3 Apr 2013: Mollah, App Division - Justice Manik written recusal application

This is the written application filed on 3 April 2013 by Abdul Quader Mollah's defence team seeking the recusal of Mr. Justice AHM Shamsuddin Choudhury (Manik). Note that this was filed along with another similar application relating to Justice Sinha. It is not yet known when the applications will be heard.

1. That this application has been filed pursuant to the Code of Conduct for the Judges of the Supreme Court of Bangladesh and the oath of office provided for under Article 148 of the Constitution of the People’s Republic of Bangladesh and prescribed in the Third Schedule, seeking the recusal of Mr. Justice AHM Shamsuddin Choudhury.

2. That Article 96(4)(a) of the Constitution Bangladesh provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published in 7 May 2000 (hereinafter: Code of Conduct).

3. Pursuant to section 1 of the Code of Conduct: “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.”

4. Furthermore, section 2 of the Code of Conduct provides that:
“(2) A judge should avoid impropriety and the appearance of impropriety in all activities.
(2A). A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

5. That the Code of Conduct also provides for instances when a judge should disqualify himself from the proceedings. Under Article 3(6)(a) of the Code of Conduct “The judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.”

6. The Code of Conduct stipulates that any act: “which erodes the credibility and independence has to be avoided. The Code of Conduct is only restatement of values of judicial life and is not meant to be exhaustive but illustrative of what is expected of a judge.”

7. Article 148 of the Constitution also provides for an oath to be taken by members of the Judiciary. This is prescribed in the Third Schedule of the Constitution and provides that a judge will solemnly swear or affirm that he will: “faithfully discharge the duties of [his] office according to law: That [he] will bear true faith and allegiance to Bangladesh: That [he] will preserve, protect and defend the Constitution and the laws of Bangladesh: And that [he] will do right to all manner of people according to law, without fear or favour, affection or ill-will.”

8. Pursuant to the preamble of the Code of Conduct, in taking this oath a judge is subject to the provisions of the Code of Conduct including those explicitly referred to in this application.

9. The right to an independent and impartial judiciary prescribed in the Code of Conduct is also a basic obligation to adhere to under international law. Article 10 Universal Declaration of Human Rights (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.”

10. This is reiterated under Article 14 (1) of the International Covenant on Civil and Political Rights (ICCPR), which provides that all persons are: “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The UN Human Rights Committee which is tasked with upholding the provisions of the ICCPR has held that: “The impartiality of the court and the publicity of proceedings are important aspects of the right to a fair trial within the meaning of Article 14 (1). ‘Impartiality’ of the court implies that judges must not harbor preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties. Where the grounds for disqualification of a judge are laid down by law, it is incumbent upon the court to consider ex officio these grounds and to replace members of the court falling under the disqualification criteria. A trial flawed by the participation of a judge who, under domestic statute, should have been disqualified cannot normally be considered to be fair or impartial within the meaning of Article 14.” (Karttunen v. Finland [387/89])

11. This fundamental right to an independent and impartial Judge is further upheld in Article 40(1) of the Rome Statute for the International Criminal Court (ICC), which provides that “[t]he judges shall be independent in the performance of their functions”. The disqualification of a judge is outlined in Article 41(2)(a) ICC: “A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground.”

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

13. That on 28th March, 2013 Mr. Justice AHM Shamsuddin Choudhury was appointed as a Hon’ble Justice of the Appellate Division of the Supreme Court of Bangladesh. On 31st March 2013 he took oath as a Justice of the Appellate Division. On the same day the Hon’ble Chief Justice constituted a bench of the Appellate Division to hear the instant Appeal comprising six Hon’ble Justices of the Appellate Division including Mr. Justice Choudhury.

14. That the actions of Mr. Justice AHM Shamsuddin Choudhury in attending a meeting with the members of Awami League and Ghatak Dalal Nirmul Committee on 1st April 2010 and the International Jurists Conference, organised by the International Council of Jurists on 21st June 2011 both in London and addressing the latter on the International Crimes (Tribunal) Act 1973, the practice and procedure of the International Crimes Tribunal (hereinafter: ‘the Tribunal') and the nature and conduct of the trials has eroded his credibility and threatened the integrity and independence of the appeal proceedings before the Appellate Division of the Supreme Court of Bangladesh.

