Now Detained in India, Risk of Death if ReturnedMay 16, 2013

(New York) – The authorities in India and Bangladesh should take all necessary steps to protect Shukhoranjan Bali, a long-missing witness in the International Crimes Tribunal (ICT) in Bangladesh, Human Rights Watch said today. 

Bali, a Bangladeshi national, claims he was abducted by the Bangladeshi police from the entrance to the ICT courthouse, detained in Bangladesh, then forced by Bangladeshi security forces across the border into India, where he claims he was detained and tortured by the notorious Border Security Force (BSF) before being held in Kolkata’s Dum Dum jail. 

“The apparent abduction of a witness in a trial at the ICT is a cause for serious concern about the conduct of the prosecution, judges and government,” said Brad Adams, Asia director. “Among many questions is who ordered the abduction, and how senior the officials involved were.” 

Bali was due to appear to give evidence as a defense witness before the ICT, a court expressly set up to try people suspected of war crimes during Bangladesh’s 1971 war of independence. He had previously been listed as a prosecution witness. Bali claims that on November 5, 2012, he was abducted by people in plainclothes at the gates of the ICT, put into a police van, and then taken away to the offices of the police. 

Witnesses present at the courthouse claimed to have seen the abduction. 

Defense complaints to the ICT led to the judges asking for the prosecution, rather than an independent body, to investigate the allegations. The prosecution returned to the court and denied the defense allegations entirely, saying that there had been no abduction, despite eyewitnesses. The judges ordered no further investigation into Bali’s disappearance. No information about his whereabouts was made public and the government ignored calls to set up an investigation. The attorney general, testifying on a habeas corpus petition filed on Bali’s behalf, stated that the abduction claim had been made to bring the court into disrepute – but offered no evidence for this assertion. 

Bali had been expected to counter prosecution allegations about the involvement of Delwar Hossain Sayedee in the 1971 murder of Bali’s brother. Saydeee has since been sentenced to hang, in part for the murder of Bali’s brother. 

Bali claims that he was abducted at the courthouse by police, held in government custody for several weeks, and then pushed across the border to India. Human Rights Watch has documented how the BSF routinely kills Bangladeshis who cross the border illegally. In April, Bali was sentenced by an Indian court to 110 days in jail for entering the country illegally. He has already completed his term but is still in jail. 

Human Rights Watch learned in March that Bali was in Dum Dum jail in Kolkata, but did not make the information public pending meeting Bali to ensure that he thought this would not jeopardize his safety. Human Rights Watch is releasing this background after the Bangladesh newspaper, New Age, made this information public on May 15. 

India should not return Bali to Bangladesh until he is interviewed by the Indian office of the United Nations High Commissioner for Refugees (UNHCR), which can determine if he wishes to claim asylum and whether he is a refugee. If he does not wish to claim asylum, or his asylum claim is rejected, India should still not return him to Bangladesh when there is a real risk to his life or of his suffering ill-treatment if he returns there. 

“Those involved in his abduction may have assumed Bali would be killed by the Indian Border Security Force when he was pushed into India, or that he would permanently disappear,” Adams said. “There is a real risk to Bali if he is returned to Bangladesh, as he could expose those involved in his abduction. Bali needs access to an independent lawyer and UNHCR so that he can make an informed decision about whether it is safe to return to Bangladesh.”

Tribunal witness confirms police abduction

This blog has taken a particular interest in the alleged abduction of Sukhranjan Bali from in front of the gates of the International Crimes Tribunal - whilst the rest of Bangladesh's media has in the main ignored it. 

The tribunal and the government have repeatedly denied the abduction claiming that it was simply a Jamaat-e-Islami drama trying to derail the tribunal. But when I initially investigated the allegation - speaking to those who said that they were eye-witnesses to the abduction, and to members of the family, I felt the evidence for the abduction was credible, though far from proven.

There have of course always been one particular weakness in the evidence - in that the only witnesses were ICT defence lawyers and journalists who worked for a paper (Sangram) with links to the party of the accused (Jamaat-e-Islami). However, nonetheless I was impressed by the detail of what the witnesses told me as well as the consistency in the accounts given by the different witnesses. It was also consistent with what family members, living in Pirojpur and elsewhere, told me.

So whilst the allegation was far from proven - there were no independent witnesses - it was in my mind a credible allegation.

Since November 2012, I have been trying to find ways to corroborate the story. I had various tip-offs that Bali was in one place or the other, but nothing came of them. Then in February, I got a tip-off that he was detained in a jail in West Bengal and I have been spending the last few months corroborating this and arranging for someone trustworthy, as well as entirely independent from the tribunal process and from Bangladesh politics, to meet him. This was not easy, but it was managed.

All that I wanted to know was Bali's story. How come he was not detained in a jail in India? How did he get there? And was there any truth to the allegation that he had been abducted? Whatever he said, that would have been the story that I would have written.

And set out below is the story that was published in The New Age newspaper on Thursday 16 May. His statement supports the allegation that he was detained outside the international crimes tribunal on 5 November 2012 by plain clothes officers and taken away. He says that he was detained for six weeks in Dhaka before being taken to India and dumped across the border. The statement was freely given. It is notable that in his statement, Bali did say some things that are inconsistent with what was previously stated by his family and lawyers.

