The prosecution response can be seen here. And the tribunal's order can be seen here.
This application was made subsequent to the disclosures from the publication in the Economist and Amar Desh of hacked skype and e-mail conversations.
1. That as a result of recent (and increasingly widespread) local and international media reports in respect of alleged interactions or communications between the Chairman of the International Crimes Tribunal-1 (“the ICT-1”), Mr. Justice Md. Nizamul Huq and a Bangladeshi lawyer based in Belgium, Dr. Ahmed Ziauddin, the prosecutors and the government, it is prayed that this Hon’ble Tribunal pass an order for retrial as it would be a miscarriage of justice to continue at this stage. The breaches of the fundamental rights of the Accused are underscored by the recent resignation of the former Chairman of the ICT-1.
2. That improper conduct and interaction of Mr. Justice Md. Nizamul Huq (“the former Chairman of the ICT-1”), with Dr. Ziauddin Ahmed, the government, the prosecution and others affects not only the cases before the ICT-1 where he presided, but also impacts upon cases before the International Crimes Tribunal-2 (“the ICT-2”), which was constituted in late March 2012 with a bench comprised of former members of the ICT-1 bench and Registry, for reasons set out herein. It is submitted that in such circumstance, the only reasonable and transparent course of action would be to order a retrial.
3. That it is stated that this Hon’ble Tribunal is required to halt proceedings where circumstances are such that the Accused cannot receive a fair trial or where it would otherwise be an abuse of process to continue the proceedings brought against the Accused. Due to the association of the members of the ICT-2 with the former Chairman of the ICT-1, who resigned following revelations of actual bias and lack of independence, it would be an abuse process to proceed further in such circumstances. The Accused relies on Rule 46(A) of the Tribunal’s Rules of Procedure (as amended), whereby the Tribunal has the inherent power to make such orders as may be necessary to meet the ends of justice or to prevent abuse of the process. The Accused submits that the Hon’ble Tribunal has a duty to order a retrial in the manner and on the grounds set out below.
4. That international law reflects common law principles in recognizing that an abuse of process justifies the halting of a prosecution where it would be: (1) impossible to give the accused a fair trial; or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of the case. (R v. Horseferry Road Magistrates Court, Ex p. Bennett  3 All E R 138, 151, HL, per Lord Lowry.)
5. That it may be mentioned that this principle has been upheld by the International Criminal Court (ICC) Appeal Chamber in the Lubanga case, where it held that “Where [a] fair trial becomes impossible…it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped”. [ICC-01/04-01/066-772, Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, Appeals Chamber, 14 December 2006 (“Lubanga Stay of Proceedings Appeals Judgment”), para. 37.] In this regard reference is made also to the ICC case of, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09, Decision on Defence Request for a Temporary Stay of Proceedings, 26 October 2012, (“Banda and Jerbo Stay of Proceedings Decision”), paras. 74-80; STL, In the Matter of El Sayed, CH/AC/2010/02, Appeals Chamber, Decision on Appeal of Pre-Trial Judge's Order regarding Jurisdiction and Standing, 10 November 2010, para. 45.
6. That it is submitted that the former Chairman of the ICT-1’s reported interactions with Dr. Ahmed Ziauddin, the government, the prosecution and other persons not involved in the proceedings, the extent of which are not yet fully known have several very serious implications on the trial of the Accused, and other cases before the ICT-2. In particular, the interactions reveal inappropriate interference in the process of the ICT-2 by the Chairman, Dr. Ziauddin and others, which amounts to an abuse of process. As a result of that interference the interactions reveal the lack of independence and impartiality of the judges in this case, and the inability for the ICT-2 to appear independent and impartial. Moreover, the movement of judges from ICT-1 to ICT-2, raises further questions about the independence and impartiality, and the appearance of independence and impartiality of those judges, who would have been exposed to the former Chairman of the ICT-1’s views, opinions and decision-making. Furthermore, the Chairman of the ICT-2 has now been moved back to the ICT-1 after the resignation of the Chairman of the ICT-1, in a manner not contemplated by the International Crimes Tribunal Act, 1973 (hereinafter referred to as the said Act), and at a critical time in the Accused’s case. Any replacement judge will not have heard the evidence in the case. Finally, the case against the Accused began in the ICT, before ICT-2 was constituted. The degree of influence that the former Chairman of the ICT-1 may have had over the framing of the charges and the case, prior to its transfer further adversely affects it, and indicates an appearance of bias in this case. It is unlikely that the proceedings against the Accused can proceed in any semblance of fairness in the circumstances.
7. That in view of the submissions set out below it is prayed that this Hon’ble Tribunal disqualifies itself and orders a full and complete retrial before a newly constituted bench to comply with the established standards of fairness under domestic and international law.