15. That on 1st April 2010 Mr. Justice AHM Shamsuddin Choudhury attended a meeting of the members of Awami League and Ghatok Dalal Nirmul Committee at the Dockland Memsab Restaurant in East London. It is stated that both the Awami League and the Ghaok Dalal Nirmul Committee had campaigned for the trial of the Respondent as a war criminal. In the said meeting the leaders of Awami League and Mr. Shahrier Kabir, the Acting President of the Ghatok Dalal Nirmul Committee were present and they were campaigning for the trial of alleged war criminals in Bangladesh. This was reported on 9th April 2010 in the Daily Amar Desh. It is respectfully submitted that the presence of the Honourable Judge in the said meeting to support the cause of the Awami League and the Ghatok Dalal Nirmul Committee who had actively and publicly campaigned for trial of the Respondent as a war criminal is a evidence of bias and sufficient to disqualify him to be a judge in the instant appeal.

16. Further on 21st June 2011 Mr. Justice AHM Shamsuddin Choudhury attended a public meeting at the Crowne Plaza Hotel, London and launched a public attack on a member of the defence team of the Tribunal and then proceeded to speak about the Tribunal, the legal framework, the practice of the Tribunal and the trials. In particular the Hon’ble Justice declared, in his detailed presentation, that the trial process met international standards and that the criticisms raised by the defence were without foundation. It is respectfully submitted that the Hon’ble Justice made a number of public declarations that concern a number of matters that are now subject to appeal.

17. That further, Mr. Justice AHM Shamsuddin Choudhury being a sitting judge of the Supreme Court of Bangladesh is bound by the Code of Conduct for the Judges of the Supreme Court of Bangladesh and the oath of office provided for under Article 148 of the Constitution of the People’s Republic of Bangladesh and prescribed in the Third Schedule. Article 96 (4) (a) of the Constitution provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published on 7 May 2000 (hereinafter referred to as the Code of Conduct).

18. At the public meeting on 21st June 2011 the Hon’ble Justice went further than merely commenting on the general legal and constitutional framework. The Hon’ble Justice gave a detailed account of the legal and constitutional framework, dismissing the numerous concerns raised by the defence as to lack of due process, and further by discussing matters that were sub judice and expressing an opinion on their eventual outcome, there is reasonable doubt that the Respondent will now receive a fair hearing and the Hon’ble Justice will dispense justice according to his oath on the basis of the public remarks he made on 21st June 2011. It is further submitted that a number of the Hon’ble Justice’s remarks amounted to political statements unbecoming a member of the Judiciary.

19. It is respectfully submitted that this is not a matter that the Appellate Division of the Supreme Court need conduct an extensive examination into – there is little doubt that the Hon’ble Justice attended the meetings and made the public declarations – the question is whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his attending the meetings dated 1st April 2010 and 21st June 2011 and making such public declarations.

20. In Prosecutor v. Issa Hassan Sesay, Case No. SCSL-2004-15-AR 15, the Special Court for Sierra Leone Appeals Chamber referred to the two authorities cited above in determining whether Justice Geoffrey Roberston QC should be properly disqualified for commenting on the nature of the conflict in a book. The Appeals Chamber concluded, as per Justice King, at para. 15: “It is irrelevant for the purposes of this Ruling whether or not the passages hereinbefore referred to are true or not. The learned Justice is entitled to his opinion. That is one of his fundamental human rights. The crucial and decisive question is whether an independent bystander so to speak, or the reasonable man, reading those passages will have a legitimate reason to fear that Justice Robertson lacks impartiality. In other words, whether one can apprehend bias. I have no doubt that a reasonable man will apprehend bias, let alone an accused person and I so hold.”

21. Justice King, in giving judgment, concluded by referring to R v. Sussex Justices, Ex party McCarthy (1923) 1 KB 256 at p. 259 that “Justice must not only be done, but should manifestly be seen to be done.”

22. It is respectfully submitted that the overriding question in the instant case is not that of the Hon’ble Justice’s integrity, but whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his attending the meeting and conference dated 1st April 2010 and 21st June 2011 respectively and making the public declarations.

