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 Surendra Kumar Sinha.
2. That Article 96 (4) (a) of the Constitution of 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 on 7 May 2000 (hereinafter referred to as the Code of Conduct).
3. That pursuant to clause 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. That furthermore, clause 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. Clause 3(6)(a) of the Code of Conduct provides that:
“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. That Article 148 of the Constitution provides for an oath to be taken by members of the superior Judiciary. According to the Third Schedule of the Constitution 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. That the right to an independent and impartial judiciary prescribed in the Code of Conduct is also a standard obligation to adhere to under international law. Article 10 of the Universal Declaration of Human Rights 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. That this is further 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 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 also recognised 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 Mr. Justice Surendra Kumar Sinha has been serving as an Hon’ble Justice of the Appellate Division of the Supreme Court of Bangladesh. On 31st March 2013 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 Sinha.
14. That the Appellant/Applicant prays to the Appellate Division of the Supreme Court to avail itself of the opportunity in the abovementioned provisions to order the recusal of the Hon’ble Justice as the only possible means to ensure proper dispensation of justice.
15. On 8th December 2012 the British Weekly ‘The Economist’ published a report titled ‘Discrepancy in Dhaka’, in its online edition raising questions about the integrity of the former Chairman of the International Crimes Tribunal-1. Following the publication in The Economist, the Bangla Daily Amardesh published a series of reports on the Skype communication between Justice Nizamul Haque and Ahmed Ziauddin for a period of five days from 9th December to 13th December 2012.
16. On 15th December 2012, the Economist published a long article on International Crimes Tribunal Bangladesh quoting excerpts from the 17-hour Skype conversation and 230 email communication between Mr. Justice Nizamul Haque, the former Chairman of ICT-1 and Dr. Ahmed Ziauddin, an expatriate Bangladeshi lawyer living in Brussels.
17. That in Skype conversation on 6th September 2012 published in the Daily Amar Desh dated 9th December 2012 the former Chairman of the Tribunal Mr. Justice Nizamul Haque is reported to have had a conversation with Mr. Justice Surendra Kumar Sinha. The translation of the relevant portion of the Skype conversation is reproduced below: “ ‘Sinha Babu’ (Mr. Justice Surendra Kumar Sinha) said, pass three verdicts within December. This one [Delwar Hossain Saydee], Ghulam Azam and Saqa [Salauddin Qader Chowdhury]. It would suffice to pass verdicts in these three [cases]. Then we will bring you here [to the Appellate Division of the Supreme Court]. Thereafter you will not be required to stay there [International Crimes tribunal]. This is all we talked about. I said you may do whatever you want to do, promotion should be given first. My concern is promotion.”
Relevant portion of the transcript of the conversation of 6th September 2012 is quoted below:
“নিজামুল হক নাসিম : যা-ই হোক, এই পার্টটা আগে প্রথম জাজমেন্টে দিয়া লই। তারপর বুঝা যাবে পরের জাজমেন্টে এইটা থাকবে কি থাকবে না; আর আমি পরে থাকব কি থাকব না। অনেক কিছু আছে... প্রথমটায় আমি দিব—এই হলো কথা।
আহমদ জিয়াউদ্দিন : It is very important. আপনি আবার কই যাবেন? আপনারে কি উপরের দিকে ...
নিজামুল হক নাসিম : আরে chief এ বলে, ওরা বলতাছে একটা জাজমেন্ট দাও আগে, তাইলে তোমারে নিয়া আসি।
আহমদ জিয়াউদ্দিন : একটা না, আগে বড় সাহেবের জাজমেন্টটা দিয়া আসি।
নিজামুল হক নাসিম : হা... হা... হা...। এইটা তার ল্যাংগুয়েজ আর কি, তার ল্যাংগুয়েজ।
আহমদ জিয়াউদ্দিন : বড় মিয়া আবার ওইটার জন্য ওয়েট করতে কিসের জন্য?
নিজামুল হক নাসিম : এদের ভিউ হইল অ্যাপিলেইট ডিভিশনের জাজদের ট্রাইব্যুনালে রাখবে না। আর গভার্নমেন্ট অ্যাডামেন্ট এদের রাখবেই। হের পর কী হইবে আল্লাহই জানে। হা... হা... হা... । আমি তো বলছি স্যার, আপনারা শিলপাটায় ঘষাঘষি করেন আর মাঝখানে আমার অবস্থা কাহিল। হা... হা... হা...। আমার আর প্রোমোশন হইবে না।
আহমদ জিয়াউদ্দিন : আমি ওইটাই কইতাছি—আপনি পাটাপুতার মাঝখানে পইড়া যাইয়েন না আর কি।
নিজামুল হক নাসিম : হ্যাঁ, সেইটাই।
….
