18 Oct 2012: Azam order on foreign witnesses

The chairman started the day's proceedings by passing an order in relation to an application made by  Ghulam Azam. A summary is below:

The defence on the matter of Professor Ghulam Azam’s case has submitted a petition for issuing summons to produce two witnesses- namely General Jack Deveral KCB OBE and Professor William Scbaz. According to the view of the defence- they may produce anyone as their witness but it is to be limited within the number- 12. Having considering all the views we are not inclined to issue Summons for the production of the following witnesses. So the petition is rejected.

18 Jun 2012: Azam indictment review order

Following reading out its order relating to recusal/transfer, the tribunal then read out its order relating to the application to review the indictment order.

1. The application filed by the Accused, Professor Ghulam Azam, for review of Order No. 25 dated 13.05.2072 under Rule 26(3) of the International Crimes Tribunal Rules of Procedure, 2010 is taken up for order today, which we now read out in the absence of the accused who has not been produced before this Tribunal today on the prayer of the learned defence.

2. This review application was filed by the Accused challenging this Tribunal's Order No.25 dated 13.05.2072 (the indictment order). It was an application for discharge of the accused from the crimes he was indicted by the Tribunal for alleged offences under sections 3(2), 4(1) and, 4(2) of the International Crimes Tribunals Act 1973 Submission by the learned defence counsel on behalf of the accused

3. The learned counsel of the accused Mr Abdur Razzak made the following submissions before this Tribunal in support of the application seeking review of the indictment Order against Ghulam Azam, the accused

4. First, it was submitted by the accused counsel that the said Order indicting the accused has been passed in violation of section 16(1) of the Act and Rule 38(1) of the Rules.

5. The learned counsel. quoted section 16(1) of the Act as follows: "16(1) Every charge against an accused person shall state. (a) The name and particulars of the accused person. (b) The crimes of which the accused person is charged (c) Such particulars of the alleged crimes as are reasonably sufficient to give the accused person notice of the matter which he is charged.

6. The learned counsel also quoted Rule 38(1) of the rules of procedure as follows: ‘If after consideration and hearing under Rule 37, the Tribunal is of opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offences of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.’ 

7. Relying on the above provisions, the learned counsel for the accused submitted that the charges that have been finally framed against the accused petitioner do not have any legal basis. It was also submitted that they do not contain sufficient factual information which may be considered as sufficient notice of the accused of the charges that have been levelled against him, thus would result in an unfair trial by both domestic and international standard. Elaborating thee point, it was further submitted that a charge is made up of both legal and factual components, but the Order of the Tribunal that finally framed the charges against the accused, failed to specify the particulars of the crime which have been allegedly committed by the accused petitioner, in addition to failing to specify which of the crimes mentioned in section 3(2) of the Act had actually been allegedly committed by the petitioner. Such failure to identify the crimes with which the accused person has been charged amounts to lack of specificity and clarity of the allegations. It was submitted that the particulars of the crimes, such as the place, date and time of occurrence were not stated, and therefore the Indictment Order was passed in violation of sections 16(1) (b) and (c) of the Act

8. Second, the learned counsel of the accused also submitted that the accused has been charged cumulatively on the basis of the same conduct and as such the charge framing order is defective and is liable to be set aside.

9. Third, it was submitted by the learned counsel of the accused that some of the observations made by the Tribunal in the Order are liable to be expunged from record, including for example: 'A number of Auxiliary forces. such as the Peace Committees Razakars, Al-Badr, Al-Shams etc. were set up to assist the Pakistani military in eliminating all those who supported or sympathized with the liberation of Bangladesh, individuals belonging to minority religions groups, especially the Hindus, political groups belonging to the Awami League and other pro-independence political parties, Bengali intellectuals and civilian population of Bangladesh."

10. The learned counsel submitted that whether or not the peace Committee be termed an auxillary force is a contentious issue which may be resolved only upon evidence. Therefore, without taking that evidence, there is no scope for the Tribunal to conclude that ‘the auxiliary forces were set up for eliminating minority religious group and the Hindus and political groups belonging to the Awami league.' The aforesaid conclusions are not supported by the evidence of record and as such should be expunged.

11. The learned counsel further referred to the said order wherein under the title The Accused it has been stated that the place of birth of the accused petitioner is Bitgaon, Nabinagar, Brahmanbaria, although the Accused petitioner was in fact born in Dhaka. He prayed for correction of the same.

12. The learned counsel also draw attention to another part of the order wherein it was stated that "At the time of the Liberation war under his leadership, all the leaders and workers of Jamaat-e-Islami and its student wing Islami Chaatra Sangha opposed the Liberation movement. At that time, Jamaat-e-Islami became an auxiliary force of the Pakistan army and since he was the Amir of Jamaat-e-Islami, he not only controlled the organizational framework of Islami Chaatra Sangha, but played the pivotal role in forming the Shanti Committee, Razakars, Al Badar, Al-Shams etc’

13. It was contended that the above statement being a contentious one cannot be made without taking evidence. The learned counsel argued that Jamaat-e-Islami and Islami Chatra Sanga were separate entities and that there is no scope for the Tribunal to remark that these two organizations were under the leadership of the accused-petitioner, and that they opposed the liberation movement.

14. The learned counsel draw attention to the observation of the Tribunal in the Order where it was stated that the ‘Jamaat-e-Isiami became an auxiliary force of the Pakistan Army'. Such a remark of the Tribunal was contended by the learned defense counsel that there is nothing on record to establish that Jamaat-e-Islami was placed under the control of the Pakistan Arrny for operational or administrative purposes as there exists no legal instrument placing Jamaat-e-Islami under the control of the Pakistan army and as such the observation of the Tribunal is liable to be expunged.

15 The learned defense counsel further submitted that the observation that the accused petitioner 'not only controlled the organizational framework of Islami Chaatra Sangha, but played the pivotal role in forming the shanti committee, Razakars, Al-Bar, Al-Shams is also not supported by the evidence on record. It can only be resolved by taking evidence as such the observation of the Tribunal is liable to be expunged.

16. In the said title of the Order, the learned defense counsel submitted, observation has been made regarding involvements of the accused in the formation of East Pakistan Restoration Committee in 1971 in the following matter: 'In the first part of 1972, he formed a committee named Purbo Pakistan Punoruddhar Committee (East Pakistan Restoration Committee) as part of his campaign to restore East Pakistan. As a leader of this committee up to March 1973, he tried to create sentiments against Bangladesh in the Islamic countries of the Middle East and campaigned internationally against recognizing Bangladesh as an independent and sovereign State. He left Pakistan for London in the middle of 1973 and set up the head office of Purbo Pakistan Punomddhar Committee there. He also published a weekly newspaper name shonar Bangla in London which propagated against Bangladesh. He visited Saudi Arabia in March 1975 and met King Faisal where he also canvassed against Bangladesh. He told the King that Hindus had captured East Pakistan, Qurans had been burnt, Mosques had been destroyed and converted into Mandirs and many Muslims had been killed. On the basis of this propaganda he collected funds from the Middle East in the name of re-establishing mosques and madrashas.”

17. The learned counsel of the accused stated that the above quoted observations by the Tribunal are categorically denied by the accused-petitioner Ghulam Azam. The learned counsel argued that the accused had no involvement in the formation of thee East Pakistan Restoration Committee. All these statements made above are denied which are essentially the Prosecution's versions of historical events and thus should not be quoted in the Indictment order.

18 The learned counsel of the accused further submitted that the statement relying on Misbahur Rahman Chowdhury, a prosecution witness, regarding an alleged meeting of the accused with King Faisal of Saudi Arabia should be expunged as the same cannot be accepted without the witness being placed under cross-examination.

19. The learned counsel contended that the observation of the Tribunal that the 195 Pakistani prisoners of war who were military personnel were allowed to return to Pakistan due to 'political reason' and that they were handed over to the pakistani Government with the understanding that the Pakistan Government will try them does not have any support in the text of the Tripartite Agreement, which is also known as the Delhi Treaty of 1974. As such, such a statement is also liable to expunged.

20. The learned defense counsel also contended an observation in the Indictment Order regarding Awami League's electoral victory in 2008 wherein it was stated: 'Responding to the overwhelming demand for justice, the Awami League incorporated in its Election Manifesto the pledge to initiate the long overdue justice process, which made all the difference in the General Election that followed, resulting in a landslide victory of the parry.’

21. The learned counsel argued that 'all the difference in the General Election that followed' cannot be said to be a direct result of the inclusion of the pledge to hold the war crimes trial in the Awami League's electoral manifesto Moreover, it was contended that the observation 'regardless of their affiliations, political or otherwise' is a contentious. Thus, the learned counsel prayed both statements be expunged.

Submission by the prosecution
22. In reply to the submissions made by the learned counsel for the accused petitioner, Mr. Zeal Al-Malum, the learned prosecutor submitted that the same submissions were presented by the learned defense counsel, namely, in their earlier Petition for discharging the accused, and also during the charge hearing. The learned counsel for prosecution contended for the Tribunal has already heard the arguments of both prosecution and defense on the points which the learned defense counsel has raised anew in the present application. The learned counsel for prosecution also submitted that only upon considering all these arguments raised at least twice before in this Tribunal in the present case, the Tribunal went ahead framing the Final Charge (i.e the indictment order ) against the accused professor Gholam Azam which effectively makes them settled matters. Therefore, due to the matters being already settled by the tribunal the current review on application by the accused petitioner is not maintainable.

