IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL
NO. 40 OF 2013.
(Arising Out of ICT-BD Case No. 1 of 2011 of ICT-1)
IN THE MATTER OF:
An application to seek the recusal of Mr. Justice AHM
Shamsuddin Choudhury
AND
IN THE MATTER OF:
The Chief Prosecutor, International Crimes
Tribunal, Dhaka, Bangladesh.
…Appellant
-VERSUS-
Allama Delawar Hossain Sayedee
…Respondent
AND
IN THE MATTER OF:
Allama
Delawar Hossain Sayedee, Son of Late Moulana Yusuf Sayedee, 914, Shahidbagh,
P.S. Motijheel, Dhaka – 1000.
Accused/Respondent/Applicant
(In Jail)
To
Mr.
Justice Md. Mozammel Hossain, the Hon’ble Chief Justice of Bangladesh and his
companion Justices of the said Hon’ble Court.
The humble petition on behalf of the Respondent/Applicant
above named most respectfully –
S H E W E
T H:
1.
That this application has been filed pursuant to the Code
of Conduct for the Judges of the Supreme Court of Bangladesh and the oath of
office provided for under Article 148 of the Constitution of the People’s
Republic of Bangladesh and prescribed in the Third Schedule, seeking the
recusal of Mr. Justice AHM Shamsuddin
Choudhury.
2.
That Article
96(4)(a) of the Constitution of Bangladesh provides for a Code of Conduct to be
prescribed by the Supreme Judicial Council and which is to be observed by
judges. This was most recently published in 7 May 2000 (hereinafter: Code of
Conduct).
3.
Pursuant to
section 1 of the Code of Conduct:
“A judge
should uphold the integrity and independence of the judiciary. An
independent judiciary is indispensable to the justice system in Bangladesh. A
judge should participate in establishing, maintaining, and enforcing high
standards of conduct, and should personally observe those standards, so that
the integrity and independence of the judiciary may be preserved. The
provisions of this Code should be construed and applied to further that
objective.”
4.
Furthermore,
section 2 of the Code of Conduct provides that:
“(2) A
judge should avoid impropriety and the appearance of impropriety in all
activities.
(2A). A judge should respect and comply with the law and
should act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary.”
5.
That the Code of Conduct also provides for instances when
a judge should disqualify himself from the proceedings. Under Article 3(6)(a) of the Code of Conduct “The
judge shall disqualify himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned.”
6.
The Code of
Conduct stipulates that any act:
“which erodes the credibility and independence has to be avoided. The
Code of Conduct is only restatement of values of judicial life and is not meant
to be exhaustive but illustrative of what is expected of a judge.”
7.
Article 148 of
the Constitution also provides for an oath to be taken by members of the
Judiciary. This is prescribed in the Third Schedule of the Constitution and
provides that a judge will solemnly swear or affirm that he will:
“faithfully
discharge the duties of [his] office according to law: That [he] will bear true
faith and allegiance to Bangladesh: That [he] will preserve, protect and defend
the Constitution and the laws of Bangladesh: And that [he] will do right to all
manner of people according to law, without fear or favour, affection or
ill-will.”
8.
Pursuant to the
preamble of the Code of Conduct, in taking this oath a judge is subject to the
provisions of the Code of Conduct including those explicitly referred to in
this application.
9.
The right to an
independent and impartial judiciary prescribed in the Code of Conduct is also a
basic obligation to adhere to under international law. Article 10 Universal Declaration of Human Rights (UDHR) provides:
“Everyone
is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of
any criminal charge against him.”
10.
This is
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 UN Human Rights Committee which is tasked with
upholding the provisions of the ICCPR has held that:
“The
impartiality of the court and the publicity of proceedings are important
aspects of the right to a fair trial within the meaning of Article 14 (1).