23. The pubic declarations that the Hon’ble Justice made were at the event of the International Conference of Jurists, organised by the International Council of Jurists, in London on 21st June 2011. At the event a member of the defence team, foreign counsel, Mr. Toby Cadman, gave a short presentation on the Tribunal, the legal and constitutional framework and set out where he believed the practice and procedures fell short of recognised international standards. The Hon’ble Chief Justice, in the company of Mr. Justice AHM Shamsuddin Choudhury, was present at the conference to receive an award from the International Council of Jurists. During Mr. Cadman’s brief address both the Hon’ble Chief Justice and Mr. Justice AHM Shamsuddin Choudhury walked out in protest. Following Mr. Cadman’s address, Mr. Justice AHM Shamsuddin Choudhury, gave an impromptu presentation in which he made a number of remarks attempting to positively assert that the legal framework met international standards. It was widely reported in the media that “Justice Chowdhury explained in detail the legal procedure adopted in the trial of the war criminals and made it clear that all steps had been taken toward ensuring a trial process based on internationally accepted standards” (http://www.thedailystar.net/newDesign/news-details.php?nid=191143)).

24. It is submitted that the international community namely Human Rights Watch (HRW), Amnesty International, International Bar Association (IBA), International Centre for Transitional Justice (ICTJ), Human Right Committee of the Bar of England and Wales, in one word have criticised that the International Crimes (Tribunal) Act 1973 and the Rules of Procedure framed by the Tribunal thereunder falls far below the International Standard. In this context the Respondent has taken a specific ground in the Criminal Appeal filed before this Hon’ble Court. In that view of the matter Mr. Justice AHM Shamsuddin Choudhury has already taken a view that the legal procedure adopted in the Trial by the Tribunal conforms to the internationally accepted standards, the Respondent/Applicant will be seriously prejudiced if he does not recuse himself from the appal proceeding before the Hon’ble court.

25. It is respectfully submitted that the matters covered by the Hon’ble Justice in his public address on 21st June 2011 now concern the same matters that form the basis for the instant appeal. The fact that the Hon’ble Justice publicly disclosed his position prior to his appointment as Judge in the instant appeal raises significant doubt as to his impartiality.

26. That on 25th September 2012 the Acting Editor of the Daily Amar Desh submitted an application before the Registrar of Supreme Court of Bangladesh for initiation of proceeding under Article 96(4) of the Constitution against Mr. Justice AHM Shamsuddin Choudhury by the Supreme Judicial Council alleging violation of the provisions of the Code of Conduct, Money Laundering Prevention Act 2002, the Foreign Exchange Regulation Act 1947 and Income Tax Ordinance 1984. On the same day he made a representation before the Hon’ble President of Bangladesh for taking appropriate action against Mr. Justice AHM Shamsuddin Choudhury under Article 96(5) of the Constitution in this regard. Subsequently this representation was forwarded by the Hon’ble President to the Ministry of Law and Parliamentary Affairs for taking appropriate measures in accordance with law. It is specifically stated that the applications for initiation of proceeding against Mr. Justice AHM Shamsuddin Choudhury under Articles 96(4) & (5) have not yet been disposed of. As such during the pendency of these applications Mr. Justice AHM Shamsuddin Choudhury is disqualified from hearing the instant appeal.

27. This situation renders the inclusion of Mr. Justice AHM Shamsuddin Choudhury on the bench in the instant appeal at odds with the integrity and independence of Appellate Division of the Supreme Court, contrary to the provisions of the Code of Conduct and ultimately precluding justice being done for the Respondent, and indeed any person seeking to appeal against a conviction by the International Crimes Tribunal.

28. Article 27 of the Constitution provides that: “All citizens are equal before the law and are entitled to the equal protection of law.”