23. The learned counsel for the prosecution also submitted that the Tribunal formulated the final charges upon consideration of the materials available in the records and there being no illegality in such framing of charge, the same cannot be reviewed.

24. Regarding the prayer of the accused-petitioner for expunging certain observations from the Indictment Order, the learned counsel for prosecution submitted that the Tribunal has made those observations on the basis of the materials on record and the defence is at liberty to adduce evidence against those observations, but only during the appropriate stage of the Tribunal when evidences will be formally presented, admitted and appraised. If such evidence pass the test of the trial and are accepted the law will take its own course as it is bound to but the learned defence cannot simply demand at this stage that the observation are ‘wrong’, ‘denied by accused petitioner’ ‘contentious’ etc and thus liable to be expunged. The learned counsel further argued that the same should apply to materials which are placed on record for judicial notice.

25. With that, the learned counsel for prosecution end his submission adding the plea that the Review Application by the learned defence counsel be rejected as being repetitious arguments on matters that have already been raised and settled and also as being matters that should be more appropriate to raised and contended at the evidence taking stage of the trial.

Obervations of the Tribunal
26. We have heard the learned counsel for the accused petitioner and also the learned prosecutor. At the outset, the learned defense counsel raised three different lines of arguments to seek review of the Indictment Order of the Tribunal. They are: one, the framed charges against the accused are not clear or specific enough to give the accused sufficient notice; two, the accused has been cumulatively charged for the same set of facts and circumstances with offences under different heads of crimes under the Act; three, observations and statements have been made in the Indictment order which are contentious and thus liable to be expunged.

27. The charges framed are clear enough and the alleged involvement of the accused person in the crimes has been duly stated, including the particulars of those alleged crimes, as are reasonably sufficient at this stage of the trial in giving the accused person sufficient notice of the alleged offences with which he is charged. Therefore, the all 5 (five) cluster of charges have been duly framed considering different counts of activities of the accused person.

28. In charge no.1 the charge of committing conspiracy to commit the crimes specified the section 3(2) of the Act has been stated and in support of conspiracy 6 (six) occurrences have been stated. It has also been alleged that for committing conspiracy by the accused person as a result of which different crimes of section 3(2) of the Act were committed in all over Bangladesh. The Tribunal is within its power under the International Crimes Tribunal Act 1973 to take judicial notice of well established historical facts that offences of crimes against humanity, genocide etc were indeed committed during the war of liberation of Bangladesh in 1971. And those have been categorized in section 3(2) of the Act and committing crime of conspiracy is also an offence under section 3(2) of the Act and the accused person has been charged under section 3(2)(g) for committing crimes conspiracy specified in section 3(2) of the Act read with section 4(1) and 4(2) of the Act. It is stated that if the offences stated are committed by several persons and if such persons are liable for that crime, then anybody of those persons are liable for the same crime and that any commander, superior officer is liable for commission of the offences by persons under his command or his sub-ordinates and as such the charge no.1 has clearly been stated, how he committed the offence of conspiracy to commit the crimes and how he is charged also under section 4(1) and 4(2) of the Act. There is no ambiguity or vagueness in the framing of charge no. 1.

29. Similarly charge no. 2 the charge for planning to commit crimes specified in section 3(2) of the Act has been stated and all the requirements of framing of charge under section 16(1) of the Act has been complied with. The said charge contained 3 occurrences. Charge no. 3 relates to commission of the offence of incitement to commit crimes under section 3(2) of the Act and 25 (twenty five) occurrences have been stated which prima facie establish that the accused has committed the offence of incitement to commit the crimes and other offences as mentioned in the order.

30. Charge number-4(Four) relates with 23 occurrences to establish his complicity in commission of the crimes specified in section 3(2) of the Act and charge number 5(Five) specific involvement of the accused person in the murder and torture as crimes against humanity under section 3(2) of the Act and other section. In all the charges the offences have been clearly stared. The section of the Act by which he is charged has also been stated and allegations have been stated in such manners that the accused gets clear notice on the allegation brought against him. And he can very well prepare himself for his defence and thus the requirement of section 16(1) of the Act having been complied with in framing of the charges and the allegations are based on materials available in the records. We do not find any reason to allow review of any of the charges.

31. The learned defense counsel's contention that the Indictment Order is liable to be set aside due to cumulative charging of the accused-petitioner under different heads of offences involving circumstances arising out of the same set of facts is patently flawed. It is well settled practice that the same set of facts can attract criminal liability under different heads of crimes when applying their definition and elements involve circumstances that are grounded in interconnected and/or adjoining set of events or event that are built on each other. In such type of charging it is the definition and elements of crimes under different heads that dominate such initial determination, with the factual circumstances providing the backdrop. Also at a stage of the trial when evidences have not yet gone though rigorous scrutiny by the prosecution and defence in the form of examination and cross-examination, it is neither prudent nor possible to limit the scope of judicial determination of guilt or innocence pre-emptively, as that will not serve the interest of' justice. We need to remind all parties that the core/purposes of this Tribunal is to determine the truth of the offences that have been committed, as well to determine the extent of guilt or innocence, and that can only be conclusively determined through judicial appraisal of evidence at the final stages of the trial when the Tribunal may convict an accused for a higher offence or a lower offence or for both, or even acquit an accused, depending on the content and strength of evidence. As such, the prayer to set aside the Indictment Order on the ground of cumulative charging is rejected.

32. As grounds for expunging certain statements from the Indictment Order the learned defence counsel relied on two broad sets of arguments, namely: first, that the accused petitioner has denied them to be accurate, and, second, that these statements can only be made after appraisal of evidence (e.g., through cross-examination).

33' This Tribunal is of the opinion that mere denials of the accused at this stage do not amount to nullify the evidence where there are volumes of works on history that state the contrary. However, the remarks made in the indictment order are not meant to be conclusive statements of fact. They merely demonstrate that these are contentious issues and that there is a case to answer. It is only after complete admission of evidence and their appraisal during the course of the trial that the accuracy of any observation can be conclusively determined.

34. The learned defence counsel should be aware that Indictment orders or final charges" are not conclusive testimony of guilt or culpability of an accused, "Judgment or Acquittal orders" are. Indictment orders are simply a conduct through which accuracy of evidences proving or disproving the guilt or innocence of an accused person is finally determined. Therefore, the Indictment order in Professor Ghulam Azam's case is exactly what it presents itself to be, that is, a chronicle of allegations and statement, in support of those allegations, which the Tribunal, on balance, finds adequate reasons to put under judicial scrutiny through the process of a trial For that purpose, an Indictment order simply pinpoints the set of allegations and the surrounding circumstances of the alleged crimes in order to facilitate and initiate formal evidence taking and their judicial appraisal. The learned defense counsel's submission that such statements cannot even be made in a document (i.e., an Indictment order) as part of construction of alleged crimes, is simply irrational, and legally unsound. Such a submission by the learned counsel is also premature in that they should actually be raised, if at all, at a later stage when full scale evidence taking will commence before this Tribunal.

35. The learned defence counsel's contention that claims (e.g, regarding King Faisal) made in the Indictment Order should not be included until they are scrutinized under cross-examination is riddden with misconception about the stages of the trial before this Tribunal. The stage of the Indictment, regarding which the contended Order is about, precedes the evidence taking stage of the trial and the issue of cross-examining a witness strictly belongs to that evidence taking stage. The submission by the learned defence counsel is not only unfortunate but is also unhelpful to the justice process, given that the learned counsel for defence being an officer of the court is duty bound to uphold the law and raise only arguments that are legally correct. lt is also a flawed argument by the learned defence counsel that a witness's testimony cannot be taken into account without being cross-examined first, also because every allegation included in the Indictment Order is reflective of either a witness testimony or a piece of document, obviously to be scrutinized further at a later stage of the trial. It is the Tribunal's duty to take into account these allegations in the witness testimonies and include them in the Final Charges and not wait until the cross-examination stage of evidence taking. This is how the stages of the Tribunal are set out by law and it will not be re-written just because the learned counsel feels it should be. However, it needs to be stressed that the Tribunal takes its obligation under the law very seriously when dealing with such witness statements indicating that there is a prima facie case or that there may be a case to answer by the accused.

36. We have based our observations on the material submitted in prosecution and on admitted facts applying our authority of judicial notice. If the observations are disputed by the learned defence, then they can adduce evidence in support of their submission, but at this stage, we do not find any reason to deviate from our observation and as such those cannot be expunged. It is well established that Rajakars, Al-Badr and Al-Shams etc were auxiliary Forces. With regard to the question regarding inclusion of Peace Committee on the list of auxiliary forces the defence will be free to Present evidence to the contrary in the course of the Trial.

37. Similarly whether Jamaat-e-Islami was an auxiliary force in 197 is also a matter which depends on evidence. It is a fact that Jamaat-e-Islami and Islami Chatra Sangha were separate entities and it is also well known that Islami Chata sangha was de facto the student wing of the Jamaat-e-Islami. It is also well established that Professor Golam Azam was Ameer of East Pakistan Jamaat-e- Islami in 1971, and it is a historical fact that all of them opposed the liberation movement and as such the Tribunal observations that it was under the leadership of the petitioner that both Jamaat-e-Islami and Islami Chaaa Sangha opposed the liberation movement cannot be expunged at this stage.

