Chairman: It is our direction towards both the side that sufficient prosecution witnesses and defence witness should be ready every day. We will not allow any adjournment on this ground anymore.
He passed the following order (see summary):
Today is fixed for the defence witness in the ICT BD Case No- 01 of 2011. Tajul Islam the learned counsel on behalf of the defence has submitted that Nurul Haque Hawladar and Abdul Haque Hawladar were supposed to be present today. But the health of Nurul Haque has deteriorated and another witness is untraceable. He prays for 1 day adjournment. The defence has submitted the names of the witnesses and they have not submitted any list yet. The case is running in this Tribunal and everyday it is continuing its process. In passing order we are stating no adjournment will be allowed in future. We are inclined to adjourn the case today. And the learned counsel Tajul Islam is directed to produce the defence witness list.Tajul Islam lastly submitted that the health condition of Delwar Hossain Sayedee has improved, so he will be able to attend the court tomorrow. We direct the Prosecution to collect the information from the Jail authority about his health condition.
The tribunal then moved to the case of Salauddin Quader Chowdhury. Chairman: On the last week, there was an agreement with the counsel of this case to hear this case on 12th September, 2012. So this case is adjourned today.
Then the tribunal moved onto the case of Nizami Tanvir Ahmed Alamin, the defence counsel said, My Lord, we are praying that the matter be continued on next day.
Chairman: You are interrupting on each points, if continues in this manner we would be forced to run the Tribunal on Saturday.
Chairman: Let’s proceed. At first about the review of 14th August’s matter we are not taking your prayer.
Then the next application was about the immediate steps about the re-trial.
The written application is set out below:
Tanvir Alam read out sections 6(4) and 6(6) of the 1973 Act). This does not bar retrial. These sections provide that you ‘may’ proceed with the trial despite new appointment of a judge. It is ‘may’. You are not bound to. It is your discretion. I would pray that for ends of justice you should order for a retrial. You may recall that three judges framed charged against the Accused after considering all the prosecution documents. Today only you are present. Your other two judges were not present at the time of framing of charges against the Mr. Justice Anwarul Haq joined you at the late stage of the prosecution case. Out of the 28 PWs he did not hear 27 PW. He only heard one PW. Your another member Mr. Justice Jahangir Hossain joined very recently. He did not hear any of the Prosecution witnesses.
Chairman then said in our local trials if any judge retire or resign in the middle of the trial there is not provision for retrial. The newly appointed judge hears the remaining part of the case and passes judgment. The newly appointed judges get knowledge of the case after reading the record.
The defense lawyer said but mere reading black and white depositions of witnesses is not enough for a judge to get a complete knowledge about a witness. A judge needs to hear a witness and note his demeanors, mode and attitude to determine whether that witness is creditable or not. In other international tribunals when a new judge is appointed in the middle of a trial he needs to sign a certificate certifying that he read the record of the case and is fully aware about the case. It is clear that the new judges of this Tribunal did not have this opportunity to master them on the prosecution case.
The chairman said that these rules are not applicable in our Tribunal. We are not bound by them. Our law allows us to proceed with the case with the new judges. It also allows us to proceed in the absence of the qccused. Your application for stay and Retrial is rejected.
The written application is set out below:
1. That on 25 March 2010, the International Crimes Tribunal, Dhaka (hereinafter referred to as the ICT-1) was established with three Judges on the bench under section 6(1) of the International Crimes (Tribunal) Act 1973 as amended in 2009 (hereinafter referred to as the ICTA) to hear cases of international crimes committed during the 1971 liberation war that led to the creation of the State of Bangladesh. The first bench of Judges was composed of: a) Mr. Justice Nizamul Haque Nasim (Chairman) b) Mr. Justice ATM Fazle Kabir c) District Judge Mr. A K M Zahir AhmedThe chairman started the oral arguments and said so far I understand that your only point for this application is that due to the appointment of new judges the trial of this case should be restarted. We don’t need to see other laws. You should read section 6 of the 1973 Act. Our law is very clear and we are not bound for retrial.
2. That trial proceeding in Case No. 01 of 2011 against the Accused-Petitioner commenced on 7 December 2011 pursuant to section 9(2) ICTA.
3. That on 22 March 2012, a second International Crimes Tribunal (hereinafter: ICT-2) was established with its own rules of procedure. The bench is composed of: a) Mr. Justice ATM Fazle Kabir (Chairman) b) Mr. Justice Obaidul Hasan c) Judge Mr. Md. Shahinur Islam (Registrar ICT1) This is the same Mr. Justice ATM Fazle Kabir who originally served as a Judge in ICT-1 and who was transferred to ICT-2 on the same date i.e. on 22 March 2012.
