Following the Chowdhury witness cross examination, the tribunal in the afternoon session moved onto reading out two orders relating to Gholam Azam - one concerning an application to transfer his case to the other tribunal or to recuse the chairman from taking part in his trial, the other an order on the application to review his order of indictment. This page deals sets out the order for recusal/transfer. The following page sets out the order relating to the review of the indictment.
Order on transfer/recusal (copied from written order)
1. Today is fixed for delivering the order on the application filed by Accused- Petitioner Professor Golam Azam filed on 30.05.2012 to "transfer" the case against Accused-Petitioner from International Crimes Tribunal No.1 (hereinafter referred as the Tribunal) to International Crimes Tribunal No.2 (hereinafter referred as Tribunal-2) under section 11A of the International Crimes Tribunals Act, 1973 hereinafter referred as the Act) read with Rule 46A of the International Crimes Tribunal Rules of Procedure 2010 hereinafter referred as Rules of Procedure), and in the "alternative", for recusal of Mr. Justice Md. Nizamul Huq, the Chairman of the Tribunal under section 6(2A) of the Act read with Rule 46A of Rules of Procedure.
2. The Accused-Petitioner submits to the Tribunal to "exercise its power under section 11 A of the Act to transfer this case to Tribunal-2 as the only possible means to ensure proper dispensation of justice and to avoid the need for recusal given the Hon'ble chairman’s previous in demanding implementation of the verdict of the People's Court against the Accused Petitioner".
3. This is the second time this Tribunal is addressing a petition that is earily similar to the one that it has dealt exhaustively in an earlier case, that of the Chief Prosecutor v Delwar Hossain Sayeedi (ICT-BD corr No, 0l of 201l) through its order No. 35 dated 28.11.20t1.
4. It appears from the petition and oral submissions on behalf of the Accused- Petitioner that petition to transfer this case to Tribunal-2 has a specific purpose, to "avoid" the chairman's "recusal" for his alleged roles in a ‘mock trial’ in a so called "people's court’ in March 1992, and, for his presence in a meeting of Ainjibi Somonnoy Parishad in April 1992 that urged the government 'to respect opinion of the people expressed through the peoples court and take necessary legal measures.'(Daily Sangbad, 11 April, 1992).
Transfer or Recusal of the Chairman:
5. The Accused-Petitioner contended that on 26.03.1992, Ekatnrter Ghatok DaIaI Nirrnul committee, a civil society campaign, organized a mock trial, the so-called people's court at Suwardi Uddan about the Accused-Petitioner for his alleged commission of crimes during the war of liberation of 1977. The chairperson of the people's court was late Shaheed Janoni Jahanara lmam. In the mock trial, 15 (fifteen) witnesses deposed and an unanimous decision was announced on 26.03.1992, and that the Accused-Petitioner was found guilty of the offences including mass murder, arson and looting which according to the said court, was punishable by death. The court demanded to the government of Bangladesh to take appropriate action against the accused
6. Thereafter on 31.03.1992, Ekatirrer Ghatok Dalal Nirrnul committee demanded implementation of the death penalty against the accused- petitioner by the Government of Bangladesh.
7. The Petition further contended that on 10.04.1992, at executive committee of the Ainjibi Shommonnoy Parishad, a resolution was adopted demanding upon the government to take appropriate legal steps in the matter upon being respectful of the people's court and in that meeting Chairman was present, and this news was reported in the daily Sangbad on 11,.04.1992, copy of which has been annexed with the petition.
8. The Petitioner maintained that as the Chairman was directly involved in the Process of demanding implementation by the government of the verdict of death penalty passed by the people's court against the accused petitioner; therefore, the chairman of the Tribunal No.1 in the instant case is at odds with the integrity and independence of the Tribunal, contrary to the provisions of the Constitution of Bangladesh, the Code of Conduct for Judges of the Supreme Court, and ultimately, preventing justice being done to the accused petitioner.