38. As regards the observation that Jamaat-e-Islami became an auxiliary force of the Pakistan Army, it is only evidence which can establish that whether it was auxiliary force or not and as such that will be considered at the proper time but not now. Some statement have been made in the order which the accused petitioner denied contending that if those can only be resolved by taking evidence. At this stage expunge those observations is unnecessary as there will be ample scope to determine their correctness during evidence taking

39. As regards the subsequent activity of the accused petitioner after the liberation of Bangladesh, it is admitted fact that he was in England and then in Saudi Arabia and we can take judicial notice that he acted against the interest of Bangladesh Government. If it is established on evidence that he was not involved in publication of Sonar Bangla from London then that too will certainly be considered.

40. The statement of his discussion with King Faisal is based on recorded testimony of one prosecution witness before the investigation authority, as such supported by prosecution materials. This observation of the Tribunal cannot be expunged at this stage only because the accused denies this as there will be more fitting occasion to disprove the claim during evidence taking. Therefore, we see no reason to pre-emptively expunge the statement when there remains the scope to determine its correctness at the evidence taking stage.

41. As regards the statement that the Pakistani prisoner of war allowed to retum to Pakistan upon the understanding that the Pakisan Government to try them is also not expungable because this statement has no affect whatsoever on the case of the accused and poses no threat of prejudice to the accused. Moreover, as regards the observation of the order regarding result of general election, it is a fact that it was in the manifesto of the Awami League that they will try the perpetrators of 1971 which was not there in earlier manifesto and this time Awami League got overwhelming victory. And as such the observation in this regard all the difference in the general election that followed cannot be unwarranted. The Tribunal finds no reason to expunge this statement. The Tribunal was established on 25.03.2012 and. to prosecute the international crimes committed during 1971 through a process of investigation of individuals alleged to have committed these comes regardless of of the fact that the learned defence might have a plea that accused persons are being tried for their political affiliation. But the Tribunal does not have any material that just only for political affiliation the accused person has been implicated. Rather the activities of the accused person were mentioned and upon investigation it was found that in 1971 they committed offences under the Act and as such this observation cannot be expunged. With this, the application having no merit stands rejected.

18 Jun 2012: Azam recusal transfer order

Following the Chowdhury witness cross examination, the tribunal in the afternoon session moved onto reading out two orders relating to Gholam Azam - one concerning an application to transfer his case to the other tribunal or to recuse the chairman from taking part in his trial, the other an order on the application to review his order of indictment. This page deals sets out the order for recusal/transfer. The following page sets out the order relating to the review of the indictment.

Order on transfer/recusal (copied from written order)

1. Today is fixed for delivering the order on the application filed by Accused- Petitioner Professor Golam Azam filed on 30.05.2012 to "transfer" the case against Accused-Petitioner from International Crimes Tribunal No.1 (hereinafter referred as the Tribunal) to International Crimes Tribunal No.2 (hereinafter referred as Tribunal-2) under section 11A of the International Crimes Tribunals Act, 1973 hereinafter referred as the Act) read with Rule 46A of the International Crimes Tribunal Rules of Procedure 2010 hereinafter referred as Rules of Procedure), and in the "alternative", for recusal of Mr. Justice Md. Nizamul Huq, the Chairman of the Tribunal under section 6(2A) of the Act read with Rule 46A of Rules of Procedure.

2. The Accused-Petitioner submits to the Tribunal to "exercise its power under section 11 A of the Act to transfer this case to Tribunal-2 as the only possible means to ensure proper dispensation of justice and to avoid the need for recusal given the Hon'ble chairman’s previous in demanding implementation of the verdict of the People's Court against the Accused Petitioner".

3. This is the second time this Tribunal is addressing a petition that is earily similar to the one that it has dealt exhaustively in an earlier case, that of the Chief Prosecutor v Delwar Hossain Sayeedi (ICT-BD corr No, 0l of 201l) through its order No. 35 dated 28.11.20t1.

4. It appears from the petition and oral submissions on behalf of the Accused- Petitioner that petition to transfer this case to Tribunal-2 has a specific purpose, to "avoid" the chairman's "recusal" for his alleged roles in a ‘mock trial’ in a so called "people's court’ in March 1992, and, for his presence in a meeting of Ainjibi Somonnoy Parishad in April 1992 that urged the government 'to respect opinion of the people expressed through the peoples court and take necessary legal measures.'(Daily Sangbad, 11 April, 1992).

Transfer or Recusal of the Chairman:
5. The Accused-Petitioner contended that on 26.03.1992, Ekatnrter Ghatok DaIaI Nirrnul committee, a civil society campaign, organized a mock trial, the so-called people's court at Suwardi Uddan about the Accused-Petitioner for his alleged commission of crimes during the war of liberation of 1977. The chairperson of the people's court was late Shaheed Janoni Jahanara lmam. In the mock trial, 15 (fifteen) witnesses deposed and an unanimous decision was announced on 26.03.1992, and that the Accused-Petitioner was found guilty of the offences including mass murder, arson and looting which according to the said court, was punishable by death. The court demanded to the government of Bangladesh to take appropriate action against the accused

6. Thereafter on 31.03.1992, Ekatirrer Ghatok Dalal Nirrnul committee demanded implementation of the death penalty against the accused- petitioner by the Government of Bangladesh.

7. The Petition further contended that on 10.04.1992, at executive committee of the Ainjibi Shommonnoy Parishad, a resolution was adopted demanding upon the government to take appropriate legal steps in the matter upon being respectful of the people's court and in that meeting Chairman was present, and this news was reported in the daily Sangbad on 11,.04.1992, copy of which has been annexed with the petition.

8. The Petitioner maintained that as the Chairman was directly involved in the Process of demanding implementation by the government of the verdict of death penalty passed by the people's court against the accused petitioner; therefore, the chairman of the Tribunal No.1 in the instant case is at odds with the integrity and independence of the Tribunal, contrary to the provisions of the Constitution of Bangladesh, the Code of Conduct for Judges of the Supreme Court, and ultimately, preventing justice being done to the accused petitioner.

9. The Petition stated since the formation of the Tribunal No.2 on 22.3.2012, and after promulgation of the Ordinance No. 4 of 2072 on 17.04.2012, where a new section 11A has been inserted giving power to Tribunal to transfer of cases, as such, for ends of justice, the instant case may be transferred to the Tribunal No.2 or the Chairman of the Tribunal No.1 should recuse himself from this case.

10. In the application, the petitioner referred to Articles 96(a)(a) and 148 of the Constitution of Bangladesh, Clauses 1, 2, 3(6)(A), 3(6)(d)(iv) of the Code of Conduct prescribed by the Supreme Judicial Council, Art 14 of the International Covenant on Civil and Political Rights (ICCPR), Articles 40 and 47 of the Rome Statute of the International Criminal Court, Art 7 and Art 10 of the Universal Declaration of Human Rights (UDHR), cases of Human Rights Committee, House of Lords, International Criminal Court for Former Yugoslavia, Special Court for Sierra Leone etc, and prayed for "immediate transfer of the case of Professor Golam Azam from international Crimes Tribunal-1 to International Crimes Tribunal-2 under section 11 A of the International Crimes Tribunals) Act 1973 read with International Crimes Tribunal Rules of Procedure 2O10" and "in the alternative for recusal" of the Chairman of the Tribunal'

Summary of Petitioner's submission
11. Mr. Abdur Razzak, appearing for the Accused-Petitioner, submitted that after the amendment of the Act and insertion of section 11A, a Tribunal on its own motion or on the application of the Chief Prosecutor can transfer a case from one Tribunal to another. He stated that the Act has not given power to the accused to pray for transfer which makes it clear that the principle of equality of arms between the parties have not maintained denying fair trial to the accused. He stressed that the principle of equality of arms is a basic obligation under international law enabling the Accused-Petitioner aiso to file application to transfer the case.

12. He submitted that the Accused-Petitioner thought it proper to place his grievances before the Tribunal through this petition prayng for transfer of this case and seeks the Tribunal to invoke its duo moto authority to transfer the case for ends of Justice. He said, if the Tribunal is of the opinion that ends of justice demand transfer of this case to the other Tribunal then, on its own motion, the Tribunal can pass this order. He submitted that with this expectation, the accused has filed this application to bring some facts of involvement of the Chairman in proceedings against the accused person for consideration of the Tribunal.

13. He further submitted the Tribunal, if satisfied, that ends of Justice requires that they should hear this case, and then on their own motion, following section 11A of the Act transfer this case to Tribunal No.2, or, alternatively, submitted that Accused-Petitioner is praying for recusal of the chairman from considering the facts and circumstances mentioned in the petition.

14. It was also stated the judges of the Supreme Court are subject to the Code of Conduct which contains inter-alia that a Judge should disqualify in a proceeding in which the Judge's impartiality might reasonably by questioned, and that he should disqualify himself if he is ikely to be a material witness in the proceeding. 

15. He maintained that any act, which erodes the credibility of independence of a Judge has to be avoided and stated as the annexed newspaper report supports the facts that the Chairman Justice Md. Nizamul Huq has lost his impartiality, and he might be a material witness in this proceedings, and thus his activity has eroded credibility and independence of him, and as such he should recuse himself from this case.

16. Considering all these facts, the learned counsel submitted that the fact of this case clearly establish that a doubt has been created in the mind of the accused that he will not get fair justice in this Tribunal and as such the case should be transferred to the other Tribunal. Moreover, he submitted that the charges framed in this case and the charges of the so-called people's court are similar in nature.