Conditions precedent for a retrial
8. That it is recognized in international law, including under the ICCPR to which Bangladesh is bound and the Rome Treaty, that a breach of an accused’s right to a fair trial would constitute a “miscarriage of justice” and any subsequent conviction should be set aside (Prosecutor versus Kordic and Cerkez, Appeals Chamber Judgment, 19 September 2005, para.19; See also Tihomir Blaškić Appeal Judgment, para. 19; and Kupreškić et al. Appeal Judgment, para. 29). A miscarriage of justice has been defined as “a grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime” (Prosecutor v. Furundžija Case No. IT-95-17/1 Appeal Judgment, 21 July 2000, para. 37, upheld in Prosecutor v. Kvocka, Case No. 98-30/1-The Appeals Chamber Judgment, 28 February 2005, para. 18).
9. That the appropriate step at this stage would be to order a full and complete retrial. In the event that a retrial is ordered, the Hon’ble Tribunal will appreciate that a full and complete retrial would be required which would entail the following: (1) instigation of new proceedings against the Accused; (2) a new investigation and the gathering/re-gathering of all prosecution evidence; (3) re-drafting formal charges against the Accused; (5) the appointment of a newly constituted bench unfettered by any previous involvement or interaction with the former Chairman of ICT-1 or other judges who may have been influenced by him (5) calling or recalling prosecution witnesses; and (6) the presence of independent, international trial observers. A partial retrial will not suffice and would amount to a clear abuse of process.
10. That in addition, any retrial must be strictly in accordance with the Accused’s rights to a fair trial and that should be imbued constitutionally and institutionally through the separation of government and judiciary and a respect for the rule of law, statutorily through instruments that do not breach the fundamental principles of legality and specificity, and respect all those international obligations to which Bangladesh is bound so as to protect defence rights, and evidentially through the requirement of the Prosecution to prove each and every element of each charge they seek to bring.
11. That further, it is emphasized that any new trial must be conducted before an entirely separately constituted bench to ensure that any judges (whether presently or previously a member of the bench in the current proceedings) are precluded from any involvement or influence in the retrial either as part of the bench or in any other capacity (Prosecutor v. Goran Jelisić, IT-95-10-A, Appeals Chamber Judgment, 5 July 2001, where the Prosecution submitted that “the appropriate remedy is to remit the matter to a differently constituted Trial Chamber for a new trial.” para. 12). This is an essential condition to any retrial and any deviation from this would offend not only established national or international law on the independence and impartiality of the judiciary as a fundamental right of any accused but would be in violation of Bangladesh’s judicial Code of Conduct which guarantees this right pursuant to Article 96(4)(a) of the Bangladesh Constitution. Under Article 3 of the Code of Conduct, a judge must disqualify himself in a proceeding in which his impartiality might reasonably be questioned.
Interaction between the former Chairman of the ICT-1 and third parties
12. That on 6th December 2012, the ICT-1 presided by its then Chairman, Mr. Justice Huq passed an order directing the Editor and South Asia Bureau Chief of The Economist to ‘give reply within 3 (three) weeks as to why proceedings under section 11(4) of the said shall not be initiated against them’ for ‘hacking computer, email and skype accounts and obtaining confidential information from the Chairman illegally which amounts to influencing a Judge of the Supreme Court of Bangladesh’. By the said order, the ICT-1 also directed The Economist ‘to keep secret the information which they have gathered from the skype and email accounts as well as the computer of the Chairman as this makes public the privacy of the Chairman which needs to be kept secret.’
13. That on 8th December 2012, The Economist published an article titled ‘Discrepancy in Dhaka’ in its online edition raising questions about the integrity of the former Chairman of the ICT-1. In the said article, it was stated that Mr. Justice Huq in a telephonic conversation on 5th December 2012 with The Economist (which the latter had recorded) had denied ever exchanging any information regarding the Tribunal, the judgment or the proceedings with any one, yet the order dated 6th December 2012 of the ICT-1 clearly states that the former Chairman received ‘the support [of Dr. Ziauddin] on the developments on International Criminal law throughout the world’ and also took assistance ‘during the proceedings of the trial and orders.’ Furthermore, subsequent publication of Skype and email communications between Mr. Justice Huq and Dr. Ziauddin clearly demonstrates the falsity of the statement of the former Chairman of the ICT-1 to The Economist.
14. That on 9th December 2012, the Daily Amar Desh published transcripts of Skype conversations between Mr. Justice Huq and Dr. Ahmed Ziauddin on 27th August, 6th and 8th September and 14th and 15th October 2012. According to the report dated 9th December 2012, the Amar Desh had obtained more than 17 hours of Skype communications between Mr. Justice Huq and Dr. Ziauddin from its source in Brussels, Belgium. Thereafter, on 10th, 11th, 12th and 13th December 2012, the Daily Amar Desh published transcripts of Skype conversations between Mr. Justice Huq and Dr. Ahmed Ziauddin on 1st, 10th, 12th, 15th and 17th September and 13th and 16th October 2012. Reports of the Skype conversations were also published in the Daily Jugantor.
15. That such conversations are reported to discuss various cases in a high level of detail, including specific information relating to witnesses and actual judicial decisions. It is submitted that the instant case is specifically mentioned in the conversations.