9. The Petition stated since the formation of the Tribunal No.2 on 22.3.2012, and after promulgation of the Ordinance No. 4 of 2072 on 17.04.2012, where a new section 11A has been inserted giving power to Tribunal to transfer of cases, as such, for ends of justice, the instant case may be transferred to the Tribunal No.2 or the Chairman of the Tribunal No.1 should recuse himself from this case.
10. In the application, the petitioner referred to Articles 96(a)(a) and 148 of the Constitution of Bangladesh, Clauses 1, 2, 3(6)(A), 3(6)(d)(iv) of the Code of Conduct prescribed by the Supreme Judicial Council, Art 14 of the International Covenant on Civil and Political Rights (ICCPR), Articles 40 and 47 of the Rome Statute of the International Criminal Court, Art 7 and Art 10 of the Universal Declaration of Human Rights (UDHR), cases of Human Rights Committee, House of Lords, International Criminal Court for Former Yugoslavia, Special Court for Sierra Leone etc, and prayed for "immediate transfer of the case of Professor Golam Azam from international Crimes Tribunal-1 to International Crimes Tribunal-2 under section 11 A of the International Crimes Tribunals) Act 1973 read with International Crimes Tribunal Rules of Procedure 2O10" and "in the alternative for recusal" of the Chairman of the Tribunal'
Summary of Petitioner's submission
11. Mr. Abdur Razzak, appearing for the Accused-Petitioner, submitted that after the amendment of the Act and insertion of section 11A, a Tribunal on its own motion or on the application of the Chief Prosecutor can transfer a case from one Tribunal to another. He stated that the Act has not given power to the accused to pray for transfer which makes it clear that the principle of equality of arms between the parties have not maintained denying fair trial to the accused. He stressed that the principle of equality of arms is a basic obligation under international law enabling the Accused-Petitioner aiso to file application to transfer the case.
12. He submitted that the Accused-Petitioner thought it proper to place his grievances before the Tribunal through this petition prayng for transfer of this case and seeks the Tribunal to invoke its duo moto authority to transfer the case for ends of Justice. He said, if the Tribunal is of the opinion that ends of justice demand transfer of this case to the other Tribunal then, on its own motion, the Tribunal can pass this order. He submitted that with this expectation, the accused has filed this application to bring some facts of involvement of the Chairman in proceedings against the accused person for consideration of the Tribunal.
13. He further submitted the Tribunal, if satisfied, that ends of Justice requires that they should hear this case, and then on their own motion, following section 11A of the Act transfer this case to Tribunal No.2, or, alternatively, submitted that Accused-Petitioner is praying for recusal of the chairman from considering the facts and circumstances mentioned in the petition.
14. It was also stated the judges of the Supreme Court are subject to the Code of Conduct which contains inter-alia that a Judge should disqualify in a proceeding in which the Judge's impartiality might reasonably by questioned, and that he should disqualify himself if he is ikely to be a material witness in the proceeding.
15. He maintained that any act, which erodes the credibility of independence of a Judge has to be avoided and stated as the annexed newspaper report supports the facts that the Chairman Justice Md. Nizamul Huq has lost his impartiality, and he might be a material witness in this proceedings, and thus his activity has eroded credibility and independence of him, and as such he should recuse himself from this case.
16. Considering all these facts, the learned counsel submitted that the fact of this case clearly establish that a doubt has been created in the mind of the accused that he will not get fair justice in this Tribunal and as such the case should be transferred to the other Tribunal. Moreover, he submitted that the charges framed in this case and the charges of the so-called people's court are similar in nature.
Summary of Prosecutor's submission:
17 Mr. Zead-Al-Malum, in reply to the submissions made by Mr. Razzzk, stressed that if there is a challenge from Defence about a Judge then such challenge must be raised at the initial stage of the proceedings. He questioned whether such a challenge is now being raised when charge has already been framed after due hearing of both sides, and the date has been set taking deposition of witness of the Prosecution.