Summary of Prosecutor's submission:
17 Mr. Zead-Al-Malum, in reply to the submissions made by Mr. Razzzk, stressed that if there is a challenge from Defence about a Judge then such challenge must be raised at the initial stage of the proceedings. He questioned whether such a challenge is now being raised when charge has already been framed after due hearing of both sides, and the date has been set taking deposition of witness of the Prosecution.

18. He submitted that the mock trial was part of a civil society initiative to campaign for justice for the crimes committed in Bangladesh in 1971 and has no connection or bearing whatsoever with the process of the Tribunal. He further submitted, even in the said mock trial, the chairman was not a party in any way, did not play any role. In the statement of Ghatok Dalal Nirmul Committee, he pointed out, that the Chairman is also not involved or in any way, a party

19. The Prosecutor further stated that in the newspaper report, annexure-D, it appears that the Chairman Mr. Justice Md. Nizamul Huq Nassim was present in the meeting of Ainjibi Shomonnoy Parishad where as many as 7(seven) resolutions were passed on different issues. One such resolution urged the government to be respectful to the decisions of the people's court and to take steps in accordance with law. He submitted that report does not contain any material that the Chairman took any part in the process of the meeting or even he made any speech there. He said, the meeting was held in the Supreme Court Bar Association, and that he was only present in meeting.

20. He submitted that no proceeding against the Accused-Petitioner has any bearing with of the people's court. As an independent Tribunal proceeding against the Accused started after completion of investigation by the Investigating Agency and not on the basis of this mock trial. Charges laid out against the Accused are different. He said, even if there are similarities, which is expected considering crimes committed then and involvement of the Accused, does not affect the instant case

21. Referring to section 6 (8) of the Act, the Prosecutor submitted that the application for recusal of the Chairman is barred and as such not maintainable as neither the constitution of the Tribunal nor appointmentof its members by the prosecution or the accused or their counsel.

22. Furthermore, he mentioned that a similar application was filed praying for recusal of the Chairman in the case of Delwar Hossain Sayeedi which was argued by Mr. Abdur Razzak and Mr. Tajul lslam, among others, which was finally rejected after elaborate hearing considering all the materials submitted there with. The instant petition standing with the similar cause also is not maintainable. Moreover, no reference of that application and the corresponding order was made in this petition and for suppression this fact alone, and also for the above reasons, the petition is liable to be rejected. 

Analysis and Decisions of the Tribunal 
23. We have heard the learned counsel for the petitioner and the learned prosecutor and find it intriguing as this has been an application for recusal in the guise of a transfer petition. The petitioner could have filed a petition making out a case for transfer, but in reality, it is all about recusal of the chairman.

On transfer:
Transfer of a case:
24. The Act is quite clear about who can initiate a process to transfer case from one Tribunal to other. Section 11 A of the Act, under which the instant petition has been filed, read with RuIe 46A of the Rules of Procedure. Relevant part of Section 11 A is quoted below: '(l ) At any stage of a case, a Tribunal may or its own notion or on the application of the Chief Prosecutor or by an order in writing transfer the case to another Tribunal, whenever it considers such transfer is just and convenient for proper dispensation of justice and expeditious disposal.’

24A. Section 11A of the Act provides only two ways to transfer case, either by a Tribunal on its own motion, or on the application of the Chief prosecutor. The law contains no third option. Indeed, some cases have already been transferred by this Tribunal to Tribunal -2, and are, on application of the chief prosecutor. There is no application of the Chief Prosecutor in this case; instead, the Defence has filed this application since the Act confers no such right to Defence, only on this reason alone the transfer-petition is liable to be rejected.

25. As noted, the Act authorizes the Tribunal to transfer a case at any stage on its own motion on 3 (three) conditions set out in section 11 A (1); that such transfer is "just" and. "convenient for proper dispensation of justice’ and for "expeditious disposal" of cases. These conditions are equally applicable when the Chief Prosecutor files a transfer application or the Tribunal on its own motion initiates one. The Tribunal also has to satisfy itself that these conditions have been met before ordering a transfer.

26. To decide on any application to transfer of a case, we are to consider and satisfy that about the above 3(three) conditions have been met namely, whether the transfer is just and convenient for proper dispensation of justice and for expeditious disposal. The petition does not state how these conditions have been fulfilled. The petitioner has not stated anything to satisfy us in this regard.

27. In regard to first condition that the transfer has to be ‘just’ the Accused- petitioner has utterly failed to demonstrate why such transfer will be ‘just’. In fact, there is nothing in the petition to suggest so. Equally, there are no matters to satisfy the condition that such transfer has been for proper dispensation of justice. And finally, whether in the petition, nor in oral submission, the petitioner ever explained how this transfer will contribute to expeditious disposal of case by the Tribunal.

28. It may be mentioned here that in total, 8 (eight) cases are now pending before the Tribunal-l and Tribunal-2, each dealing with 4(four) cases. If one case is allowed to be transferred, then this Tribunal will have 3(three) cases before it, while Tribunal No.2 will have 5 (five), and as such, we are not satisfied such a transfer would in any way contribute to expeditious disposal of cases, which indeed has primary objective of section 11 A, and therefore, the transfer prayer is liable to be rejected.

Transfer under Rule 46 A:
29. The Accused-Petitioner has also referred to Rule 46 A of the Rules of Procedure to order the transfer. Rule 46 A states that: ‘Nothing in these rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make any order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process’. This Rule speaks of inherent power of the Tribunal. The Tribunal can only invoke this exceptional power sparingly and only where ends of justice so-requires or prevent abuse of the Process. This exceptional power could only be exercised under extra-ordinary circumstances.

30. We are of the view that no such situation exists now to exercise this power. Moreover, inherent power has its limitation. This power does not authorize the Tribunal to transfer a case from one Tribunal to another, and hence, the legislators amended the Act to insert section 11A authorizing the Tribunal to transfer a case under certain condition. If indeed the Tribunal could have transferred a case, the legislators would not have amended the Act to give the Tribunal power to transfer As such, it is clear that Rule 46A of the Rules of Procedure under no circumstances authorise the Tribunal to pass any order to transfer, and accordingly, the petition thus is liable to be rejected.

31. The Accused-petitioner has invoked the principle of equality of arms to allow filing an application under section 11A of the Act to transfer his case from this Tribunal to the other. In doing so, the petition referred to Article 7 of Universal Declaration of Human Rights, Article 14 (1) of the Covenant on civil and Political Rights, Arttcle 67 (1) of the Rome statute of the International criminal court and a decision of the UN Human Rights committee. However, the Petition did not find an express provision in any international instrument on the principle of equality of arms.

32. The principle of equality of arms is part of wider concept of a fair trial which the Act mandates the Tribunal to ensure. The principle implies that no party to a criminal proceedings, be it defence or prosecution, is put in a disadvantaged position vis a vis the other. The principle has a broad scope and largely requires that each parry gets a reasonable opportunity to present his case, and that, the defence is heard as far as possible in addition to those of the prosecution, but does not necessarily require an unfairness flowing from a procedural inequality.

33- Section 11A is one such provision where the Defence, on the face of it cannot initiate proceedings to transfer a case from one Tribunal to another, but this apparent inequality does not result in unfairness, or affect the fair trial of the Accused in any sense as the primary purpose of this provision has been to efficiently manage the cases before the Tribunal. The provision does not extend additional rights to the Prosecution. other than to expeditious processing of cases. The Prosecution, cannot resort to section 11A for any other purpose, like an issue with a Tribunal or a Member thereof. As such, the Accused-petitioner has not been placed in disadvantaged position under section 11A, and that the petition is liable to rejected on this ground. 

On recusal of the Chairman:
34. At the outset it has to be noted that major part of the instant petition argues for recusal of the Chairman, which is in substance, analysis and arguments identical to an earlier case referred to above, Chief Prosecutor v. Delwar Hossain Sayedi (ICTBD Case No. 01 of 2011), that this Tribunal decided conclusively in its Order No. 35 on 28.17.2011, which is why in this part, the Tribunal will refer and repeat facts and decisions. As far as recusal of the Chairman is concerned in this petition, other than minor difference of fact that the Accused-Petitioner relied on, for all other purpose, the both petitions are identical

35. In that petition too, the petitioner sought recusal of the Chairman on the ground that the Chairman was a member of the Secretariat of the so-called people’s Inquiry commission. The commission, according to the petitioner, published a 6 report in 1994, where the name of the Chairman appeared at serial no. 25 as one of the 40_members of the Secretariat.

36. According to the petitioner, the purpose of the Secretariat was to assist the Commission who investigated the Accused-Petitioner and as such, the petitioner maintained that he feared the Chairman lack impartiality given his prior role, and that he has developed a relationship with one of the parties, and that an objective observer would find that there is an appearance of bias on his part.

37. During the hearing the learned counsel of the Accused-petitioner, who is also the counsel of this Accused.Petitioner, submitted that since from the Report it appeared that the Chairman was a member of the secretariat of the investigation against the Accused Petitioner, and thus he is involved in the investigation process as such his client shall not get fair and impartial justice from the chairman. He argued that as a party to the case because of his participation in investigation, that there is a reasonable apprehension of bias. He further submitted that the Chairman is likely to be a material witness that disqualified him to hold his position.