16. That in addition to the apparent issues of fairness and breach of judicial duty, the conversations also reveal that the former Chairman of the ICT-1 had been ready to oblige the government under pressure from the latter to return verdicts within unrealistic timeframes. The conversations also show that decisions that were taken by the former Chairman of the ICT-1 and Dr. Ziauddin in relation to cases pending before the ICT-2 were implemented. It is submitted that the conversations strongly indicate that the appearance of independence and impartiality of all judges who interacted with the Chairman (including two of the original judges who moved to ICT-2 upon its inception in March 2012) have been compromised. In its report of 9 December, 2012 the daily Amar Desh provided the following short introduction to the contents of the Skype conversations which were published over 5 (five) days:- [Bangla text]
The above short extract from the daily Amar Desh casts a serious doubt on the transparency and fairness of all proceedings being conducted under the said Act. There is evidence from the Amar Desh reports of executive interefence at each step of the proceeding starting from the appointment of judges to the delivery of a verdict.
Interaction between the Chairman and Dr. Ziauddin Ahmed
17. That in a news report dated 10 December 2012 in Amar Desh entitled “Skype Conversation of the Justice: “Dr. Kamal doesn’t understand Criminal Law, Amirul Makes Trouble, Waliur is a Thief” it is confirmed that they received, from a foreign source, transcripts of Skype conversations between the former Chairman of the ICT-1 and Dr. Ahmed Ziauddin. Their subsequent investigation of these conversations revealed that the former Chairman of ICT-1 had regular conversations with Dr. Ziauddin and another Bangladeshi national residing in the UK, Rayhan Rashid, regarding tribunal and trial issues and other political matters. The former Chairman, they report, acknowledged that he had such conversations with the above individuals and others. It appears from the report that such conversations however included the provision of expert legal advice by Dr. Ziauddin.
18. That it is submitted that accepting such “legal advice” in this manner constitutes a fundamental abuse of process and the proper procedure for appropriate legal advice would be through an amicus curiae brief or advocate. In the event, it appears that the subjects discussed between the judge and third parties went beyond what could ever be considered acceptable, even if it had been given in a transparent manner through appropriate procedure. In fact, the discussions provide clear evidence of judicial bias, a matter which is discussed in more detail later. It further appears from the communications that not only was Dr. Ziauddin providing advice to the former Chairman of the ICT-1, he was also providing such advice to the government and the prosecution.
19. That the nature of the conversations between the former Chairman of the ICT-1 and Dr. Ziauddin is illustrated from the extract of skype conversation on 8 September 2012 between them as reported in Amar Desh on 9 December 2012: [Bangla text]
20. That it submitted that it is clear from the above (which is only a short extract of one conversation) that it is sufficient for the Hon’ble Tribunal to reach the conclusion that the former Chairman of ICT-1, through his involvement and discussions with Dr. Ziauddin on detailed matters pertaining to various proceedings before the tribunals (including on members of the Prosecution and their work), has acted in such a way as to compromise the integrity and fairness of the proceedings, and that he has not acted independently and impartially, free from external influences and pressures. The conversations also show a collusion with prosecutors of ICT-2 to enable ICT-1 to deliver the first verdict. There is a discussion as to perverting the course of justice in ICT-2 through the prosecutors.
21. That it is particularly clear from the transcript dated 14 October 2012, in which the Chairman and Dr. Ziauddin engage in a conversation conspiring to fast-track the case against a specific Accused (Prof. Ghulam Azam) in order to issue a judgment as expeditiously as possible given his high profile. There is also discussion as to how executive pressure will be brought to bear upon the ICT-2 to slow down proceedings there to enable ICT-1 to deliver the first verdict. The extract of the Skype conversation on 14 October 2012 between Chairman and Dr. Ziauddin as reported in Amar Desh Report on 9 December 2012 is as follows: [Bangla text]
22. That it is apparent from the above conversation that Dr. Ziauddin had both influence over and regular contact with the former Chairman of the ICT-1. Together they discussed the means of interfering with the process of the cases before the ICT-2, referring directly to that of the Accused. Dr. Ziauddin stated in his conversation of 8 September, 2012 “I will ask them and find out today.” This is indicative of his apparently inappropriate interactions and relationships with those involved in ICT-2. The discussion also indicates that Dr. Ziauddin had regular contact with persons involved in the trials in the ICT-2. This in itself amounts to an abuse of process. As a result of that interference the interactions reveal the inability for the ICT-2 to appear independent and impartial.
23. That further, it is submitted that the above conversations illustrate the lengths to which the former Chairman of the ICT-1, in association with Dr. Ziauddin and members of the Prosecution and the government would go to in order to secure an expeditious conviction against a specific high profile Accused. This included, inter alia, liaising with the judicial panels and the Prosecution teams in other cases in order to delay their progress in order to assist in the conviction against the Accused. Moreover in a conversation between the two men on 8 September 2012, (reported in Amar Desh on 9 December, 2012) Dr. Ziauddin stated that the ICT-2 should not give a judgment which differs from that ICT-1. He tells Mr. Justice Huq that if differing judgments are passed this will be benefit the defence. He states “It is our target to prevent this benefit of the defense.” This violates the fundamental right of an accused to be tried by an independent and impartial judiciary, the presumption of innocence and, as well as an accused’s right to present his case and be afforded a fair trial.