18. He submitted that the mock trial was part of a civil society initiative to campaign for justice for the crimes committed in Bangladesh in 1971 and has no connection or bearing whatsoever with the process of the Tribunal. He further submitted, even in the said mock trial, the chairman was not a party in any way, did not play any role. In the statement of Ghatok Dalal Nirmul Committee, he pointed out, that the Chairman is also not involved or in any way, a party
19. The Prosecutor further stated that in the newspaper report, annexure-D, it appears that the Chairman Mr. Justice Md. Nizamul Huq Nassim was present in the meeting of Ainjibi Shomonnoy Parishad where as many as 7(seven) resolutions were passed on different issues. One such resolution urged the government to be respectful to the decisions of the people's court and to take steps in accordance with law. He submitted that report does not contain any material that the Chairman took any part in the process of the meeting or even he made any speech there. He said, the meeting was held in the Supreme Court Bar Association, and that he was only present in meeting.
20. He submitted that no proceeding against the Accused-Petitioner has any bearing with of the people's court. As an independent Tribunal proceeding against the Accused started after completion of investigation by the Investigating Agency and not on the basis of this mock trial. Charges laid out against the Accused are different. He said, even if there are similarities, which is expected considering crimes committed then and involvement of the Accused, does not affect the instant case
21. Referring to section 6 (8) of the Act, the Prosecutor submitted that the application for recusal of the Chairman is barred and as such not maintainable as neither the constitution of the Tribunal nor appointmentof its members by the prosecution or the accused or their counsel.
22. Furthermore, he mentioned that a similar application was filed praying for recusal of the Chairman in the case of Delwar Hossain Sayeedi which was argued by Mr. Abdur Razzak and Mr. Tajul lslam, among others, which was finally rejected after elaborate hearing considering all the materials submitted there with. The instant petition standing with the similar cause also is not maintainable. Moreover, no reference of that application and the corresponding order was made in this petition and for suppression this fact alone, and also for the above reasons, the petition is liable to be rejected.
Analysis and Decisions of the Tribunal
23. We have heard the learned counsel for the petitioner and the learned prosecutor and find it intriguing as this has been an application for recusal in the guise of a transfer petition. The petitioner could have filed a petition making out a case for transfer, but in reality, it is all about recusal of the chairman.
On transfer:
Transfer of a case:
24. The Act is quite clear about who can initiate a process to transfer case from one Tribunal to other. Section 11 A of the Act, under which the instant petition has been filed, read with RuIe 46A of the Rules of Procedure. Relevant part of Section 11 A is quoted below: '(l ) At any stage of a case, a Tribunal may or its own notion or on the application of the Chief Prosecutor or by an order in writing transfer the case to another Tribunal, whenever it considers such transfer is just and convenient for proper dispensation of justice and expeditious disposal.’
24A. Section 11A of the Act provides only two ways to transfer case, either by a Tribunal on its own motion, or on the application of the Chief prosecutor. The law contains no third option. Indeed, some cases have already been transferred by this Tribunal to Tribunal -2, and are, on application of the chief prosecutor. There is no application of the Chief Prosecutor in this case; instead, the Defence has filed this application since the Act confers no such right to Defence, only on this reason alone the transfer-petition is liable to be rejected.
25. As noted, the Act authorizes the Tribunal to transfer a case at any stage on its own motion on 3 (three) conditions set out in section 11 A (1); that such transfer is "just" and. "convenient for proper dispensation of justice’ and for "expeditious disposal" of cases. These conditions are equally applicable when the Chief Prosecutor files a transfer application or the Tribunal on its own motion initiates one. The Tribunal also has to satisfy itself that these conditions have been met before ordering a transfer.
26. To decide on any application to transfer of a case, we are to consider and satisfy that about the above 3(three) conditions have been met namely, whether the transfer is just and convenient for proper dispensation of justice and for expeditious disposal. The petition does not state how these conditions have been fulfilled. The petitioner has not stated anything to satisfy us in this regard.