‘Impartiality’ of the court implies that judges must not harbor preconceptions
about the matter put before them, and that they must not act in ways that
promote the interests of one of the parties. Where the grounds for
disqualification of a judge are laid down by law, it is incumbent upon the
court to consider ex officio these
grounds and to replace members of the court falling under the disqualification
criteria. A trial flawed by the participation of a judge who, under domestic
statute, should have been disqualified cannot normally be considered to be fair
or impartial within the meaning of Article 14.” (Karttunen v. Finland [387/89])
11.
This fundamental
right to an independent and impartial Judge is further upheld in Article 40(1)
of the Rome Statute for the International Criminal Court (ICC), which provides
that “[t]he judges shall be independent in the performance of their functions”.
The disqualification of a judge is outlined in Article 41(2)(a) ICC:
“A judge
shall not participate in any case in which his or her impartiality might
reasonably be doubted on any ground.”
12.
That Bangladesh
is a state party to the UDHR, ICCPR and ICC and must therefore adhere to its
international obligations.
13.
That Mr. Justice AHM Shamsuddin Choudhury has been serving as an Hon’ble
Justice of the Appellate Division of the Supreme Court of Bangladesh since 31st
March 2013. On 17th September 2013 this case appeared in the daily
cause list for the first time for hearing in Court No. 1 of the Appellate
Division and Mr. Justice AHM Shamsuddin
Choudhury is one of the five judges of the bench. Thereafter the matter was
adjourned for one week so that the hearing of the case can commence on 24th
September 2013 in the same bench.
14.
That the actions
of Mr. Justice
AHM Shamsuddin Choudhury in attending a meeting with the members of Awami
League and Ghatak Dalal Nirmul Committee on 1st April 2010 and the
International Jurists Conference, organised by the International Council of
Jurists on 21st June 2011 both in London and addressing the latter
on the International Crimes (Tribunal) Act 1973, the practice and procedure of
the International Crimes Tribunal (hereinafter: ‘the Tribunal') and the nature
and conduct of the trials has eroded his credibility and threatened the
integrity and independence of the appeal proceedings before the Appellate
Division of the Supreme Court of Bangladesh.
15.
That on 1st
April 2010 Mr. Justice AHM Shamsuddin
Choudhury attended a
meeting of the members of Awami League and Ghatok Dalal Nirmul Committee at the
Dockland Memsab Restaurant in East London. It is stated that both the Awami
League and the Ghaok Dalal Nirmul Committee had campaigned for the trial of the
Respondent as a war criminal. In the said meeting the leaders of Awami League
and Mr. Shahrier Kabir, the Acting President of the Ghatok Dalal Nirmul
Committee were present and they were campaigning for the trial of alleged war
criminals in Bangladesh. This was reported on 9th April 2010 in the
Daily Amar Desh. It is respectfully
submitted that the presence of the Honourable Judge in the said meeting to
support the cause of the Awami League and the Ghatok Dalal Nirmul Committee who
had actively and publicly campaigned for trial of the Respondent as a war
criminal is a evidence of bias and sufficient to disqualify him to be a judge
in the instant appeal.
16.
Further on 21st
June 2011 Mr. Justice AHM Shamsuddin
Choudhury attended a
public meeting at the Crowne Plaza Hotel, London and launched a public attack on
a member of the defence team of the Tribunal and then proceeded to speak about
the Tribunal, the legal framework, the practice of the Tribunal and the trials. In particular the Hon’ble Justice declared,
in his detailed presentation, that the trial process met international
standards and that the criticisms raised by the defence were without foundation. It is respectfully submitted that the Hon’ble
Justice made a number of public declarations that concern a number of matters
that are now subject to appeal.
17.