29. The principle of equality of arms is a basic obligation under international law. It is implicit in Article 7 UDHR which provides that: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

30. This principle is reiterated in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) which provides that: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

31. The UN Human Rights Committee tasked with upholding the provisions of the ICCPR held in De Jorge Asensi v. Spain (Communication No. 1413/2005) that: “Although Article 14 does not explain what is meant by a “fair hearing” in a suit at law, the concept of a fair hearing in the context of article 14, paragraph 1, of the Covenant should be interpreted as requiring certain conditions, such as equality of arms [the Accused-Petitioner’s emphasis] and absence of arbitrariness, manifest error or denial of justice.” (Also the Committee’s general comment No. 32, para. 26, (2007) on article 14 of the Covenant, “Right to equality before courts and tribunals and to a fair trial”)

32. This fundamental principle of equality of arms is also set out in Article 67(1) ICC which provides that: “In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality”.

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

34. Under international law, the procedure for determining impartiality is highly important. If an accused raises the issue during the proceedings it must be investigated unless it is “devoid of merit”. This requires the court to determine whether, apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect the position is very clear. If there are legitimate reasons to doubt the impartiality then that judge must withdraw from the case. In Piersack v. Belgium (Application No. 8692/79, Judgment of 1 October 1982, paras 30-32) it was held to be a violation where the trial judge had previously been a member of the department who investigated the applicant and who had initiated the prosecution against him. In Piersack the European Court of Human Rights held:

“30. Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. …

However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.”

35. It is respectfully submitted that the integrity of the proceedings and the process must be paramount.

36. It is respectfully submitted that the Appellate Division of the Supreme Court may take into account the established international jurisprudence on the question of objective impartiality in properly addressing the question of whether the Hon’ble Justice should recuse himself. In Regina v. Bow Street Metropolitan Stipendary Magistrates and others, Ex parte Pinochet Ugarte (No. 2) (House of Lords) 1 AC 119 which held that:

“…the fundamental principle that a man may not be a judge in his own cause was not limited to the automatic disqualification of a judge who had a pecuniary interest in the outcome of a case but was equally applicable if the judge’s decision would lead to the promotion of a cause in which he was involved together with one of the parties…that in order to maintain the absolute impartiality of the judiciary there had to be a rule which automatically disqualified a judge who was involved…in promoting the same causes…as was a party to the suit”. 

“The court cannot rely on its knowledge of the integrity of the judge concerned to outweigh the appearance of bias to the eye of the bystander. The reference point must remain the reasonable observer. This is consistent with the test laid down under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms”. 

“…I am of the opinion that there could be cases where the interests of the judge in the subject matters of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation”.

37. In Prosecutor v. Anto Furundzija, ICTY Appeals Chamber: 21 July 2000: Case No. IT – 95 – 17/1, the ICTY Appeals Chamber held:

“The fundamental right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial.” [para. 177]
“On this basis the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the statute: 

A. A Judge is not impartial if it is shown that actual bias exists. 

B. There is an unacceptable appearance of bias if: (i) a judge is a party to the case, or has a financial or propriety interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or (ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.” [para. 189].

38. That as a State Party to the Rome Statute of the International Criminal Court there is an obligation to apply the general principles to which it adheres. The Rome Statute sets up a framework of complementarity. The purpose of this complementarity principle is in order to establish a uniform system to try serious crimes. Admittedly this complimentary principle is only triggered in a situation where the ICC can itself take jurisdiction over the case if the national courts are unwilling or unable to proceed. However, it is the spirit of the complementarity principle that creates a number of legal obligations. The ICC was established to try and punish the most serious violations of human rights in cases where national justice systems fail at the task. It is deemed a model in international criminal justice. It must be highlighted that over 120 states participated in the negotiations at the Rome Conference which formulated the Rome Statute in 1998. Under international customary law and applying the principle of the Vienna Convention on the Law of Treaties when a State consents to be bound by a treaty it constitutes a promise to adhere to the principles in the document and to honour its spirit. It is obliged not to defeat the object and purpose of the treaty. The object and purpose of the Rome Statute is enshrined in both Article 17(2) above and the preamble of the Rome Statute which provides that State Parties to the Rome Statute are: “resolved to guarantee lasting respect for and the enforcement of international justice”. It affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished at their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation”.

