This is a written application filed by the lawyers of Golam Azam, following the publication of the transcripts of the skype conversations and e-mails between the former tribunal chairman Justice Nizamul Huq and the the expatriate lawyer, Ziauddin Ahmed. (Nb: The excerpts of the skype transcripts were originally translated by the defense, with the accuracy then independently checked).
An application for recalling the order dated 9th January 2012 taking cognisance of the case against the Accused Petitioner and also the order dated 13th May 2012 framing charges against him under Rule 46A of the International Crimes (Tribunals) Rules of Procedure 2010
1. That the instant application has been filed under Rule 46A of the International Crimes (Tribunals) Rules of Procedure 2010 for recalling the order dated 9th January 2012 taking cognisance of the case against the Accused Petitioner and the order dated 13th May 2012 framing charges against the Accused Petitioner.
2. The Accused Petitioner is filing this application in the background of the reports published in the local and international media in respect of communications between Mr. Justice Nizamul Huq, the former Chairman of the International Crimes Tribunal-1 and Dr. Ahmed Ziauddin, a Bangladeshi lawyer based in Belgium. Such communications between Mr. Justice Huq and Dr. Ziauddin clearly indicate that the former Chairman, Dr. Ahmed Ziauddin, a section of the Prosecution and a section of the Executive were acting in collusion with one another to secure a conviction of the Accused Petitioner, thereby seriously prejudicing the Petitioner’s right of a fair trial guaranteed under section 6(2A) of the International Crimes (Tribunals) Act 1973 (‘the Act’). In such circumstances, the Petitioner submits that it would be a miscarriage of justice to continue and that the only course of action open for the Tribunal is to declare the proceedings of the instant case to be mistrial and to direct institution of proceedings afresh in accordance with law and the Constitution.
3. That on 6th December 2012, the Tribunal-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 International Crimes (Tribunals) Act 1973 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 Tribunal 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.’ (Annexure-A )
4. 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. 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 Tribunal-1 clearly states that the Tribunal Chairman received ‘the support [of Mr. Ahmed] 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 to The Economist. (Annexure- B)
5. 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. (Annexure C series) The Skype conversations and email communications between Mr. Justice Huq and Dr. Ziauddin show the following:
(i) That Mr. Justice Huq and Dr. Ziauddin had discussions not only as to who should depose as Prosecution Witness, but also as to the contents and length of the deposition.
(ii) Emails between Dr. Ziauddin and Mr. Justice Huq show that the orders of the Tribunal framing charges against Ghulam Azam, Motiur Rahman Nizami and Delwar Hossain Saydee were in fact drafted by Dr. Ziauddin and emailed to Mr. Justice Huq the evening before they were announced in open court by the former Chairman of Tribunal-1.
(iii) Email exchanges between Ahmed Ziauddin and Nizamul Huq clearly show that the Formal Charge in the case of Ghulam Azam was prepared at the behest of Ahmed Ziauddin. It is clear therefore the order of cognizance taken by the Tribunal on the basis of Dr. Ziauddin’s Formal Charge is illegal.
(iv) Mr. Justice Huq had regular meetings with a section of the Prosecutors during which decisions were taken regarding filing of petitions by the Prosecutors and passing of orders thereon by the Tribunal. Not only that, Dr. Ziauddin played an important role in advising the former Chairman and a section of the Prosecutors, often acting as a conduit for the exchange of information between the Tribunal and the Prosecution.
(v) The conversation between Mr. Justice Huq and Dr. Ziauddin clearly show extensive executive interference with the process of the Tribunal.
7. That on 11th December 2012, in the wake of revelations of the aforesaid Skype communications, Mr. Justice Huq resigned as Chairman of the Tribunal-1.
8. That on 15th December 2012, The Economist, in its print edition, published an article titled ‘Trying War Crimes in Bangladesh: The trial of the birth of a nation’ setting out in detail ‘profound questions about the trial’ which have been raised in light of the emails and Skype conversations between Mr. Justice Huq and Dr. Ziauddin. In an Editor’s Note to the said Article, it has been stated that that The Economist has ‘no reason to suppose that the tapes and emails we have seen are fakes, or have been tampered with.’ The article justified publication of the communications by stating that the concerns raised ‘are so serious that there is a risk not only of a miscarriage of justice affecting the individual defendants, but also that the wrongs which Bangladesh has already suffered will be aggravated by the flawed process of the tribunal.’ The article concluded by ‘raising legitimate questions about due process that the Bangladesh authorities should … investigate thoroughly’. The article, which has been published in the print edition of The Economist on 15th December 2012 was uploaded on the website of The Economist on 13th December 2012. (Annexure D)
9. That the Skype conversations and the email communications between Mr. Justice Huq and Dr. Ahmed Ziauddin are not only in the possession of The Economist and the Daily Amar Desh but are now widely available in the social media, including Facebook and You Tube. The said materials are also available in a European based website (www.tribunalsleaks.be), which it says reveals how Dr. Ahmed Ziauddin is able to essentially dictate the whole process to the Chairman of the Tribunal, the Prosecuting authorities and the Government.
10. That the authenticity of the Skype and email communications between Mr. Justice Huq and Dr. Ziauddin has never been questioned. In fact, by its order dated 6th December 2012, Mr. Justice Huq admitted that ‘… just two or three days earlier the Chairman found that his email and skype accounts along with his computer has been hacked.’ In the said order, the Tribunal also directed The Economist to ‘keep secret the information they have gathered from the skype and email accounts’. The order of the Tribunal-1 dated 6th December 2012 thus clearly indicates that Mr. Justice Huq had been in communication with Dr. Ziauddin over email and Sype. Furthermore, the resignation of Mr. Justice Huq on 11th December 2012 upon the publication of the transcripts of the Skype conversations is clear evidence of the authenticity of the same.