38. Since the petition involved the chairman, he graciously withdrew himself from the proceeding and a lengthy hearing took place with number of leading lawyers of the Bar before the remaining two members of the Tribunal. The petition was disposed of by the Tribunal who found that the Tribunal has no legal authority to decide on an application for recusal filed against another Judge of the same Tribunal. They found that that the Tribunal is legally bound to follow the Act and Rules of Procedure, which has no such provision and that they are not legally authorized to pass order on a recusal application of a co-Judge. It observed that the issue largely depends on the good conscience of the judge concerned.

39. This lead to further petition by the Accused to seeking from the Tribunal and record reasons why the Chairman continues to sit as the Chairman. The petition repeated the facts stated in the first petition and alleged that in addition to "reasonable apprehension of bias", which was the basis of the first petition, there exists "actual bias" on the part of the Chairman

Settled issues:
40 The Tribunal in its above mentioned Order addressed specifically each and every issue raised by the Accused-petitioner. In the present petition, issues raised by the Accused-Petitioner, have all been addressed and settled in the aforesaid order. Accordingly, this time too, the Tribunal will adhere to its statements, explanations and decision taken already in disposing of this petition.

41. The issues raised and settled in the said order are follows: unprecedented character of the petition, its legal basis, timing and failure to agitate questions at first opportunity, allegation against the chairman, material witness, bias, presumption of impartiality, objective observer etc. As said, in this petition, some of these issues have been highlighted and stressed again, while these has all been settled by this Tribunal. Suppression of facts

42. In referring to the said Order of the Tribunal, the learned Prosecutor mentioned a similar application was filed for recusal of the Chairman in the case of Delwar Hossain Sayedee which was argued by Mr. Abdur Razzak and Mr. Tajul Islam, among others. Therefore he argued that the instant petition standing with the similar cause is not maintainable, as the earlier one been rejected. He maintained no reference of that application and the corresponding order was made in this petition. He submitted, for suppression this fact alone, the petition is liable to be reiected. The Tribunal agrees with the Prosecutor's 'submission and finds that this petition is liable to be rejected as it did not refer to findings of this Tribunal on the issue of the recusal of the Chairman.

New element in the petition  

43. New factual element on which this recusal application has been framed., which is also its main contention, that the Chairman, was present in a meeting held in Supreme Court Bar Association when he was an Advocate of the Supreme Court and that the meeting adopted a resolution urging the Governrnent to respect sentiments expressed in the so-called people's mockcourt and take necessary legal steps. This was reported in daily newspaper that the Accused-Petitioner has annexed to his petition.

43. In this regard, Mt. Razzak submitted that the fact that the chairman, while as an Advocate, was pressed in the said meeting, that an objective observer would conclude that there is a reasonable apprehension that the Chairman will lack impartiality, and that the said objective observer could only conclude that there exists an appearance of bias on the part of the Chairman. Hence he argued recusal of the chairman. However, he categorically stated he is not in any manner questioning integrity of the Chairman.

44. The Tribunal has carefully examined the news-item in question where it reports that Mr. Nizamul Huq Nasim as an Advocate, as he was then, was present in a meeting of Ainjibi Shomonnoy Parishad in the Supreme Court Bar Association along with many other lawyers. The meeting adopted as many as 7 (seven) resolutions including decision to participate in the Bar Council election, setting-up of the election sub-committee, urged the government to respect and take necessary legal steps respectful of people's opinion expressed in people’s tribunal to withdraw cases filed following the people's tribunal, demanded recall of an objectionable comment made by a government minister protested against the treatment of Rohinga population by Burmese military, and endorsed yet to be held program of Nirmul Committee.

45. Reading the piece as we did, we did not find anything specific about the chairman, as he is now, other than the fact that he was present in meeting that discussed varieties of issues. There is no suggestion in the report that beyond mere his presence, the chairman took active part in the meeting or spoke or gave any opinion, or canvassed for any of the issues of the resolution, or drafted it.

46. In absence any activity of the chairman in the said meeting & except his presence, in our view, cannot be considered as bias, or pre-judging the case, on the part of the chairman against the Accused-petitioner by any stretch of the imagination There is no ground to assume bias without any factual basis and therefore, on this basis alone, the petition is liable to be rejected.

Re-stating the position of the Tribunal on recusal:
47. As we have noted in our earlier said Order, recusal is an unheard of an expression in legal culture and practices in Bangladesh. Still, mindful of importance of the subject matter for which the Tribunal was established, in other words, international crimes committed in Bangladesh in 1971, and deep and legitimate interest of victims and people of Bangladesh in the working of the Tribunal, and interest beyond Bangladesh, the Tribunal took-up exceptional petition of recusal, and has addressed it meticulously.

48. In disposing of this petition, we re-state some of the issues resolved there which are also relevant for this petition:- 

(a) legal basis of recusal petition: This petition, like the earlier one, lacks any legal basis as it does not refer to any provision of the Act or Rules of Procedure to be considered by a Tribunal. A petition having no legal foundation deserves to be rejected. Moreover, not only that the petition fails to show under which provision of the Act or Rules of Procedure it's been framed, but it is barred by an express provision of the Act, section 6(8) under which no petition is maintainable that challenges appointment of its Chairman or members by either side. This is previously what this petition asking for recusal of the Chairman has done. As such, the petition is bound to be summarily rejected. 

b) Fair trial obligation: The petition refers to section 6 (2)(A) of the Act and Rule 46A. Rule 46A has been addressed above. Submissions under section 6 (2A) was also considered in the above referred earlier Order of the Tribunal. Section 6(2)(a) states that the Tribunal shall be independent in the exercise of his judicial functions and shall ensure fair trial. Nothing has been stated in this petition that the tribunal is not independent in the exercise of its judicial function of that the chairman in this particular case has not acted independently that he should under the Act. Hence there remains no scope to doubt fair trial by this Tribunal or by the chairman and as such the the very basis of the petition has no merit and thus the petition is liable to be rejected. 

c) Failure to raise concern at first opportunity: The reamed prosecutor has very rightly drew our attention to why concerns raised by the Accused petitioner was not raised at first opportunity, and only after charges have been framed against the Accused-petitioner and date set for deposition of prosecution witness. The newspaper was available for years together. The learned prosecution submitted Formal charge against the Accused-petitioner, a detailed hearing on it ensued, after which, the Tribunal took cognizance and framed charges. In no time over the period, the Accused-petitioner thought it proper to raise his concerns. More so, the Tribunal in identical terms, mentioned such failure in its said order. 

d) Bias against the Accused-petitioner: In the petition and in oral submissions, a lot has been said about bias, appearance of bias because of chairman’s presence, while as an Advocate, in a meeting of lawyers discussing number of issues. In fact bias is the center piece of Accused-petitioner's argument in this case and as was the case before. However, like before, the tribunal did not [hear] any fact that could justify either existence of bias or appearance of hbas, or actual bias, for that matter, as there was nothing on the record that the chairman, while an Advocate, has done, said anything indicating any bias whatsoever against the Accused petitioner. As such, the petition devoid of any for merit for consideration and thus rejected 

(e) on being a material witness: Like other issues, this one was also raised in earlier petition referred above. The Accused-Petitioner claims that the Chairman could be a material witness as one who was involved in demanding the government to realize the outcome of the so-called people's tribunal. This was an unusual submission then, as it is now; since a material witness, according to its recognized notion, is witness whose evidence is likely to be sufficiently important to influence the outcome of a trial. Under no circumstances could the Chairman be a material witness that will influence the outcome of the Accused-Petitioner's trial merely because he was present in a meeting. Therefore, this ground is untenable and thus rejected. 

f) On objective observer: The Tribunal dealt with this notion and assertion on the objective observer in detail in it's said earlier Order and is inclined not to repeat the same here. In short an objective observer is a constructed notion. The Tribunal noted that this notion is fraught with imprecision, as an objective observer is supposed to have personality, character, knowledge and understanding of the issues involved. As such, to suggest or decide on how or whether an objective observer, a fictitious character, may perceive or view something, and based on that based on that perception, the Tribunal has to act, or the Chairman to recuse is an impossible proposition 

g) Independence and presumption of impartiality: The Tribunal has discussed in details on independence and impartiality of a judge in its earlier decision that the Accused-Petitioner rightly refers to. Independence of judiciary and independence of the Judges are two key features of the Constitution of Bangladesh. Once a Judge takes his/ her oath under Article148 (third Schedule) to discharge duties of office according to law, to deal faith and allegiance to Bangladesh, and to preserve, protect according to law without fear, favor, affection or ill will, a very strong presumption flows from this oath, that after taking oath, a judge is impartial. This is otherwise known as presumption of impartiality, which is attached to all Judges, and cannot just be displaced by suggestion that the Chairman, while an Advocate, was present at a meeting and did nothing. Moreover, this presumption of impartiality has been reinforced in Bangladesh by the Code of Conduct of the Judges that elaborate on conduct of the Judges, and compliments the presumption the impartiality

49. Thus, it has by now been established that in the present case, as claimed by the Accused-Petitioner, there is no substantiated bias or existence of bias against the Accused-Petitioner by the Chairman or the Tribunal instead, on perusal of the record of this case, we can see that this Tribunal has taken several steps to ensure full respect of the rights of the accused, and on occasions, prompted by its good conscience, even afforded facilities to the Accused-Petitioner to the highest standard of compliance with the Act and its Rules which other accused in Bangladesh ordinarily do not enjoy.

