Following Nizami's review application argument, the tribunal then moved onto dealing with the defense application for tribunal chairman recusal/transfer of case to second tribunal in relation to the case of Motiur Rahman Nizami. The application is set out below - and its arguments were very similar to the earlier one relating to Golam Azam.
1. That this application has been filed before the Hon’ble Tribunal pursuant to Ordinance No. 04, 2012 “An Ordinance for Amendment of the International Crimes (Tribunals) Act 1973” providing for the transfer of cases between International Crimes Tribunal-1 and International Crimes Tribunal-2, under section 11A of the International Crimes (Tribunal) Act 1973 read with Rule 46A of the International Crimes Tribunal Rules of Procedure 2010 and under section 6(2A) of the International Crimes (Tribunal) Act 1973 read with Rule 46A of the International Crimes Tribunal Rules of Procedure 2010.
2. Specifically the Ordinance provides for the insertion of Section 11(A) into the International Crimes (Tribunals) Act, 1973 (Act No. XIX of 1973), which at ll(A)(1) provides that: “At any stage of a case, a Tribunal may, on its own motion or on the application of the Chief Prosecutor, 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.. ”
3. That the Accused-Petitioner prays to the Hon’ble Tribunal to avail itself of the opportunity in the abovementioned provisions to transfer his case 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 role as a member of the Secretariat of the People’s Inquiry Commission.
4. That, in the alternative, this application has been filed before this Hon’ble Tribunal pursuant to the Supreme Judicial Council Code of Conduct and the oath of office provided for under Article 148 of the Constitution and prescribed in the Third Schedule, seeking the recusal of Mr. Justice Md. Nizamul Haque Nasim and in the alternative the transfer of the Accused-Petitioner to ICT-2.
5. That Article 96(4)(a) of the Bangladesh Constitution (hereinafter 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 in 7 May 2000 (hereinafter: Code of Conduct).
6. Pursuant to section 1 of the Code of Conduct: “A judge should uphold the integrity and independence of the judiciary. An independentjudiciary 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.”
7. Furthermore, section 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.”
8. Under section 6(A) of the Code of Conduct “The judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.”
9. Further, under section 6(D)(IV) of the Code of Conduct a judge should disqualify himself if he “is likely to be a material witness in the proceeding”.
10. 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.”
11. Article 148 of the Constitution also provides for an oath to be taken by members of the Judiciary. This is prescribed in the Third Schedule of the Constitution and provides that 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 of favour, affection or ill-will.”
12. 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.
13. The right to an independent and impartial judiciary prescribed in the Code of Conduct is also a basic obligation to adhere to under international law. Article 10 Universal Declaration of Human Rights (UDHR) 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.”
14. This is 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 UN 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 I 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])
15. This fundamental right to an independent and impartial Judge is further upheld 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. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.”
16. That Bangladesh is a state party to the UDHR, ICCPR and ICC and must therefore adhere to its international obligations.
17. That Mr. Justice Nizamul Haque Nasim was appointed as Chairman of the International Crimes Tribunal by Notification published by the Ministry of Law Justice and Parliamentary Affairs in the Bangladesh Gazette on 25.03.2010.
r. Justice Md. Nizamul Haque Nasim was previously a member of the Secretariat of the People’s Inquiry Commission that investigated allegations of war crimes made against the Accused-Petitioner. The function of the Secretariat was to assist the People’s Inquiry Commission in its investigation against the Accused-Petitioner. The Ghatak Dalal Nirmul Committee published the results of the People’s Inquiry Commission in 1995 (hereinafter: Ghatak Dalal Nirmul Report).
19. That the Ghatak Dalal Nirmul Committee Report has been disclosed as a Prosecution Document to be relied upon by the Prosecution in its case against Allama Delawar Hossain Sayedee. The Ghatak Dalal Nirmul Committee Report appears at pages 176 to 187 of volume 3 of the Prosecution Documents.
20. Mr. Justice Md. Nizamul Haque Nasim’s involvement in the Secretariat of the People’s Inquiry Commission raises serious concerns of appearance of bias against the Accused-Petitioner.
21. Furthermore, Mr. Justice Md. Nizamul Haque Nasim, as Chairman in proceedings against the Accused-Petitioner, will essentially be ruling upon evidence that he has assisted in preparing.
22. It is respectfully submitted that this is not a matter that the Hon’ble Tribunal need conduct an extensive examination into – there is little doubt that the Chairman was a member of the Secretariat – 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 such membership. Furthermore, at the hearing in the Ghulam Azam Case on 6th June 2012 it was acknowledged by the Chairman that he had attended a meeting of the Sammilita Ainjibi Samannay Parishad, a lawyers’ platform, on 10 April 1992, in which it was demanded that the Government of Bangladesh take legal action to execute the verdict of the Peoples’ Court. In this regard it is respectfully submitted that it is not important whether the Chairman had assumed an active role in the meeting; it is sufficient that his mere presence at the meeting, a matter which is not in dispute, is such that an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality and would seriously impact on the integrity of the proceedings and the integrity of the Tribunal as a judicial institution of Bangladesh.
23. 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.”
24. 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 only be done, but should manifestly be seen to be done.”
25. It is respectfully submitted that the overriding question in the instant case is not that of the Hon’ble Chairman’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 prior role in the Secretariat of the People’s Inquiry Commission.
26. Irrespective of how limited a role the Hon’ble Chairman may have played in the inquiry into war crimes in the 1990s, it is inappropriate for the Prosecution now to seek to rely on the findings of the Commission in a case against the Accused-Petitioner. As a member of the Secretariat of the People’s Inquiry Commission, the body that investigated crimes alleged to have been committed by the Accused-Petitioner, and as an attending member of the Sammilita Ainjibi Samannay Parishad meeting on 10 April 1992, the Hon’ble Chairman has a relationship with one of the parties as set out in Prosecutor v. Issa Hassan Sesay. The Hon’ble Judge clearly falls foul of the objective impartiality test in that an objective observer could only conclude that an appearance of bias is present.