27. In regard to first condition that the transfer has to be ‘just’ the Accused- petitioner has utterly failed to demonstrate why such transfer will be ‘just’. In fact, there is nothing in the petition to suggest so. Equally, there are no matters to satisfy the condition that such transfer has been for proper dispensation of justice. And finally, whether in the petition, nor in oral submission, the petitioner ever explained how this transfer will contribute to expeditious disposal of case by the Tribunal.
28. It may be mentioned here that in total, 8 (eight) cases are now pending before the Tribunal-l and Tribunal-2, each dealing with 4(four) cases. If one case is allowed to be transferred, then this Tribunal will have 3(three) cases before it, while Tribunal No.2 will have 5 (five), and as such, we are not satisfied such a transfer would in any way contribute to expeditious disposal of cases, which indeed has primary objective of section 11 A, and therefore, the transfer prayer is liable to be rejected.
Transfer under Rule 46 A:
29. The Accused-Petitioner has also referred to Rule 46 A of the Rules of Procedure to order the transfer. Rule 46 A states that: ‘Nothing in these rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make any order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process’. This Rule speaks of inherent power of the Tribunal. The Tribunal can only invoke this exceptional power sparingly and only where ends of justice so-requires or prevent abuse of the Process. This exceptional power could only be exercised under extra-ordinary circumstances.
30. We are of the view that no such situation exists now to exercise this power. Moreover, inherent power has its limitation. This power does not authorize the Tribunal to transfer a case from one Tribunal to another, and hence, the legislators amended the Act to insert section 11A authorizing the Tribunal to transfer a case under certain condition. If indeed the Tribunal could have transferred a case, the legislators would not have amended the Act to give the Tribunal power to transfer As such, it is clear that Rule 46A of the Rules of Procedure under no circumstances authorise the Tribunal to pass any order to transfer, and accordingly, the petition thus is liable to be rejected.
31. The Accused-petitioner has invoked the principle of equality of arms to allow filing an application under section 11A of the Act to transfer his case from this Tribunal to the other. In doing so, the petition referred to Article 7 of Universal Declaration of Human Rights, Article 14 (1) of the Covenant on civil and Political Rights, Arttcle 67 (1) of the Rome statute of the International criminal court and a decision of the UN Human Rights committee. However, the Petition did not find an express provision in any international instrument on the principle of equality of arms.
32. The principle of equality of arms is part of wider concept of a fair trial which the Act mandates the Tribunal to ensure. The principle implies that no party to a criminal proceedings, be it defence or prosecution, is put in a disadvantaged position vis a vis the other. The principle has a broad scope and largely requires that each parry gets a reasonable opportunity to present his case, and that, the defence is heard as far as possible in addition to those of the prosecution, but does not necessarily require an unfairness flowing from a procedural inequality.
33- Section 11A is one such provision where the Defence, on the face of it cannot initiate proceedings to transfer a case from one Tribunal to another, but this apparent inequality does not result in unfairness, or affect the fair trial of the Accused in any sense as the primary purpose of this provision has been to efficiently manage the cases before the Tribunal. The provision does not extend additional rights to the Prosecution. other than to expeditious processing of cases. The Prosecution, cannot resort to section 11A for any other purpose, like an issue with a Tribunal or a Member thereof. As such, the Accused-petitioner has not been placed in disadvantaged position under section 11A, and that the petition is liable to rejected on this ground.
On recusal of the Chairman:
34. At the outset it has to be noted that major part of the instant petition argues for recusal of the Chairman, which is in substance, analysis and arguments identical to an earlier case referred to above, Chief Prosecutor v. Delwar Hossain Sayedi (ICTBD Case No. 01 of 2011), that this Tribunal decided conclusively in its Order No. 35 on 28.17.2011, which is why in this part, the Tribunal will refer and repeat facts and decisions. As far as recusal of the Chairman is concerned in this petition, other than minor difference of fact that the Accused-Petitioner relied on, for all other purpose, the both petitions are identical
35. In that petition too, the petitioner sought recusal of the Chairman on the ground that the Chairman was a member of the Secretariat of the so-called people’s Inquiry commission. The commission, according to the petitioner, published a 6 report in 1994, where the name of the Chairman appeared at serial no. 25 as one of the 40_members of the Secretariat.