His statement is of course very significant - but there are many unanswered questions. The statement was not obtained through a process of detailed questioning and so many things remain unknown. One would expect Bali to have detailed information that would help to independently corroborate his detention - something that can only be obtained through a process of questioning which I hope that UNHCR will now be able to do.

Here is the article:

WAR CRIMES TRIAL
Witness alleges state abduction

David Bergman 

A witness at the international crimes tribunal in Dhaka who defence lawyers claim to have been abducted from outside the court in November 2012 by law enforcement agents has been found in a Kolkata jail. 

Sukhranjan Bali, a Hindu man from the southern district of Pirojpur, has confirmed that on the morning of November 5, 2012 he was taken from outside the tribunal gates by Bangladeshi law enforcement officials as he was on his way hoping to give deposition on behalf of Jamaat-e-Islami’s nayeb-e-amir Delwar Hossain Sayedee. 

In a statement given whilst in detention in India, Bali says that he was ‘abducted from the court premises in a police van and was taken to an office in Dhaka’ which he later thought belonged to the Detective Branch of the police because of words on a paper stamp which he saw on the desk. 

In February this year, the New Age first received information that Sukhranjan Bali was being held in Dum Dum Correctional Home in Kolkata and that members of his family had gone to visit him. Since then, the newspaper has been working to confirm the accuracy of the information and determine how he got there. 

The paper made contact with an Indian citizen, with access to the jail, willing to meet Bali and take a statement from him. This person, who wishes to remain anonymous for security reasons, is independent of all parties involved in the Bangladesh tribunal — with no connections to either the Jamaat-e-Islami or the Bangladesh Nationalist Party, whose leaders are currently being prosecuted for crimes alleged to have been committed in 1971 or to the Bangladesh government. 

The person who took the statement has confirmed to New Age that the man who gave the statement to him was the same person as the man shown in a genuine photograph of Bali.
‘Bali gave a very graphic explanation of the whole incident which I think it would be very hard in a flash of moment to come out with like that if it were not true,’ the person who took the statement told New Age, though conceding that at the time he gave he statement, Bali appeared nervous. 

Bali said in the statement that the ‘people in the office were in police uniforms and the ones who abducted me were in civil clothes.’ He stated that he was not subject to any torture at the Dhaka office but ‘was being asked the reason why I was supportive of Sayedee sahib.… They said that I will be killed and Sayedee sahib will be hanged.’ 

According to his statement, Bali remained in illegal detention in Dhaka for six weeks before being handed over to India’s Border Security Force near the end of December 2012 and that he has been detained in different Indian jails for the past four months and a half.
New Age has not been able to independently confirm Bali’s claims and there are some inconsistencies between his statement and comments previously made by members of his family and by the International Crimes Tribunal defence team — although the timeline given by Bali does correspond with papers filed in court relating to his detention in India. 

On April 3, Bali was sentenced to imprisonment in a Kolkata court for 105 days imprisonment after pleading guilty for illegal entry into India under the country’s Foreigners Act 1946. Taking into account the time already served in detention awaiting trial, he could be repatriated to Bangladesh any day. 

Md Masuder Rahman, the media and public relations officer of the Dhaka Metropolitan Police, said, ‘We don’t have any information [about Bali]. I spoke to the joint commissioner Monirul Islam and he said that he does not know any information. He does not know where [Bali] is at the moment.’ Islam is a senior official of the Detective Branch. 

Towards the end of February 2013, the International Crimes Tribunal sentenced Sayedee to death for the commission of two offences of crimes against humanity during the 1971 war, one of which involved the killing of Sukhranjan Bali’s brother Bishabali. 

The court held that Bishabali was bound to a coconut tree and ‘shot dead by a Razakar at the insistence of accused Delwar Hossain Sayeedi.’ The court also convicted him for six other offences but imposed no punishment. The case is currently under appeal at the Appellate Division of the Supreme court 

The government and tribunal authorities have consistently denied that Bali had been abducted from outside the tribunal by law enforcement agencies. 

On the morning of November 5, 2012, a few hours after defence lawyers reported the alleged incident to the three judges of International Crimes Tribunal 1, the chief prosecutor, with the head of the investigation agency standing beside him, told the court, ‘The police officers [outside the court] have stated that nothing has happened within their knowledge.’ 

Subsequently, a release issued by the tribunal’s prosecution agency said that the alleged abduction was an ‘unacceptable drama’ which was ‘part of [Jamaat-e-Islami] trying to dismiss the tribunal and to release their leader unlawfully.’ 

In response to a habeas corpus application, a week after the alleged abduction, the attorney general, Mahbubey Alam, also told a High Court bench that the story was ‘absolutely ridiculous.… The petition is absolutely male fide.’ 

The prosecution also pointed out at the time that Bali was not even due to give evidence at the tribunal that day. 