27. It is further submitted that, as reported on 11 April 1992, the Coordination Council of the Bar Associations of Bangladesh issued a statement entitled “Take Legal Action in Relation To The Judgment of the People’s Court”. Amongst the signatories is the Hon’ble Chairman. The statement referred to a resolution in which it was stated:
“The Co-ordination Council of the Bar Associations of Bangladesh in a resolution demanded that the Government be respectful towards the judgment of the People’s Court and take necessary legal action in relation to the same.”
28. This situation renders the inclusion of Mr. Justice Md. Nizamul Haque on the bench in the instant case at odds with the integrity and independence of the International Crimes Tribunal, contrary to the provisions of the Code of Conduct and ultimately precluding justice being done for the Accused-Petitioner, and indeed any person brought before the ICT-1 to which Mr. Justice Md. Nizamul Haque is Chairman.
29. That furthermore, section 11(A)(1) of Act No. XIX of 1973 provides for the transfer of cases when the Hon’ble Tribunal considers it just and convenient for “expeditious disposal” of justice.
30. The Accused-Petitioner’s case has been before the Hon’ble Tribunal since 2nd August 2010 with proceedings set to commence on 1 July 2012, giving the impression, taking into account that two trials are currently ongoing before the same bench, that justice could be disposed of more expeditiously, specifically by transfer of the Accused-Petitioner’s case to Tribunal-2.
31. It is further submitted that the apparent absence of a corresponding right for the Defence to initiate transfer under Section 11(A) should not be read as prohibitive, despite the submisisons of the Prosecution in the Professor Ghulam Azam Case, and that the Accused-Petitioner prays the Hon’ble Tribunal will exercise its right to transfer on the basis of the arguments laid out this application.
32. That to read Section 11(A) as prohibitive would amount to a violation of the principle of equality of arms, according to which parties in legal proceedings must have procedural as well as substantive equality.
33. Article 27 of the Bangladesh Constitution (hereinafter the Constitution) provides that: “All citizens are equal before the law and are entitled to the equal protection of law.”
34. 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.”
35. 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.”
36. The UN Human Rights Committee tasked with upholding the provisions of the ICCPR held in De Jorge Asensi v. Spain Communication No. 1413/2005, De Jorge Asensi v. Spain 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 [Communication No. 207/1986, Morael v. France, para. 9.3 ] [the Accused-Petitioner’s emphasis] and absence of arbitrariness, manifest error or denial of justice."[See 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”.]
37. 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”.
38. That as before mentioned Bangladesh is a state party to the UDHR, ICCPR and ICC and must adhere to its international obligations thereunder.
39. On 28 November 2011 the Hon’ble Tribunal dismissed a similar petition in the matter of Sayedee v. The Prosecutor. In that matter the Hon’ble Tribunal refused the application partly on the basis that the Act did not provide the right of the parties to seek the recusal of a judge and partly on the basis that the question of bias had not been made out. In this regard it is respectfully submitted that the Accused-Petition seeks to have his case transferred to Tribunal-2 for the avoidance of doubt and any semblance of partiality.
40. In the Sayedee Case the Hon’ble Tribunal left the matter to the good conscience of the Chairman of the Tribunal who refused to recuse himself on the basis that his involvement was minor; this issue is addressed elsewhere in this petition. As regards the manner in which the Hon’ble Tribunal dealt with the matter, it is respectfully submitted that the Hon’ble Tribunal Judges erred in not applying the fundamental principles set out in national and international law. It is respectfully submitted that, notwithstanding the limitations set out under the Act, there exists an inherent duty on the Tribunal to ensure the integrity of the proceedings and integrity of the process. It is incumbent upon the Hon’ble Tribunal Judges to ensure that the process is conducted in accordance with fundamental norms of due process. It is of further note that neither the letter detailing the meeting of the Sammilita Ainjibi Samannay Parishad on 10 April 1992 nor the Chairman’s acceptance of his presence at the meeting was available to the defence at the time of the Sayedee application for recusal.
41. 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.”
42. In the alternative, if this request is refused it is respectfully submitted that the Hon’ble Chairman recuses himself from these proceedings. It is respectfully submitted that the integrity of the proceedings and the process must be paramount.
43. It is respectfully submitted that the Hon’ble Tribunal may take into account the established international jurisprudence on the question of objective impartiality in properly addressing the question of whether the Hon’ble Chairman 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”.
44. 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].
45. In the Sayedee decision the issue was raised as to the involvement of the Hon’ble Chairman in the Secretariat of the Commission and that his role was a very minor one. In this regard it must be noted that however minor his role may have been the appearance of partiality is such that he must step down. In this regard due attention must be paid to the remarks of the Hon’ble Prime Minister on the occasion of the United Nations General Assembly 65th Session (2010) in which she 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.”
46. 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. In this regard it is not for the Hon’ble Tribunal to select which standards it wishes to adhere and which it chooses to ignore. The Hon’ble Tribunal must apply those standards which ensures that trials are fair and in accordance with Bangladesh’s international obligations.
47. That the Accused-Petitioner humbly prays that the Hon’ble Tribunal will avail itself of the opportunity before commencement of his case, and therefore without prejudice to the trial process, to take advantage of the Ordinance and Amended Act to transfer the Accused-Petitioner’s case to Tribunal-2 under the chairmanship of the Hon’ble Justice A. T. M. Fazle Kabir.