Inconsistencies in statements from the Chairman and Dr. Ziauddin regarding interaction
24. That in a report published online in the The Economist on 8 December 2012 it has been stated that on 6 December 2012 the Chairman passed an order requiring two members of The Economist to appear before the court, demanding that they explain how they came by e-mails and conversations between himself and Dr. Ziauddin. The report goes on to highlight remarkable inconsistencies between the content of their conversations (taken from the transcripts) and how they describe such conversations in the order of 6 December 2012. Both denied that any discussions between them were related to the case. Indeed, the Chairman went so far as to state; “As judges, we cannot take help from third persons and outsiders.” Asked whether they sometimes exchange e-mails about the Tribunal, he replied “No, no, no, regarding tribunal, no talks regarding the judgment or regarding the proceedings, no…A Supreme Court judge, we do not talk even with our wife regarding the tribunal.”
25. That such statements made by Mr. Justice Huq were demonstrably false given the content of the conversations published to date. Moreover, the statements demonstrate the former Chairman of the ICT-1 was well aware of the judicial duty and necessity to be and appear to be independent and impartial in conducting a case. The Chairman’s resignation is an inevitable consequence of his initial acceptance of his breach of his duties as a “Supreme Court Judge”.
26. That a further and more in-depth article on The Economist website, published 12 December 2012, confirmed their initial suspicions that the collusion between the Chairman and third parties uninvolved with the Tribunal as well as members of the Prosecution and the government is evident from the recovered e-mail and Skype conversations. Indeed, the article states from the outset, “The e-mails and … conversations we have seen raise profound questions about the trial.” The article (which was based on the Skype conversations and emails of the former Chairman of the ICT-1) indicates the seriousness and impact of the Chairman’s, as well as the Prosecutor’s, improper conduct and exposes the prejudice against the Accused, and in all cases before the Tribunal. It also strongly indicates that the verdicts are pre-ordained.
27. That it is submitted therefore that it would be an abuse of process to ignore this information and continue with the proceedings and that the only suitable remedy in this situation is a retrial in the manner stated above. Furthermore, based on the evidence, it is submitted that a retrial, respecting all the Accused’s rights to a fair trial would be highly unlikely and would itself be an abuse of process if such deficiencies are not properly addressed and adequately rectified in the manner stated in paragraph 9 above. In this regard an extract from the article published in The Economist website on 12 December 2012 (and in the print edition on 15 December, 2012) is quoted below:-
28. That the accuracy of the above article is corroborated by other sources. One website – tribunalleaks.be– has taken up the task of exposing the “inner workings” of the Tribunal. They claim that the files [the same emails and recordings of skype calls obtained by The Economist, which they have obtained and reviewed, reveal how Dr. Ziauddin, in particular, is able to essentially dictate the whole process to the former Chairman of the ICT-1, the prosecuting authorities and the government.
29. That moreover, the website demonstrates that the email correspondence shows efforts made by Dr. Ziauddin and the Chairman to obstruct the work of the Defence team’s international lawyers, and to keep tabs on them through their international network. Indeed, internal communications between members of the Defence team were forwarded to the former Chairman of the ICT-1.
Adverse effect on other Judges due to inherent bias of the former Chairman of the ICT-1 prejudices integrity of proceedings
30. That the actions of the former Chairman of the ICT-1 is indicative of bias and as such Mr. Justice ATM Fazle Kabir and Judge Md. Shahinur Islam, both of whom had regular interaction, as a Judge and Registrar respectively, with the former Chairman in ICT-1 before their transfer in March 2012 to the newly established ICT-2, give an appearance that they have been adversely affected by his approach, perspectives and overall attitude and conduct in the proceedings. For this reason it is submitted that the recent resignation of the former Chairman of the ICT-1 is by no means sufficient so as to rectify the breaches of the Accused’s right to a fair trial.
31. That moreover cognizance in the instant case was taken on 28.12.2011 by the ICT-1 by a bench which was presided by the former Chairman of the ICT-1. As such the cognizance was taken by a bench in which the Chairman was not acting independently.
32. That furthermore, it is stated that this case has suffered the removal of its Chairman at a crucial time in the case. Of even greater concern is that he has been replaced with a judge who has not heard any of the evidence. The absence of full audio and/or transcript recordings of the proceedings and the fact that proceedings have already reached the stage of closing arguments, prevents the new judge from being able to adequately familiarize himself with the evidence. It is submitted that this lack of continuity of the judicial panel adds considerable weight to the duty of the Hon’ble Tribunal to order a re-trial on the basis that to continue would constitute an abuse of process.