4. That on the same date i.e. on 22 March 2012, Mr. Justice Anwarul Haque was appointed to ICT-1 to replace Mr. Justice ATM Fazle Kabir
5. That on 28 August 2012, District Judge Mr. A K M Zahir Ahmed resigned from ICT-1. On 30 August 2012 Mr. Justice Jahangir Hossain Selim was appointed to ICT-1 to replace Judge Mr. A K M Zahir Ahmed.
Statutory provisions for the constitution of a Tribunal under the ICTA 6. That section 6 ICTA provides: (1) For the Purpose of section 3, the Government may, by notification in the official Gazette, set up one or more Tribunals, each consisting of a Chairman and not less than two and not more than four members.
(2A) The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.
(4) If any member of a Tribunal dies or is, due to illness or any other reason, unable to continue to perform his function, the Government may, by notification in the official Gazette, declare the office of such member to be vacant and appoint thereto another person qualified to hold office.
(6) A Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it.
(8) Neither the constitution of a Tribunal nor the appointment of its Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel.
Statutory provisions for the constitution of a Tribunal or court under international law
7. Article 41 of the Rome Statute for the International Criminal Court (hereinafter: ICC) provides conditions for the excusing and disqualification of judges:
(1) The Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence.
(2)(b) The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph.
8. Rule 37 of Rules of Procedure and Evidence (hereinafter: RoP) of the ICC provides for the resignation of judges. Rule 37(2) RoP in particular stipulates that, where a judge resigns, he “shall endeavour to give notice of the date on which his or her resignation will take effect at least six months in advance. Before the resignation of a judge takes effect, he or she shall make every effort to discharge his or her outstanding responsibilities.”
9. Rule 38 RoP ICC provides that the replacement of judges following resignation “shall take place in accordance with the pre-established procedure in the Statute, the Rules and the Regulations.”
10. Further, Rule 15 bis (C) and (D) of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (hereinafter: ICTY) and Rule 15 bis (C) and (D) of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Rwanda (hereinafter: ICTR) provide: “(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for a period which is likely to be longer than of a short duration, the remaining Judges of the Chamber shall report to the President who may assign another Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85, the continuation of the proceedings can only be ordered with the consent of all the accused, except as provided for in paragraphs (D) and (G).”
“(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an accused withholds his consent, the remaining Judges may nonetheless decide whether or not to continue the proceedings before a Trial Chamber with a substitute Judge if, taking all the circumstances into account, they determine unanimously that doing so would serve the interests of justice. This decision is subject to appeal directly to a full bench of the Appeals Chamber by either party. If no appeal is taken from the decision to continue proceedings with a substitute Judge or the Appeals Chamber affirms that decision, the President shall assign to the existing bench a Judge, who, however, can join the bench only after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings. Only one substitution under this paragraph may be made.” [Emphasis added]
11. In practice, substitute judges at the ICTY and ICTR must sign a certificate of familiarity with prior proceedings to attest “that he or she has familiarised himself or herself with the record of the proceedings.” (for example The Prosecutor v Pauline Nyiramasuhuko & Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Sylvain Nsabimana & Alphonse Nteziryayo, Case No. ICTR-97-29A&B-T, Joseph Kanyabashi, Case No. ICTR-96-15-T, Elie Ndayambaje, Case No. ICTR-96-8-T, Joint Case n° ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15 bis (D), 24 September 2003, par. 35.)
International jurisprudence on the replacement of judges and/or retrial
12. The decision whether to order a retrial or whether to continue proceedings following the departure of a judge during proceedings is a balancing act which can only be reached where specific circumstances are in place.
13. In Prosecutor v. Nyiramasuhuko et al., the Appeals Chamber of the ICTY did “not consider it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge. ... The stage reached in each case need not always be the same.” (Prosecutor v. Nyiramasuhuko et al., Decision in the Matter of Proceedings under Rule 15 bis (D), 24 September 2003, para. 25.)