11. That it is apparent from the Skype communications, details of which are set out below, that such conversations included the provision of expert legal advice by Dr. Ziauddin and focused on issues specifically relating to the proceedings against the Accused-Petitioner. The Defence submits 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 manner provided under Rule 41 of the International Crimes Tribunal Rules of Procedure 2010. It is stated that the matters discussed between the former Chairman and Dr. Ziauddin went far 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 detail in the paragraphs below. It further appears from the communications that not only was Dr. Ziauddin providing advice to the Chairman, he was also providing such advice to members of the government and the Prosecution. In addition, he offered specific advice in this case in respect of prosecution witnesses, including, in particular, whom to call as prosecution witnesses.
12. The Defence submits that it is evident from the Skype communications that the former Chairman, through his involvement and discussions with Dr. Ziauddin on matters pertaining to the proceedings (including with regard to members of the Prosecution and their work), had 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, and that as a result the entire proceedings have been vitiated.
13. The Defence submits that the Skype communications, details of which are set out below, illustrate the lengths in which the Chairman, in association with Dr. Ziauddin and members of the Prosecution and the government would go to in order to secure an expeditious conviction against the Accused. This included, inter alia, liaising with Prosecution teams in other cases in order to delay their progress in order to assist in the conviction against the Accused. 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.
14. That the Accused Petitioner sets out in the paragraphs hereinafterbelow the manner in which the entire trial process has been tainted by the actions of Mr. Justice Huq, Dr. Ziauddin, a section of the Executive and a section of the Prosecutors, thereby necessitating a retrial in the interests of justice.
Formal Charge prepared by Dr. Ahmed Ziauddin:
15. On 10th December 2011, Dr. Ahmed Ziauddin sent Mr. Justice Nizamul Huq an email attaching a document titled “GA-FC.doc” containing an outline of the charges to be brought out against Ghulam Azam by the prosecution. On 11th December 2011, after having a telephone conversation with the Prosecutors, Dr. Ziauddin sent an e-mail to two Prosecutors setting out “the five ‘broad’ charges that we feel could be brought against Ghulam Azam under which all the incidents mentioned in the draft and in the Investigation Report would likely to fit in.” In the e-mail Ahmed Ziauddin also stated that the formal charge has to decipher the “coded” words allegedly used by Ghulam Azam to give “specific” messages and instructions in order to “make sense of offences committed by him” for otherwise “ the expressions look benign”. The said e-mail was immediately forwarded to Ahmed Ziauddin by Mr. Justice Huq on the same day, i.e. 11th December 2011. (Copies of the said emails dated 10th December 2011 and 11th December 2011 and the attachements thereto are annexed herewith and marked as Annexure- E series.)
16. In an email dated 12th December 2011, Dr. Ahmed Ziauddin sent a document titled “FormalChargeGhulamAzam12122011” to Mr. Justice Nizamul Huq setting out details of the charges to be brought against Ghulam Azam by the Prosecution. On the same day (i.e., 12th December 2011), Dr. Ahmed Ziauddin sent another e-mail to Mr. Justice Nizamul Huq containing two attachments, one titled “FormalChargeOnProf.GhulamAzam.doc” the other titled “GA-IR.doc”. (Copies of the said emails dated 12th December 2011 and the attachments thereto are annexed herewith and marked as Annexure- F series. )
17. By an email dated 18th December 2011, Mr. Rayhan Rashid (who is associated with the International Crimes Strategy Forum (ICSF), a group which has been lobbying in favour of the trial of leaders of Jamaat-e-Islami for war crimes) warned the Prosecutors of the possibility of a leak of the Formal Charge. In the text of the email he stated ‘I am writing to check if you are aware that Golam Azam’s Formal Charge document may have been leaked to the media’. He also warned that ‘with one obvious incident of leak, the possibility remains that there may be other such incidents which significantly reduce any strategic advantages that the prosecution team may currently be enjoying.’ This email was also forwarded by Rayhan Rashid to Dr. Ahmed Ziauddin and Mr. Justice Nizamul Huq on the same day. (Copy of the said email dated 18th December 2011 is annexed herewith and marked as Annexure- G.)
18. On 19th December 2011, Dr. Ahmed Ziauddin sent an email to Mr. Justice Nizamul Huq with a document bearing the title ‘Formal Charge 2.doc’ which was a draft of the formal charge to be submitted against Ghulam Azam. On 20th December 2011, Dr. Ahmed Ziauddin sent Mr. Justice Nizamul Huq another document, bearing the title ‘Formal Charge Version 3.doc’ which was an amended draft of the formal Charge to be submitted against Ghulam Azam. (Copies of the said emails dated 19th December 2011 and 20th December 2011 and the attachments thereto are annexed herewith and marked as Annexure- H series.)
19. On 23rd December 2011, Ahmed Ziauddin sent an email with a revised version of the formal charge against the Accused to Mr. Justice Nizamul Huq. In the e-mail Dr. Ahmed Ziauddin stated that the attached sketch of the charges will be explained to Nizamul Hoque Nasim by one Sanjeeb. Dr. Ahmed Ziauddin also informed Mr. Justice Nizamul Huq that he will also be “available if needed”. The document attached to the email dated 23rd December 2011 contains a revised structure of the formal charges against Ghulam Azam, which was prepared by the lobby-group, International Crimes Strategy Forum (ICSF) (run, amongst others by Mr. Rayhan Rashid) on 23rd December 2011. The said ICSF document sets out in detail the strategy to be adopted and the path to be followed by the Prosecution in order to establish the commission of crimes against humanity by Ghulam Azam. In the document it was stated that “most importantly we have to establish a link, i.e. a chain of command between the top echelon of the Jamaat-e-Islami and Peace committee with these forces, i.e. Razakars etc.” In the same document ICSF expressed a desire to have Jamaat Islami established as an auxiliary force. The statement that “we want to establish Jamaat Islami as an auxiliary force” which appears in the second page of the document was underlined and written in bold letters to emphasize its importance. (Copy of the said email dated 23rd December 2011 and the attachment thereto are annexed herewith and marked as Annexure- I series. )
20. Pursuant to such collaboration between Dr. Ahmad Ziauddin, Mr. Justice Nizamul Huq and the Prosecutors in drawing up the formal charge, on 26th December 2011 the Tribunal presided by Mr. Justice Nizamul Huq passed an order directing the Prosecution to submit a formal charge against Ghulam Azam in an appropriate format by 5th January 2012.