33. That subsections 6(4) to 6(6) of the said Act permit the replacement of a judge during the trial itself, as well as the continuation of a trial in the absence of a member of the Tribunal. Indeed, the ad hoc international criminal tribunals have permitted the replacement of judges during the trial, and it cannot be said that such a practice is prohibited by international law. However, it is emphasized that this provision cannot applied in a manner that would prejudice the rights of an accused. Indeed the statute can never have been meant to deal with a situation where one of judges of the Tribunals was compelled to resign due to allegations of lack of independence, transparency and fairness resulting in a re-constitution of the both Tribunals. The sub-sections also do not contemplate a circumstance in which the judges of the Tribunal (both before and after reconstitution) had regular interaction with the judge who was compelled to resign due to allegations of impropriety. In fact the sub-sections do not contemplate a reconstitution which has arisen out of allegations of fraud against a judge.
34. That under section 6(4) of the said Act, the removal of a judge in the proceedings of a case is limited to strict circumstances: “If any member of a Tribunal dies or is, due to illness or any other reason, unable to continue to perform his functions, 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 the office (emphasis added)”.
35. That the application of strict circumstances has not been adhered to. The Tribunal in this case originally consisted of Mr. Justice ATM Fazle Kabir who transferred from ICT-1 when he was appointed Chairman of the new ICT-2 chamber when the latter was constituted on or around 25 March 2012. Mr. Justice Obaidul Hasan and Judge Md. Shahinur Islam (a former Registrar at ICT-1) were the other members constituting the original ICT-2 bench. Following the recent resignation of the Chairman from ICT-1 following both national and international media reports of judicial misconduct stemming from interference in the judicial process by unaffiliated and undeclared third parties, members of the government and members of the Prosecution, the Chairman of ICT-2, Mr. Justice ATM Fazle Kabir was appointed on 12 December 2012 as the new Chairman of ICT-1. Mr. Justice Obaidul Hasan was appointed to the post of Chairman of Tribunal-2 and a new member, Mr. Justice Mozibor Rahman Meah was inducted into Tribunal-2. The Defence submit that this allocation of judges to cases simply to facilitate an expedited verdict breaches the restrictive rules for replacement of judges as set out in subsections 6(4)-6(6) of the said Act as well as internationally recognized standards of fairness under the ICCPR, to which Bangladesh is bound. It presents a disregard by the government and the Tribunal of fundamental principles of fairness. It is stated the Hon’ble Tribunal that judges cannot be employed in a manner that would prejudice the rights of an accused and that highest standards of fairness are demanded particularly where the cases carry the potential penalty of death.
36. That as stated above cognizance in this case was taken by the ICT-1 on 28.12.2011 which at the time was presided over by the former Chairman of ICT-1 and in which Mr. Justice ATM Fazle Kabir was a member. Accordingly, it is submitted that Mr. Justice ATM Fazle Kabir has the appearance of being influenced by the former Chairman’s decisions and views on the allegations and, following his transfer to ICT-2, may well have proceeded to issue the order framing the charges against the Accused on the basis of such discussions with, and guidance received from, the former Chairman of ICT-1.
37. That it is stated that one of the Skype recordings on 6 September, 2012 (reported in Amar Desh on 9 December, 2012) suggests that Judge Md. Shahinur Islam was “discouraged” by the Chairman and Dr. Ziauddin from attempting to rely on international jurisprudence to support his decisions. In one conversation, the Chairman and Dr. Ziauddin express their dissatisfaction with ICT-2, especially with Judge Md. Shahinur Islam, due to their concern that he was “fixated” (in their view) with international law. As a result, the Chairman and Dr. Ziauddin agreed that an “activist” from the International Crimes Strategy Form Forum (“ICSF”), a pro-government lobby group advocating for the conviction of the accused (established by Dr. Ziauddin), who had recently joined the Tribunal as Assistant Registrar, should monitor the proceedings in ICT-2 and keep them informed (Skype conversation dated 11 September, 2012 from www.tribunalleaks.be). Dr. Ziauddin further states that if Judge Md. Shahinur Islam does not listen to them, he will have to be removed (Skype Conversation of 6 September, 2012 reported in Amar Desh on 9 December, 2012). This, it is submitted, shows collusion between the former Chairman of ICT-1 and Dr. Ziauddin (as well as other third parties and members of the government and Prosecution) to exercise control over all cases before both ICT-1 and ICT-2, and indicates the degree to which they have abused the process of the court that is trying the Accused.
38. That Judge Md. Shahinur Islam, prior to his appointment to the bench in ICT-2 performed the functions of the Registrar in ICT-1. There is a similar appearance of bias in that he may have been influenced by the former Chairman’s views and general attitude towards the Accused. Further, Judge Md. Shahinur Islam, during his tenure as a Registrar in ICT-1, would have been exposed to the views and sentiments of not only the former Chairman and the ICT-1 bench, but of members of the Prosecution and government as well, as his role would have encompassed regular interaction with all such parties. As such there was a serious likelihood of bias.
