Sayedee: to retrial or not to retrial

A question facing tribunal one, when it sits for the first time time tomorrow with a new tribunal judge, is whether or not to hold a re-trial in the case of Delwar Hossain Sayedee.

I have discussed this question in a previous post, which can be found here.

However since then, the government has made its view clear, and two international human rights organizations/groups have issued statements.

The legal position appears to be that it is technically possible for the trial to continue with a new judge replacing Justice Nasim - and for the bench to continue with making its judgment even though none of the three judges have heard all the evidence. The new judge will not have heard any of the witnesses; the new chairman of the tribunal (brought back from Tribunal 2) heard the prosecution witnesses only when he was previously in Tribunal 1; and the remaining judge has only heard the defense witnesses.

The government position is that the trial should continue from where it had ended. New Age on 14 December described the law ministry's position as follows:

State minister for law Quamrul Islam said on Thursday that the reconstituted International Crimes Tribunal would resume trial from where the previous judge had left it. 

He said that the new chair of the tribunal might hear the already-concluded argument anew for his satisfaction and in that case the tribunal might take three to seven more days to complete the process, which would resume on December 17.

Human Rights Watch however issued a statement calling on the need for a re-trial. It states:

“It would be highly irresponsible and unprofessional for a verdict to be delivered when none of the judges heard all the evidence and were unable to assess the credibility of key witnesses, particularly in a trial involving 40-year old evidence and complex legal issues,” said Brad Adams, Asia director at Human Rights Watch. “Before the chair of the court resigned for improprieties only one judge had heard the totality of the evidence, and now even that one judge is gone. A new trial is the only way for the court to preserve its integrity ...

The reason why courts throughout the world listen to oral testimony is to be able to decide for themselves whether they think a witness is credible, or what value to give to the evidence before them based on direct questions and challenges to the evidence. ... In the Sayedee case, three judges— not one of whom has been present throughout the presentation of the entire body of evidence— will be delivering a verdict which could potentially send the accused to the gallows. Sayedee may or may not be guilty, but the only way to know is through a fair trial by judges who hear all the evidence.

In relation to the issue of existing Bangladesh law, the statement says:

It is common practice in Bangladesh for a trial to continue when a judge is replaced, falls ill, or is unable to continue for other reasons. The statute that governs the ICT contains a section which allows the replacement of a judge. However, the statute does not address cases in which none of the judges is present throughout the trial.

The British Bar Human Rights Committee* concurred with Human Rights Watch's position. In its statement, it said:

'Notwithstanding that Bangladesh legal practice allows for trials to continue with a judge being replaced, the Sayedee trial now appears to be reaching a conclusion without a single member of the final panel having heard the totality of the evidence. This is a grave denial of the most basic fair trial standards. ..

[T]he most recent developments as to the constitution of the court mean that no fair trial is now possible for Sayedee. The BHRC considers that a re-trial must be ordered, both for the fairness required by international standards for the accused, as well as to ensure legitimacy of the ICT process more broadly.' 

Comment

First, it should be said that it remains unclear why the Bangladesh government is making any statements about what decisions the newly constituted tribunal will make - since the tribunal is supposed to be independent from the government. Its statement would seem to be entirely inappropriate.

Secondly, there are already concerns about the Sayedee trial, which I have written about in a number of posts. 

Third, if the tribunal is concerned about its future credibility (at least internationally) it would be advised, irrespective of what the government or the human rights organization say, to give consideration to the question of whether it should hold some kind of re-trial. If well planned, a re-trial does not need to take anywhere near as long as the current trial has taken.


* It describes itself in this way: 'The Bar Human Rights Committee of England and Wales (“BHRC”) is the international human rights arm of the Bar of England and Wales. It is an independent body concerned with protecting the rights of advocates, judges and human rights defenders around the world. The Committee is concerned with defending the rule of law and internationally recognised legal standards relating to human rights and the right to a fair trial. The remit of BHRC extends to all countries of the world, apart from its own jurisdiction of England & Wales. This reflects the Committee's need to maintain its role as an independent but legally qualified observer, critic and advisor, with internationally accepted rule of law principles at the heart of its agenda.' 

Any practicing of non-practising member of the Bar in England and Wales (i.e a barrister) can be a member of this committee - and it may be the case that the three barristers involved in advising the Jamaat accused are members (as could be those Bangladesh lawyers who are member of the prosecuting or defense team of lawyers) though it should be noted that they are none of the three are on its Executive Committee.