21. On 5th January 2012, the Prosecution submitted a Formal Charge purportedly under section 9(1) of the International Crimes (Tribunals) Act 1973. It is evident from the various email communications between Dr. Ziauddin and Mr. Justice Huq that the former had sent various versions/drafts of the Formal Charge to Mr. Justice Huq prior to submission of the same on 5th January 2012 by the Prosecution. As such, the Formal Charge not having been submitted by the Prosecution but by Dr. Ahmed Ziauddin, the same is not a Formal Charge contemplated under section 9(1) of the 1973 Act.
22. On 9th January 2012, the Tribunal took cognisance of the case against the Accused Petitioner on the basis of the Formal Charge and the Investigation Report and the papers and documents submitted by the Prosecution as the same disclosed a ‘prima facie case’ for trial of the accused. It is stated that the Formal Charge has been submitted in violation of section 9(1) of the 1973 Act inasmuch as Dr. Ahmed Ziauddin, who is not a member of the Prosecution was involved in drafting the same, and as such, the order of cognizance of the Tribunal on the basis of the said Formal Charge is illegal and liable to be recalled for ends of justice. Furthermore, Dr. Ahmed Ziauddin has admittedly been acting as an Adviser to the Tribunal-1 (which is apparent from the order of the Tribunal dated 6th December 2012) and as such, there is a clear conflict of interest in Dr. Ziauddin drafting the Formal Charge to be submitted by the Prosecution. In such circumstances, the Formal Charge, to be extent that it has been submitted with the assistance of Dr. Ziauddin, is tainted with illegality and accordingly, the order of cognizance of the Tribunal dated 9th January 2012 on the basis of the said Formal Charge is also illegal and liable to be recalled for ends of justice.
Charge Framing Order against Ghulam Azam drafted by Dr. Ziauddin:
23. By an e-mail dated 12th May 2012, Dr. Ahmed Ziauddin sent a document titled “GhulamAzamChargesFinalDraft.doc” to Mr. Justice Nizamul Huq. By comparing the draft order sent by Ahmed Ziauddin with the order passed by the Tribunal dated 13th May 2012, it becomes clear that the Tribunal has framed charges against the Accused, as directed by Dr. Ahmed Ziauddin. The order delivered by the Tribunal dated 13th May 2012 is exactly the same as that contained in the attachment by Dr. Ahmed Ziauddin. (Copies of the said email dated 12th May 2012 and the attachments thereto and the charge framing order dated 13th May 2012 are annexed herewith and marked as Annexure- J series. )
24. It is submitted that the order dated 13th May 2012 of the Tribunal framing charges against the Accused Petitioner having been prepared by Dr. Ahmed Ziauddin, the said order is not an order of the Tribunal. As such, the order dated 13th May 2012, not being an order of the Tribunal is liable to be recalled for ends of justice.
25. In an e-mail dated 16th June 2012, Dr. Ahmed Ziauddin sent a document titled “20120616-ReviewOfOrderDated-20120513-SecondDraft-NoMarkup.doc” to Mr. Justice Nizamul Huq. The attached document contains a draft of the Order to be passed by the Tribunal on the application filed by the Defence for review of the charge framing order dated 13 May 2012. On 18th June 2012, the Tribunal rejected the application for review of the charge framing order filed by the Defence. (Copies of the said email dated 16th June 2012 and the order of the Tribunal dated 18th June 2012 are annexed herewith and marked as Annexure- K series. )
26. In an e-mail dated 15th June 2012, Dr. Ahmed Ziauddin sent a document titled “120612-GaTransferRecusePetition.doc” to Mr. Justice Nizamul Huq containing an order to be delivered by the tribunal on the application filed on behalf of Ghulam Azam for the recusal of Mr. Justice Nizamul Huq (whom the Defence declared as unfit to be a Judge of the Tribunal – and thus wanted him recused), and/or transfer of the case of Professor Ghulam Azam from Tribunal-1 (which Justice Huq used to preside) to Tribunal-2. By comparing the order sent by Ahmed Ziauddin and with the order passed by the Tribunal dated 18th June 2012 it is clear that the tribunal has disposed of the application for transfer/recusal as per the dictates of Ahmed Ziauddin. (Copies of the said email dated 15th June 2012 and the attachments thereto and the order of the Tribunal dated 18th June 2012 are annexed herewith and marked as Annexure- L series. )
Witness selection and tutoring:
27. The conversations between Mr. Justice Nizamul Huq Nasim and Dr. Ahmed Ziauddin clearly show that they had discussions not only as to who should depose as Prosecution Witness, but also as to the contents of the deposition. The conversation also gives us an indication of extensive witness tutoring being conducted at the instance of Dr. Ahmed Ziauddin. Furthermore, there is clear evidence of the Tribunal, Dr. Ahmed Ziauddin and a section of the Prosecution determining the contents of the deposition of the Prosecution Witnesses.
28. In a conversation on 10th September 2012, Dr. Ahmed Ziauddin said that the deposition of Advocate Sultana Kamal should not be too long as otherwise she would be subjected to ‘too many questions’ during cross-examination. The relevant excerpt of the conversation of 10th September 2012 is reproduced below:
Ahmed Ziauddin: Has witness hearing been done today? Has he given the first half?
Nizamul Haque Nasim: Yes, only first half.
Ahmed Ziauddin: Alright, that means it ran for 3 hours? This much testimony was delivered?