50. For example, when the Tribunal took cognizance of the case against the Accused-Petitioner, it was the duty of the Tribunal to issue summons or warrant against the accused Person, but without doing so, the Tribunal asked the learned counsel for the petitioner for the accused to bring the Accused to the Tribunal on the date fixed, so that there remains no chance of him being harassed or otherwise unduly treated. Such opportunity was not afforded to any of the accused before this or the other tribunal

51. Moreover, when his petition for bail was denied he was sent to Bangabandhu Sheikh Mujib Medical University for treatment where he is being detained now. Order has also been passed by this Tribunal to supp]y him all materials including the religious book so that he can read. His relatives relative are regularly visiting him. Following yet another petition, the Accused-Petitioner has been allowed to be served home cook food for him on some condition. Since these conditions have been complied with, the Accused-Petitioner is not now received home cook food. During the hearings, the Accused- Petitioner has been permitted to sit on a chair in the dock, and in Tribunal's haiot. He has always been given proper care when produced before the Tribunal.

Final remark:
52. The instant petition, specifically, the part on recusal of the chairman being identical the case of Chief Prosecutor u. Delwar Hossain Saleed1 (ICT-BD Case No. 01 of 20ll) has decided through its Order No. 35 dated 28.11.2011, the Tribunal has decided that recusal part of this order and the said Order No. 35 should be taken together for the pu{pose Tribunal's views and reasoning on recusal and recusal of the Chairman 53. For the reasons and observations mentioned above, the petition is hereby rejected.

7 Jun 2012: Azam indictment review application 2

When the judges came into the tribunal at 10.30, the prosecutor dealing with the hearing that day had not reached the Tribunal to submit his reply to the review application.

Then within a few minutes Zead-al-malum reached the Tribunal and Justice Nizam said, it is the judges to get the privilege of being late not the counsel. Then Zead –al-Malum wanted to explain the reason for the delay but Justice Haq said he does not need to explain, he should just start his submission.

Zead-al-malum then said that he wanted to say something about Salahuddin Quader Chowdhury’s case and said that someone threatened him and the wife of Shiru Bangali – the prosecution witness number 3 - from the same phone number.

Justice Nizam: You can file a GD at the Police station.

Malum then carried on by responding to the review application of Golam Azam. Summary of main arguments below:

I just want to say that after a long hearing this Order was passed on 13 May 2012. Then the 5 June was fixed for opening statement and defence counsels was directed to submit their witness list. So there is nothing which is not complying with the section 16 of the Act.
From Nuremberg Trial to this trial it is always stated by the defence that charge is vague. But my lord, there is nothing which is violation of the section 16(c) of the Act. Charge has been framed properly under section 16(a) (b) (c). There is nothing which is needed to omit and expunge.

Review should only be applied in all cases where there is serious omission of the law and the rules not in other respects.

And defence counsels has referred many foreign judgements but in this application these references will not be effective as the charge has been framed properly. ICT Act maintains its international slandered by its rules, so there is nothing which is needed to be reviewed.

Mistake in date of Birth or Place of Birth of the accused petitioner is nothing but a clerical mistake. There is no scope of interfere by the name of review.

In nut shell, my submission is, defence has no substances to review the application, and therefore, this review application should be rejected.

6 Jun 2012: Azam indictment review application

Following the prosecution response to the application for recusal of the tribunal chairman/transfer of Azam's case to tribunal no.2, Razaq then argued his application for review of the charge-framing order against Azam. He made arguments based on the written application which is set out below.

 [This went onto a second day. The final order was given on 18 June]

1. That the Applicant is a peace loving citizen of Bangladesh. He is the former Ameer of Bangladesh Jamaat-e-Islami, which is a leading opposition political party.

2. On 9th January 2012, the Tribunal was pleased to take cognizance of offences allegedly committed by the Applicant under sections 3(2), 4(1) and 4(2) of the International Crimes (Tribunal) Act (hereinafter referred to as ‘the Act’), and directed the Applicant’s counsel to produce him before the Tribunal on 11th January 2012. On 11th January 2012, this Hon’ble Tribunal was pleased to reject the application for bail filed on behalf of the Applicant. Thereafter, the Applicant was taken into custody.

3. That on 11th January 2012, in view of his ill-health, the Applicant was admitted to the Prison Cell of Bangabandhu Sheikh Mujib Medical University (BSMMU).

4. That on 27th March 2012 and 28th March 2012, the Accused Petitioner’s counsels conducted hearing of the application for discharge filed by the Accused Petitioner in connection with commission of alleged offences under section 3(2) of the Act.

5. That on 13th May 2012, by Order No. 25, this Hon’ble Tribunal was pleased to reject the application for discharge and framed charges against him under sections 3(2), 4(1) and 4(2) of the Act.

6. That on 14th May 2012, the Petitioner’s counsels filed an application for a certified copy of the charge framing order dated 13th May 2012. Accordingly, on 23rd May 2012, the Petitioner’s counsels received the certified copy dated 21st May 2012. It is specifically stated on 21st May 2012 and 22nd May 2012, the Petitioner’s counsels had made enquiries with the Office regarding supply of certified copy of the charge framing order, but were informed that the certified copy was not yet ready. On the morning of 23rd May 2012, the counsel received the certified copy of the charge framing order. As such, this application for review is being filed within the limitation period of 7 days as provided in Rule 26(4) of the International Crimes Tribunal Rules of Procedure 2010 (‘the Rules’).

7. That the Petitioner files this application for review of the order of framing charges against the Accused Petitioner on the ground that the said order has been passed in violation of section 16 of the Act and Rule 38(1) of the Rules. There are a number of requirements that must be met in order for an Accused-Petitioner to be charged in accordance with law. These requirements are provided for in both domestic and international law. The Tribunal’s own legislative structure provides for certain particulars to be provided for by the Prosecution in its proposed charges against an accused. Section 16(1) of the Act provides as follows:
“Every charge against an accused person shall state:
(a) the name and particulars of the accused person;
(b) the crime of which the accused person is charged;
(c) such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged”.

The use of the word “shall” in section 16 of the Act indicates that these requirements are mandatory.

8. It is therefore submitted that under the framework provided for by section 16 of the Act, the purpose of the framing of the charges is to characterize the alleged facts in accordance with the legal elements of a crime so as to provide the Accused-Petitioner with the opportunity to raise his defence.

9. That further Article 14 (3) (a) of the International Covenant for Civil and Political Rights (hereinafter: ICCPR) which provides for the right to be informed of the charge is reproduced below: “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him (emphasis added)”.

10. This right under Article 14 (3) (a) has been discussed by the Human Rights Committee (hereinafter referred to as ‘the HRC’), which is tasked with administrating and interpreting ICCPR provisions. In its General Comment No.32 the HRC stated: “The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally - if later confirmed in writing - or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based”.

11. That Bangladesh, being a state party to the Rome Statute for the International Criminal Court (hereinafter referred to as ‘the ICC’), it is under an obligation to comply with Article 67 (1) ICC, which guarantees the above right, as well as the practice of the Pre-Trial Chamber at the International Criminal Court which has held that the document containing the charges must include the full name of the person and any other relevant identifying information; a statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court; a legal characterization of the facts to accord both with the crimes and the precise form of participation (Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 208.).

12. The purpose of this fundamental right provided for in international and domestic law is to provide the accused with the information necessary for the preparation of his defence in order to uphold fair trial guarantees. It is respectfully submitted that the charges as framed against the Accused-Petitioner by Order No. 25 dated 13th May 2012 do not have any sound legal basis and contain insufficient factual information, and as such would result in an unfair trial by both domestic and international standard.

13. It is submitted that a charge is made up of both a legal and a factual component in order for an accused to have sufficient notice of the charges brought against him. This is consistent with section 16 (1) of the Act which provides that the charges against an Accused must contain the particulars and facts of an alleged offence as the crimes of which the accused person is charged in order to “give the accused person notice of the matter with which he is charged”.

14. It is stated that the charges as framed against the Accused Petitioner do not contain sufficient factual averments as would enable the Accused to have sufficient notice of the charges against him. The charge framing order fails to specify the ‘particulars of the alleged crime’ committed by the Accused Petitioner. Nor does the said order specify which of the crimes mentioned in section 3(2) of the Act has allegedly been committed by the Petitioner. The charge framing order merely makes an omnibus reference to offences under section 3(2) of the Act and as such, fails to identity the crime with which the Accused person is charged. Furthermore, the said order fails to provide with sufficient specificity and clarity the nature of the allegations against the Accused Petitioner. In fact, no attempt has been made in the charge framing order to specify the particulars of the crimes allegedly committed by the Accused Petitioner, including the place, date and time of occurrence thereof. As such, the charge framing order, being vague and imprecise, has been passed in violation of section 16(1)(b) and (c) of the Act, and accordingly, the same is liable to be reviewed by this Hon’ble Tribunal.

15. Furthermore, the factual nexus required in offences of planning (Charge no. 2) and complicity (Charge No. 4) must include conduct that meets a qualitative and quantitative threshold. In international customary law, it has been established that the threshold for planning is one of ‘substantial likelihood’. This was upheld by the ICTY Appeals Chamber in Prosecutor v. Dario Kordic and Mario Cerkez which stated mens rea for planning is fulfilled by “a person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan. Planning with such awareness has to be regarded as accepting that crime” (IT-95-14/2-A, Judgment, 17 December 2004, para. 31).

