Wednesday, December 12, 2012

The ICT chairman's resignation - what next?

The chairman of the International Crimes Tribunal one has resigned. What does this all amount to, and what next for the tribunals?

No choice but to resign .... however 
1. The tribunal chairman probably had no choice but to resign. It would have been difficult for him to have soldiered on after his conversations with Ziauddin Ahmed were laid bare by Amar Desh. Whilst it remains difficult to assess the level of Justice Nassim's impropriety (I would like to first await to see what the Economist says about all the material it has in its hands) one can at the very least say that he should not have been seeking advice about Tribunal orders from someone whom he know was in direct contact with the prosecution.

2. As much as anything else, however, his difficulties in continuing must have been about the personal comments he made about fellow judges as well as other people including ministers. It would have for example been difficult for him to continue on the bench after his comments about Justice Jehangir, with whom he sat on the bench, were made public.

3. It was notable that in Justice Jehangir's comments in court today he appeared, by inference, to personally criticize the tribunal chairman, whilst at the same time failing to criticize Amar Desh for actually publishing the report - only for the paper in using his name in the headline.

Amar Desh
3. Whilst it was arguable that parts of the transcripts were in the public interest to publish (this is of course an issue that deserves more attention than I will give here), it is certainly clear that Amar Desh at the same time published material that was private and personal. This should be strongly criticized.

4. Justice Nassim had a proper expectation of privacy. An offense was committed by the person who hacked into his conversations. Basic media ethics requires that there must be a strong public interest in a newspaper publishing material from hacked private conversations, particularly when they involve a judge dealing with a current case. This is the standard in the UK, at least - and whilst this is not enshrined in the Bangladesh press code (a rather odd document, it has to be said), one would hope that this is an implied standard that newspapers here should comply with. Amar Desh however seems not to have given any consideration to what was in the public interest to publish and what was not - and as a result publishing material that was entirely personal. (Was Nassim's health condition or his ability to use e-mail, relevant to anything?).

5. Also Amar Desh should have taken much greater care before publishing Justice Nassim's or Ziauddin's opinions about different people made - one must remember - in a private conversation. The publication of his comments about another judge for example suggesting that he was corrupt is potentially libelous. Does Amar Desh have any proof to support Nassim's allegation? If not they should should not publish it. Justice Jehangir in court today denied it (see subsequent post).

6. Amar Desh's failure to give any professional consideration in deciding what and what not to publish provides the Bangladesh government additional arguments in its current attempt to foist greater regulation on the media. The last thing the Bangladesh media needs is greater government control - but Amar Desh has unfortunately provided legitimate arguments for the government to push through with this.

Blame the government
7. What comes out of these Amar Desh transcripts more than anything else is the level of interference on the part of the government. The big question is why the state law minister Qamrul Islam, for example, is not resigning?

8. Whilst it was the government that established the war crimes tribunals - a decision that gave hope to the legitimate and important demands for accountability by families whose relatives were killed in the war as well as by so many others  - almost every subsequent decision they have made about the tribunals was wrong. These include:
- appointing prosecutors on the basis of party loyalty, rather than competence. Instead of appointing the best Bangladesh lawyers, they appointed lawyers with relatively minimal ability;
- failing to appoint international lawyers and war crimes investigators to work with the prosecuting and investigation team. This would have immeasurably improved the quality of the evidence obtained and the level of prosecution arguments;
- failing to change the law so that it was more in line with international standards. Standards are not just about providing more rights to the accused, they also help protect justice processes from coming into dispute, the situation we have right now.
- failing to appoint a independent legal advisor of international repute that could transparently assist the tribunal panel of judges in the process of holding these trials;
- failing to allow the tribunal to operate independently, and instead making prejudicial comments about the accused and placing pressure on the tribunal.
- refusing to take advice from the UN and others within Bangladesh who had been pressing the government to make improvements in the way the tribunal operated.

9. A common reprise of the government is to blame the BNP and Jamaat for undermining the tribunals. However, it has been the government which has continuously provided them the ammunition to do this. Had the government, right from the beginning, tried to ensure that these tribunals were of a higher professional standard, then we would not be in the situation that we are now in. Sure, the BNP/Jamaat would still be continuing to criticize the tribunal, but they would not have good reason to do so, and their concerns would not gain any traction or credibility. That cannot be said for the situation now.