36. According to the petitioner, the purpose of the Secretariat was to assist the Commission who investigated the Accused-Petitioner and as such, the petitioner maintained that he feared the Chairman lack impartiality given his prior role, and that he has developed a relationship with one of the parties, and that an objective observer would find that there is an appearance of bias on his part.
37. During the hearing the learned counsel of the Accused-petitioner, who is also the counsel of this Accused.Petitioner, submitted that since from the Report it appeared that the Chairman was a member of the secretariat of the investigation against the Accused Petitioner, and thus he is involved in the investigation process as such his client shall not get fair and impartial justice from the chairman. He argued that as a party to the case because of his participation in investigation, that there is a reasonable apprehension of bias. He further submitted that the Chairman is likely to be a material witness that disqualified him to hold his position.
38. Since the petition involved the chairman, he graciously withdrew himself from the proceeding and a lengthy hearing took place with number of leading lawyers of the Bar before the remaining two members of the Tribunal. The petition was disposed of by the Tribunal who found that the Tribunal has no legal authority to decide on an application for recusal filed against another Judge of the same Tribunal. They found that that the Tribunal is legally bound to follow the Act and Rules of Procedure, which has no such provision and that they are not legally authorized to pass order on a recusal application of a co-Judge. It observed that the issue largely depends on the good conscience of the judge concerned.
39. This lead to further petition by the Accused to seeking from the Tribunal and record reasons why the Chairman continues to sit as the Chairman. The petition repeated the facts stated in the first petition and alleged that in addition to "reasonable apprehension of bias", which was the basis of the first petition, there exists "actual bias" on the part of the Chairman
Settled issues:
40 The Tribunal in its above mentioned Order addressed specifically each and every issue raised by the Accused-petitioner. In the present petition, issues raised by the Accused-Petitioner, have all been addressed and settled in the aforesaid order. Accordingly, this time too, the Tribunal will adhere to its statements, explanations and decision taken already in disposing of this petition.
41. The issues raised and settled in the said order are follows: unprecedented character of the petition, its legal basis, timing and failure to agitate questions at first opportunity, allegation against the chairman, material witness, bias, presumption of impartiality, objective observer etc. As said, in this petition, some of these issues have been highlighted and stressed again, while these has all been settled by this Tribunal. Suppression of facts
42. In referring to the said Order of the Tribunal, the learned Prosecutor mentioned a similar application was filed for recusal of the Chairman in the case of Delwar Hossain Sayedee which was argued by Mr. Abdur Razzak and Mr. Tajul Islam, among others. Therefore he argued that the instant petition standing with the similar cause is not maintainable, as the earlier one been rejected. He maintained no reference of that application and the corresponding order was made in this petition. He submitted, for suppression this fact alone, the petition is liable to be reiected. The Tribunal agrees with the Prosecutor's 'submission and finds that this petition is liable to be rejected as it did not refer to findings of this Tribunal on the issue of the recusal of the Chairman.
New element in the petition
43. New factual element on which this recusal application has been framed., which is also its main contention, that the Chairman, was present in a meeting held in Supreme Court Bar Association when he was an Advocate of the Supreme Court and that the meeting adopted a resolution urging the Governrnent to respect sentiments expressed in the so-called people's mockcourt and take necessary legal steps. This was reported in daily newspaper that the Accused-Petitioner has annexed to his petition.
43. In this regard, Mt. Razzak submitted that the fact that the chairman, while as an Advocate, was pressed in the said meeting, that an objective observer would conclude that there is a reasonable apprehension that the Chairman will lack impartiality, and that the said objective observer could only conclude that there exists an appearance of bias on the part of the Chairman. Hence he argued recusal of the chairman. However, he categorically stated he is not in any manner questioning integrity of the Chairman.