16. The threshold for complicity, which is recognised as an umbrella term for aiding and abetting (see Kai Ambos, ‘Article 25’ in O.Triffterer, Commentary, p. 756) has been recognised in international customary law as one of “substantial contribution” i.e. the abetment must have substantially contributed to the commission of the offence. This is provided for in the Prosecutor v Kvocka Appeals Judgment, whereby the ICTY Appeals Chamber stated that:

“Whether an aider or abettor is held responsible for assisting an individual crime committed by a single perpetrator or for assisting in all the crimes committed by the plurality of persons involved in a joint criminal enterprise depends on the effect of the assistance and on the knowledge of the accused. The requirement that an aider or abettor must make a substantial contribution to the crime in order to be held responsible applies whether the accused is assisting in a crime committed by an individual or in crimes committed by a plurality of persons” (IT-98-30/1-A 28 February 2005, para. 90).

17. For the contribution to be deemed substantial it must be a contribution that “in fact has an effect on the commission of the crime” and that “the criminal act most probably would not have occurred in the same way had not someone acted in the role that the accused in fact assumed” (Prosecutor v Tadic IT-94-1-T, Opinion and Judgment, 7 May 1997, para. 688).

18. It is respectfully submitted that the press briefings and speeches given by the Accused-Petitioner do not amount to ‘substantial contribution’ or ‘substantial likelihood’ for two reasons. Firstly, as abovementioned, the charge framing order does not provide particulars of any crimes that have actually been committed, thereby rendering it impossible to determine whether, the Petitioner’s statements substantially contributed to the commission thereof. Secondly, the particulars of the crimes not having been specified in the charge framing order, there is no scope to argue that the alleged crimes were committed as a direct result of the press briefings and speeches given by the Accused-Petitioner.

19. That further, the charge framing order fails to set out the nature of the responsibility for the commission of crimes alleged against the Accused Petitioner. Failure to specify the form of participation of the Accused in a crime in the charge framing order renders the charge defective. Moreover, the charge framing order fails to specify which form or forms of liability is being alleged for each count and as such, the charge framing order lacks in specificity and is defective.

20. That although, the Accused Petitioner has been charged under section 4(1) of the Act, the charge framing order fails to specify the form of joint criminal enterprise being relied upon by the Prosecution. The charge framing order fails to specify the nature of the enterprise, the time periods and the persons involved and the nature of the accused’s participation in the criminal enterprise, thereby rendering the charge defective.

21. That it will be clear from a plain reading of the charge farming order that the Tribunal has charged the Accused Petitioner for (i) incitement to commit of offences under section 3(2) of the Act ; (ii) planning commission of offences under section 3(2) of the Act; (iii) conspiracy to commit offences under section 3(2) of the Act and (iv) complicity in the commission of offences under section 3(2) of the Act for the same conduct of the Accused Petitioner. Such cumulative charging on the basis of the same conduct of the Accused Petitioner is not permissible where there is no material difference in the offences alleged to have been committed by the Accused Petitioner. As such, it is submitted that the charge framing order is defective and is liable to be reviewed and set aside by this Hon’ble Tribunal.

22. That for reasons set out in the paragraphs below, the Accused Petitioner prays for expunging certain observations made by this Hon’ble Tribunal in the charge framing order dated 13th May 2012.

23. That in the section of the charge framing order titled ‘Historical Context’, this Hon’ble Tribunal referred to the formation and function of the Auxillary forces in the following terms:

“A number of Auxillary forces such as the Peace Committees, Razakars, Al-Badr, Al-Shams etc. were set up to assist the Pakistani military in eliminating all those who supported or sympathized with the liberation of Bangladesh, individuals belonging to minority religions groups, especially the Hindus, political groups belonging to the Awami League and other pro-independence political parties, Bengali intellectuals and civilian population of Bangladesh. Not only did the auxillary forces collaborate in the crimes committed by the occupying Pakistani Army, they themselves were also directly and actively involved in executing most of the alleged international crimes under the Act.”

24. That the aforesaid statements in the charge contain highly contentious issues which may be resolved only upon taking evidence. No evidence has been adduced by the Prosecution to establish the existence of a legal instrument placing the Peace Committees under the command and control of the Pakistan Army. As such, there is no scope for the Tribunal to conclude that Peace Committees were established as ‘auxillary forces’ of the Pakistan Army. Furthermore, the purpose and role of the auxillary forces is a highly contentious matter, which can only be resolved by taking evidence. Since the Razakar forces were admittedly raised under the provisions of the Razakar Ordinance 1971, there is no scope for the Tribunal to conclude, without taking evidence, that the auxillary forces were set up for the purpose of eliminating minority religious groups, i.e., the Hindus and political groups belonging to the Awami League. It is submitted that the aforesaid conclusions of the Tribunal in the charge framing order are not supported by the evidence on record, and as such, the same are liable to be expunged by way of review.

25. Furthermore, in the section of the charge framing order titled ‘The Accused’, the Hon’ble Tribunal stated the place of birth of the Accused Petitioner to be Birgaon, Nabinagar, Brahmanbaira, although the Accused Petitioner was in fact born in Dhaka. The Accused Petitioner accordingly prays for his place of birth to be correctly identified in the charge framing order as ‘Dhaka’ and not ‘Birgaon, Nabinagar, Brahmanbaria’.

26. In the same section of the charge framing order, the Hon’ble Tribunal stated as follows: “At the time of the liberation war in 1971, under his leadership, all the leaders and workers of Jamaat-e-Islami and its student wing Islami Chhatra Sangha opposed the liberation movement. At that time, Jamaat-e-Islami became an auxillary force of the Pakistan Army and since he was the Amir of Jamaat-e-Islami, he not only controlled the organizational framework of Islami Chhatra Sangha, but played the pivotal role in forming the Shanti Committee, Razakars, Al-Badr, Al-Shams etc.”

27. It is stated that the aforesaid statements are highly contentious matters, which cannot be assumed to be correct, without taking evidence. Since Jamaat-e-Islami and Islami Chhatra Sangha were separate entities, there is no scope for the Tribunal to observe that it was under the leadership of the Petitioner, that both Jamaat-e-Islami and Islami Chhatra Sangha opposed the liberation movement.

28. Furthermore, the conclusion of the Tribunal that at that time ‘Jamaat-e-Islami became an auxillary force of the Pakistan Army’ is manifestly perverse inasmuch as there is nothing on record to establish that Jamaat-e-Islami was placed under the control of the Pakistan Army for operational or administrative purposes. It is also undisputed that there is no legal instrument placing Jamaat-e-Islami under the control of the Pakistan Army and as such the observation of the Tribunal that in 1971, Jamaat-e-Islami became an auxillary force of the Pakistan Army is completely unwarranted, and as such the same is liable to be expunged.

29. It is also stated that the Tribunal’s observation that the Accused Petitioner ‘not only controlled the organizational framework of Islami Chhatra Sangha, but played the pivotal role in forming the Shanti Committee, Razakars, Al-Badr, Al-Shams’ is not supported by the evidence on record. The Accused Petitioner denies the allegation made against him by the aforesaid statement of the Tribunal. Such statements relate to highly contentious matters, which can only be resolved by taking evidence. As such, the observation of the Tribunal as aforesaid is liable to be expunged by way of review.

30. That furthermore, in the same section of the charge framing order titled ‘The Accused’, this Hon’ble Tribunal made extensive reference to the Accused Petitioner’s alleged involvement in the formation of East Pakistan Restoration Committee in 1972. Accordingly, the Tribunal observed as follows: “… in the first part of 1972, he formed a committee named Purbo Pakistan Punoruddhar Committee (East Pakistan Restoration Committee) as part of his campaign to restore East Pakistan. As a leader of this committee up to March 1973, he tried to create sentiments against Bangladesh in the Islamic countries of the Middle East and campaigned internationally against recognizing Bangladesh as an independent and sovereign State. He left Pakistan for London in the middle of 1973 and set up the head office of the ‘Purbo Pakistan Punoruddhar Committee’ there. He also published a weekly newspaper named Shonar Bangla in London which propagated against Bangladesh … He visited Saudi Arabia in March 1975 and met King Faisal where he also canvassed against Bangladesh. He told the King that Hindus had captured East Pakistan, Qurans had been burnt, Mosques had been destroyed and converted into Mandirs and many Muslims had been killed. On the basis of this propaganda he collected funds from the Middle East in the name of re-establishing mosques and madrashas.”

31. It is specifically stated that the aforesaid observations and statements of the Hon’ble Tribunal are completely incorrect. The Petitioner had no involvement whatsoever in the formation of the East Pakistan Restoration Committee nor was he involved in the publication of the weekly newspaper ‘Sonar Bangla’ from London. Furthermore, the Petitioner denies that he collected funds from the Middle East on the basis of the propaganda that ‘Hindus had captured East Pakistan Qurans had been burnt, Mosques had been destroyed …’. It is stated that there is no scope for the Tribunal to consider these highly disputed questions of facts, which are essentially the Prosecution’s version of historical events, to be true in the absence of any evidence being brought on record to support such conclusions.