Nizamul Haque Nasim: About two hours.
Ahmed Ziauddin: This much wasn’t necessary, less than this could do. They will ask about these again.
29. In a conversation on 13th September 2012, Mr. Justice Huq also stated that the deposition of Sultana Kamal was ‘high class’ and that according to his assessment, no further witnesses were required in the case of Ghulam Azam (apart from witnesses regarding the Siru Miah killing and a few seizure list witnesses). The relevant excerpt of the conversation of 13th September 2012 is reproduced below:
Ziauddin: I wonder what Mr. General [Shofiuddin] will say....
Nizamul Haque: I don’t need Mr. General. Sultana kamal’s tesimony is very high class testimony.
Ziauddin: Yes, that right. after listening to her, if you say that it’s not necesary, then it’s not. Then He will be excluded. ...
Ziauddin: Alright. Let it be, what is your assessment.
Nizamul Haque: My assesment is, witness is not required. Now there is the seizure list and that murder case.
30. Later on 15th September 2012, Dr. Ahmed Ziauddin expressed his satisfaction with the deposition of Sultana Kamal noting that she had realized which points to emphasise after a ‘good number of discussions’ with her and ‘supplying her all relevant information’.
31. During the conversation of 15th September, Mr. Justice Nizamul Huq also stated that the incidents of 19th March 1971 in Joydebpur Park should be brought on record so as to facilitate in the delivery of his judgment. Dr. Ziauddin however expressed his dissatisfaction with Major General (Retd) Shafiullah’s capacity to depose as Prosecution Witness, stating that Maj General(Retd) Shaifullah does not have a good memory and that he has the ‘attitude of a commander’ and that both he and Prosecutor Zead Al Malum were concerned that Shafiullah would portray the Pakistan Army as the ‘main protagonist’. Dr. Ahmed Ziauddin also went on to say that Maj General (Retd) Shafiullah was a ‘heavy weight witness’ and that if his deposition was off mark, it would create major problems. Thus, during the conversation, Dr. Ziauddin, stated, amongst others, as follows:
But he has no ….. on this Mr. General. And Mr. General can’t keep it in mind even he is told. In addition, he still has the attitude of a commander, for example he like to speak about the fights he have fought, he says that the army fought the fight. These parts have a probability to take this towards the war. This is why, Mr. Malum’s view is, we want to avoid the war issue, because though his speech if we show that a real war took place here and the Pakistani army is the main protagonist and these people who were here are not important, I mean they are….., I mean if they can establish that through his speech, that what actually happened was an war, and that won’t be comfortable for us.
32. In the same conversation of 15th September 2012, Mr. Justice Nizamul Huq Nasim suggested that since Muntasir Mamun would be returning to the Tribunal to depose, the incidents of 19th March 1971 could be brought on record by re-examining him Dr. Ahmed Ziauddin readily agreed to the proposal stating that Muntasir Mamun was a ‘historian’ and could be accepted as an ‘authoritative witness’ and that the ‘back-up plan’ was to ‘fill up the gaps’ in the evidence by re-examining him. Thus, Dr. Ziauddin stated as follows:
33. In a conversation on 12th October 2012, Mr. Justice Huq candidly stated to Dr. Ziauddin how the Prosecutor Sultan Mahmud, by making unnecessary objections with regard to recording of depositions of Prosecution Witnesses was in fact unwittingly weakening the Prosecution case against Ghulam Azam. Mr. Justice Huq also severely criticized the Prosecutor Sultan Mahmud and explained to Dr. Ziauddin how he had to intervene to ensure that the deposition was not recorded in a manner which would not be prejudicial to the case of the Prosecution. The relevant excerpts of the transcripts of the conversation on 12th October 2012 is reproduced below:
The IO [Invsetigation Officer] is saying that there was no jail in Brahmanbariya, there was a cantonment controlled by the Army. Simon is saying that it should be retaken. As this will establish Brahmanbariya administration, It is not possible to go to ........ . Then the ....... will go towards inposibility. And everything is possible in impossibility. Simon is saying that it should be retaken that it was in the control of the Army. ........ The whole country was under Control of the Army, is there any need to say that separately? ...is there any need to say that? Sending ....... was not possible as the Administration was there. If they send ...... , tell them that the prosecution said so. Have sent to Bagura jail. Not ....... . The case will become weak if Army control is mentioned. I’m with it..... understands nothing.
34. That furthermore on 16th October 2012, the Defence filed applications for issuance of summons upon Professor William Schabas and Sir Jack Deverell to appear as expert witnesses in the instant case. On the same day (i.e., 16th October 2012), Mr. Justice Huq had a conversation with Dr. Ziauddin during the course of which, the former asked the latter as to what order he should pass on the application. In the same conversation, both Mr. Justice Huq and Dr. Ziauddin agreed that the application should be rejected with the observation that the Defence is at liberty to produce the two foreign witnesses. On 18th October 2012, the Tribunal rejected the application of the Defence for issuance of summons. Thus, it is apparent that the former Chairman of the Tribunal and Dr. Ziauddin were instrumental in ensuring that the orders of the Tribunal were delivered as per the dictates of Dr. Ziauddin. (A copy of the said order dated 18th October 2012 is annexed herewith and marked as Annexure- M.)
Collusion between Tribunal and the Prosecution:
35. The conversation between Mr. Justice Huq and Dr. Ziauddin reveal the manner and extent of collusion between the Tribunal and the Prosecution in determining the course of proceedings of the cases pending before the Tribunal. Mr. Justice Huq had regular meetings with the Prosecutors during which decisions were taken regarding filing of petitions by the Prosecutors and passing of orders thereon by the Tribunal. Not only that, Dr. Ziauddin played an important role in advising the erstwhile Chairman and the Prosecutors, often acting as a conduit for the exchange of information between the Tribunal and the Prosecution. These conversations clearly establish that the Tribunal had been acting in collusion with the Prosecution to secure conviction of the accused persons.