That further, on 1st March 2012 Mr. Justice AHM
Shamsuddin Choudhury, when hearing a case in the High Court Division observed
that “Rajakars do not have right to stay in Bangladesh”. He directed the
Officer in Charge of Goforgaon Police Station to send the principal of a
Madrasha to Pakistan by ship terming him to be Rajakar for his involvement with
Bangladesh Jamaat-e-Islami. This was widely reported on the following day in
daily newspapers in their print and internet editions. In making the above
comments his lordship has expressed an extreme view against Rajakars and
members of Bangladesh Jamaat-e-Islami. It is stated that the Respondent is a
central leader of Bangladesh Jamaat-e-Islami. The International Crimes Tribunal
No. 1 has found the Respondent to be a Rajakar which he vehemently denies. This
issue is to be adjudicated by this Hon’ble court in the present case. It is
submitted that by expressing such an extreme view against someone for his mere
involvement with Bangladesh Jamaat-e-Islami, his Lordship Mr. Justice AHM Shamsuddin Choudhury has disqualified himself to
be a judge in the present case.
18.
It is submitted that, Mr. Justice AHM Shamsuddin Choudhury being a sitting
judge of the Supreme Court of Bangladesh is bound by the Code of Conduct for
the Judges of the Supreme Court of Bangladesh and the oath of office provided
for under Article 148 of the Constitution of the People’s Republic of Bangladesh
and prescribed in the Third Schedule. Article 96 (4) (a) of the Constitution
provides for a Code of Conduct to be prescribed by the Supreme Judicial Council
and which is to be observed by judges. This was most recently published on 7
May 2000 (hereinafter referred to as the Code of Conduct).
19.
At the public meeting on 21st June 2011 the
Hon’ble Justice went further than merely commenting on the general legal and
constitutional framework. The Hon’ble
Justice gave a detailed account of the legal and constitutional framework,
dismissing the numerous concerns raised by the defence as to lack of due
process, and further by discussing matters that were sub judice and expressing an opinion on their eventual outcome,
there is reasonable doubt that the Respondent will now receive a fair hearing
and the Hon’ble Justice will dispense justice according to his oath on the
basis of the public remarks he made on 21st June 2011. It is further submitted that a number of the
Hon’ble Justice’s remarks amounted to political statements unbecoming a member
of the Judiciary.
20.
It is
respectfully submitted that this is not a matter that the Appellate Division of
the Supreme Court need conduct an extensive examination into – there is little
doubt that the Hon’ble Justice attended the meetings and made the public
declarations – the question is whether an objective observer would apprehend
that there is a legitimate fear that he will lack the required level of
impartiality due to his attending the meetings dated 1st April 2010
and 21st June 2011 and making such public declarations.
21.
In Prosecutor v. Issa Hassan Sesay, Case
No. SCSL-2004-15-AR 15, the Special Court for Sierra Leone Appeals Chamber
referred to the two authorities cited above in determining whether Justice
Geoffrey Roberston QC should be properly disqualified for commenting on the
nature of the conflict in a book. The
Appeals Chamber concluded, as per Justice King, at para. 15:
“It is
irrelevant for the purposes of this Ruling whether or not the passages
hereinbefore referred to are true or not.
The learned Justice is entitled to his opinion. That is one of his fundamental human
rights. The crucial and decisive
question is whether an independent bystander so to speak, or the reasonable
man, reading those passages will have a legitimate reason to fear that Justice
Robertson lacks impartiality. In other
words, whether one can apprehend bias. I
have no doubt that a reasonable man will apprehend bias, let alone an accused
person and I so hold.”
22.
Justice King, in
giving judgment, concluded by referring to R
v. Sussex Justices, Ex party McCarthy (1923) 1 KB 256 at p. 259 that “Justice must not only be done, but should
manifestly be seen to be done.”
23.
It is
respectfully submitted that the overriding question in the instant case is not
that of the Hon’ble Justice’s integrity, but whether an objective observer
would apprehend that there is a legitimate fear that he will lack the required
level of impartiality due to his attending the meeting and conference dated 1st
April 2010 and 21st June 2011 respectively and making the public
declarations in the said meetings/conference and also on 1st March
2012 in the High Court Division.
24.