32. Furthermore, the Tribunal’s observation that during a meeting with King Faisal in March 1975, the Accused Petitioner had said that ‘Hindus had captured East Pakistan Qurans had been burnt, Mosques had been destroyed’ is completely unwarranted since the same has been made on the basis of the statement of a Prosecution Witness, namely Misbahur Rahman Chowdhury allegedly made to the Investigating Officer. It is stated that there is no scope for the Tribunal to consider the statement of Misbahur Rahman Chowdhury, a Prosecution Witness, purportedly made to the Investigating Officer to be true unless such statement is made on oath, which is then subjected to cross examination. In the circumstances, the Accused Petitioner prays for expunging the aforesaid observations of the Hon’ble Tribunal by way of review.

33. In the premises and in the interests of justice, the Accused Petitioner prays for review of Order No. 25 dated 13th May 2012 and setting aside the charge framing order, in the manner stated hereinabove, as being in violation of section 16(1) of the Act. The Accused Petitioner also prays for expunging the observations of the Tribunal, as quoted in paragraphs 23, 26 and 30 hereinabove and for correction of his place of birth as stated in paragraph 25 above.

The following oral arguments took place:

Abdur Razzak: This is a review application of the charge farming Order because the said Order is passed in violating the section sec16 and rule 38 (1).

My lord, birthplace of the Ghulam Azam is wrongly stated in the indictment Order.

There is planning, conspiracy, incitement all over the indictment. My lord, my submission is these all are vague statement, so these are nothing but violation of the section 16(1) of the Act.

Justice Nizam: You did lots of meetings at that time and for that result several crimes was committed all over the Country. These crimes were the affects of his meeting.

Abdur Razzak: Which crime? Crime against humanity or conspiracy?

Justice Nizam: All crimes had been committed.

Abdur Razzak: That means I am liable under 3(2) (g)?

Justice Nizam: Yes, “any such crime” under section 3(2) (g). We are generally charging him under 3(2) (g) but if you stress upon this matter than we will write 3(2) (a) and 3(2) (C).

Justice Nizam: I have given a speech and for that result someone commits killing, someone set houses on fire, and someone commits looting. So it is not possible to separate all this crime and frame charge in all cases. That is the reason all crimes are included in 3(2). And he was charged under section 4(2) of the Act as he was leader of Jamaat-i-islam.

Abdur Razzak: It is stated in the order, 'At that time Jamaat-e-Islami became an auxiliary force under the Pakistan Army and since he was the Amir of Jamaat-e-Islami, he not only controlled the organizational framework of Islami Chatra Sangha but played the pivotal role in forming the Shanti Committee, Razakars, Al-Badar, Al-Shams etc."

My lord, the aforesaid statements are highly contentious matters, which cannot be assumed to be correct, without taking evidence. Since Jamaat-e-Islami and Islami Chhatra Sangha were separate entities, there is no scope for the Tribunal to observe that it was under the leadership of the Petitioner, that both Jamaat-e-Islami and Islami Chhatra Sangha opposed the liberation movement.

My lord, of professor Ghulam azam was responsible as he was the leader of the Jamaat-i-islam than why abul-ala-moududi was not liable; he was also the commander-in-chief of the Jamaat-i-islam.

Justice Nizam: Prima facie it has been found in the formal charge that Jamaat-i-islam is involved in atrocities during the War. If command responsibly established then the charge will exist otherwise not.

Abdur Razzak: It is said in the order, “After the liberation of Bangladesh, he apparently formed the East Pakistan Restoration Committee and collected funds in Saudi Arabia”.  My lord, the Petitioner had no involvement whatsoever in the formation of the East Pakistan Restoration Committee.

My lord, all charges are the same except shiru miah. My lord, how can a mere speech amount to a crime against humanity? Charges incitement, conspiracy, planning are not specific enough for the accused to defend himself.

Zaed-al-malum the prosecutor argued that in case of discharge application the defense had submitted the same ground.

Then the court was adjourned.

6 Jun 2012: Azam tribunal transfer application 2

Justice Nizamul Huq started proceedings by saying that the tribunal wanted to repeat that no one is allowed to come before the tribunal with an electronic device. I’m not going to explain why I have said this. But, I would like to make it sure that- no one is allowed to come with that.

The defense lawyer Tajul Islam said: My Lord, I hereby would like to say that there have been many incidents when the mobile phone of the Chief Prosecutor or Mr. Zead Al Malum or some other member from the Prosecution team started ringing before the tribunal. Even there was an unexpected incident when just because of finding an electronic device, a foreigner who was an observer on that day has been very much harassed before the tribunal.

Zead Al Malum from the prosecution said that there were so many incidents when the cell phones of the defence started ringing also.

Tajul Islam then moved onto another matter: concerning the failure of the jail authority to comply with an order that the tribunal passed  on 13th May, 2012 which directed that the accused be supplied with the Islamic books, documents, papers etc.

Justice Nizamul Huq asked Mr. Zead Al Malum to come forward. The chairman  said the order has been passed on 13th May, 2012 and the letter has been issued on 30th May, 2012. What authority does the Jail Superintendent have to ask whether these materials have to be supplied or not. The Tribunal has ordered to supply these materials. These materials ought to be supplied within this day, otherwise order will be passed.  The Prosecution is asked to say that It is the desire of the Tribunal to supply those books. You have to tell the officer to comply with the order of the tribunal. The materials are ought to be supplied within this afternoon.

Zead Al Malum then mentioned another issue to the tribunal. He drew the tribunal's attention to two reports of Daily Sangram. It has given a headline on a report that the deposition has been taken of another witness when the deposition of witness-3 was pending. Another one has published a report about the Prosecution witness Gourango Chandra Singha. It has stated in its heading that- Gourango Chandra Singha, who has fled away after leaving his uncle in trouble, is now being sought for the murder of his uncle.  My Lord, it is really not fair. It is not in no way protecting the honour of the witnesses. It is the responsibility of everyone to ensure the safety and dignity of the witnesses. So, my humble prayer before the Lordships is to take necessary steps for these spiteful reports.

Justice Nizamul Huq: Mr. Prosecutor you know it very well that sometimes it is the habit of some reporters to colour a report. We are telling it again and again to be careful when reporting. But it is continuing. What should we say now? And please don’t be so sensitive about every reporting. In that case we will not proceed properly.

The tribunal then moved onto deal with the prosecution arguments against the Azam's defense lawyer application for recusal of the tribunal chairman or transfer of the case to the second tribunal which were argued the day before.

Mr. Zead Al Malum came before the dais and started submitting his arguments against the transfer petition of the case of Mr. Golam Azam to the Tribunal-2 by the defence counsel. Then he mentioned the newly inserted section-11A of the ICT Act- 1973 which has been added to the previous Act by the President’s Ordinance Number-4 of 2012—the section is as follows:

“At any stage of a case, a Tribunal may, on its own motion or on the application of the Chief Prosecutor, by an order in writing, transfer the case to another Tribunal, whenever it considers such transfer is just and convenient for proper dispensation of justice and expeditious disposal.” 

Then he has objected to the word “recusal” which has been mentioned by the defence at their petition. I didn’t find the word in this Act he said. Previously such kind of application has been presented by the defence

He refered to the news report which refered to the Chairman of the Tribunal bring involved in the Ghatok Dalal Nirmul Committee. Then he has mentioned the news report from the Annex which has stated that the judgment of Gono Adalot (People’s Court) should be make true; it was the demand of the Lawyers Association.

[At 11:30 A.M. Mr. Abdur Razzak asked the Tribunal to allow the accused Mr. Golam Azam to leave the court roon as he is feeling very sick. The Tribunal permitted him to leave.]

Afterwards Mr. Zead Al Malum continued his arguments. He has stated that- except the perpetrators, collaborators and the supporters of the war crimes of 1971 there is no one who is not in search of justice for the war crimes of 1971. So, in that case if our lordship was somehow involved with the movement that might not be counted as an illogical matter. Now why at this prime stage of the proceeding of Mr.Golam Azam; the defence is thinking about the biasness. Now they have intentionally raised the issue of recusal or transfer at the stage before the Opening Statement starts.

Is the Tribunal is empowered to do what the accused wants it to do ? Then he has mentioned section- 6 (2A), 9, 24, 26 of the ICT Act-1973. There is no other way left in the hand of either Prosecution, defence or the tribunal to go beyond these sections. So, there is no legal validity in favor of the application sought by the defence. Transfer itself is an independent process. Only the Tribunal or the Chief Prosecutor can apply for it.

The Justice then said that-the accused apprehends he will not get fair trial.

Then Zead Al Malum stated that the defence should be very  careful when stating anything about the tribunal or the justices. The matter of transfer and recusal have been presented previously and disposed off, but the same matter has been raised here again. It is a part of long term planning of something malicious by the defence.

Justice AKM Zaheer Ahmed: I will not ask anything about the recusal matter. It has been stated in the section-11A about the transfer of the case by the request of the Chief Prosecutor and by the own motion of the Tribunal. Right now the second tribunal is quite as free as the Tribunal-1 in dealing with the proceedings. We are already burdened with two cases. So, whether this tribunal could suo moto give an order of transfer the case to that tribunal?

Zead Al Malum: Apparently it has been assumed that the tribunal is not burdened. But actually they will immediately be overloaded by the loads of proceedings.

Mr. Abdur Razzak then responded, I would like to say something. If the petitioner would have been discharged, in that case the question would not be raised. We’ve waited a long time to avoid this perilous application. 

The court then moved onto deal with the review application of Azam's indictment.