Tuesday, December 6, 2011

20 Nov 2011: Recusal reason hearing

On 30 October, the tribunal had set 20 November as the date for the prosecution to make its opening statement in the trial of Delwar Hossain Sayedee.

However, on 16 November, after the defence filed an application seeking reasons why the tribunal chairman continued to sit as chairman of the tribunal, the tribunal also set 20 November as the date to hear the application. The application was a response to the decision by the tribunal dealing with its initial recusal application

So, in the morning rather than the trial starting, the hearing started with the recusal reasons application. To read about the opening statement of the trial that took place in the afternoon, click here.

Application for reasons why chairman not recuse himself
Present at the hearing were the same set of senior lawyers who came to argue the original recusal application – Abdur Razzaque, Moudud Ahmed and Khondaker Mahbub Hossain.

Razzaq started by saying that he has almost lost his voice and asked if Tajul Islam could place the application. The tribunal agreed and Islam read out the application.
Islam said that the application was filed in relation to the order of 14 Nov 2011 which he said ‘did not remove Mr. Justice Md. Nizamul Haque from the Tribunal despite allegations of bias made against him, but left it to his “good conscience”. Such exercise of “good conscience” is required to be recorded in writing by the Tribunal in the interests of justice and for the reasons stated hereinafter. ‘

He then summarised the allegations made in the original application seeking Haque’s recusal. He said, in the application the defence made ‘very serious and specific allegations of both actual bias and a reasonable apprehension of bias against Mr. Justice Md. Nizamul Haque. It was specifically stated that it had transpired that Mr. Justice Md. Nizamul Haque was a member of the Secretariat of the People’s Inquiry Commission which investigated allegations of war crimes made against the Accused-Petitioner from 1993 to 1994. The function of the Secretariat was to assist the People’s Inquiry Commission in its investigation against the accused. The Report of the People’s Inquiry Commission (in which Mr. Justice Nizamul Haque rendered his assistance as part of the Secretariat) had been published in English in 2005 by the Ghatak Dalal Nirmul Committee which was annexed with the application for recusal. Moreover, the Bengali version of this report was also being relied upon the prosecution to prove their case against the accused petitioner and was included in Volume 2 of the Prosecution Documents at pages 176 to 187.’

He further submitted that of the 20 charges framed by the Tribunal on 3 October, 7 charges ‘were already by investigated by the Chairman of the Tribunal.’ [though his membership of the secretariat].

He said that ‘The prosecution at no stage denied the contents of the Report. Mr. Md. Nizamul Haque also made no statement disputing the Report. As such admittedly Mr. Justice Nizamul Haque was involved in gathering information in support of 7 of the 20 charges framed against the accused petitioner’.

Islam then said that Mr. Justice Nizamul Hoque (unlike Justice Geoffrey Robertson in the case of Prosecutor v Issa Hassan Sesay in the Appeal Chamber of Special Court of Sierra Leone), did not provide any written statement defending his position.

The allegations against him were therefore ‘uncontroverted’ he added.

He said that the tribunal’s order of the 14th November in response to the application stated ‘whether or not Mr. Justice Md. Nizamul Haque would continue as the Chairman of the Tribunal was left to the exercise of good conscience by him.’

He then went onto say, “it is specifically stated here that the Tribunal did not clear Mr. Justice Md. Nizamul Haque of the allegations of bias made against him. The Tribunal refrained from dealing with the issue of Mr. Justice Md. Nizamul Haque’s bias on the ground that as co-judges, they could not recuse him. As such Mr. Justice Md. Nizamul Haque continues to act as Chairman on a mere technicality. He continues to be Chairman of the Tribunal by default.”

That the Tribunal not having cleared Mr. Justice Md. Nizamul Haque of the allegations of bias, it is now up to him to clear himself of any apprehension of bias, he said.

Islam then sets out what the chairman has to record. There appeared to be eight separate but overlapping questions to which the defence were seeking responses

1. how in exercise of his “good conscience” he continues to sit as Chairman of the Tribunal despite the uncontroverted allegations of bias against him.

‘Mr. Justice Haque should clarify his position and explain how he has come to the conclusion that he is not biased and therefore competent to try the accused petitioner he has already investigated in 1993 and 1994 together with one of the prosecutors of the Tribunal.’

2. how before taking cognisance, when he perused the report of the People’s Inquiry Commission which was part of the evidence and realised that he was involved in gathering information against the accused petitioner on which the prosecution were relying, he did not disclose his involvement in preparing one of Prosecution Documents to the defence.

