Wednesday, November 16, 2011

13 Nov 2011: Chairman recusal petition

This hearing concerned a defence application seeking the ‘recusal’ (I,e the removal) the chairman of the tribunal in relation the case of Delwar Hossain Sayedee. There were only two judges present hearing this application– Nizamul Huq, the chairman, had absented himself.

The defence had brought to this hearing their big legal guns. Usually the defence use Tajul Islam and Tanvir Al-Amin to argue their applications in the tribunal (good but young lawyers). However today, there was Abdur Razaque, the head of the legal team (and also a leader of the Jamaat-e-islami party himself), Moudud Ahmed, another senior lawyer and former BNP minister, and Khondaker Mahbubur Hossain who is chairman of the Supreme Court Bar Association.

Abdur Razzaque made the main argument in support of the application.

He said that this was a important day for this tribunal as never in the 200 year history of British rule, or 25 years history of Pakistan rule or 40 years of Bangladesh, has such an application been made.

He said that the application relates to the recusal of Nizamul Haque as chairman of the tribunal, who had been appointed by president on 25 March 2010. ‘From the documents it is crystal clear that Nizamul Huq was a member of the secretariat of the Peoples Inquiry Commission whose job it was to investigate allegations in 1971 involving Sayedee,’ he said

‘Every person knows very well that if a person involved in a matter pending before the court, when it is brought to their notice, the person withdraws. It happens all the time. If you investigate a matter you can not be a judge. Some of the witnesses which are relied on, that very person’s deposition has been taken by Nizamul Huq.’

One of the tribunal members says, ‘personally taken down?’

‘He has taken evidence of some of the witnesses,’ the lawyer answered.

‘This is a case in which the whole world is watching,’ he continued. ‘The situation we are in is perverse. The only case in 275 years where we have to ask for recusal. Nizmaul Huq is not here and it falls on your lordships to deal with this issue.

‘I want to make clear that not concerned with his appointment of a judge, we are not challenging that. His involvement in the investigation can be found by looking at the document, Report of the Findings of the People’s Enquiry Commission on the Activities of the War Criminals and the collaborators’, published on 26 March 2004, with the committee having been set up on 26 March 1993.

‘What is in this report? It shows that committee was involved in the investigation of allegations said to be committed by Nizami, Salauddin Quader Chowdhury, Sayedee and others and a 40 members secretariat was formed, and Nizamul Haque was one of them.’

He read out from the document: “There is no attempt to investigate the war crimes of 1971 by the government of Bangladesh. The duty therefore has fallen on the shoulders of the people themselves who have already made their judgment on Golam Azam known through the people’s court. The next step was investigation into the 1971 activities of other suspect collaborators, to establish whether war crimes trial proceedings ought to be instituted against them. With this in mind, the National Coordinating Committee announced on Mar 26 1993 the formation of the a National People inquiry Commission to investigate the 1971 role of eight collaborators. This would be the first phase of a series of such investigations, eventually leading to probes in 1971 crimes of all suspect collaborators.’

Razaque then asked, ‘Who are the eight collaborators? The petitioner, Delwar Hossain Sayedee is one of them. It is made abundantly clear that the committee’s objective was to investigate their activities during 1971 and establish grounds for individual war crimes tribunals.’

He then quoted again from the report: “With this objective in mind the Commission carried out widespread investigation into the past activities of the either persons named on Mar 26 1993, in the first phase of the inquiry. A 40 member secretariat comprising mainly lawyers, journalists and writers was formed to the assist the Commission in its task. The problem was conducted on the basis of information gathered from documents of the war period, authoritative books written on the war and Genocide, newspaper report of the period, and written statements seen by witnesses from various parts of the country. In addition fresh previously unpublished information was also gathered through field investigation in the home districts of the either accused or where they operated during 1971.’

Razzaq then said that he would now quote a key bit. ‘The Commission analysed all the information gathered by members of the Secretariat.’

Razzaq said, this shows ehat ‘The basis of the report is information collected by the Secretariat.’

He then quoted again from the report: “The commission took the decision to compile the investigation report after scrutinizing and fully analyzing all the information made available. The people’s enquiry commission approved the report before being published. The commission has presented the report in a summarized form to the Steering Committee of the National Coordinating Committee and requested the latter to publish the full report in a book form. Below is the summarized version of the report with details of information against the either accused.’

He then pointed to a part of the report relating to Sayedee and said that he would show that the charges against Sayedee ‘have been taken from this report’

The lawyer then read a segment from the conclusion, “The investigation conducted by the National People Enquiry Commission has proved the legitimacy of the demand for the trial of the eight accused.”