Bali’s statement goes on to state that having been kept by Bangladesh law enforcing agencies for about six weeks, on December 23, 2012 he was blindfolded and taken by the Bangladesh police to the border and handed him over to India’s Border Security Force.
‘They stopped the car in Magura at a hotel to provide me with food. They removed the blindfold and I found out that I was brought there in a private car. After I finished my meal, I was again blindfolded and we were driving again and they finally handed me over to the BSF about 5:00pm and then they left,’ he says in his statement. 

Bali says that he was harshly treated by the Border Security Force. ‘They tortured me and asked me what I had been doing there. I tried to narrate the course of events that had taken place till I was handed over to the BSF. They probably did not find my answers satisfactory and I was beaten even more profusely.’ 

Due to his injuries, he says that the BSF took him to a hospital and was from there taken to the Swarupnagar police station which produced him the next day before the Basirhat court. After being detained at the Basirhat jail for about 20 days, Bali says that he was shifted to Dum Dum Correctional Home. 

In his statement, Bali says that he was first asked to give evidence on behalf of Sayedee some time after May 2012, when Sayedee’s son ‘Bulbul’ had come to his house to meet him. 

As he was not present, they spoke over the phone. ‘Bulbul requested me to be a witness for Sayedee. After a few days, Bulbul died,’ the statement says, referring to the death on June 13, 2012 of Rafique-Bin-Sayeed, Sayedee’s eldest son. 

After the son’s death from a heart attack, Bali said that he kept in touch with Sayedee’s other sons through mobile and that he came to Dhaka ‘before Durga Puja’ [October 20–24], staying at Sayedee’s house ‘for 15 to 16 days.’ 

He says that on November 5, he was ‘taken to the ninth floor’ in a building at Paltan where he met Sayedee’s lawyers and was then taken to the tribunal. 

Previously, Sayedee’s lawyers and Bali’s wife claimed that Bali had first come to Dhaka in early November. The lawyers had also stated that he had not stayed with any member of Sayedee’s family whilst in Dhaka. 

The first information report drafted by the Indian police on December 24, 2012 states that police officer Kuldeep Singh had ‘observed suspicious’ movement in the fields near the Indian border in Swarupnagar and that when challenged Bali had ‘fled away.’ When apprehended, the FIR states that Bali had told them that ‘he was coming from Bangladesh to meet his brothers.’ 

Sharif Uddin, the first secretary (political) at the Indian High Commission in Kolkata, told New Age that three weeks ago, a Bangladesh home ministry team had come to Kolkata to meet Bangladeshis detained in different correctional homes. ‘We visited Dum Dum Correctional Home. I accompanied them. But I cannot say if the three-member delegation met Bali.’ 

One of the members of the team, Lieutenant Colonel Tauhid of the Border Guard Bangladesh, told New Age that he could not say whether they had met Bali. ‘I cannot remember as there were in the jail maybe about 130 people. You need to talk to the home ministry.’

Kamaruzzaman trial index

Kamaruzzman trial index

This page list the links to the indictment against Kamaruzzaman (in Tribunal 2) and the hearings (in Tribunal 1) that that took place that led up to the indictment.

The evidence giving during the trial and the closing arguments will be put up here shortly

The verdict is due to be be given on Thursday 9 May 

4 Jun 2012      Order of indictment (scroll to the end to see the charges)

1 Apr 2012     Defence argument against charge framing/indictment

19 Mar 2012   Prosecution argument for charge-framing, day 2

18 Mar 2012   Prosecution argument for charge-framing, day 1 (am)

18 Mar 2012   Prosecution argument for charge-framing, day 2 (pm)


Index on key postings on rest of blog


New on the blog
- Defence applications seeking recusal of Justice Manik and Justice Sinha

Appellate Division
- start of appeals relating to the conviction of Abdul Quader Mollah

Trial of Delwar Hossain Sayedee
- index to pre-trial hearings, trial testimony and analysis
- index to closing arguments, applications for retrial, judgement

Trial of Abdul Quader Mollah
- index to pre-trial and trial proceedings, closing arguments and judgement

Trial of Abdul Kalam Azad
- Index to trial testimony, closing arguments and judgement
- Azad judgment analysis, 1 and 2

Index

New on the blog
- Defence applications seeking recusal of Justice Manik and Justice Sinha

Appellate Division
- start of appeals relating to the conviction of Abdul Quader Mollah

Trial of Delwar Hossain Sayedee
- index to pre-trial hearings, trial testimony and analysis
- index to closing arguments, applications for retrial, judgement

Trial of Abdul Quader Mollah
- index to pre-trial and trial proceedings, closing arguments and judgement

Trial of Abdul Kalam Azad
- Index to trial testimony, closing arguments and judgement
- Azad judgment analysis, 1 and 2

Justice Manik and Sinha recusal applications

The lawyers appealing against the convictions of Abdul Quader Mollah for crimes against humanity have filed two applications seeking the recusal of two judges from the appellate division - Justice Sinha and Justice Manik.

In relation to the Justice Manik, the key allegations against him concern his claimed presence and comments at certain meetings whilst in London in April 2010 and in June 2011 relating to the International Crimes Tribunal which the defence states 'has eroded his credibility and threatened the integrity and independence of the appeal proceedings.'