44. The Tribunal has carefully examined the news-item in question where it reports that Mr. Nizamul Huq Nasim as an Advocate, as he was then, was present in a meeting of Ainjibi Shomonnoy Parishad in the Supreme Court Bar Association along with many other lawyers. The meeting adopted as many as 7 (seven) resolutions including decision to participate in the Bar Council election, setting-up of the election sub-committee, urged the government to respect and take necessary legal steps respectful of people's opinion expressed in people’s tribunal to withdraw cases filed following the people's tribunal, demanded recall of an objectionable comment made by a government minister protested against the treatment of Rohinga population by Burmese military, and endorsed yet to be held program of Nirmul Committee.
45. Reading the piece as we did, we did not find anything specific about the chairman, as he is now, other than the fact that he was present in meeting that discussed varieties of issues. There is no suggestion in the report that beyond mere his presence, the chairman took active part in the meeting or spoke or gave any opinion, or canvassed for any of the issues of the resolution, or drafted it.
46. In absence any activity of the chairman in the said meeting & except his presence, in our view, cannot be considered as bias, or pre-judging the case, on the part of the chairman against the Accused-petitioner by any stretch of the imagination There is no ground to assume bias without any factual basis and therefore, on this basis alone, the petition is liable to be rejected.
Re-stating the position of the Tribunal on recusal:
47. As we have noted in our earlier said Order, recusal is an unheard of an expression in legal culture and practices in Bangladesh. Still, mindful of importance of the subject matter for which the Tribunal was established, in other words, international crimes committed in Bangladesh in 1971, and deep and legitimate interest of victims and people of Bangladesh in the working of the Tribunal, and interest beyond Bangladesh, the Tribunal took-up exceptional petition of recusal, and has addressed it meticulously.
48. In disposing of this petition, we re-state some of the issues resolved there which are also relevant for this petition:-
(a) legal basis of recusal petition: This petition, like the earlier one, lacks any legal basis as it does not refer to any provision of the Act or Rules of Procedure to be considered by a Tribunal. A petition having no legal foundation deserves to be rejected. Moreover, not only that the petition fails to show under which provision of the Act or Rules of Procedure it's been framed, but it is barred by an express provision of the Act, section 6(8) under which no petition is maintainable that challenges appointment of its Chairman or members by either side. This is previously what this petition asking for recusal of the Chairman has done. As such, the petition is bound to be summarily rejected.
b) Fair trial obligation: The petition refers to section 6 (2)(A) of the Act and Rule 46A. Rule 46A has been addressed above. Submissions under section 6 (2A) was also considered in the above referred earlier Order of the Tribunal. Section 6(2)(a) states that the Tribunal shall be independent in the exercise of his judicial functions and shall ensure fair trial. Nothing has been stated in this petition that the tribunal is not independent in the exercise of its judicial function of that the chairman in this particular case has not acted independently that he should under the Act. Hence there remains no scope to doubt fair trial by this Tribunal or by the chairman and as such the the very basis of the petition has no merit and thus the petition is liable to be rejected.
c) Failure to raise concern at first opportunity: The reamed prosecutor has very rightly drew our attention to why concerns raised by the Accused petitioner was not raised at first opportunity, and only after charges have been framed against the Accused-petitioner and date set for deposition of prosecution witness. The newspaper was available for years together. The learned prosecution submitted Formal charge against the Accused-petitioner, a detailed hearing on it ensued, after which, the Tribunal took cognizance and framed charges. In no time over the period, the Accused-petitioner thought it proper to raise his concerns. More so, the Tribunal in identical terms, mentioned such failure in its said order.