The pubic
declarations that the Hon’ble Justice made were at the event of the
International Conference of Jurists, organised by the International Council of
Jurists, in London on 21st June 2011. At the event a member of the defence team,
foreign counsel, Mr. Toby Cadman, gave a short presentation on the Tribunal,
the legal and constitutional framework and set out where he believed the
practice and procedures fell short of recognised international standards. The Hon’ble Chief Justice, in the company of Mr. Justice AHM Shamsuddin Choudhury, was present at the
conference to receive an award from the International Council of Jurists. During Mr. Cadman’s brief address both the
Hon’ble Chief Justice and Mr. Justice AHM Shamsuddin Choudhury walked out in protest. Following Mr. Cadman’s address, Mr. Justice AHM Shamsuddin Choudhury, gave an impromptu presentation
in which he made a number of remarks attempting to positively assert that the
legal framework met international standards.
It was widely reported in the media that “Justice Chowdhury explained
in detail the legal procedure adopted in the trial of the war criminals and
made it clear that all steps had been taken toward ensuring a trial
process based on internationally accepted standards” (http://www.thedailystar.net/newDesign/news-details.php?nid=191143)).
25.
It is submitted
that the international community namely Human Rights Watch (HRW), Amnesty
International, International Bar Association (IBA), International Centre for
Transitional Justice (ICTJ), Human Right Committee of the Bar of England and
Wales, in one word have criticised that the International Crimes (Tribunal) Act
1973 and the Rules of Procedure framed by the Tribunal thereunder falls far
below the International Standard. In this context the Respondent has taken a
specific ground in the Criminal Appeal filed before this Hon’ble Court. In that
view of the matter Mr. Justice AHM Shamsuddin Choudhury has already taken a
view that the legal procedure adopted in the Trial by the Tribunal conforms to
the internationally accepted standards, the Respondent/Applicant will be
seriously prejudiced if he does not recuse himself from the appal proceeding
before the Hon’ble court.
26.
It is
respectfully submitted that the matters covered by the Hon’ble Justice in his
public address on 21st June 2011 now concern the same matters that
form the basis for the instant appeal. The fact that the Hon’ble Justice
publicly disclosed his position prior to his appointment as Judge in the
instant appeal raises significant doubt as to his impartiality.
27.
That on 25th
September 2012 the Acting Editor of the Daily Amar Desh submitted an
application before the Registrar of Supreme Court of Bangladesh for initiation
of proceeding under Article 96(4) of the Constitution against Mr. Justice AHM Shamsuddin
Choudhury by the Supreme Judicial Council alleging violation of the provisions
of the Code of Conduct, Money Laundering Prevention Act 2002, the Foreign
Exchange Regulation Act 1947 and Income Tax Ordinance 1984. On the same day he
made a representation before the Hon’ble President of Bangladesh for taking
appropriate action against Mr. Justice AHM Shamsuddin Choudhury under Article
96(5) of the Constitution in this regard. Subsequently this representation was
forwarded by the Hon’ble President to the Ministry of Law and Parliamentary
Affairs for taking appropriate measures in accordance with law. It is
specifically stated that the applications for initiation of proceeding against Mr.
Justice AHM Shamsuddin Choudhury under Articles 96(4) & (5) have not yet
been disposed of. As such during the pendency of these applications Mr. Justice
AHM Shamsuddin Choudhury is disqualified from hearing the instant appeal.
28.
This situation
renders the inclusion of Mr. Justice AHM
Shamsuddin Choudhury on the bench in the instant appeal at odds with the
integrity and independence of Appellate Division of the Supreme Court, contrary
to the provisions of the Code of Conduct and ultimately precluding
justice being done for the Respondent, and indeed any person seeking to appeal
against a conviction by the International Crimes Tribunal.
29.
Article
27 of the Constitution provides that:
“All
citizens are equal before the law and are entitled to the equal protection of
law.”
30.
The
principle of equality of arms is a basic obligation under international law. It
is implicit in Article 7 UDHR which provides that:
“All are equal
before the law and are entitled without any discrimination to equal protection
of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such
discrimination.”