14. In Joint Case n° ICTR-98-42-A15bis, the Appeal Chamber found that “there is a preference for live testimony to be heard by each and every judge, but that does not represent an unbending requirement. (The Prosecutor v Pauline Nyiramasuhuko & Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Sylvain Nsabimana & Alphonse Nteziryayo, Case No. ICTR-97-29A&B-T, Joseph Kanyabashi, Case No. ICTR-96-15-T, Elie Ndayambaje, Case No. ICTR-96-8-T, Joint Case n° ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15 bis (D), 24 September 2003, par 25). It said:
“The Appeals Chamber does not consider it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge. The discretion to continue the trial with a substitute judge is a discretion; the Appeals Chamber can only interfere with the way in which the discretion has been exercised if it has been incorrectly exercised in the circumstances mentioned above. The stage reached in each case need not always be the same.” [Emphasis added] (par 27)
15. The Chamber added: “Even after the Trial Chamber has decided in favour of continuation with a substitute judge, the latter joins the bench only upon certifying that he has familiarized himself with the record of the proceedings. The object is obviously to enable him to acquaint himself with the proceedings. If he cannot, he will not give the required certificate and he will not join the bench. [Emphasis added] (par 33)
16. Similarly, in Prosecutor v Momcilo Krajisnik, (Decision pursuant to Rule 15 bis (D), ICTY Trial Chamber, 16 December 2004) the ICTY Trial Chamber held that the crux of the question was “whether the circumstances in favour of continuing the proceedings with a substitute judge outweigh the disadvantages of this course of action” [restarting the case], (par 12). It added: “Since a given case is likely to differ significantly from another in its nature and history, it is preferable that a court limits itself to an assessment of its own particular circumstances in the light of applicable principle.” (par 13)
17. In reaching their decision, the judges looked at the following key points (pars 14-18):
a) At what stage in the proceedings was the substitution taking place;
b) Whether the substitute judge would have difficulty mastering the case within a reasonable amount of time;
c) Whether the trial record is accurate and accessible, in particular:
i) video-recording of proceedings
ii) accurate transcripts
iii) the extent of the parties’ reliance on printed exhibits
iv) the extent of the parties’ reliance on filmed and taped evidence;
d) Whether it remained possible to recall any witnesses so as to breach any gaps between the level of familiarity of the continuing judges and the substitute judge.
e) Whether any previous substitutions were made;
f) Whether the decision is in accordance with the fundamental requirement of fairness of proceedings, which the judges interpreted as to mean that “the proceedings considered as a whole, including the way in which the evidence was received, were fair.” (par 10). Irregular proceedings would weigh in favour of restarting the case.
18. On the facts they found:
a) Just over one-third of Prosecution witnesses had been heard; b) A substitute judge would have little difficulty mastering the case within a reasonable amount of time; c) Thorough records of proceedings were taken d) Recalling witnesses to breach any gaps was an option; e) No previous substitutions had been made; f) There was no evidence of irregular or unfair proceedings.
19. In The Prosecutor v Edouard Karemera, Mathieu Ngirumpatse, Joseph Nzirorera, André Rwamakuba, the ICTR Appeals Chamber found that parties must be given the opportunity to be heard under the procedure of Rule 15 bis (D). (The Prosecutor v Edouard Karemera, Mathieu Ngirumpatse, Joseph Nzirorera, André Rwamakuba, Decision in the Matter of Proceedings under Rule 15 bis (D), Appeals Chamber ICTR, 21 June 2004.)
Submissions on trying the Accused-Petitioner de novo
20. It is respectfully submitted that circumstances in the present case dictate a permanent stay of proceedings effective immediately and that the Accused-Petitioner’s case must be restarted. This argument is based on the following facts:
a) The substitution is taking place approximately nine months after the start of proceedings, when the Prosecution’s case is complete;
b) A previous substitution of one of the three judges at the ICT-1 was made in 22 March 2012 when Justice ATM Fazle Kabir was transferred to ICT-2;
c) The substitute Judge will have no feasible means of mastering the case within a reasonable amount of time or not. There are inadequate records of trial at all in that, to date,
i) there have been no adequate transcripts of the proceedings if any at all taken during the trial by official and professional stenographers;
ii) there have been no comprehensive video-recording of proceedings;
d) The extent of the Prosecution’s reliance on statements of hearsay by witnesses is vast;
e) The credibility of the Prosecution witnesses was questioned in cross-examination;
f) There can be no suggestion of plugging gaps in the substitute judge’s knowledge of the court proceedings as he will have no knowledge at all;
g) The substitute Judge cannot reasonably claim that he has familiarised himself with the court proceedings to date as there are no records of these at all.