36. On 8th September 2012, Mr. Justice Huq told Dr. Ziauddin that in a discussion with the Chief Prosecutor, he had told him that in the case of ‘No. 1’ (i.e., Ghulam Azam), no adjournments would be given and that if the Prosecution is able to produce witnesses, this case will continue. Thus Mr. Justice Huq stated as follows:
Nizamul Haque Nasim: I have told him that, “let me tell you something, we won’t give any adjournment for the Case no: 1. We will continue if you can bring witness. And we won’t stop the proceedings of this case for another case. This will always be the first.
37. It is stated that a large part of the conversation of 8th September shows how the former Chairman of the Tribunal, the Prosecution and Dr Ziauddin were working together to determine the pace at which the trials should run and as to the scope of the Tribunal-1 delivering judgment in the case of Ghulam Azam before any other case. The Accused Petitioner will refer to relevant excerpts of the transcripts of the conversation of 8th September as reproduced in The Daily Amar Desh at the time of hearing of the instant application.
38. On 13th September, Mr. Justice Huq told Dr. Ahmed Ziauddin that if he needed a copy of the day’s proceedings (i.e., deposition of Sultana Kamal), the Prosecutor Zead Al Malum could have simply called him (Mr. Justice Huq) and obtained a copy from him and that he (the Prosecutor) could then just scan the document and send it to Dr. Ziauddin. Mr. Justice Huq himself also stated that the normal process is to make a formal application for certified copy, which naturally takes time. He expressed disappointment that the Prosecutor did not call him to obtain a copy of the deposition. This conversation clearly shows that Mr. Justice Huq is in constant communication with a section of the Prosecution and that Mr. Justice Huq did not consider it improper for a Prosecutor to speak to him directly over the phone. The relevant excerpts of the transcripts of the conversation of 13th September 2012 is reproduced below:
Zia: he was supposed to send that to me
Nassim: you’ll get it on Sunday, not before.
Zia: Then there is another issue here, after doing an assessment on that now he is asking whether he has to give his …… on any other situation, if we think that….
Nassim: Malum made a mistake here. If he had given me a hint I could have given him photocopy of it. There are general rules of the court, we have to apply those. After that has been done, I would allow it and respective officer will see whether it is right or not. Then he will photocopy it.
Zia: But we need something.
Nassim: That he could tell me. He didn’t. I could have sent it.
39. In a conversation with Dr. Ahmed Ziauddin on 5th October 2012, Mr. Justice Huq said that he had summoned the Prosecutors in the evening and that he had informed them that the Prosecution case (in the case of Ghulam Azam) had now reached a stage where it could be closed after producing the Investigating Officer as the final Prosecution Witness. Mr. Justice Huq also said that he had asked the Prosecutor to file an appropriate application before the Tribunal so that he could restrict the number of Defence Witnesses. The relevant excerpts of the transcripts of the conversation is reproduced below:
Ziauddin: It should be given after the IO [Investigation officer].
Nasim: No, it’ll create gap. If after the IO I think or they think that my lord, two days need to be extended, that they can pray and we can allow that, doesn’t matter.
Ziauddin: your concern is to make sure that they can not waste much time.
Nasim: I won’t allow any gap. IO finished, argument.
40. That on 6th October 2012 (which was a Saturday, a weekly holiday), Mr. Justice Huq, upon being queried by Dr. Ziauddin, admitted that the Prosecution had come to visit him in the morning and that he had asked them to come up with an appropriate application whereupon he would pass ‘proper orders’. Mr. Justice Huq also stated that he wanted the application to be filed expeditiously by the Prosecution.
41. Pursuant to the conversation between Mr. Justice Huq and the Prosecution, the Prosecution filed an application for cancellation of the list of names of Defence Witnesses submitted on behalf the Accused Petitioner. The said application was heard on 8th and 9th October 2012. Thereafter, on 9th October 2012, the Tribunal presided by its former Chairman, Mr. Justice Huq disposed of the application for cancellation of the list of Defence Witnesses by restricting the number of Defence Wtinesses to only 12. (Copies of the said application dated 7th October 2012 and the said order dated 9th October 2012 are annexed herewith and marked as Annexures- N and N(1).)
42. In yet another conversation, on 12th October 2012 (which was a Friday, a weekly holiday), Mr. Justice Huq admitted to Dr. Ziauddin that Prosecutors had come to visit him in the morning and that they had come to a ‘common conclusion’. The relevant excerpts of the transcript of the conversation dated 12th October 2012 is reproduced below:
Zia: Did any of them come today?
Nassim: Malum and the chief came. I spoke out and they spoke as well.
Zia: are you guys being able to come to any common conclusion?
Nassim: Why not, of course we are. Did you have a talk with him yesterday?
43. Furthermore, Skype conversations show how Mr. Justice Huq, Dr. Ziauddin and a section of the Prosecution planned to have the judgment in the case of Professor Ghulam Azam delivered first. During the conversation, Dr. Ziauddin tells Mr. Justice Huq that he has spoken to the Prosecutors of Tribunal-2 who are willing to co-operate so that the cases in Tribunal-2 fall behind and Tribunal -1 can pass the first judgment in Prof. Ghulam Azam. The relevant excerpts of the transcripts of the conversation of 8th September 2012 is reproduced below:
Zia: No problem. But I think there may be some problem also. If they want to give the first judgement I will be very worried. They will try to take credits which should not be done. An d the more important thing this we don’t know the legal principles they will quote. I and Raihan talked about it on the day before yesterday. In the discussion of yesterday and the day before yesterday I have talked with the people of that case i.e. that Saiful and others.