d) Bias against the Accused-petitioner: In the petition and in oral submissions, a lot has been said about bias, appearance of bias because of chairman’s presence, while as an Advocate, in a meeting of lawyers discussing number of issues. In fact bias is the center piece of Accused-petitioner's argument in this case and as was the case before. However, like before, the tribunal did not [hear] any fact that could justify either existence of bias or appearance of hbas, or actual bias, for that matter, as there was nothing on the record that the chairman, while an Advocate, has done, said anything indicating any bias whatsoever against the Accused petitioner. As such, the petition devoid of any for merit for consideration and thus rejected
(e) on being a material witness: Like other issues, this one was also raised in earlier petition referred above. The Accused-Petitioner claims that the Chairman could be a material witness as one who was involved in demanding the government to realize the outcome of the so-called people's tribunal. This was an unusual submission then, as it is now; since a material witness, according to its recognized notion, is witness whose evidence is likely to be sufficiently important to influence the outcome of a trial. Under no circumstances could the Chairman be a material witness that will influence the outcome of the Accused-Petitioner's trial merely because he was present in a meeting. Therefore, this ground is untenable and thus rejected.
f) On objective observer: The Tribunal dealt with this notion and assertion on the objective observer in detail in it's said earlier Order and is inclined not to repeat the same here. In short an objective observer is a constructed notion. The Tribunal noted that this notion is fraught with imprecision, as an objective observer is supposed to have personality, character, knowledge and understanding of the issues involved. As such, to suggest or decide on how or whether an objective observer, a fictitious character, may perceive or view something, and based on that based on that perception, the Tribunal has to act, or the Chairman to recuse is an impossible proposition
g) Independence and presumption of impartiality: The Tribunal has discussed in details on independence and impartiality of a judge in its earlier decision that the Accused-Petitioner rightly refers to. Independence of judiciary and independence of the Judges are two key features of the Constitution of Bangladesh. Once a Judge takes his/ her oath under Article148 (third Schedule) to discharge duties of office according to law, to deal faith and allegiance to Bangladesh, and to preserve, protect according to law without fear, favor, affection or ill will, a very strong presumption flows from this oath, that after taking oath, a judge is impartial. This is otherwise known as presumption of impartiality, which is attached to all Judges, and cannot just be displaced by suggestion that the Chairman, while an Advocate, was present at a meeting and did nothing. Moreover, this presumption of impartiality has been reinforced in Bangladesh by the Code of Conduct of the Judges that elaborate on conduct of the Judges, and compliments the presumption the impartiality
49. Thus, it has by now been established that in the present case, as claimed by the Accused-Petitioner, there is no substantiated bias or existence of bias against the Accused-Petitioner by the Chairman or the Tribunal instead, on perusal of the record of this case, we can see that this Tribunal has taken several steps to ensure full respect of the rights of the accused, and on occasions, prompted by its good conscience, even afforded facilities to the Accused-Petitioner to the highest standard of compliance with the Act and its Rules which other accused in Bangladesh ordinarily do not enjoy.
50. For example, when the Tribunal took cognizance of the case against the Accused-Petitioner, it was the duty of the Tribunal to issue summons or warrant against the accused Person, but without doing so, the Tribunal asked the learned counsel for the petitioner for the accused to bring the Accused to the Tribunal on the date fixed, so that there remains no chance of him being harassed or otherwise unduly treated. Such opportunity was not afforded to any of the accused before this or the other tribunal
51. Moreover, when his petition for bail was denied he was sent to Bangabandhu Sheikh Mujib Medical University for treatment where he is being detained now. Order has also been passed by this Tribunal to supp]y him all materials including the religious book so that he can read. His relatives relative are regularly visiting him. Following yet another petition, the Accused-Petitioner has been allowed to be served home cook food for him on some condition. Since these conditions have been complied with, the Accused-Petitioner is not now received home cook food. During the hearings, the Accused- Petitioner has been permitted to sit on a chair in the dock, and in Tribunal's haiot. He has always been given proper care when produced before the Tribunal.
Final remark:
52. The instant petition, specifically, the part on recusal of the chairman being identical the case of Chief Prosecutor u. Delwar Hossain Saleed1 (ICT-BD Case No. 01 of 20ll) has decided through its Order No. 35 dated 28.11.2011, the Tribunal has decided that recusal part of this order and the said Order No. 35 should be taken together for the pu{pose Tribunal's views and reasoning on recusal and recusal of the Chairman 53. For the reasons and observations mentioned above, the petition is hereby rejected.
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