5 Jun 2012: Azam tribunal transfer application 1

Transfer Application
[This lasted two days. The second day of arguments were on 6 June)


After dealing with the adjournment application, the tribunal asked the defense counsel to submit their application to transfer Azam's case to the second tribunal [Nb: A similar application claiming that the the tribunal chairman should not be involved in the trial was argued in relation to Sayedee)

The senior lawyer Jainal Abedin made the first arguments. My lord, you were judges of High Court; you have seen that judges of the High Court transfer those cases which are connected with them in any way. My lord, on 10th April 1992, at a meeting of the Executive Committee of the Lawyers Co-ordination Council (Ainjibin Shomonnoy Parishad), a resolution was adopted by the members, including the Chairman of the Hon’ble Tribunal-1 demanding that the Government take legal measures for implementation of the verdict of death penalty of the People’s Court against the Accused Petitioner.

Therefore my humble submission is, as there is a connection of the Tribunal Chairman with this case previously so he should be willing to transfer the case to Tribunal-2.

Barrister Rafiqul Islam Miah: My lord, I just want to submit that please ensure that the accused should not be in fear that he is not getting fair Justice.

Justice Nizam: Does it bar any way that I was present at that meeting?

Barrister Rafiqul Islam Miah: My lord, I am not saying it with any certainty, just my submission is, may you kindly consider this part so that his (accused) suspicion to get justice is removed from his mind.

Then abdur Razzak came to the dais and started to submit transfer application.

Abdur Razzak: My lord, there is a similarity of the charges which are now being brought in the charge framing order and charges that were before the People’s court against the accused.

Then he read out the Transfer application.

1. That this application has been filed before the Hon’ble Tribunal for transfer of the case of Professor Ghulam Azam from International Crimes Tribunal-1 to 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, in the alternative for the recusal of Mr. Justice Md. Nizamul Huq 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. That Section 11(A) of the Act provides as follows:  “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 exercise its powers under section 11A of the Act to transfer his case to the 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 role in demanding implementation of the verdict of the People’s Court against the Accused Petitioner, details of which are stated below.

4. That, in the alternative, and 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, the Accused-Petitioner prays the Hon’ble Tribunal to seek the recusal of Mr. Justice Md. Nizamul Huq.

5. That Article 96(4)(a) of the Constitution of Bangladesh 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 referred to as ‘the Code of Conduct’).

6. That Clause 1 of the Code of Conduct provides as follows:  “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.”

7. Furthermore, Clause 2 of the Code of Conduct provides as follows:  “(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 Clause 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 a 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. 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 of the Universal Declaration of Human Rights (UDHR) provides as follows: “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.”

13. 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 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])

14. 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.”

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

16. That by a notification dated 25th March 2010 published in the Gazette by the Ministry of Law Justice and Parliamentary Affairs, Mr. Justice Md. Nizamul Huq was appointed as Chairman of the International Crimes Tribunal, Dhaka.
17. That Mr. Justice Md. Nizamul Huq, the Chairman of the Tribunal-1 was directly involved in the process of demanding the implementation of the People’s Court’s verdict of death penalty against the Accused Petitioner, details of which are set out below.

18. That on 26th March 1992, the Ekattorer Ghatok Dalal Nirmul Committee organised a mock trial of the Accused Petitioner by the so-called ‘People’s Court’ at Suhrawardy Uddyan for alleged commission of offences, including mass murder, arson and looting, during 1971. The Chairperson of the People’s Court was the late Mrs. Jahanara Imam. The ‘case’ against the Accused Petitioner was ‘recorded’ as People’s Court Case No. 1 of 1992 (The People of Bangladesh vs Mr. Ghulam Azam).