31.
This
principle is reiterated in Article 14(1) of the International Covenant on Civil
and Political Rights (ICCPR) which provides that:
“All
persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.”
32.
The
UN Human Rights Committee tasked with upholding the provisions of the ICCPR
held in De Jorge Asensi v. Spain (Communication
No. 1413/2005)
that:
“Although Article 14 does
not explain what is meant by a “fair hearing” in a suit at law, the concept of
a fair hearing in the context of article 14, paragraph 1, of the Covenant
should be interpreted as requiring certain conditions, such as equality of arms [the Accused-Petitioner’s emphasis] and
absence of arbitrariness, manifest error or denial of justice.” (Also the
Committee’s general comment No. 32, para. 26, (2007) on article 14 of the
Covenant, “Right to equality before courts and tribunals and to a fair trial”)
33.
This
fundamental principle of equality of arms is also set out in Article 67(1) of ICC
which provides that:
“In the determination of any charge, the accused shall
be entitled to a public hearing, having regard to the provisions of this
Statute, to a fair hearing conducted impartially, and to the following minimum
guarantees, in full equality”.
34.
That
as before mentioned Bangladesh is a state party to the UDHR, ICCPR and ICC and
must adhere to its international obligations thereunder.
35.
Under international law, the procedure for determining
impartiality is highly important. If an accused raises the issue during the
proceedings it must be investigated unless it is “devoid of merit”. This requires the court to determine whether,
apart from the judge’s personal conduct, there are ascertainable facts which
may raise doubts as to his impartiality.
In this respect the position is very clear. If there are legitimate reasons to doubt the
impartiality then that judge must
withdraw from the case. In Piersack v. Belgium (Application No.
8692/79, Judgment of 1 October 1982, paras 30-32) it was held to be a violation
where the trial judge had previously been a member of the department who
investigated the applicant and who had initiated the prosecution against
him. In Piersack the European Court of Human Rights held:
“30.
Whilst impartiality normally denotes absence of prejudice or bias, its
existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the
Convention, be tested in various ways. A distinction can be drawn in this
context between a subjective approach, that is endeavouring to ascertain the
personal conviction of a given judge in a given case, and an objective
approach, that is determining whether he offered guarantees sufficient to
exclude any legitimate doubt in this respect.
…
However, it is not possible to confine oneself
to a purely subjective test. In this area, even appearances may be of a certain
importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p.
17, § 31). As the Belgian Court of Cassation observed in its judgment of 21
February 1979 (see paragraph 17 above), any judge in respect of whom there is a
legitimate reason to fear a lack of impartiality must withdraw. What is at
stake is the confidence which the courts must inspire in the public in a
democratic society.”
36.
It is respectfully submitted that the integrity of the
proceedings and the process must be paramount.
37.
It is
respectfully submitted that the Appellate Division of the Supreme Court may
take into account the established international jurisprudence on the question
of objective impartiality in properly addressing the question of whether the
Hon’ble Justice should recuse himself.
In Regina v. Bow Street
Metropolitan Stipendary Magistrates and others, Ex parte Pinochet Ugarte (No.
2) (House of Lords) 1 AC 119 which
held that:
“…the
fundamental principle that a man may not be a judge in his own cause was not
limited to the automatic disqualification of a judge who had a pecuniary
interest in the outcome of a case but was equally applicable if the judge’s
decision would lead to the promotion of a cause in which he was involved
together with one of the parties…that in order to maintain the absolute
impartiality of the judiciary there had to be a rule which automatically
disqualified a judge who was involved…in promoting the same causes…as was a party
to the suit”.
“The
court cannot rely on its knowledge of the integrity of the judge concerned to
outweigh the appearance of bias to the eye of the bystander. The reference point must remain the
reasonable observer. This is consistent
with the test laid down under article 6(1) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms”.