Razaque then said, ‘And this tribunal is now trying them. And who is the chairman of the Tribunal, Nizamul Huq. Nizamul Huq was part and parcel of investigation. If you then look at Appendix D of the report, there are 40 members of the secretariat, 27 of them lawyers and Nizamul Huq is number 25.

‘This is 20 years ago, and he was practicing in the High Court. It was perfectly right for him to do this, but it is unlawful for him now to be a judge in this case.’

He then referred to the Bangla version of the report which spelt the tribunal chairman’s name differently and said that it was not disputed that the name in the report refers to the chairman of the tribunal, but wanted to raise the spelling differences be transparent. ‘I take this to be a printing mistake’ he said.

What does the report say in 1994 and what did it decide? Razzaq then reads out what he contends to be similarities between some of the counts in the frame-charges and the 1994 report.

1. In the report it says, ‘During 1971, Sayedee took active part in the organisation of Rakaker, Al Badr, and Al shams forces in his own area of Pirojpur in the south of the country, in order to assist the Pakistan army’

Counts no 19 says: ‘That during the period of Liberation War starting from 26.03.1971 to 16.12.191 you being a member of Razakar Bahini …’

2. In the report it says, ‘He personally looted houses of Hindu families at Pater Hat area in Pirojpur, citing religious strictures as justification of the repression of the Hindus. He broke into the shop of a Hindu trader named Madan and carried all the goods off home.’

Count 6 says: ‘That on 7 May, 1971, you led a team of Peace (Santi) Committee to receive Pakistani Armyat Paterhat Bazar under Pirozpur Sadar Police Station then you identified the houses and shops of the people belonging to Awami League, Hindu Community and supporters of the Liberation War.’

3. The report says, ‘One Bhaguathi accused of supplying information to the freedom fighters by Sayedee was tied to the back of a motorcycle and dragged for five miles before being killed.’

Count 18 says: ‘On one day, after a fight with the freedom fighters, and at the instance of you, said Bhagirothi was arrested on charge of passing information to the freedom fighters and was tortured and then after taking her to the bank of river Boleshwar she was killed and the dead body was thrown into the river.’

4. The report says, ‘Sayedee and his men also kidnapped and killed others including Krishna Kanta Shaha, Bani Kanta Sikdar, Tarani Kanta Sikdar, Beni Madhab Shaha …’

Count 12 says, ‘That during liberation war on one day a group of 15/20 armed accomplices under your leadership entered the Hindu Para of Parerhat Bazar under Pirozpur Sadar Police station and captured 14 Hindus namely Horolal Malakear, Aoro Kumar Mirza, Taronikanta Sikder, Nando Kumar Sikder and others, all were civilians and supporters of Bangladesh independence.’

5. The report says, ‘Sayedi and his cohorts carried out repression on the daughters of Hari Sadhu and Biod Shahah, she said.’

Count 17: ‘That during the time of liberation war in 1971, you along with other armed Razakars kept confined Bipod Shaha's daughter Vanu Shaha at Bipod Shaha's house at Parerhat under Pirozpur Sadar Police Station and regularly used to go there to rape her.’

6. Sayedee after looting the home of the Talukdars, a locally influential Hindu Land lowning family, kidnapped 25 women from the premises and sent them to the Pakistan army camp.

Count 20: ‘Then under your leadership, a Razakar Bahini consisting of 10-12 armed forces in a planed way, attached the houses of Talukdar Bari in the village-Indurkani village under Indurani Police Station and detained total 85 persons and looted away goods from therefrom.’

Razzaq then said, ‘And this is I think the most important one.’

7. The report says that ‘There are allegations that Sayeedi was involved in the killing of sub-divisional police officer (SPDO) Faizur Rahman, Father of Humayun Ahmed, a renowned write and professor of chiemistry at the university of Dhaka.’

Count 5: ‘As a part of the plan on the same date and time, Mr Foyezur Rahman Ahmed, Sub-Divisional Police Officer, and Mr Abdur Razzak (S.D.O in charge of Pirojpur), were also arrested from their work place and taken to the bank of the said river.’

Razzaq then said, for this there are three witnesses – and he names them. ‘None of the witnesses say that Sayedee was present there. This has come from Nizamul Haque in his role in taking evidence for the investigation report.’

‘Can he now be involved in dealing with this case. Certainly not

‘There is a direct link from this report to the chairman. If the chair is directly involved in the investigation, it is too much for him today to decide that he is part of the tribunal, as there is a very strict rule on this and conviction may lead to capital punishment.’

