IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
(CRIMINAL
APPELLATE JURISDICTION)
CRIMINAL
APPEAL NO. 39 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 Surendra Kumar Sinha.
A N D
IN THE MATTER OF:
Allama
Delawar Hossain Sayedee,
…Convict/Appellant
-Versus-
The Chief Prosecutor, International Crimes Tribunal, Dhaka, Bangladesh.
…………. Respondent.
AND
IN THE MATTER OF:
Allama
Delawar Hossain Sayedee, Son of Late Moulana Yusuf Sayedee, 914, Shahidbagh,
P.S. Motijheel, Dhaka – 1000.
----
Accused/Appellant/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 Applicant/Appellant above named most
respectfully.
SHEWETH:
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 Surendra Kumar Sinha.
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 on 7
May 2000 (hereinafter referred to as the Code of Conduct).
3.
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.”
4.
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.”
5.
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.”
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.
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 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.
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.”
10.
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])
11.
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.”
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
Surendra Kumar Sinha has been serving as an Hon’ble Justice of the Appellate Division
of the Supreme Court of Bangladesh. 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 Surendra
Kumar Sinha 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 Appellant/Applicant
prays to the Appellate Division of the Supreme Court to avail itself of the
opportunity in the abovementioned provisions to order the recusal of the Hon’ble Justice as the only possible means to
ensure proper dispensation of justice.
15.
On 8th
December 2012 the British Weekly ‘The
Economist’ published a report titled ‘Discrepancy in Dhaka’, in its online edition raising questions about the integrity of the
former Chairman of the International Crimes Tribunal-1. Following the
publication in The Economist, the
Bangla Daily Amardesh published a series of reports on the Skype communication
between Justice Nizamul Haque and Ahmed Ziauddin for a period of five days from
9th December to 13th December 2012.
16.
On 15th
December 2012, the Economist published a long article on International Crimes
Tribunal Bangladesh quoting excerpts from the 17-hour Skype conversation and
230 email communications between Mr. Justice Nizamul Haque, the former Chairman
of ICT-1 and Dr. Ahmed Ziauddin, an expatriate Bangladeshi lawyer living in Brussels.
17.
That in Skype conversation on 6th September
2012 published in the Daily Amar Desh dated 9th December 2012 the
former Chairman of the Tribunal Mr. Justice Nizamul Haque is reported to have had
a conversation with Mr. Justice Surendra Kumar Sinha. The translation of the
relevant portion of the Skype conversation is reproduced below: “ ‘Sinha Babu’
(Mr. Justice Surendra Kumar Sinha) said, pass three verdicts within December. This
one [Delawar Hossain Sayedee], Ghulam Azam and Saqa [Salauddin Qader
Chowdhury]. It would suffice to pass verdicts in these three [cases]. Then we
will bring you here [to the Appellate Division of the Supreme Court].
Thereafter you will not be required to stay there [International Crimes Tribunal].
This is all we talked about. I said you may do whatever you want to do,
promotion should be given first. My concern is promotion.”
Relevant portion
of the transcript of the conversation of 6th September 2012 is quoted
below:
নিজামুল হক নাসিম : উনি কয় একটা দেন। সিনহা বাবু কইছে, ডিসেম্বর এর মধ্যে তিনটা দেন। এইটা, গোলাম আযম সাহেবের, আর সাকা। এই তিনডা দিয়া ফালাইতে পারলেই হইছে। তারপরে নিয়ে আসি আপনারে আমরা এইখানে। এরপরে ওহানে আপনারে আর লাগবে না। এই হইছে কথা আর কি। আমি কইছি, যা করেন করেন, প্রমোশনডা দিয়া লন আগে। আমার
কতা প্রমোশন, হা... হা... হা...।“
18.
Following the publication of the Skype conversation in
the Economist and the Daily Amardesh Mr. Justice Nizamul Haque resigned.
19.
The Accused/Applicant would like to state here
specifically that at no point of time from December 2012 till today, any denial
has been made by the Registrar of the International crimes Tribunal or by Mr.
Justice Nizamul Haque denying the contents of the Skype conversation or the
email communications between him and Dr. Ahmed Ziauddin. The Applicant would
further state that no denial has been made by the Registrar of the Supreme
Court on behalf of Mr. Justice Surendra Kumar Sinha that he [Mr. Justice Sinha]
had had no such conversation with Mr. Justice Nizamul Haque. It is common
knowledge that no one- the Ministers, the Judges, the Prosecutors or the
expatriate Bangladeshis who have been implicated in the Skype conversation and
email communication have ever denied their involvement. On the other hand in
his Order dated 6th December 2012 issuing contempt proceedings
against the Editor and one other of the Economist, Mr. Justice Nizamul Haque
admitted his conversation with Dr. Ahmed Ziauddin.
20.
That it is
apparent from the above conversation that Mr. Justice Surendra Kumar Sinha assured him of elevation to the Appellate Division of
the Supreme Court if he [Mr. Justice Nizamul Haque] passes three verdicts
including the verdict of the Appellant. This amounts to an unlawful interference in the proceedings against the
Appellant pending before the Tribunal. In doing so, he has disqualified himself
from sitting as a judge in any Appeal from the Judgment of the Tribunal in the
case against the Appellant.
21.
That in the
alternative, Mr. Justice Surendra Kumar Sinha’s
proposal of elevating Mr. Justice
Nizamul Haque to the Appellate Division raises serious concerns of appearance
of bias against all the Accused before the Tribunal including the Appellant. By
such conduct, Mr. Justice Surendra Kumar Sinha has eroded his credibility within the meaning of the provisions of
the Code of Conduct and threatened the integrity and independence of the Appellate
Court i.e., the Appellate Division of the Supreme Court which is hearing the
instant Appeal.
22.
That further, Mr. Justice Surendra
Kumar Sinha 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).
23.
It is
respectfully submitted that this is not a matter that the Appellate Division of
the Supreme Court need conduct an extensive examination as to actual bias of
the Hon’ble Justice. 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 assurance to
the former Chairman of the Tribunal of elevation to the Appellate Division.
24.
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.”
25.
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.”
26.
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 offering promotion to the former Chairman of
the Tribunal.
27.
This situation
renders the inclusion of Mr. Justice Surendra Kumar Sinha 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 Appellant, and indeed any person seeking to appeal against a conviction by
the International Crimes Tribunal.
28.
Article 27 of the
Constitution provides that:
“All citizens are equal before the law and are
entitled to the equal protection of law.”
29.
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.”
30.
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.”
31.
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”)
32.
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”.
33.
That as before mentioned Bangladesh is a state
party to the UDHR, ICCPR and ICC and must adhere to its international
obligations thereunder.
34.
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.”
35.
It is respectfully submitted that the integrity of the
proceedings and the process must be paramount.
36.
It is
respectfully submitted that this Hon’ble Court may kindly 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”.
37.
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].
38.
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”.
39.
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.”
40.
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.
41.
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).
42.
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.
43.
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.
44.
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”.
45.
It is further recalled 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.”
46.
That for the abovementioned reasons in this application,
the Appellant/ Applicant 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 Surendra Kumar Sinha.
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 Surendra Kumar Sinha in Criminal Appeal No. 39 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
Appellant/Applicant, as in duty bound shall ever pray.
Drawn and filed by:
(Zainal
Abedin)
Advocate-on-Record
For the
Appellant.