39. That there is a serious likelihood that the decisions taken by this Tribunal may have been adversely affected by the former Chairman of the ICT-1’s lack of independence and impartiality. But for his role, the Orders may have been decided differently. The trial may have proceeded very differently had defence rights been respected to the degree required by international standards. It would be an abuse of process to continue the trial regardless of the implications of the influences by the former Chairman of the ICT-1, the panel and thus the decisions taken in this case and to do so would amount to a miscarriage of justice.
40. That further there may be an appearance and perception that the cases in ICT-2 have been conducted in accordance and in compliance with the conversations between the former Chairman of the ICT-1 and Dr. Ziauddin. In a conversation on 14 October, 2012 (reported in Amar Desh on 9 December, 2012) Dr. Ziauddin suggests exerting pressure on ICT-2 from a ‘higher level’ to slow down Abdul Quader Mollah’s case in ICT-2 and to deal with the case of Maulana Abul Kalam Azad alias Bachhu, (which was being heard in absentia) first. Dr. Ziauddin tells the former Chairman:- [Bangla text]
This conversation took place on 14 October, 2012. By such date the trial of Abdul Qauder Mollah was well advanced. 12 PWs had already been examined. On the other hand charges had not even been framed by the ICT-2 at this stage in the case of Maulana Abul Kalam Azad. Charges were framed 20 days after this conversation, (i.e. on 4 November, 2012). Thereafter, the prosecution opened the case on 26 November, 2012. 22 (twenty-two) Prosecution Witnesses were quickly examined and on 26 December, 2012, (after exactly one month) the final arguments were complete. This case commenced well after all the others in the ICT-2 but is now the first trial to have been completed. This complies with the conversation of Dr. Ziauddin with the former Chairman on 14 October, 2012. As such there may be a reasonable perception that the ICT-2 may have acted according to the dictate of the higher authority as indicted by Dr. Ziauddin. As such there is an appearance of bias in relation to the ICT-2.
41. That of the 12 (twelve) Skype conversations reported in the Daily Amar Desh 10 (ten) indicate extensive executive interference in the proceedings under the said Act. In the conversation of 14 October, 2012 (reported on 9 December, 2012), there is a discussion of using pressure from ‘higher level’ on ICT-2 to change the order in which it is disposing cases. In the conversation of 27 August, 2012 (reported on 9 December, 2012), there is a discussion as to how a member of the ICT-1 was appointed on political considerations. In the conversation of 15 October, 2012 (reported on 9 December, 2012), there is a discussion of how the State Minister for Law will arrange of meeting of both ICT-1 and ICT-2 with the Law Minister, so that ICT-1 may deliver the first judgment. In the conversation of 8 September, 2012 (reported on 9 December, 2012), the members of the ICT-2 are reported to have told the Law Minister that they would like to handle Professor Ghulam Azam’s case. In the conversation of 6 September, 2012 (reported on 9 December, 2012), Mr. Justice Md. Nizamul Huq tells Dr. Ziauddin that he has been offered a promotion to the Appellate Division on the condition that he finalizes 3 verdicts by December, 2012. In the conversation of 1 September, 2012 (reported on 11 December, 2012), Mr Justice Huq tells Dr. Ziauddin that a member of his Tribunal is a political person and has been told to agree with him. In the conversation of 15 September, 2012 (reported on 11 December, 2012), Mr. Justice Huq and Dr. Ziauddin express the view that the recent cabinet reshuffle will be beneficial for the proceedings. In the conversation of 13 October, 2012 (reported on 11 December, 2012), Mr. Justice Huq tells Dr. Ziauddin of his plan to visit the Law Minister to discuss the latest amendment to the said Act. In the conversation of 17 September, 2012 (reported on 12 December, 2012), there is a discussion on how to use the state run Bangladesh Television Channel to campaign in favour of the Tribunal. In the conversation of 16 October, 2012 (reported on 13 December, 2012), disappointment is expressed over the Law Minister’s failure to reply to a letter of Lord Carlile. As such there is a clear and persistent indication that the executive interfered in the working of the Tribunal and that there was a reciprocal interest of the former Chairman of the ICT-1 and Dr. Ziauddin to involve the executive in the matter of the Tribunal. These conversations taken together show that the entire proceedings including that of the ICT-2 can no longer be reasonably perceived to independent.
42. That moreover, the conduct of the Prosecutors in the ICT-2 and in particular Mr. A.K.M Saiful Islam indicates that he has attempted to pervert the course of justice in the ICT-2 together with the former Chairman of the ICT-1 and Dr. Ziauddin. Dr. Ziauddin had regular skype conversations with Prosecutor Saiful Islam, some times at 2.00 A.M. in the morning (Skype Conversation of 12 September, 2012 reported in Amar Desh on 10 December 2012). Dr. Ziauddin reported to Mr. Justice Huq (Skype Conversation of 8 September, 2012 reported in Amar Desh on 9 December 2012, quoted in paragraph 19 above) that he had spoken to Prosecutor Saiful and others and they had agreed to co-operted to give priority to Professor Ghulam Azam’s case. Thereafter in a later conversation (Skype Conversation of 14 October, 2012 reported in Amar Desh on 9 December 2012, quoted in paragraph 21 above) Mr. Justice Huq informs Dr. Ziauddin that the Prosecutor Saiful Islam has in fact slowed down proceedings in his case. In fact this pre-planned slowing down of proceedings in ICT-2 is also borne out by the facts. In Md. Kamaruzzaman’s case which was specifically being dealt with by Prosecutor A.K.M Saiful Islam 13 prosecution witnesses were produced and examined from 15 July to 15 October, 2012. However, from 16 October to 16 December, 2012 the deposition of only one additional witness has been complete. Hence, the actions of the Prosecutors of ICT-2 have also contributed to a perception of a lack of independence.