These concerns are set out in paragraphs 15 to 19 of the application:

15. That on 1st April 2010 Mr. Justice AHM Shamsuddin Choudhury attended a meeting of the members of Awami League and Ghatok Dalal Nirmul Committee at the Dockland Memsab Restaurant in East London. It is stated that both the Awami League and the Ghaok Dalal Nirmul Committee had campaigned for the trial of the Respondent as a war criminal. In the said meeting the leaders of Awami League and Mr. Shahrier Kabir, the Acting President of the Ghatok Dalal Nirmul Committee were present and they were campaigning for the trial of alleged war criminals in Bangladesh. This was reported on 9th April 2010 in the Daily Amar Desh. It is respectfully submitted that the presence of the Honourable Judge in the said meeting to support the cause of the Awami League and the Ghatok Dalal Nirmul Committee who had actively and publicly campaigned for trial of the Respondent as a war criminal is a evidence of bias and sufficient to disqualify him to be a judge in the instant appeal. 

16. Further on 21st June 2011 Mr. Justice AHM Shamsuddin Choudhury attended a public meeting at the Crowne Plaza Hotel, London and launched a public attack on a member of the defence team of the Tribunal and then proceeded to speak about the Tribunal, the legal framework, the practice of the Tribunal and the trials. In particular the Hon’ble Justice declared, in his detailed presentation, that the trial process met international standards and that the criticisms raised by the defence were without foundation. It is respectfully submitted that the Hon’ble Justice made a number of public declarations that concern a number of matters that are now subject to appeal. ....

18. At the public meeting on 21st June 2011 the Hon’ble Justice went further than merely commenting on the general legal and constitutional framework. The Hon’ble Justice gave a detailed account of the legal and constitutional framework, dismissing the numerous concerns raised by the defence as to lack of due process, and further by discussing matters that were sub judice and expressing an opinion on their eventual outcome, there is reasonable doubt that the Respondent will now receive a fair hearing and the Hon’ble Justice will dispense justice according to his oath on the basis of the public remarks he made on 21st June 2011. It is further submitted that a number of the Hon’ble Justice’s remarks amounted to political statements unbecoming a member of the Judiciary. 

19. It is respectfully submitted that this is not a matter that the Appellate Division of the Supreme Court need conduct an extensive examination into – there is little doubt that the Hon’ble Justice attended the meetings and made the public declarations – the question is whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his attending the meetings dated 1st April 2010 and 21st June 2011 and making such public declarations.

(to see the full application, click here) 

In relation to Justice Sinha, it is alleged that the judge made an offer to the former chairman of one of the international crimes tribunals, Justice Nizamul Huq Nassim about being promoted to the appellate division if he completed three tribunal cases. This, the defence claim, 'amounts to an unlawful interference in the proceedings pending before the Tribunal' and that he 'has disqualified himself from sitting as a judge in any Appeal from any Judgment of the Tribunal.'

This are set out in paragraph 17 of the application:

17. That in Skype conversation on 6th September 2012 published in the Daily Amar Desh dated 9th December 2012 the former Chairman of the Tribunal Mr. Justice Nizamul Haque is reported to have had a conversation with Mr. Justice Surendra Kumar Sinha. The translation of the relevant portion of the Skype conversation is reproduced below: “ ‘Sinha Babu’ (Mr. Justice Surendra Kumar Sinha) said, pass three verdicts within December. This one [Delwar Hossain Saydee], Ghulam Azam and Saqa [Salauddin Qader Chowdhury]. It would suffice to pass verdicts in these three [cases]. Then we will bring you here [to the Appellate Division of the Supreme Court]. Thereafter you will not be required to stay there [International Crimes tribunal]. This is all we talked about. I said you may do whatever you want to do, promotion should be given first. My concern is promotion.”

The defence claim that if this does not amount to unlawful interference in the proceedings, 'it raises serious concerns of appearance of bias against all the Accused before the Tribunal including the Appellant.'

                                                                                                 (to see the full application, click here) 

3 Apr 2013: Mollah, App Division - Justice Sinha written recusal application

This is the written application filed on 3 April 2013 by Abdul Quader Mollah's defence team seeking the recusal of Mr. Justice Surendra Kumar Sinha. Note that this was filed along with another similar application relating to Justice Shamsuddin Manik. It is not yet known when the applications will be heard.

1. That this application has been filed pursuant to the Code of Conduct for the Judges of the Supreme Court of Bangladesh and the oath of office provided for under Article 148 of the Constitution of the People’s Republic of Bangladesh and prescribed in the Third Schedule, seeking the recusal of Mr. Justice Surendra Kumar Sinha.

2. That Article 96 (4) (a) of the Constitution of Bangladesh provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published on 7 May 2000 (hereinafter referred to as the Code of Conduct).

3. That pursuant to clause 1 of the Code of Conduct: “A judge should uphold the integrity and independence of the judiciary. An independent judiciary is indispensable to the justice system in Bangladesh. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”

4. That furthermore, clause 2 of the Code of Conduct provides that: “(2) A judge should avoid impropriety and the appearance of impropriety in all activities. (2A) A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

5. That the Code of Conduct also provides for instances when a judge should disqualify himself from the proceedings. Clause 3(6)(a) of the Code of Conduct provides that:

“The judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.”