3. how in view of such failure to disclose his involvement he has in fact exercised his good conscience to continue to sit as Chairman of the Tribunal.

4. how, before framing charges against the accused petitioner, Mr. Justice Md. Nizamul again failed to disclose his involvement in preperation of prosecution documents and so ‘in view of his persistent failure to disclose past conduct prejudicial to the defene, Mr. Justice Md. Nizamul Haque is to record clearly and in detail how in exercise of his good conscience he now continues to sit as Chairman of the Tribunal.’

5. his failure to disclose his association with one of the prosecutors, Mr. Zeyad Al Malum who was a co-member with Mr. Justice Md. Nizamul Haque of the Secretariat of the People’s Inquiry Commission and therefore worked together to gather information against the accused petitioner.

He said that ‘His failure to disclose such association with a member of the Prosecution, constitutes misconduct. Mr. Justice Md. Nizamul Haque is required to explain how in such circumstances he is exercising his “good conscience” to continue to function as Chairman of the Tribunal.’

6. how in exercise of his good conscience the chairman intends to maintain independence and fairness in his judicial functions given that he has already investigated allegations and gathered information against the accused petitioner, especially when some of the allegations investigated by him are reflected in the charges framed against the accused petitioner.

7. That Mr. Justice Md. Nizamul Haque is required also to explain how in exercise of his good conscience he intends to maintain independence and fairness in his judicial functions when he is called upon again to consider the Report of the People’s Inquiry Commission (which he helped to prepare) during the trial.

8. how in exercise of his good conscience he intends to maintain his independence and fairness when he worked with one of the parties to this litigation (i.e. the Prosecutor, Mr, Zeyad Al Malum) to investigate allegations against the present accused-petitioner.

He said that the chairman has to ‘respond to and record reasons in relation to each of the actions/decisions taken by him as outlined above [which was] necessary to determine whether there has been an exercise of good conscience (as observed by the Tribunal in its Order dated 14.11.2011) by him in deciding to resume his judicial functions. ‘

He then referred to the views of a number of senior lawyers (including Mr. Rafique-ul Haque, Barrister-at-Law, Senior Advocate and a Former Attorney General of Bangladesh; Mr. Moudud Ahmed, Barrister-at-Law, Senior Advocate and Former Law Minister and Vice President of Bangladesh; and Mr. Khondker Mahbub Hossain, Senior Advocate and President of the Supreme Court Bar Association) who said that the chairman should resign.

He then referred to section 6(2A) of the International Crimes Act 1973, which imposed a duty on the tribunal ‘to ensure a fair trial’. He said, ‘In the interests of a fair trial, it is essential that Mr Justice Md. Nizamul Haque provides clear reasons as to how in exercise of his ‘good conscience’ he is continuing to sit as Chairman of the Tribunal.

With the application read out, Abdur Razzaque, then got up and asked the tribunal whether Moudud Ahmed could say a few words to the court:

Ahmed got up and said: ‘I’ve the greatest respect for you. Last order was given on 14/11/2011 by 2 judges in absence of the Chairman. I had mentioned previously that it would be embarrassing for them to give a verdict. That has turned out to be correct. I admire their order. They left it to the lordship’s conscience. It’s a more ethical than a political or legal issue. Depends on your own conscience whether you as judge can adjudicate the matter by freeing yourself of the role that you had before and whether under your oath you are in a position to extricate yourself from your role in the past. A judge may have political views, but once oath is taken, we expect honourable judges to abide by the oath and conduct a fair trial. There was a People’s Enquiry Commission with regards to the same people who are now accused. Your lordship was a member of the People’s Enquiry Commission and very much involved in it. Perhaps your lordship has done it for the right cause - we have no comment on that. But for the same people to see justice and obtain a fair trial, there is a conflict of interest. we ask you to consider your position; I have been 45 years in practice and also very much involved in the liberation war, but this case has taken on a political hue rather than the trial of the really guilty. I as a citizen, a lawyer would like to see [the trial] happen. If this Lordship continues, the controversy will continue. Trial conducted like this cannot be fair. This allegation [involving recusal] was not made without any basis, there are tangible grounds. The government has said that the trial will be transparent.

'It is upto the lordship’s conscience. I urge you, I know you personally and have great respect for you. All like to see that the supreme court mains dignity and about any controversy. If the Lordship said he was not involved [in the people’s enquiry commission] the matter would have been different. I humbly submit your Lordship must try to maintain honour, prestige and respect of Supreme Court, in other words Judges of the court.’

Abdur Razzaq then got to his feet and made some further points to the written application.