What should happen next
10. There is first of all the question about the Sayedee case. One of the existing judges Justice Jehangir Hossain, appointed following the resignation of the Justice Zahir Ahmed, has not heard  any of the prosecution evidence. Justice Anwarul Huq, appointed at the end of March 2012, when Justice ATM Fazle Kabir moved to the second tribunal, had only heard part of the cross examination of one of the prosecution witnesses. And the new judge who will now replace Justice Nassim will not have heard any of the prosecution or defense evidence. Does this mean that there should be a retrial?

11. Section 6(4), (5) and (6) of the International Crimes Tribunal Act 1973 states the following
(4) If any member of a Tribunal dies or is, due to illness or any other reason, unable to continue to perform his functions, the Government may, by notification in the official Gazette, declare the office of such member to be vacant and appoint thereto another person qualified to hold the office.
(5) If, in the course of a trial, any one of the members of a Tribunal is, for any reason, unable to attend any sitting thereof, the trial may continue before the other members.
(6) A Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it.
12. This would appear, technically, to cover the situation that the tribunal is in. However, it is difficult to imagine that the Act could ever have envisioned a situation in which the tribunal is now in - where one of the judges has heard no evidence, another judge has not heard any of the prosecution evidence, and a third judge has heard a very small part of the prosecution evidence.

13. It may well be the case that the tribunal/prosecution will also point to the practice in Bangladesh which allows judges to take over  criminal proceedings and to make judgements on the basis of the recorded evidence alone. This is set out in section 349A (1) of the Code of Criminal Procedure which states:
Whenever any Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, as the case may be, who has and who exercises such jurisdiction, the Judge so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-summon the witnesses and recommence the trial: 
Provided that if the succeeding Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, as the case may be, is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.
Whilst the CrPC is specifically excluded from application to the tribunal  and in fact only applies to 'Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge', it may well be cited as national practice that can be applied here

12. If the tribunal accepted this position - that is to say that these three judges could give a judgment on the Sayedee case without hearing the evidence again - this would make the decision of the court particularly controversial. This would be the case particularly in the context of being a war crimes trial, with the possibility of a death sentence at the end of it.

13. Arguably, it would not serve the interests of anyone if the first decision of this tribunal arises from such circumstances, set out above. In addition to this problem, there are a number of due process failures evident in the manner in which the Sayedee case has proceeded. A retrial of the Sayedee case may be the best option available in such a situation to ensure credibility to the process.

14. The defense will also no doubt argue that the disclosures cast doubt on the other cases dealt with in Tribunal one - Golam Azam, Motiur Rahman Nizami, Salauddin Quader Chowdhury. It is too soon to determine whether or not this is the case. However, every crisis creates an opportunity. And in this crisis, there is an opportunity for the tribunals and the government to see how their processes and operations can be improved. This does not just relate to Tribunal one. In Tribunal two for example, the defense in one case have only been allowed to bring six witnesses to the court - half as many as the prosecution. These kinds of decisions by the tribunal, which cut across the due process requirements of allowing the defense to be able to present its case in court, could be reviewed.

The new judge
14. The defense may think the removal of Justice Nassim as a success - but it is possible that the government appoints a judge that is less independent minded than him.

15. For the sake of the credibility of the tribunal, the government must be persuaded to appoint a judge who is widely recognized as particularly competent and independent minded.

The objective
16. One must not lose sight of the objective of these tribunals. It is to hold trials that allow for accountably of those who are alleged to have committed war crimes in 1971. This is a principled objective and even those who raise issues about the tribunal must not lose sight of that legitimate purpose. For those like me who support accountability for 1971 crimes, criticism needs to lead to improvement and reform. Not impunity.

1 comment:

  1. Dear David,
    Thanks for your excellent analysis. I think you are missing one point. It is clear from the skype conversation of Nizamul Hoque that he did not maintain his integrity during his time as the chairman. Now all the decisions taken by him are under question. For example, the issue of safe house in the case of sayeedi. The decision made by Nizamul Hoque might not be in accordance with justice, so now it should be re-investigated. Another point , Nizamul Hoque made a comment about his fellow judge that He (fellow judge) was told by the govt not to disagree with the chairman publicly in the open court room. This means all the decisions was made by the chairman alone. Under these circumstances, are not all decisions made by Nizamul Hoque have a possibility to be influenced and beyond justice?