He then said that he would take the tribunal to certain previous court decisions.
- he referred to tehe 1999 cases Regina v. Bow Street Metropolitan Stipendary Magistrates and others, Ex parte Pinochet Ugarte (No. 2) (House of Lords) which held that:
“…the fundamental principle that a man may not be a judge in his own cause was not limited to the automatic disqualification of a judge who had a pecuniary interest in the outcome of a case but was equally applicable if the judge’s decision would lead to the promotion of a cause in which he was involved together with one of the parties…that in order to maintain the absolute impartiality of the judiciary there had to be a rule which automatically disqualified a judge who was involved…in promoting the same causes…as was a party to the suit”.

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

“…I am of the opinion that there could be cases where the interests of the judge in the subject matters of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation”.
He then referred to the 2000 Yugoslavian tribunal case of Prosecutor v. Anto Furundzija, ICTY Appeals Chamber which held that: “The fundamental right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial.”
“On this basis the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the statute:

A. A Judge is not impartial if it is shown that actual bias exists
B. There is an unacceptable appearance of bias if: (i) a judge is a party to the case, or has a financial or propriety interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or (ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.”
- he then referred to the case of Prosecutor v. Issa Hassan Sesayin the Special Court for Sierra Leone Appeals Chamber which itself referred to the two authorities cited above in determining whether Justice Geoffrey Roberston QC should be properly disqualified for commenting on the nature of the conflict in a book. It concluded that:
“It is irrelevant for the purposes of this Ruling whether or not the passages hereinbefore referred to are true or not. The learned Justice is entitled to his opinion. That is one of his fundamental human rights. The crucial and decisive question is whether an independent bystander so to speak, or the reasonable man, reading those passages will have a legitimate reason to fear that Justice Robertson lacks impartiality. In other words, whether one can apprehend bias. I have no doubt that a reasonable man will apprehend bias, let alone an accused person and I so hold.”
Razzaque then moved onto to point out the Zead-al-Malum, now a member of the prosecution team, had also been a member of the secretariat.

‘Under the circumstances, disqualification of the judge in this case is automatic. This is well known on the streets of the High court. This is crystal clear. It should be automatic. No case needs to be cited, but unfortunately we need to cite it here. There is a reasonable appearance of bias. This is a very very very good case’ he said.

‘Justice must not just been done but seen to be done. Judges must be above suspicion. The chairman ought to be disqualified’

He then went into a discussion that the chairman might be a ‘material witness’. ‘If the prosecution does not call him, the defence might.

He then made a number of further legal submissions, which are best summed up in this extract from the written application:

That Article 96 (4) (a) of the Constitution provides for a Code of Conduct to be prescribed by the Supreme Judicial Council and which is to be observed by judges. This was most recently published on 7 May 2000 (hereinafter referred to as the Code of Conduct). That pursuant to clause 1 of the Code of Conduct: “A judge should uphold the integrity and independence of the judiciary. An independent judiciary is indispensable to the justice system in Bangladesh. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”

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

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

That under clause 3(6)(d)(iv) of the Code of Conduct a judge should disqualify himself if he “is .. likely to be a material witness in the proceeding”.

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

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

That the right to an independent and impartial judiciary prescribed in the Code of Conduct is also a standard obligation to adhere to under international law. Article 10 of the Universal Declaration of Human Rights provides: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

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

That this fundamental right to an independent and impartial Judge is also recognised in Article 40 (1) of the Rome Statute for the International Criminal Court (ICC) which provides that “[t]he judges shall be independent in the performance of their functions”. The disqualification of a judge is outlined in Article 41 (2) (a) ICC: “A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.”

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

It is respectfully submitted that the overriding question is not whether the Hon’ble Chairman is a man of integrity, the question is whether an objective observer, would conclude that there is a legitimate fear that he will lack impartiality due to his prior role in the Secretariat of the People’s Inquiry Commission. Irrespective of how limited a role the Hon’ble Chairman may have played in the inquiry into war crimes in the 1990s, the Prosecution now seeks to rely on the findings of the Commission in the case against the Accused-Petitioner. As a member of the Secretariat of the People’s Inquiry Commission, the body that investigated crimes alleged to have been committed by the Accused-Petitioner, the Hon’ble Chairman has a relationship with one of the parties as set out in Pinochet No. 2 and Prosecutor v. Issa Hassan Sesay. The objective impartiality test is clearly made out in that any objective observer could only conclude that an appearance of bias is present.

Moudud Ahmed then stood up and spoke:

He first said that he adopted Abdur Razzaque’s arguments but said that he felt puzzled why there should be a hearing on this point at all. ‘It is unfortunate that you two are sitting having to make a decision on whether chairman should sit. I have respect for the judge and hold him in high esteem. There should be no need to hear the application, as by norms and code of conduct as soon as received application should have withdrawn himself.