Justice Nasim: Yes
Zia: What is their condition actually? I haven’t had the chance to talk with them much. It seems they are also very worried. May be they want to make a road map for the publicity or like this. And the target is personally you not the others. So finally it can happen despite we started much later but we’ll be able to complete the case at first. […meaning unclear]. It’s very important. They are running fast with the 3 cases, the cases of Kamarujjaman, Kader Molla and Ali. They are cutting the number of their witnesses against Golam Azom and they are after Sultana Ma’m
Justice Nasim:Yeah.
AZia:Most probably they will allow no more witnesses. If so then they have also some seizure list witness. I have been informed that they are cutting short this part also. They will only confirm the basic things like signature, date etc. of the seizure list. So they will run very fast provided that the verdict of the court has been made restricted. I think that means we think if the case of Golam Azom can be made the first case and the pace of this case should be accelerated. It is the most significant case among all the cases both politically and legally. The case will be light on construction. Both order wise and nationally this case is the most important. We have talked about it like this. […Unclear Meaning]. Brother Malum, Shipon and Taref were also present there. During the discussion they said that it will require around 25 days to complete. Most probably they have prepared a work programme on it. You can see that there are 75 more working days in this year. We can also do it. Another thing is the judgment of the tribunal 1 must come first. There is no competition here, but it does exists. The reason is a chance of inordinate negative campaign will be created on this issue. Of course they will do it. And for this, it will have to be facilitated. [… Unclear meaning]. And I am worried what they will do and what the law will do. And they have already said in public that they are not bound with the first tribunal.
Justice Nasim: I know it. [… unclear meaning]
Zia:(Laugh) He he he…hm you know this attitude. I am a bit worried about this attitude considering the entire situation. As there is publicity and the prosecutors themselves have declared their cooperation for the case of Golam.) ... On the other hand there are some political indications also. So after all our demand is both politically and legally tribunal 1 is more important the 2nd tribunal. And the target is personally you not the others. So finally it can happen despite we started much later but we‘ll be able to complete the case at first.
Justice Nasim: Golam Azam will not be the first judgment. You can take it otherwise but we will take it differently. [… unclear meaning]. So it may create a negative campaign which should not be allowed. We will engineer it if necessary. Everyone is agreed to do so. All have now realized that this case should be the first one. Our prosecutors have realized now. It seems good.
44. That the Amar Desh disclosed on 10 December, 2012 how the former Chairman of Tribunal-1 and the Prosecutor, Zead Al Malum, put on an act to show to the defence and the public that they (i.e. the Tribunal and Prosecution) are not on good terms. The Chairman tells Dr. Ziauddin over Skype that he (the Chairman) and the Prosecutor Malum have agreed that - Mr. Malum will stand up and make meaningless objections in court and the Chairman will order him to sit down. All this would be done to show to the public that there is no good relationship between the Tribunal and the Prosecution. The Chairman is heard to say the following to Dr. Ziauddin
Justice Nasim: Busy in mitigating the quarrels of two sides. Malum is over excited. He doesn’t rise with any logical points.
Zia: tell me what is that?
Justice Nizamul Haque Nasim: No there’s no reason. I have scolded and stopped him today. Later I called him in my room. Later I told him that it’s alright. I’ll stand up and you will make sit, People should see that we have no internal alliance. Hee hee hee…
Executive interference with the trial process:
45. During a conversation of 28th August 2012, Mr Justice Huq also said that a former Member of Tribunal-1, Mr. Zaheer Ahmed had been removed from the Tribunal at the behest of the Law Minister. Mr. Justice Huq stated that the Law Minister had summoned Mr. Zaheer Ahmed to his residence on the evening of 26th August 2012 and had asked him to resign and further that the Law Minister had assured Mr. Zaheer Ahmed of an appointment in the Law Commission.
46. In a subsequent conversation on 1st September, Mr. Justice Huq said that he had advised Mr. Zaheer Ahmed to tell everyone that he had resigned on medical grounds.
47. A conversation between Mr. Justice Huq and Dr. Ziauddin on 1st September 2012 clearly shows that the administrative functionaries of the Tribunal are political appointees. The two men discuss how the new Assistant Registrar, Shawkat had been involved beforehand with ICSF (which has long been campaigning for trial of Jamaat leaders) and that he was considered as reliable by them. The relevant excerpts of the transcript of the conversation of 1st September 2012 is reproduced below:
Justice Nasim: A boy……..has joined. Was he at the ICSF?
Zia: Oh! Yes Rayhan has informed me. Shaokot
Justice Nasim: You will tell him that I have been informed that you were in ICSF [International Crimes Strategy Forum]…..ok let me think….
Zia: I have met that chap in Bangladesh. He is a good boy. He has completed his study from UK. He had joined the judiciary after BCS [exams]. Yes he is ours. You can talk with him. He knows me. Tell him that I know him and he informed me that he has joined.
Justice Nasim: Ok ok.
Zia: And tell him that you got this information from me and also tell him to keep in touch with us.
Justice Nasim: Sure.
Zia: He is a good boy. He is good at judiciary….They say he has come here willingly.
Justice Nasim: Yes I have heard this
Zia: What is his designation now?
Justice Nasim: As Assistant Register.
Zia: Very good then the register office will be strengthened. Have you requested or is there any organogram?
Justice Nasim: Organogram…but we had informed them of our need but they were not getting any…)
48. On 8th September 2012, Mr. Justice Huq and Dr. Ziauddin agreed that the case of Professor Ghulam Azam should be disposed of first given that there was a ‘political signal’ regarding its disposal. The relevant excerpts of the transcript of the conversation of 8th September 2012 is reproduced below:
Zia: On the other hand there are some political indications also. So after all our demand is both politically and legally tribunal 1 is more important the 2nd tribunal.
Justice Nasim: Golam Azam will not be the first judgment. You can take it otherwise but we will take it differently. The others are not very weak and you have become the target again and again. So it may create a negative campaign which should not be allowed. We will engineer it if necessary. Everyone has agreed to do so. All have now realized that this case should be the first one. Our prosecutors have realized now. It seems good.