He first pointed to section 6(2)(a) of the 1973 Act which states that the tribunal will ensure a fair trial. He then read out rule 46A of the Rules of procedure which states that: ‘Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make such order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process.’

He said that the tribunal in framing these rules could have ended on the words of ‘ends of justice’ but went onto say ‘or to prevent abuse of the process.’. Justice must not just be done but seen to be done, he said.

He read out parts of the order given on 14 November, and said that there were three key observations: (a) the tribunal cannot go beyond the powers of the 1973 Act (b) that the judges have equal power and (c) left the matter of recusal to the chairman. ‘Of these the third one is most important’.

He said that an allegation of bias has been made, but no-one has challenged the facts to it, as they cant. It has not been rejected by the tribunal. No finding of that kind. ‘The judges say that it is a matter of conscience of the judges as two of my lords were convinced there were sufficient uncontrovertible documents which show bias or likelihood of bias.’

He then went through the two times in which the tribunal chairman took ‘judicial notice’ of the report – when cognisance was taken and at the time of charge framing. (see above)

‘The Defence has right to know how Chairman Nizamul Haque exercises good conscience when he considered this document’ he said. ‘The crux of our application is we what to know how he has taken his decision. What is the legal basis and ask him to provide reasons. What are the reasons? He may have good reason.’

Razzaq then went through a number of different cases from South Asian courts which he argued set out the importance of providing reasons for decisions, and argued that ‘right to reasons is an indispensable part of a judicial system. Giving reasons is one of the elements of justice.’

The chairman asked at one point, ‘What are you trying to say by citing these references?’ and Razzaq responded by saying that the defence is entitled to get an explanation of why he is sitting at the tribunal.

Razzaq pointed to the fact that this matter may well come before the appellate division, following conviction or acquittal and it is important that reasons are available for the court to assess.

He ended by saying, ‘Since you are here we are asking your lordship to give reasons. It is difficult situation for us.’

Khondker Mahbub Hossain then rose. He said that he was not suggesting that the chairman was biased. ‘Not suggesting that we will not get fair justice. But the prosecution themselves have put certain documents which shows your lordship had some involvement with inquiry commission.’ He said that it was important that the dignity of the supreme court was retained.

Attorney General Response
Nizamul Haque then asked for the Chief Prosecutor to respond.

The attorney general then rose. Razzaq asked in what capacity the attorney general was speaking, and quoted from the 1973 Act that set out who could be a member of the prosecution team. The attorney general then said that he was speaking in his position as attorney general. The chairman said. ‘Let us hear him.

The Attorney General first joked that the defence first ‘didn't want the chairman of the tribunal, and now they don't want me!.’

He said that he had never seen such an application in all his years of practice. He said that it is accepted practice that if judiciary is going to be challenged, must be challenged right at the beginning of the proceedings. He said that this is no time for the chairman to be challenged.

He referred to the two documents appended to the application, a statement by Jahanara Imam and an introduction by Sufia Kamal in which she said that some accused should be prosecuted. ‘For sovereignty of Bangladesh, commission believes that it is not possible to establish dominancy without rule of law,’ and should be prosecuted under the 1973 Act.

The report shows that war crimes has been committed, and this government now taking them seriously, the Attorney General said. Is there any reference to Nizamul Haque being involved in the investigation. No. this document proves nothing.

He then referred to the document that talks about the investigation into eight people. And the appendixes of the document which set out the members of the people’s commission and the 40 names. ‘Nizamul Haque and my name is there. His name has been published. I did not even know that my name had been included there.’

He then said that what was in the report was a ‘people’s demand. All citizens in Bangladesh except those from a particular political party supported this document’. He questioned whether the defence were saying that no citizen can be a judge other those from the party itself?

He said that the court has looked at recusal application and said that in law not able to deal with the application. Then they have relied upon some observations in the order and filed another application asking his lordship to give reasons. This is contemptuous. Accused cannot ask presiding judge to give reasons as to why he wants to continue or not to continue as judge. This is unprecedented, absolutely unheard of.

He said that if for arguments sake the defence have anxiety about tribunal, they have a right to appeal, they can appeal to the appellate division. Why are then now creating obstacles for the tribunal

‘I came to the court to hear the reading of the opening statement and for this reason I came, but when I hear Abdur Razaq is making an additional petition, making arguments that are not relevant to this case,I decided that I should make a response.’ He said.

He then referred to the decisions cited by the defence and said that they did not apply to the circumstances of the case.

The defence cannot say that a judge should give reason why he should sit. He then raised the issue they the defence have made this application at this stage, why not earlier, and alleged that it was simply a device to delay the whole matter. There has already been delay. He finished his argument by saying that the application should be rejected.