43. That moreover, there appears to have been an attempt by Dr. Ziauddin to contact one of the then Members of the ICT-2, Mr. Justice Obaidul Hasan (now Chairman of ICT-2). In a Skype conversation dated 8 September, 2012 (reported in Amar Desh on 9 December, 2012) Dr. Ziauddin suggests that Mr. Justice Obaidul Hasan take over at the ICT-2 to minimise the influence of Judge Md. Shahinur Islam, Dr. Ziauddin is heard to say the following:- [Bangla text]
Mr. Justice Huq also planned to arrange such a meeting at his residence, with Dr. Ziauddin after he would come to Bangladesh on 22 October, 2012 (Skype Conversation of 16 October, 2012, reported in Amar Desh on 13 December, 2012). There is no evidence that such meeting took place. No Skype conversation beyond 20 October, 2012 has been made public. However, this attempt at a meeting taken together with all the information so far made public have created a reasonable perception that ICT-2 may not be independent.
44. That accordingly, it is submitted that (i) the replacement of judges for invalid reasons (in particular the recent appointment of a new Member who has missed the vast majority of the proceedings) severely prejudices the Accused, particularly as the case is at an advanced stage and as the new judges would not have heard all the evidence; (ii) notwithstanding the constitution of the bench, it is submitted that influence of the (former) Chairman of ICT-1 on the other judges almost certainly had an adverse influence on proceedings and a prejudicial impact on the Accused; and (iii) But for the former Chairman’s (and Dr. Ziauddin)’s role in decisions, the course of the trial may have proceeded very differently. Therefore, it is submitted that a retrial incorporating the necessary preconditions set out in paragraph 9 above, would be the only viable alternative in the circumstances.
Constitutional Responsibility of a Judge and the Judiciary to Provide Fair and Impartial Justice
45. That it is paramount to judicial function that individual judges and the judiciary as a whole are impartial and independent of all external pressures, and of each other, so that those who appear before them and the wider public can have confidence that their cases will be decided fairly, on the basis of the evidence presented in court by the parties, and in accordance with the law, without restrictions, any improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason (Basic Principles on the Independence of the Judiciary, Article 2, endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 13 December 1985). The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected (Basic Principles on the Independence of the Judiciary, Article 6, endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 13 December 1985). Judges have a constitutional responsibility to provide fair and impartial justice, which includes a responsibility to protect citizens from unlawful acts of government.
46. That judges must be seen to be independent and impartial. Justice must not only be done, it must be seen to be done. In Re Pinochet,  UKHL 52 (15 January 1999). the United Kingdom House of Lords set aside its original decision on the question of immunity from arrest and extradition when it emerged that one of the Law Lords had a connection with a campaigning organization which was involved in the case. In that case, even though there was no suggestion that the Law Lord was not in fact biased, the decision could not stand. There was a real danger or reasonable apprehension or suspicion that he might have been biased. Judges must be and must give the appearance to reasonable well-informed observers that they were independent and impartial. It is submitted that this Hon’ble Tribunal (both before and after reconsitutution) does not satisfy the test of needing to be seen to be independent and impartial as set out by the House of Lords In Re Pinochet.
47. That the former Chairman of the ICT-1’s past and present actions has had an adverse implication on the independence and transparency of the judges who were associated with him. The former Chairman of ICT-1 was affected by actual bias through his connection with Dr. Ziauddin and Mr. Rayhan Rashid, both supporters and frequent contributors of information for the International Crimes Strategy, as well as the his direct involvement in the Secretariat of the People’s Inquiry Commission against the accused in 1992. He was neither independent, nor impartial. As stated above this has had an adverse implication in relation to the present case. The cognizance of this case was taken by a bench presided over by the former Chairman of the ICT-1. Moreover, the former Chairman and a Member of this Hon’ble Tribunal was associated with the former Chairman of ICT-1 against whom there are serious allegations of actual bias. Hence, this bench no longer has the appearance of independence and impartiality.
48. That the right to an independent and impartial judiciary prescribed in the Supreme Judicial Council Code of Conduct. Clause 1 Code of Conduct states 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”.
The Supreme Judicial Council Code of Conduct is prescribed for pursuant to Article 96(4)(a) of the Constitution of Bangladesh.