49. On 14th October 2012, Mr. Justice Huq stated that the Government had gone mad for a judgment and that they are extremely keen to have a judgment delivered by 16th December 2012. Mr. Justice Huq also informed Dr. Ahmed Ziauddin that he could deliver a judgment in Saydee’s case within December 2012, but not that of Professor Ghulam Azam, which would continue till January-February 2013. He also said that the Government would ‘cool down’ only after a judgment has been delivered. Transcripts of such conversation has also been published in the Economist on 15th December 2012. The relevant excerpts of the transcripts of the conversation of 14th October 2012 is reproduced below:
Government has become crazy for the verdict. If Sayeedi’s hearing finishes, I can give a verdict within December. Government has become crazy. They want a verdict.
50. In a conversation on 15th October 2012, Mr. Justice Huq stated that the State Minister for Law had visited him and that he (the State Minister) had asked him to deliver judgment in the case of Professor Ghulam Azam quickly. Mr. Justice Huq also stated that the State Minister had said that a meeting would be arranged of all the judges of the Tribunals in order to ensure that that judgment in the case of Professor Ghulam Azam before any other case. Dr. Ziauddin also indicates that a similar message was sent by him to the Law Minister. The relevant excerpts of the transcripts of the conversation of 15th October 2012 is reproduced below:
Justice Nasim: Our State Minister is going for hajj. This state…This state.
Zia: Yes
Justice Nasim: "He came to meet me in the evening and told me to deliver the judgment faster. I told him, " how can I deliver that? The judgment is not a one paged document. If I got time and dictation from you then I could have complete it within one month. Then he said, " Try to do it fast."
ZiadduiJustice Nizamul Haque Nasim:Did you say anything about what’s going to happen? Or what’s happening? Regarding this verdict?
Justice Nasim:Yes. (He said) ‘There are going to be 10 witnesses, with regards to Golam Azam. I will discuss with you about both the tribunals sitting in one room. You will put Golam Azam first and then they will put forward, they wait’. I laughed saying ‘okay you can try. Judges don’t listen to others. This is the character of a judge.’ He laughed. Whatever.
51. That in view of the statements and submissions made above, it is apparent that the entire process of the Tribunal in the instant case has been tainted by the machinations of Mr. Justice Huq, Dr. Ziauddin, a section of the Executive and a section of the Prosecution in seeking to procure a conviction of the Accused. In such circumstances, the proceedings of the instant case have been vitiated and are liable to be declared to have been a mistrial. As such, the Accused Petitioner prays for recall of the order of cognizance dated 9th January 2012 and the order framing charge dated 13th May 2012 for a direction for release of the Accused Petitioner from jail custody.
52. That it is submitted that the email communications between Mr. Justice Huq and Dr. Ziauddin show that Dr. Ziauddin was not only instrumental in the preparation of the Formal Charge (which is required to be submitted by the Prosecution under section 9(1) of the International Crimes (Tribunals) Act 1973) but also in the drafting of the order framing charge against the Accused Petitioner which was delivered by the Tribunal on 13th May 2012, and as such the entire proceedings, including the order of cognizance and the order framing charge, have been vitiated and are liable to be declared to have been a mistrial, and in such circumstances, the order of cognizance and the order framing charge are liable to be recalled for ends of justice.
53. That it is submitted that the Skype communications between Mr. Justice Huq and Dr. Ziauddin show that Mr. Justice Huq had regular meetings with a section of the Prosecutors during which decisions were taken regarding filing of petitions by the Prosecutors and passing of orders thereon by the Tribunal and as such proceedings of the Tribunal have been tainted and are liable to be declared a mistrial and in such circumstances, the order of cognizance and the order framing charge are liable to be recalled for ends of justice.
54. That it is submitted that the Skype communications between Mr. Justice Huq and Dr. Ziauddin show that Dr. Ziauddin played an important role in not only advising the erstwhile Chairman and the Prosecutors, but also acted as a conduit for the exchange of information between the Tribunal and the Prosecution, and as such the entire proceedings of the Tribunal have been vitiated and are liable to be declared a mistrial and in such circumstances, the order of cognizance and the order framing charge are liable to be recalled for ends of justice.
55. That it is submitted that the Skype communications show that Mr. Justice Huq and Dr. Ziauddin were involved in deciding not only as to who should depose as Prosecution Witness, but also as to the contents and length of the deposition and as such the entire proceedings, being a sham and an abuse of process, has been vitiated and is liable to be declared a mistrial.
56. That it is submitted that the communications between Mr. Justice Huq and Dr. Ziauddin show extensive executive interference regarding the process of the Tribunal and in such circumstances, the proceedings of the instant case have been vitiated and are liable to be declared a mistrial, and the Accused Petitioner may be released from custody for ends of justice.
57. That international law reflects common law principles in recognizing that an abuse of process justifying 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 [1993] 3 All E R 138, 151, HL, per Lord Lowry)
58. The Defence submits that the aforesaid 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. See also ICC, 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.)
59. The Defence submits that on the basis of the Chairman’s reported interactions with Dr. Ziauddin Ahmed and all the implications such interactions and communications have on the trial, in particular the lack of independence and impartiality of the judges in this case, it is impossible that the proceedings against the Accused-Petitioner can proceed with any semblance of fairness.
Conditions precedent for a retrial
60. 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.)
61. That while the Defence prays for a recall of the order of cognizance and release of the Petitioner from custody, the only alternative would be for the Hon’ble Tribunal to order a full and complete retrial. If a retrial is ordered, the Hon’ble Tribunal will kindly appreciate that it is imperative that there be a full and complete retrial which would entail the following: (1) institution of new and separate proceedings against the Accused-Petitioner; (2) a new investigation and the gathering/re-gathering of all prosecution evidence; (3) re-drafting formal charges against the Accused-Petitioner by a separate and independent pre-trial panel; (4) calling or recalling prosecution witnesses; (5) the presence of independent, international trial observers.