Defence response
Razzaq responded to these arguments. He said that the application was made only 2 weeks after the formal charge order was given. He said that that the court may not have given an order with charges, so waited till then.

Then said that most of the Attorney General’s argument concerned the matter of recusal which was dealt with in a separate hearing, and not the issue at hand today about the decisions for the tribunal not to recuse himself.

He argued that it was not contemptuous to make this application. A judicial body is bound to give reasons. He pointed to the fact that the prosecution have not cited any cases.

He then said that in the House of Lords case relating to the Pinochet decision, the court heard the case, not on the basis of a specific provision but on general principles of bias.

He also pointed out that in Geofrey Robertson case, the judge responded to the defence application of bias.

He then pointed out that the accused was arrested 18 month ago, and that the defence cannot be held responsible for the delay in the process. He pointed to the fact that when Mladic was arrested and flown into the Haague, he was charged that very day. If there is an allegation of delay, it should be brought against the prosecution, he said.

He then said that his final submission was that that, without disposing of this application, my lordship can’t proceed with the opening of the trial. This matter should be adjourned today. Then the law will take its own course.

Tajul Islam then got up and said that there are more grounds for applying for delay. Sayedee was arrested on 29th August, 2010. ‘They have conducted investigation before arresting him. But we have been given only six weeks time. There is evidence at home and abroad. We are collecting them. We are in the middle of investigation and preparation. We need more time.’

The chairman asked whether the defence would be providing witness or other material? Islam then said that they had got much evidence and many documents. We need to scrutinise these. We are not ready until those are prepared. The prosecution have been allowed time, but when we ask for time, our application gets rejected. Tribunal should provide equal opportunity. We are in the fag end of our investigation. We have to go to the place of each occurrence. They have been given more than a year to investigation.

Nizamul Haque then read out an order:
Today was fixed for application filed seeking reason why chairman of the tribunal continues to sit, and also for opening statement of the prosecution. We have heard Mr Abdur Razzak who appears for the accused petitioner and and Mr Mahbubay Alam, the attorney general.

The hearing of application is concluded. Order will be passed on 23rd October.
After that Mr Razzak’s submitted that there should be an adjournment of the beginning of trial and also of witnesses on grounds that this issue has not been decided. Tajul Islam said that as not fully prepared so for the end of justice seek adjournment for three months.

Section 9(5) of the 1973 Act show that a list of witnesses for defence along with documents which defence intends to rely on should be filed at the commencement of the trial.

The trial starts at time of framing of charges which took place on 3 October.
Rules of procedure show that after framing of charge accused should have at least 21 days.

Today is 20 November. So more than six weeks have passed. Today is fixed for opening statement of the prosecution. The opening statement would in no way prejudice the defence.

The prosecution is directed to start opening statement at 2pm today. More time will be given to the defence, and the evidence will be started on 7 December, on which day the prosecution is directed to present witnesses, and defence will give its list of witnesses.’
Islam got up and said that tribunal had stated that the trial started at the ‘framing of charges’, but that previously said something differently. ‘We requested and you accepted. Charge framing is not part of trial. You gave the order yourself,’ he said.

Razzaq then got up and again submitted that should adjourn opening until issue of recusal was dealt with.

The chairman said, ‘I am sitting. I have not recused myself’

Razzaq then said that since your lordship will give reasons on Wednesday, why not start the opening statement on the 7th, when witness evidence is started. ‘This is my submission,’ he said.

The chairman said, I have not recused myself as yet. Until I do, I am still sitting. I will not sit if I recuse myself, if that at all happens. Under oath, under law I am bound to sit. When I pass order to recuse myself, my subordinates will come. What’s the harm?
Razzaq said, 'There is harm. I’ve made my submission. It’s your decision. Hearing an opening Statement today looks odd, in the event that Chairman’s future participation in the Tribunal remains undecided, he said.

Prosecution Press Conference, the Attorney General Mahbubay Alam spoke
‘You can’t challenge a verdict after it has been announced. They have some reason to delay the judges. This trial is not taking place on the basis of those documents and evidence (referring to the inquiry commission documents). The trial that is taking place now is according to the laws of a sovereign state. Except for Jamaat-e-Islami, everyone else was united for the trial to take place’

In response to a question about foreign media’s suspicion on objectivity of trial, he said: ‘These are groundless statements. Many people have been hired to make these up. I have seen what happened in 1971. We should be united. Otherwise, the soul of the martyrs won’t be at peace. Had I not had the responsibilities of an Attorney General, I would have visited here everyday.

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