নিজামুল হক নাসিম : উনি কয় একটা দেন। সিনহা বাবু কইছে, ডিসেম্বর এর মধ্যে তিনটা দেন। এইটা, গোলাম আযম সাহেবের, আর সাকা। এই তিনডা দিয়া ফালাইতে পারলেই হইছে। তারপরে নিয়ে আসি আপনারে আমরা এইখানে। এরপরে ওহানে আপনারে আর লাগবে না। এই হইছে কথা আর কি। আমি কইছি, যা করেন করেন, প্রমোশনডা দিয়া লন আগে। আমার কতা প্রমোশন, হা... হা... হা...।“
English translation (unofficial)
Justice Nassim: I will see it later but in the first judgment I will give it. I don’t know whether I will be here but the fact is in the first judgment I will place it.
Ziauddin: It’s very important. Where will you go again?
Justice Nassim: Let a judgment commence. I will bring you here.
Ziauddin: Not the only one after the final judgment…
Justice Nassim: His language….his language…
Ziauddin: Big brother has told me to wait for this…
Justice Nassim: Their view is they will not place the judges of appellate division and they place there the government adamant judges. I said, “Sir, then I will not get the promotion.”
Ziauddin: You will be the victim that’s all. I can’t understand their view. This is always happening. You are in high court division now, you are dealing with the appellate division. Now you are doing this.
Justice Nassim: They can do anything…
18. Following the publication of the Skype conversation in the Economist and the Daily Amardesh Mr. Justice Nizamul Haque resigned.
19. The Accused/Applicant would like to state here specifically that at no point of time from December 2012 till today, any denial has been made by the Registrar of the International crimes Tribunal or by Mr. Justice Nizamul Haque denying the contents of the Skype conversation or the email communication between him and Dr. Ahmed Ziauddin. The Applicant would further state that no denial has been made by the Registrar of the Supreme Court on behalf of Mr. Justice Surendra Kuman Sinha that he [Mr. Justice Sinha] had had no such conversation with Mr. Justice Nizamul Haque. It is common knowledge that no one- the Ministers, the Judges, the Prosecutors or the expatriate Bangladeshis who have been implicated in the Skype conversation and email communication have ever denied their involvement. On the other hand in his Order dated 6th December 2012 issuing contempt proceedings against the Editor and one other of the Economist, Mr. Justice Nizamul Haque admitted his conversation with Dr. Ahmed Ziauddin.
20. That it is apparent from the above conversation that Mr. Justice Surendra Kumar Sinha assured him of elevation to the Appellate Division of the Supreme Court if he [Mr. Justice Nizamul Haque] passes three verdicts. This amounts to an unlawful interference in the proceedings pending before the Tribunal. In doing so, he has disqualified himself from sitting as a judge in any Appeal from any Judgment of the Tribunal.
21. That in the alternative, Mr. Justice Surendra Kumar Sinha’s proposal of elevating Mr. Justice Nizamul Haque to the Appellate Division raises serious concerns of appearance of bias against all the Accused before the Tribunal including the Appellant. By such conduct, Mr. Justice Surendra Kumar Sinha has eroded his credibility within the meaning of the provisions of the Code of Conduct and threatened the integrity and independence of the Appellate Court i.e., the Appellate Division of the Supreme Court which is hearing the instant Appeal.
22. That further, Mr. Justice Surendra Kumar Sinha 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).
23. It is respectfully submitted that this is not a matter that the Appellate Division of the Supreme Court need conduct an extensive examination as to actual bias of the Hon’ble Justice. 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 assurance to the former Chairman of the Tribunal of elevation to the Appellate Division.
24. 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.”
25. 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.”
26. 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 offering promotion to the former Chairman of the Tribunal.
27. This situation renders the inclusion of Mr. Justice Surendra Kumar Sinha 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 Appellant, 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. That for the abovementioned reasons in this application, the Appellant/ Applicant 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 Surendra Kumar Sinha.
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 Surendra Kumar Sinha in Criminal Appeal No. 25 of 2013 pending before this Hon’ble Court and pass any further order(s) as it may deem fit and proper.