39. Reference must also be made to the public statements made by the Government of Bangladesh at the ceremony when it officially became a State Party and to the numerous public statements since that time to upholding the highest international standards. At the 65th Session of the United Nations General Assembly, the Hon’ble Prime Minister of Bangladesh stated:

“Bangladesh has established an International Crimes Tribunal to try persons responsible for war crimes and crime against humanity, including genocide, arson and rape committed during our war of liberation in 1971, and immediately thereafter. This action is in accord with the rule of law as reflected in the Rome Statute of the International Criminal Court (ICC), which we have ratified and which aims at bringing perpetrators of war crimes, genocide, and crimes against humanity, to justice. I believe that only justice can heal the unforgivable, deadly wrongs of the past.”

40. The Hon’ble Prime Minister clearly expressed the need to maintain the highest standards according to the legal framework of the Rome Statute of the International Criminal Court.

41. It is respectfully recalled that the UN Human Rights Committee has held that in relation to the right under Article 14(1) of the ICCPR that “all persons shall be equal before the courts and tribunals” and that “in the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” is an absolute right that may suffer no exception (see Communication No. 263/1987, M. Gonzalez del Río v. Peru (Views adopted on 28 October 1992), in UN doc. GAOR, A/48/40 (vol. II), p. 20, para. 5.2).

42. Firstly, independence must be institutional and functional and to determine whether the court or tribunal meets the requirements of independence, regard must be had to the manner of appointment of its members and their term in office, the existence of guarantees from external pressures and the question of whether the body has the appearance of independence.

43. Secondly, the concept of impartiality may in many cases overlap with independence. However, in order to ascertain whether the requirement is met, a test that is both subjective and objective must be applied (Eur. Court HR, Saraiva de Carvalho v. Portugal, judgment of 22 April 1994, Series A286-B, p. 38, para. 33). Whilst impartiality normally denotes the absence of prejudice or bias, its existence or otherwise can, notably under Article 6(1) of the ECHR, be tested in a variety of ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and the objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. For subjective impartiality to be made out actual proof of bias needs to be established and the personal impartiality of the judge is presumed unless there is proof to the contrary. The personal friendship between the trial judge and the Executive may not be sufficient in itself to prove actual bias. For objective impartiality to be made out the test is less strict and is fashioned on the maxim justice must not only be done: it must be seen to be done. This requires the court to determine whether, apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this regard the position is very clear. If there are legitimate reasons to doubt the impartiality then the judge must withdraw from the case.

44. The procedure for determining impartiality is highly important. If an accused raises the issue during the proceedings it must be investigated unless it is “devoid of merit”.

45. It is further recalled that on 7th February 2013 the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Christof Heyns, issued a public statement expressing alarm and declaring that “Capital punishment may be imposed only following proceedings that give all possible safeguards to ensure a fair trial and due process, at least equal to those stipulated in the International Covenant on Civil and Political Rights, to which Bangladesh is a State party.” The United Nations Special Rapporteur on the Independence of Judges, Prosecutors and Lawyers, Ms. Gabriela Knaul, further stated raised concerns about “the impartiality of judges and prosecution services of the Tribunal, as well as their independence from the executive.” The Special Rapporteurs stated jointly that any shortcomings in the trial proceedings should be carefully examined during any appeal and noted that “A credible appeal process also constitutes an imperative component of fair trial guarantees, particularly in instances, where the death penalty has been imposed.”

46. In this regard the fact that the Hon’ble Justice has attended meetings of the Awami League and the Ghatok Dalal Nirmul Committee to support their cause to try the Respondent as a war criminal and made a series of public declarations on the nature and conduct of the trials, matters which now form the basis for the appeal, there is a sufficient basis to make out a claim of actual bias. Furthermore, the objective standard of justice must be seen to be done may be made out by reference to the pubic declarations that now warrant the immediate recusal of the Hon’ble Justice.

47. That the Respondent humbly prays that the Appellate Division of the Supreme Court will avail itself of the opportunity to issue an order directing for the immediate recusal of Mr. Justice AHM Shamsuddin Choudhury.

Wherefore, it is most humbly prayed that your lordships may be graciously pleased to issue an order directing for the immediate recusal of Mr. Justice AHM Shamsuddin Choudhury in Criminal Appeal No. 24 of 2013 pending before this Hon’ble Court and pass any further order(s) as it may deem fit and proper.