6. The Code of Conduct stipulates that any act: “which erodes the credibility and independence has to be avoided. The Code of Conduct is only restatement of values of judicial life and is not meant to be exhaustive but illustrative of what is expected of a judge.”

7. That Article 148 of the Constitution provides for an oath to be taken by members of the superior Judiciary. According to the Third Schedule of the Constitution a judge will solemnly swear or affirm that he will: “faithfully discharge the duties of [his] office according to law: That [he] will bear true faith and allegiance to Bangladesh: That [he] will preserve, protect and defend the Constitution and the laws of Bangladesh: And that [he] will do right to all manner of people according to law, without fear or favour, affection or ill-will.”

8. Pursuant to the preamble of the Code of Conduct, in taking this oath a judge is subject to the provisions of the Code of Conduct including those explicitly referred to in this application.

9. That the right to an independent and impartial judiciary prescribed in the Code of Conduct is also a standard obligation to adhere to under international law. Article 10 of the Universal Declaration of Human Rights provides: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

10. That this is further reiterated under Article 14 (1) of the International Covenant on Civil and Political Rights (ICCPR) which provides that all persons are: “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The Human Rights Committee which is tasked with upholding the provisions of the ICCPR has held that: “The impartiality of the court and the publicity of proceedings are important aspects of the right to a fair trial within the meaning of Article 14 (1). ‘Impartiality’ of the court implies that judges must not harbor preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties. Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a judge who, under domestic statute, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of Article 14.” (Karttunen v. Finland [387/89])

11. This fundamental right to an independent and impartial Judge is also recognised in Article 40 (1) of the Rome Statute for the International Criminal Court (ICC) which provides that “[t]he judges shall be independent in the performance of their functions”. The disqualification of a judge is outlined in Article 41 (2) (a) ICC: “A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground.”

12. That Bangladesh is a state party to the UDHR, ICCPR and ICC and must therefore adhere to its international obligations.

13. That Mr. Justice Surendra Kumar Sinha has been serving as an Hon’ble Justice of the Appellate Division of the Supreme Court of Bangladesh. On 31st March 2013 the Hon’ble Chief Justice constituted a bench of the Appellate Division to hear the instant Appeal comprising six Hon’ble Justices of the Appellate Division including Mr. Justice Sinha.

14. That the Appellant/Applicant prays to the Appellate Division of the Supreme Court to avail itself of the opportunity in the abovementioned provisions to order the recusal of the Hon’ble Justice as the only possible means to ensure proper dispensation of justice.

15. On 8th December 2012 the British Weekly ‘The Economist’ published a report titled ‘Discrepancy in Dhaka’, in its online edition raising questions about the integrity of the former Chairman of the International Crimes Tribunal-1. Following the publication in The Economist, the Bangla Daily Amardesh published a series of reports on the Skype communication between Justice Nizamul Haque and Ahmed Ziauddin for a period of five days from 9th December to 13th December 2012.

16. On 15th December 2012, the Economist published a long article on International Crimes Tribunal Bangladesh quoting excerpts from the 17-hour Skype conversation and 230 email communication between Mr. Justice Nizamul Haque, the former Chairman of ICT-1 and Dr. Ahmed Ziauddin, an expatriate Bangladeshi lawyer living in Brussels.

17. That in Skype conversation on 6th September 2012 published in the Daily Amar Desh dated 9th December 2012 the former Chairman of the Tribunal Mr. Justice Nizamul Haque is reported to have had a conversation with Mr. Justice Surendra Kumar Sinha. The translation of the relevant portion of the Skype conversation is reproduced below: “ ‘Sinha Babu’ (Mr. Justice Surendra Kumar Sinha) said, pass three verdicts within December. This one [Delwar Hossain Saydee], Ghulam Azam and Saqa [Salauddin Qader Chowdhury]. It would suffice to pass verdicts in these three [cases]. Then we will bring you here [to the Appellate Division of the Supreme Court]. Thereafter you will not be required to stay there [International Crimes tribunal]. This is all we talked about. I said you may do whatever you want to do, promotion should be given first. My concern is promotion.”

Relevant portion of the transcript of the conversation of 6th September 2012 is quoted below:

