To read the full proceedings that took place on the 14th - where another order was made involving the three british barrister - you should go this post.
Justice Kabir read out the order:
Today is fixed for delivery of order on application dated on 27th October 2011 filed by the accused petitioner, on recusal of Mr Justice Nizamul Haque Nasim, honorable Chairman of the International Crimes Tribunal, Dhaka.
It may be mentioned here that since the application for Recusal of the Chairman has been prayed, he himself stopped from participating in hearing of the matter, but we two members have heard the matter and heard the argument on both the defence and the prosecution, and have disposed of this according to law.
Mr. Abdur Razzaque, the learned counsel with some other lawyers appeared on behalf of the accused petitioner while Mr Shahid Haider Ali with co-prosecutor appeared on behalf of the prosecutor.
At the very outset Mr Abdur Razzaque, learned senior counsel for the defence took us through the Report of the finding of the “Peoples Inquiry Commission” on activities of the war criminals and submitted that you from the report’s appendix B you can see that Mr Nizamul Haque was one of the members of the Secretariat of the people’s commission in 1994 which investigated allegations of war crimes against accused petitioner and others.
He then submitted that the honorary chairman of the tribunal was involved in the investigation process of war crimes against the accused, and so has pre-conceptions about him and so th accused can not receive clear and impartial justice from the Honorable Chairman of the Tribunal.
Further submitted that the chairman took part in the investigation of war crimes in 1993-1994 and as such he was party to the case and so there is a reasonable appearance of bias.
The learned counsel referred to certain relevant part of the Rome Statute and also 3(6) A of the Code of conduct of the Supreme Court of Bangladesh. Referring to the above code of conduct the learned counsel submits that a judge should qualify himself in proceedings when his impartiality might reasonably be constrained.
Lastly he submitted that the honorary chairman should recuse himself from the case or by the tribunal passing order recusing Nizmanul Haque as impartiality has reasonably been constrained.
Mr. Khandker Mahbub Hossain and Mr Moudud Ahmed, after obtaining permission from the Tribunal made submission on the code of conduct and gave examples of recusal from long standing traditional proceedings.
Mr Haider Ali with Mr. Mohammad Ali, the learned prosecutor opposed the petition for recusal of Nizamul Hoque.
To refute the submission of the Defense Mr. Haider Ali submitted that the honorary chairman was a lawyer in 1993/4 and that the People’s Commission Report gave a recommendation to the Government for holding trial and no where in the report did it state that the honorary chairman had been involving in investigation of war crimes, except his name as part of the secretariat of People commission in Appendix B.
He further submitted that the report of the Inquiry commission was not accepted by the then government and so impartiality of this tribunal cannot be questioned without any cogent ground.
Lastly submitted that the inquiry commission has no legal sanction but organised by intellectuals of society to bring perpetrators of war crimes by 1973 Act and such mere inclusion of Nizamul Haque in the secretariat can not be grounds for recusal, and so application may be rejected
Mr. Mohammad Ali, learned prosecutor submits that the application for recusal of the Chairman is not maintainable in law as nowhere in 1973 Act or its rules of procedure can entertain recusal application so application should not be outrightly rejected.
We have heard the lawyers and perused the application for recusal of the chairman and report of the peoples inquiry commission.
Before going into discussion, the pertinent point before us is whether we as judges of tribunal have legitimate authority to dispose of the application of recusal of another judge of the tribunal.
This question need to be addressed first.
Learned senior counsel in support of his submission cited case law of different courts Tribunals which hold trial for war crimes. On perusal of those and special rules of procedure, it is found that those special courts have jurisdiction to hold hearings on applications for recusal, special laws have been framed for court to dispose of application of recusal.
In our jurisdiction the word recusal is a new one which not been applied in any court of Bangladesh.
This Tribunal is formed under International Crimes Tribunal Act 1973 and its rules of procedure. The Act of 1973 does not provide any power for application of recual or any ability for disposal of such application.
This Tribunal is legally bound to proceed under Act of 1973 and we as judges of tribunal cannot order cannot pass any ruling which is not authorised by law to do so.
This tribunal consists of 3 judges. One is declared as chairman and other are members having equal power to try the accused under Act of 1973
Under the above legal situation we are bound to say that we are not legally authorised to pass any order on application for recusal of a co-judge.
However, we think that the matter in issue largely depends upon the good conscience of the judge concerned.
With the above observations, the above application is disposed of