“…I am of
the opinion that there could be cases where the interests of the judge in the
subject matters of the proceedings arising from his strong commitment to some
cause or belief or his association with a person or body involved in the
proceedings could shake public confidence in the administration of justice as
much as a shareholding (which might be small) in a public company involved in
the litigation”.
38.
In Prosecutor v. Anto Furundzija, ICTY
Appeals Chamber: 21 July 2000: Case No. IT – 95 – 17/1, the ICTY Appeals
Chamber held:
“The
fundamental right of an accused to be tried before an independent and impartial
tribunal is generally recognised as being an integral component of the
requirement that an accused should have a fair trial.” [para. 177]
“On this
basis the Appeals Chamber considers that the following principles should direct
it in interpreting and applying the impartiality requirement of the statute:
A.
A Judge is not
impartial if it is shown that actual bias exists.
B.
There is an
unacceptable appearance of bias if: (i) a judge is a party to the case, or has
a financial or propriety interest in the outcome of a case, or if the Judge’s
decision will lead to the promotion of a cause in which he or she is involved,
together with one of the parties. Under these circumstances, a Judge’s
disqualification from the case is automatic; or (ii) the circumstances would
lead a reasonable observer, properly informed, to reasonably apprehend bias.”
[para. 189].
39.
That as a State Party to the Rome Statute of the
International Criminal Court there is an obligation to apply the general
principles to which it adheres. The Rome
Statute sets up a framework of complementarity.
The purpose of this complementarity principle is in order to establish a
uniform system to try serious crimes. Admittedly this complimentary principle
is only triggered in a situation where the ICC can itself take jurisdiction
over the case if the national courts are unwilling or unable to proceed.
However, it is the spirit of the complementarity principle that creates a
number of legal obligations. The ICC was
established to try and punish the most serious violations of human rights in
cases where national justice systems fail at the task. It is deemed a model in
international criminal justice. It must be highlighted that over 120 states
participated in the negotiations at the Rome Conference which formulated the
Rome Statute in 1998. Under international customary law and applying the
principle of the Vienna Convention on the Law of Treaties when a State consents
to be bound by a treaty it constitutes a promise to adhere to the principles in
the document and to honour its spirit. It
is obliged not to defeat the object and purpose of the treaty. The object and
purpose of the Rome Statute is enshrined in both Article 17(2) above and the
preamble of the Rome Statute which provides that State Parties to the Rome
Statute are: “resolved to guarantee lasting respect for and the
enforcement of international justice”. It affirms that “the most serious crimes
of concern to the international community as a whole must not go unpunished
at their effective prosecution must be ensured by taking measures at
national level and by enhancing international cooperation”.
40.
Reference must also be made to the public
statements made by the Government of Bangladesh at the ceremony when it
officially became a State Party and to the numerous public statements since
that time to upholding the highest international standards. At the 65th
Session of the United Nations General Assembly, the Hon’ble Prime Minister of
Bangladesh stated:
“Bangladesh has established an International Crimes Tribunal to try persons responsible
for war crimes and crime against humanity, including genocide, arson and rape
committed during our war of liberation in 1971, and immediately thereafter.
This action is in accord with the rule of law as reflected in the Rome Statute
of the International Criminal Court (ICC), which we have ratified and which
aims at bringing perpetrators of war crimes, genocide, and crimes against
humanity, to justice. I believe that only justice can heal the unforgivable,
deadly wrongs of the past.”
41.
The Hon’ble Prime Minister clearly expressed the need to
maintain the highest standards according to the legal framework of the Rome
Statute of the International Criminal Court.
42.
It is respectfully recalled that the UN Human Rights
Committee has held that in relation to the right under Article 14(1) of the
ICCPR that “all persons shall be equal before the courts and tribunals” and
that “in the determination of any criminal charge against him, or of his rights
and obligations in a suit of law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established
by law” is an absolute right that may suffer no exception (Communication No.