49. That this is also a standard obligation to adhere to under international law. Article 10 Universal Declaration of Human Rights (hereinafter “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”.
50. That it is further reiterated under Article 14 (1) 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 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 recognise 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])”
51. That the fundamental right to an independent and impartial Judge is also upheld in Article 40 (1) of the Rome Statute 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) Rome Statute: “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”.
52. That it is submitted that the past and present conduct of the Chairman, and his recent resignation, as well as the effect this will have had on the decisions already made in the case and may also have had on other judges, provide sufficient grounds for a retrial in the manner set out in paragraph 9 above.
53. That however it is submitted that in the circumstances even if a re-trial were held in the manner stated above, a serious miscarriage of justice has occurred which is unlikely to be rectified due to the ground set out below:
a. The independence of the Tribunal has been compromised
i. The submissions and evidence presented by the Accused in this petition, as well as in earlier petitions, highlight the clear involvement of the Government in the proceedings before the Tribunal. This is demonstrated by but not limited to: (1) the immediate replacement of judges without proper consideration of the statutory and fair trial limitations on their power to do so; (2) pressure to deliver verdicts in unrealistic timeframes; (3) evidence of improper influences, inducements, pressures, threats or interferences which have prevented judges from fulfilling their constitutional duty to provide fair and impartial justice, such as the reported promise to the former Chairman of elevation to the Supreme Court if 3 verdicts were delivered by December, 2012; (4) public statements by senior Government officials announcing the date of execution of the Accused before the conclusion of proceedings and the delivery of a verdict, in total disregard for the fundamental principle of the presumption of innocence, which underpins a criminal trial.
ii. There can be no confidence by those appearing before the Tribunal or the wider public that the cases will be decided fairly, on the basis of the evidence presented in court by the parties, in accordance with the law and without interference. Moreover, justice must not only be done but seen to be done, and as such it would be difficult for the judges to give the appearance to reasonable well-informed observers that they were independent and impartial pursuant to the dislosures made in the print and electronic media regarding the proceedings of the trial during the tenure of the former Chairman.
b. The Tribunal itself has demonstrated that a fair trial is unlikely
i. The Hon’ble Tribunal has itself been subject to international criticism by recognized international bodies, foreign governments and other commentators in respect of the consistent violations of international fair trial standards and principles, including those set out in the ICCPR and the Rome Treaty, to which Bangladesh is legally bound.
ii. In an incident which took place on 5 November 2012 in which prosecution-turned-defence witness Mr. Bali was abducted from outside the gates of the Tribunal in plain sight of Tribunal guards, by a group who identified themselves as plain-clothes policemen. The ICT-1’s apparent indifference to the incident, its refusal to effectively investigate the matter, and the inevitable consequence this has had on future defence witnesses willingness to testify due to a real fear for their safety is symptomatic of an indifference and disregard to fair trial rights and principles.
iii. Other issues which have prejudiced the Accused have been raised in previous petitions and include, but are not limited to a lack of time for the defence to prepare its case, the failure by the prosecution to disclose evidence, and denying the defence time and/or unfettered access to the Accused to receive privileged instructions,
iv. The Prosecution’s conduct would not be remedied simply by a change in judicial panel or a retrial. It is submitted that there have been numerous serious failures on the part of the prosecution throughout the proceedings.
54. That moreover the International Crimes Tribunal Act and its Rules of Procedure have been subjected to criticism as falling below both international and national standards. A fair trial under such a legal framework is therefore unlikely.
55. That the delay in filing this application, if any me be condoned. The Accused was required to examine and review 17 hours of Skype conversations and 230 e-mails disclosed to the public. A critical evaluation of this information had to be carried out with reference to the law. This has been an extremely time consuming process. Moroever, all the information was not available at one place/location. The information had to be gathered from various sources and checked for relevance and authenticity. The sources from which the information were collected are (1) the Daily Amar Desh, (2) The Daily Jugantor, (3) the Economist, (4) the Wall Street Journal, (5) www.tribunalleaks.be, (6) www.youtube.com, (7) www.facebook.com (8) www.dailymotion.com, (9) http://ireport.cnn.com and other audio websites. The accued has been working since the disclosure of the relevant information in order to prepare suh an application. There has been no laches on his part.
56. That it is categorically stated that in this application the accused is not alleging actual bias against this Hon’ble Tribunal. It is only being alleged that there might be an appearance or perception of bias, which is prejudicial to a fair trial.
57. That in view of the above, it is prayed that the Hon’ble Tribunal allows the instant application and recalls the order dated 28.12.2011 taking cognizance against the accused and pass an order for full and complete retrial.
Wherefore it is most humbly prayed that the Hon’ble Tribunal would be graciously pleased to recall the order taking cognizance dated 28.12.2011 and order a full and complete retrial in manner stated in paragraph 9 above under Rule 46A of the International Crimes Tribunal Rules of Procedure, 2010 and/or pass such other or further order or orders as may deem fit and proper.
And for this act of kindness, that the Accused, as in duty bound shall ever pray.