He said that this is a case of a highly political nature and ‘whole world is looking at the lordships dispense justice. ‘

He said that the decision would have implications for ensuring the ‘dignity of the court’

Khondaker Mahbubur Hossain then rose and said, ‘I come to your lordship to say that dignity of judiciary must be kept for ourselves and future generations.’

He then discussed the 195 Pakistani prisoners of war who had been detained by the Indian government and were return to Pakistain in 1973, and argued that they too should be held to account.

‘Justice must be done according to law, Human Rights organisations are not looking for the impossible. We all want to see the trial of those responsible. In relation to the question of Nizamul Haque, he cannot be the judge in his own case.’

Haider Ali then spoke for the prosecution. He made the following points:

- The purpose of the application is to delay proceedings and the defence could have made this application at an earlier date;
- no where in the report did it state that the chairman had been involved in the investigation of war crimes
- the chairman’s only connection with the report was that his name was part of the secretariat. There is no evidence to show that he was involved in the investigation.
- the chairman has no bias as he was not a party to this case.
- the report of the Inquiry commission was not accepted by the then government.
- The defence are challenging the constitutionality of the tribunal and they are unable to do this under the Act. This matter has been dealt with at the High Court already. On this point, a tribunal member said, ‘They are just asking him to recuse himself from his case’. The prosecutor then said but ‘the appointment of this judge is at issue in this application’. A tribunal member then said, they are not seeking disqualification. Just asking for recusal in this case
- the writ petition is not maintainable in this court
- judges are assumed to be impartial

Mr. Mohammad Ali, another prosecutor then rose and asked ‘under what section of law did the defence file this application. It is not known. Not cited. This goes to the maintainability of the application which has to be made within the framework of the Act. In the prayer for recusal there is no provision of law cited there.’

He also pointed to section 19(4) of the 1973 Act which allows the tribunal to take judicial notice of certain reports. ‘The inquiry commission was not an international NGO.’

‘So I think this application is nothing more than just to delay the tribunal. There is no right to file the application under the Act.

Razzaq then responded to these argument. He started by saying that he found it difficult to understand the relevance of some of the submissions made by the defence.

He said, that the application was filed on 27 October and that since then noone has denied the central points made by the defence. ‘Geofrey Robertson contested [an application for this recusal], Hoffman contested it, but no evidence was filed by judge or the prosecution – and so each and every line should be taken as correct as there has been no denial. [The point being made here, I think is that, in Bangladesh practice unless a party places an affidavit in opposition to an application, then the facts stated in the original application need to be considered by the courtto be correct.]

He the said that Haider Ali has argued that the prayer was not properly drafted. ‘It is a simple application in simple English,’ he said.

He then said that the High Court writ petition 5/2010 was ‘totally different’ involving the question of whether a judge of a high court would sit in the tribunal. ‘We are dealing with two different worlds; one in south pole, the other in North pole.’

He said that it has been submitted that this is not the forum for record. ‘If so, what is the forum for us? This is the forum. There is no other forum.’

He went on to say that Haider Ali is just saying that the chairman’s name is merely at the end of the report. ‘But look at our facts. He was involved in the investigation process. Who brought it to the court. The prosecution did, and it showed that the chairman was much involved in the process of investigation.’ It is a question of fact and no one has made a challenge to the questions of fact, he said. ‘What more can we do to show that a judge of this court was a member of the investigation body.’

Then said that international rules are not in the Judge’s favour. ‘All the citations are in our favour.’

He then said. ‘I want to make a statement. We are making it clear that if the chairman remains we will call him as a defence witness. We will not stop as it is he who collected the evidence and so we will call him as a witness. If he does not recuse himself, we will make him a material witness.’

The tribunal asked him under want legal provision is the tribunal able to take action. Razzaque responded that on the basis of the code of conduct of judges and also section 6(2)(A) of the 1973 Act. He also raised the issue of the judge’s oath which he said was ‘very wide’. He said that the judge has violated his own oath and the judges code of conduct, and the tribunal could act under section 6(2)(A)

The tribunal then asked him, how can one jude ask another judge to recuse himself. Where is the power for that? Razaq responded that they could in order to ensure justice. ‘It is an implicit power that judges have. Unless you exercise your power, justice will not be done. My submission is that you have powers to pas any order. It is impossible to have trial with chairman as it is.’

Razzaq said that ‘The chairman should resign from the tribunal. The sooner he recuses, the better for us. If he does not recuse, we will make him a material witness.’

The judge said that an order will be given the following morning.

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