“নিজামুল হক নাসিম : যা-ই হোক, এই পার্টটা আগে প্রথম জাজমেন্টে দিয়া লই। তারপর বুঝা যাবে পরের জাজমেন্টে এইটা থাকবে কি থাকবে না; আর আমি পরে থাকব কি থাকব না। অনেক কিছু আছে... প্রথমটায় আমি দিব—এই হলো কথা।
আহমদ জিয়াউদ্দিন : It is very important. আপনি আবার কই যাবেন? আপনারে কি উপরের দিকে ...
নিজামুল হক নাসিম : আরে chief এ বলে, ওরা বলতাছে একটা জাজমেন্ট দাও আগে, তাইলে তোমারে নিয়া আসি।
আহমদ জিয়াউদ্দিন : একটা না, আগে বড় সাহেবের জাজমেন্টটা দিয়া আসি।
নিজামুল হক নাসিম : হা... হা... হা...। এইটা তার ল্যাংগুয়েজ আর কি, তার ল্যাংগুয়েজ।
আহমদ জিয়াউদ্দিন : বড় মিয়া আবার ওইটার জন্য ওয়েট করতে কিসের জন্য?
নিজামুল হক নাসিম : এদের ভিউ হইল অ্যাপিলেইট ডিভিশনের জাজদের ট্রাইব্যুনালে রাখবে না। আর গভার্নমেন্ট অ্যাডামেন্ট এদের রাখবেই। হের পর কী হইবে আল্লাহই জানে। হা... হা... হা... । আমি তো বলছি স্যার, আপনারা শিলপাটায় ঘষাঘষি করেন আর মাঝখানে আমার অবস্থা কাহিল। হা... হা... হা...। আমার আর প্রোমোশন হইবে না।
আহমদ জিয়াউদ্দিন : আমি ওইটাই কইতাছি—আপনি পাটাপুতার মাঝখানে পইড়া যাইয়েন না আর কি।
নিজামুল হক নাসিম : হ্যাঁ, সেইটাই।
….

নিজামুল হক নাসিম : উনি কয় একটা দেন। সিনহা বাবু কইছে, ডিসেম্বর এর মধ্যে তিনটা দেন। এইটা, গোলাম আযম সাহেবের, আর সাকা। এই তিনডা দিয়া ফালাইতে পারলেই হইছে। তারপরে নিয়ে আসি আপনারে আমরা এইখানে। এরপরে ওহানে আপনারে আর লাগবে না। এই হইছে কথা আর কি। আমি কইছি, যা করেন করেন, প্রমোশনডা দিয়া লন আগে। আমার কতা প্রমোশন, হা... হা... হা...।“
English translation (unofficial)

Justice Nassim: I will see it later but in the first judgment I will give it. I don’t know whether I will be here but the fact is in the first judgment I will place it.
Ziauddin: It’s very important. Where will you go again?
Justice Nassim: Let a judgment commence. I will bring you here.
Ziauddin: Not the only one after the final judgment…
Justice Nassim: His language….his language…
Ziauddin: Big brother has told me to wait for this…
Justice Nassim: Their view is they will not place the judges of appellate division and they place there the government adamant judges. I said, “Sir, then I will not get the promotion.”
Ziauddin: You will be the victim that’s all. I can’t understand their view. This is always happening. You are in high court division now, you are dealing with the appellate division. Now you are doing this.
Justice Nassim: They can do anything…

18. Following the publication of the Skype conversation in the Economist and the Daily Amardesh Mr. Justice Nizamul Haque resigned.

19. The Accused/Applicant would like to state here specifically that at no point of time from December 2012 till today, any denial has been made by the Registrar of the International crimes Tribunal or by Mr. Justice Nizamul Haque denying the contents of the Skype conversation or the email communication between him and Dr. Ahmed Ziauddin. The Applicant would further state that no denial has been made by the Registrar of the Supreme Court on behalf of Mr. Justice Surendra Kuman Sinha that he [Mr. Justice Sinha] had had no such conversation with Mr. Justice Nizamul Haque. It is common knowledge that no one- the Ministers, the Judges, the Prosecutors or the expatriate Bangladeshis who have been implicated in the Skype conversation and email communication have ever denied their involvement. On the other hand in his Order dated 6th December 2012 issuing contempt proceedings against the Editor and one other of the Economist, Mr. Justice Nizamul Haque admitted his conversation with Dr. Ahmed Ziauddin.

20. That it is apparent from the above conversation that Mr. Justice Surendra Kumar Sinha assured him of elevation to the Appellate Division of the Supreme Court if he [Mr. Justice Nizamul Haque] passes three verdicts. This amounts to an unlawful interference in the proceedings pending before the Tribunal. In doing so, he has disqualified himself from sitting as a judge in any Appeal from any Judgment of the Tribunal.

21. That in the alternative, Mr. Justice Surendra Kumar Sinha’s proposal of elevating Mr. Justice Nizamul Haque to the Appellate Division raises serious concerns of appearance of bias against all the Accused before the Tribunal including the Appellant. By such conduct, Mr. Justice Surendra Kumar Sinha has eroded his credibility within the meaning of the provisions of the Code of Conduct and threatened the integrity and independence of the Appellate Court i.e., the Appellate Division of the Supreme Court which is hearing the instant Appeal.

22. That further, Mr. Justice Surendra Kumar Sinha being a sitting judge of the Supreme Court of Bangladesh is bound by the Code of Conduct for the Judges of the Supreme Court of Bangladesh and the oath of office provided for under Article 148 of the Constitution of the People’s Republic of Bangladesh and prescribed in the Third Schedule. Article 96 (4) (a) of the Constitution provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published on 7 May 2000 (hereinafter referred to as the Code of Conduct).