62. In addition, any retrial must be strictly in accordance with the Accused-Petitioner’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 is consistent with 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.
63. That the Defence submits that the recent resignation of the Chairman is by no means sufficient so as to rectify the breaches of the Accused’s right to a fair trial.
64. Furthermore, it is stated that the Hon’ble Tribunal has already suffered the departure of two of the originally appointed judges at crucial times in the case. It is now the position that none of the judges now constituting the trial panel have heard the entirety of the case. Furthermore, the absence of full audio and/or transcript recordings of the proceedings prevents the judges from being able to adequately familiarize themselves with the evidence. Human Rights Watch, in its report dated 13th December 2012 has stated as follows in relation to the case of Delwar Hossain Saydee:
“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.” (Human Rights Watch, “Bangladesh: Retrial Needed in Sayedee Case.” December 13, 2012)
A copy of the said Report of Human Rights Watch dated 13th December 2012 is annexed herewith and marked as Annexure- O
65. That Subsections 6(4) to (6) ICTA 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, the Defence emphasizes that it cannot be employed 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 all of the judges have been replaced at various stages during the course of the proceedings, and there is no continuity at all. In other words, subsections 6(4) to (6) ICTA do not apply to a situation where the Chairman has had the judgment prepared for him by an uninvolved third party, has resigned as a consequence of allegations of judicial misconduct and has been purportedly “replaced” by a new judge.
66. That under section 6(4) ICTA, 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)”.
67. That the application of strict circumstances has not been adhered to. The Tribunal in this case originally consisted of Justice Md. Nizamul Huq (Chairman), District Judge A K M Zaheer Ahmed and Justice ATM Fazle Kabir. On 25 March 2012 a new chamber was constituted, ICT-2, and Justice ATM Fazle Kabir was removed from the ICT-1 appointed Chairman of ICT-2. Evidently, Mr. Justice ATM Fazle Kabir was still deemed capable of performing his functions. He was replaced by Mr. Justice Anwarul Haque. On 29 August 2012, Mr. Justice Jahangir Hossain replaced Judge A K M Zaheer Ahmed.
68. 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, the Chairman of ICT-2, Mr. Justice ATM Fazle Kabir was appointed on 13 December 2012 as the new Chairman of ICT-1. It is respectfully stated that Mr. Justice ATM Fazle Kabir has not taken part in any of the ICT-1 proceedings for the last nine months. It is submitted that the principles of a fairness and justice will not be served if the trial in the instance case continues with a presiding judge who has not been involved in or followed the evidence, witness testimony and submissions for the larger part of a case.
69. That it is submitted that each of the Defence petitions to the Tribunal and each of the decisions made by the Tribunal will have been contaminated by the Chairman’s lack of independence and impartiality, and but for his role, may have been decided differently. Undoubtedly the trial would 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 Chairman, and to do so would amount to a miscarriage of justice.
70. Accordingly, the Defence submits that (i) the replacement of judges for invalid reasons (in particular the recent appointment of a new Chairman who has missed the vast majority of the proceedings) severely prejudices the Accused-Petitioner, particularly as the case is at an advanced stage and as the new judges would not have heard all the evidence; and (ii) notwithstanding the constitution of the bench, it is submitted that influence of the (previous) Chairman almost certainly had an adverse influence on proceedings and a prejudicial impact on the Accused-Petitioner, and (iii) but for the Chairman’s role in decisions, the course of the trial may have proceeded very differently. Therefore, the Defence submit that the instant proceedings have been vitiated and are liable to declared to have been a mistrial.
Constitutional Responsibility of a Judge and the Judiciary to Provide Fair and Impartial Justice
71. 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. (Ibid. Article 6)
Judges have a constitutional responsibility to provide fair and impartial justice, which includes a responsibility to protect citizens from unlawful acts of government.
72. Moreover, 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, (Pinochet, Re [1999] 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. The Defence submits that the former Chairman did not satisfy the requirement of being seen to be independent and impartial as set out by the House of Lords In Re Pinochet. His connection with Dr. Ziauddin and Mr. Rayhan Rashid, both supporters and frequent contributors of information for the International Crimes Strategy Forum (“ICSF”), a pro-government lobby group advocating for the conviction of the Accused, as well as the his direct involvement in the Secretariat of the People’s Inquiry Commission against the accused in 1992 strongly supports the Defence’s view that the former Chairman was neither independent, nor impartial.
73. That it is stated that impartiality of the former Chairman was subjected to a number of challenges by the Defence following the disclosure that the Chairman had been involved in the Secretariat of the People’s Inquiry Commission. This body investigated allegations of war crimes made against the Accused in 1992. The function of the Secretariat was to assist the People’s Inquiry Commission in its investigation against the Accused.
74. That despite raising serious concern of the appearance of bias against the Accused-Petitioner and the fact that the Chairman would be ruling upon evidence that he has assisted in preparing, the Tribunal refused to acquiesce to the application for recusal.
75. 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 provide sufficient grounds for the instant proceedings to be declared to be mistrial, having been vitiated, thereby necessitating a retrial in the interests of justice.
76. In light of the above arguments, the Defence pray that the Hon’ble Tribunal allows the instant application and recalls the order dated 9th January 2012 taking cognisance of the case against the Accused Petitioner and the order dated 13th May 2012 framing charges against the Accused Petitioner and issues a direction for release of the Accused Petitioner from jail custody.
Wherefore it is most humbly prayed that the Hon’ble Tribunal would be pleased to pass an order recalling the order dated 9th January 2012 taking cognisance of the case against the Accused Petitioner and the order dated 13th May 2012 framing charges against the Accused Petitioner under Rule 46A of the International Crimes (Tribunals) Rules of Procedure 2010 and pass such other or further order(s) as this Hon’ble Tribunal may deem fit and proper.
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