19. That upon completion of the mock trial, during which 15 witnesses ‘deposed’ before the ‘People’s Court’, the said ‘Court’, by a unanimous ‘verdict’ dated 26th March 1992, declared the Accused Petitioner guilty of the offences of amongst others, mass murder, arson and looting which, according to the said ‘Court’ was punishable by death. The ‘People’s Court’ also demanded implementation of the verdict of death penalty against the Petitioner by the Government of Bangladesh.

A copy of the ‘Judgment’ of the ‘People’s Court’ dated 26th March 1992 is annexed herewith and marked as Annexure- B.

20. That thereafter on 31st March 1992, the Ekattorer Ghatak Dalal Nirmul Committee demanded implementation of the death penalty against the Accused Petitioner by the Government of Bangladesh.

A copy of a leaflet dated 31st March 1992 published by the Ekattorer Ghatak Dalal Nirmul Committee is annexed herewith and marked as Annexure- C.

21. That on 10th April 1992, at a meeting of the Executive Committee of the Lawyers Co-ordination Council (Ainjibin Shomonnoy Parishad), a resolution was adopted by the members, including the Chairman of the Hon’ble Tribunal-1 demanding that the Government take legal measures for implementation of the verdict of death penalty of the People’s Court against the Accused Petitioner. The news of the meeting which was attended by the Chairman of the Hon’ble Tribunal -1 was reported on 11th April 1992 in the Daily Sangbad. A copy of the news report dated 11th April 1992 in the Daily Sangbad is annexed)
22. It is stated that the Chairman of the Hon’ble Tribunal -1 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. In such circumstances, the inclusion of Mr. Justice Md. Nizamul Huq as Chairman of the Tribunal-1 in the instant case is at odds with the integrity and independence of the International Crimes Tribunal, contrary to the provisions of the Constitution of Bangladesh and of the Code of Conduct for Judges of the Supreme Court and ultimately prevents justice being done to the Accused-Petitioner.

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 involvement in demanding the implementation of the verdict of death penalty of the People’s Court.

26. The principle of equality of arms which is a basic obligation under international law requires that the Accused Petitioner’s counsel be allowed to file an application under section 11A of the Act for transfer of his case from one Tribunal to another. The principle of equality of arms 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.”

27. 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.”

28. 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.”

29. 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”.

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

31. That in the alternative, if this Hon’ble Tribunal is not inclined to transfer the instant case to the Tribunal- 2, 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 is of paramount importance and that the objective test of the appearance of impartiality must, at all times, be respected.

32. 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 matter 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”.

33. 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].

34. That the Accused-Petitioner humbly prays that the Hon’ble Tribunal will avail itself of the opportunity at this stage, and therefore without prejudice to the trial process, transfer the Accused-Petitioner’s case to Tribunal-2.

35. That in the alternative, the Accused-Petitioner humbly prays that the Hon’ble Tribunal issues an order directing for the immediate recusal of Mr. Justice Md. Nizamul Huq.

Justice Nizam: You have submitted these foreign judgements at your earlier petition also and we have considered all these references, but whether theses references will help you in the present application?

Abdur Razzak: Only for interest of Justice we are here to submit this application. My lord, “Justice must not only to be done but also manifestly and undoubtedly be seen to have done”

Justice Nizam: Mere presence of a meeting is not enough to consider it as a bar. Before twenty years ago I was present at that meeting cannot be considered as bar of this proceedings.

Abdur razzak: My lord, we should think what would be the observation of reasonable observer.

Then Zead-al-malum came to the dais to submit his argument.

Zead-al-Malum: My lord, this application is nothing but killing of time. Basically, people’s court is place of express opinion. Since People’s Court cannot execute the Punishment that is the reason they demand that the Government take legal measures for implementation of the verdict of death penalty of the People’s Court against the Accused Petitioner.

And in case of similarity, People’s Court written “People’s republic of Bangladesh” and we can also write “People’s republic of Bangladesh” then how can it consider as similar. My lord, we are just fed up with their several applications.

Justice Nizam: If accused feel that they are prejudiced then it is their right to submit application.

Then the court is adjourned.