23. It is respectfully submitted that this is not a matter that the Appellate Division of the Supreme Court need conduct an extensive examination as to actual bias of the Hon’ble Justice. The question is whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his assurance to the former Chairman of the Tribunal of elevation to the Appellate Division.

24. In Prosecutor v. Issa Hassan Sesay, Case No. SCSL-2004-15-AR 15, the Special Court for Sierra Leone Appeals Chamber referred to the two authorities cited above in determining whether Justice Geoffrey Roberston QC should be properly disqualified for commenting on the nature of the conflict in a book. The Appeals Chamber concluded, as per Justice King, at para. 15: “It is irrelevant for the purposes of this Ruling whether or not the passages hereinbefore referred to are true or not. The learned Justice is entitled to his opinion. That is one of his fundamental human rights. The crucial and decisive question is whether an independent bystander so to speak, or the reasonable man, reading those passages will have a legitimate reason to fear that Justice Robertson lacks impartiality. In other words, whether one can apprehend bias. I have no doubt that a reasonable man will apprehend bias, let alone an accused person and I so hold.”

25. Justice King, in giving judgment, concluded by referring to R v. Sussex Justices, Ex party McCarthy (1923) 1 KB 256 at p. 259 that “Justice must not only be done, but should manifestly be seen to be done.”

26. It is respectfully submitted that the overriding question in the instant case is not that of the Hon’ble Justice’s integrity, but whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his offering promotion to the former Chairman of the Tribunal.

27. This situation renders the inclusion of Mr. Justice Surendra Kumar Sinha on the bench in the instant appeal at odds with the integrity and independence of Appellate Division of the Supreme Court, contrary to the provisions of the Code of Conduct and ultimately precluding justice being done for the Appellant, and indeed any person seeking to appeal against a conviction by the International Crimes Tribunal.

28. Article 27 of the Constitution provides that: “All citizens are equal before the law and are entitled to the equal protection of law.”

29. The principle of equality of arms is a basic obligation under international law. It is implicit in Article 7 UDHR which provides that: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

30. This principle is reiterated in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) which provides that: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

31. The UN Human Rights Committee tasked with upholding the provisions of the ICCPR held in De Jorge Asensi v. Spain (Communication No. 1413/2005) that: “Although Article 14 does not explain what is meant by a “fair hearing” in a suit at law, the concept of a fair hearing in the context of article 14, paragraph 1, of the Covenant should be interpreted as requiring certain conditions, such as equality of arms [the Accused-Petitioner’s emphasis] and absence of arbitrariness, manifest error or denial of justice.” (Also the Committee’s general comment No. 32, para. 26, (2007) on article 14 of the Covenant, “Right to equality before courts and tribunals and to a fair trial”)

32. This fundamental principle of equality of arms is also set out in Article 67(1) ICC which provides that: “In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality”.

33. That as before mentioned Bangladesh is a state party to the UDHR, ICCPR and ICC and must adhere to its international obligations thereunder.

34. Under international law, the procedure for determining impartiality is highly important. If an accused raises the issue during the proceedings it must be investigated unless it is “devoid of merit”. This requires the court to determine whether, apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect the position is very clear.  If there are legitimate reasons to doubt the impartiality then that judge must withdraw from the case. In Piersack v. Belgium (Application No. 8692/79, Judgment of 1 October 1982, paras 30-32) it was held to be a violation where the trial judge had previously been a member of the department who investigated the applicant and who had initiated the prosecution against him. In Piersack the European Court of Human Rights held:

“30. Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. … 

However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.”

35. It is respectfully submitted that the integrity of the proceedings and the process must be paramount.

36. It is respectfully submitted that the Appellate Division of the Supreme Court may take into account the established international jurisprudence on the question of objective impartiality in properly addressing the question of whether the Hon’ble Justice should recuse himself. In Regina v. Bow Street Metropolitan Stipendary Magistrates and others, Ex parte Pinochet Ugarte (No. 2) (House of Lords) 1 AC 119 which held that:

“…the fundamental principle that a man may not be a judge in his own cause was not limited to the automatic disqualification of a judge who had a pecuniary interest in the outcome of a case but was equally applicable if the judge’s decision would lead to the promotion of a cause in which he was involved together with one of the parties…that in order to maintain the absolute impartiality of the judiciary there had to be a rule which automatically disqualified a judge who was involved…in promoting the same causes…as was a party to the suit”. 

“The court cannot rely on its knowledge of the integrity of the judge concerned to outweigh the appearance of bias to the eye of the bystander. The reference point must remain the reasonable observer. This is consistent with the test laid down under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms”. 

“…I am of the opinion that there could be cases where the interests of the judge in the subject matters of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation” 

37. In Prosecutor v. Anto Furundzija, ICTY Appeals Chamber: 21 July 2000: Case No. IT – 95 – 17/1, the ICTY Appeals Chamber held: “The fundamental right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial.” [para. 177]

“On this basis the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the statute: 

A. A Judge is not impartial if it is shown that actual bias exists. 

B. There is an unacceptable appearance of bias if: (i) a judge is a party to the case, or has a financial or propriety interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or (ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.” [para. 189].