21. Therefore, in view of the gravity of the charges against the Accused-Petitioner, it is respectfully submitted that to continue the trial of the instant case would be an “incorrect exercise” under the meaning if case Joint Case ICTR-98-42-A15bis. (The Prosecutor v Pauline Nyiramasuhuko & Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Sylvain Nsabimana & Alphonse Nteziryayo, Case No. ICTR-97-29A&B-T, Joseph Kanyabashi, Case No. ICTR-96-15-T, Elie Ndayambaje, Case No. ICTR-96-8-T, Joint Case n° ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15 bis (D), 24 September 2003, par. 27). As the substitute judge cannot familiarise himself with the proceedings, the interests of justice and the imperative of a fair trial require that the oral submissions of the Prosecution witnesses be hear de novo and that the substitute judge so that the substitute judge hear their statements and be able to assess their demeanour and evaluate their credibility.
22. “Fairness of the proceedings” to mean that the proceedings considered as a whole, including the way in which the evidence was received, were fair. (Prosecutor v Momcilo Krajisnik, Decision pursuant to Rule 15 bis (D), ICTY Trial Chamber, 16 December 2004, par. 10. also Kostovski v. The Netherlands, ECHR, 20 November 1989, para. 39.0
23. The fundamental right to fair trial is protected pursuant to Article 14(3)(e) of the International Covenant of Civil and Political Rights (hereinafter: “ICCPR”) and Article 67(1)(e) ICC. It is submitted that Bangladesh is a ratifying member of the ICCPR and the ICC and as such should uphold the rights thereunder.
24. Over the course of proceedings, the Accused-Petitioner has highlighted a worrying failure to safeguard the fundamental and accepted standards of fairness in international law. These include the following breaches: a) Failure to safeguard fundamental rights of the accused; b) Lack of fairness, transparency and scrutiny; c) Lack of separation between the executive and the judiciary; d) Lack of independence and impartiality of the judiciary; e) Lack of independence and impartiality of the Prosecution; f) Abuse by the Prosecution and the Investigation Officer of the admissibility procedure provided under Section 19(2) ICTA 1973; g) Serious objections to the conduct of the investigation by the Investigation Officer and the Prosecutor; h) The selective application of domestic and international law; i) The failure to properly define the crimes under the ICTA; j) Bar to foreign counsel; k) Lack of certitude concerning the procedural rules of the Tribunal; l) No right to challenge the Tribunal, the ICTA or the appointment of Judges; m) The removal and transfer of Judges; n) The absence of Judges;
o) No proper right to appeal; p) No proper or adequate rules of disclosure; q) No proper or adequate rules of evidence; r) Interrogations conducted in absence of counsel; s) Inadequate time for the Defence investigation; t) Trial in absentia.
25. For the abovementioned reasons the Accused-Petitioner prays that this Hon’ble Tribunal issues an order directing for: a) an immediate stay of proceedings; and b) re-trial of the Accused-Petitioner.
Tanvir Alam read out sections 6(4) and 6(6) of the 1973 Act). This does not bar retrial. These sections provide that you ‘may’ proceed with the trial despite new appointment of a judge. It is ‘may’. You are not bound to. It is your discretion. I would pray that for ends of justice you should order for a retrial. You may recall that three judges framed charged against the Accused after considering all the prosecution documents. Today only you are present. Your other two judges were not present at the time of framing of charges against the Mr. Justice Anwarul Haq joined you at the late stage of the prosecution case. Out of the 28 PWs he did not hear 27 PW. He only heard one PW. Your another member Mr. Justice Jahangir Hossain joined very recently. He did not hear any of the Prosecution witnesses.
Chairman then said in our local trials if any judge retire or resign in the middle of the trial there is not provision for retrial. The newly appointed judge hears the remaining part of the case and passes judgment. The newly appointed judges get knowledge of the case after reading the record.
The defense lawyer said but mere reading black and white depositions of witnesses is not enough for a judge to get a complete knowledge about a witness. A judge needs to hear a witness and note his demeanors, mode and attitude to determine whether that witness is creditable or not. In other international tribunals when a new judge is appointed in the middle of a trial he needs to sign a certificate certifying that he read the record of the case and is fully aware about the case. It is clear that the new judges of this Tribunal did not have this opportunity to master them on the prosecution case.
The chairman said that these rules are not applicable in our Tribunal. We are not bound by them. Our law allows us to proceed with the case with the new judges. It also allows us to proceed in the absence of the qccused. Your application for stay and Retrial is rejected.
Tanvir Ahmed Alamin. In the matter of the 3 bench Tribunal, one Justice might retire or resign anytime. If we look at the international precedent we will see, a certain Justice gets a certain time for getting equipped with the matter. The newly appointed has not heard any single witness in the cases before this Tribunal.
Chairman: This is good in the case for international sphere. But this is a domestic Tribunal. Even there is a scope for Trial in absentia. So this is rejected.
The tribunal was adjourned for the day
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