263/1987, M. Gonzalez del Río v. Peru (Views adopted on 28 October
1992), in UN doc. GAOR, A/48/40 (vol. II), p. 20, para. 5.2).
43.
Firstly, independence must be institutional
and functional and to determine whether the court or tribunal meets the
requirements of independence, regard must be had to the manner of appointment
of its members and their term in office, the existence of guarantees from
external pressures and the question of whether the body has the appearance of
independence.
44.
Secondly, the concept of impartiality may in
many cases overlap with independence. However, in order to ascertain whether
the requirement is met, a test that is both subjective and objective must be
applied (Eur. Court HR, Saraiva de
Carvalho v. Portugal, judgment of 22 April 1994, Series A286-B, p. 38,
para. 33). Whilst impartiality
normally denotes the absence of prejudice or bias, its existence or otherwise
can, notably under Article 6(1) of the ECHR, be tested in a variety of ways. A
distinction can be drawn in this context between a subjective approach, that is
endeavouring to ascertain the personal conviction of a given judge in a given
case, and the objective approach, that is determining whether he offered
guarantees sufficient to exclude any legitimate doubt in this respect. For subjective impartiality to be made out
actual proof of bias needs to be established and the personal impartiality of
the judge is presumed unless there is proof to the contrary. The personal
friendship between the trial judge and the Executive may not be sufficient in
itself to prove actual bias. For objective impartiality to be made out the test
is less strict and is fashioned on the maxim justice must not only be done:
it must be seen to be done. This requires the court to determine whether,
apart from the judge’s personal conduct, there are ascertainable facts which
may raise doubts as to his impartiality. In this regard the position is very
clear. If there are legitimate reasons to doubt the impartiality then the judge
must withdraw from the case.
45.
The procedure for determining impartiality is
highly important. If an accused raises the issue during the proceedings it must
be investigated unless it is “devoid of merit”.
46.
It is further stated that on 7th February 2013
the United Nations Special Rapporteur on extrajudicial, summary or
arbitrary executions, Mr. Christof Heyns, issued a public statement expressing
alarm and declaring that “Capital punishment may be imposed only following
proceedings that give all possible safeguards to ensure a fair trial and due
process, at least equal to those stipulated in the International Covenant on
Civil and Political Rights, to which Bangladesh is a State party.” The United
Nations Special Rapporteur on the Independence of Judges, Prosecutors and
Lawyers, Ms. Gabriela Knaul, further stated raised concerns about “the
impartiality of judges and prosecution services of the Tribunal, as well as
their independence from the executive.” The Special Rapporteurs stated jointly
that any shortcomings in the trial proceedings should be carefully examined
during any appeal and noted that “A credible appeal process also constitutes an
imperative component of fair trial guarantees, particularly in instances, where
the death penalty has been imposed.”
47.
In this regard the fact that the Hon’ble
Justice has attended meetings of the Awami League and the Ghatok Dalal Nirmul
Committee to support their cause to try the Respondent as a war criminal and
made a series of public declarations on the nature and conduct of the trials,
matters which now form the basis for the appeal, there is a sufficient basis to
make out a claim of actual bias. Furthermore, the objective standard of justice
must be seen to be done may be made out by reference to the pubic declarations
that now warrant the immediate recusal of the Hon’ble Justice.
48.
The Respondent therefore humbly prays that this Hon’ble Court
may kindly avail itself of the opportunity to issue an order directing for the
immediate recusal of Mr. Justice AHM Shamsuddin
Choudhury.
Wherefore, it is
most humbly prayed that your lordships may be graciously pleased to issue an
order directing for the immediate recusal of
Mr.
Justice AHM Shamsuddin Choudhury in
Criminal Appeal No. 40 of 2013 pending before this Hon’ble Court and pass any
further order(s) as it may deem fit and proper.
And for this act of kindness, that the Respondent/Applicant,
as in duty bound shall ever pray.
Drawn and filed by:
(Zainal Abedin)
Advocate-on-Record
For the Respondent.
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