38. That as a State Party to the Rome Statute of the International Criminal Court there is an obligation to apply the general principles to which it adheres. The Rome Statute sets up a framework of complementarity. The purpose of this complementarity principle is in order to establish a uniform system to try serious crimes. Admittedly this complimentary principle is only triggered in a situation where the ICC can itself take jurisdiction over the case if the national courts are unwilling or unable to proceed. However, it is the spirit of the complementarity principle that creates a number of legal obligations. The ICC was established to try and punish the most serious violations of human rights in cases where national justice systems fail at the task. It is deemed a model in international criminal justice. It must be highlighted that over 120 states participated in the negotiations at the Rome Conference which formulated the Rome Statute in 1998. Under international customary law and applying the principle of the Vienna Convention on the Law of Treaties when a State consents to be bound by a treaty it constitutes a promise to adhere to the principles in the document and to honour its spirit. It is obliged not to defeat the object and purpose of the treaty. The object and purpose of the Rome Statute is enshrined in both Article 17(2) above and the preamble of the Rome Statute which provides that State Parties to the Rome Statute are: “resolved to guarantee lasting respect for and the enforcement of international justice”. It affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished at their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation”. 

39. Reference must also be made to the public statements made by the Government of Bangladesh at the ceremony when it officially became a State Party and to the numerous public statements since that time to upholding the highest international standards. At the 65th Session of the United Nations General Assembly, the Hon’ble Prime Minister of Bangladesh stated: “Bangladesh has established an International Crimes Tribunal to try persons responsible for war crimes and crime against humanity, including genocide, arson and rape committed during our war of liberation in 1971, and immediately thereafter. This action is in accord with the rule of law as reflected in the Rome Statute of the International Criminal Court (ICC), which we have ratified and which aims at bringing perpetrators of war crimes, genocide, and crimes against humanity, to justice. I believe that only justice can heal the unforgivable, deadly wrongs of the past.”

40. The Hon’ble Prime Minister clearly expressed the need to maintain the highest standards according to the legal framework of the Rome Statute of the International Criminal Court.

41. It is respectfully recalled that the UN Human Rights Committee has held that in relation to the right under Article 14(1) of the ICCPR that “all persons shall be equal before the courts and tribunals” and that “in the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” is an absolute right that may suffer no exception (see Communication No. 263/1987, M. Gonzalez del Río v. Peru (Views adopted on 28 October 1992), in UN doc. GAOR, A/48/40 (vol. II), p. 20, para. 5.2).

42. Firstly, independence must be institutional and functional and to determine whether the court or tribunal meets the requirements of independence, regard must be had to the manner of appointment of its members and their term in office, the existence of guarantees from external pressures and the question of whether the body has the appearance of independence.

43. Secondly, the concept of impartiality may in many cases overlap with independence. However, in order to ascertain whether the requirement is met, a test that is both subjective and objective must be applied (Eur. Court HR, Saraiva de Carvalho v. Portugal, judgment of 22 April 1994, Series A286-B, p. 38, para. 33). Whilst impartiality normally denotes the absence of prejudice or bias, its existence or otherwise can, notably under Article 6(1) of the ECHR, be tested in a variety of ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and the objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. For subjective impartiality to be made out actual proof of bias needs to be established and the personal impartiality of the judge is presumed unless there is proof to the contrary. The personal friendship between the trial judge and the Executive may not be sufficient in itself to prove actual bias. For objective impartiality to be made out the test is less strict and is fashioned on the maxim justice must not only be done: it must be seen to be done. This requires the court to determine whether, apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this regard the position is very clear. If there are legitimate reasons to doubt the impartiality then the judge must withdraw from the case.

44. The procedure for determining impartiality is highly important. If an accused raises the issue during the proceedings it must be investigated unless it is “devoid of merit”.

45. It is further recalled that on 7th February 2013 the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Christof Heyns, issued a public statement expressing alarm and declaring that “Capital punishment may be imposed only following proceedings that give all possible safeguards to ensure a fair trial and due process, at least equal to those stipulated in the International Covenant on Civil and Political Rights, to which Bangladesh is a State party.” The United Nations Special Rapporteur on the Independence of Judges, Prosecutors and Lawyers, Ms. Gabriela Knaul, further stated raised concerns about “the impartiality of judges and prosecution services of the Tribunal, as well as their independence from the executive.” The Special Rapporteurs stated jointly that any shortcomings in the trial proceedings should be carefully examined during any appeal and noted that “A credible appeal process also constitutes an imperative component of fair trial guarantees, particularly in instances, where the death penalty has been imposed.”

46. That for the abovementioned reasons in this application, the Appellant/ Applicant humbly prays that the Appellate Division of the Supreme Court will avail itself of the opportunity to issue an order directing for the immediate recusal of Mr. Justice Surendra Kumar Sinha.

Wherefore, it is most humbly prayed that your lordships may be graciously pleased to issue an order directing for the immediate recusal of Mr. Justice Surendra Kumar Sinha in Criminal Appeal No. 25 of 2013 pending before this Hon’ble Court and pass any further order(s) as it may deem fit and proper.