The resignation of Justice Nizamul Huq Nasim sparked a heated debate about whether the trial is required to be started afresh or it can be continued as if nothing has happened. State minister for law Qamrul Islam said on December 14, 2012 that the tribunal would resume trial from where the previous judge had left it. The law minister said, “There is no chance to start the trial afresh. The Scetion 6 of the ICT Act clearly states that judge can hear arguments afresh but it is not compulsory. The trial will start from where it stopped as transfer of judges is common incident”.
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Subsection 6(5) and 6(6) of the Act
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states the following:
6(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(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.
While it is true that it may appear from subsection 6(6) that in case of “any change in membership or absence of any member” it is not compulsory “to recall and re-hear any witness”. But if we look carefully we would find that the word “merely” is there before the phrase “by reason of any change…or absence…”. But the question is can Justice Nizamul Huq’s resignation following a Skype scandal be said as a “mere change or absence of membership”? Or can it be categorized as a “common incident” as law minister argued in his statement? To answer these questions we have to keep it in mind that the allegation is as serious as receiving written Tribunal orders through e-mail from a person who is not officially related to tribunal proceedings and is very closely related to the prosecution. [See Economist article]
None of the judges in the current tribunal-1 have heard all the evidence. Members of the first panel of the tribunal -1 formed in March 2010, were Justice Nizamul Huq, Justice ATM Fazle Kabir, and Justice Zahir Ahmed. ATM Fazle Kabir was moved to the second tribunal and he was replaced by Justice Anwarul Huq. Justice Zahir Ahmed resigned later and he was replaced by Justice Jahangir Hossain. Finally after resignation of Justice Nizamul Huq, ATM Fazle Kabir was brought back as chairman. Now three members of the tribunals are:
1. Justice Anwarul Huq: He heard only one prosecution witness, the investigating officer, before the defense presented its case.
2. Justice Jahangir Hossain: He heard only the defense witnesses.
3. the new chairman of the tribunal (brought back from Tribunal 2) ATM Fazle Kabir: He heard the prosecution witnesses only when he was previously i n the Tribunal 1
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And
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Thus it is so exceptional situation that experts opine that this particular situation is not covered the 1973 Act. David Bergman, a British journalist closely following the tribunals, writes: “…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.”
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Human Rights Watch puts it more clearly: “It is common practice in Bangladesh for a trial to continue when a judge is replaced, falls ill, or is unable to continue for other reasons. The statute that governs the ICT contains a section which allows the replacement of a judge. However, the statute does not address cases in which none of the judges is present throughout the trial.”
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That means the Act talks about the “absence of any member…from any sitting”, but is silent about the absence of all members from many sittings.
Moreover provision for continuation of trial before other members in absence of any one member provided by the Subsection 6(5) of the Act is criticized by the International Bar Association (IBA). They stated: “This is contrary to international practice, which would provide that if any one of the members of the Tribunal was unable to attend a hearing, the trial would be adjourned. The concern is that if a trial continued without all Tribunal members present, it could affect the authority and trustworthiness of the process.” It appears from the IBA’s statement that international practice emphasized that proceedings should not continue in absence of even a single judge. Now in case of Saydee trial all of the judges were absent from at least some part of the hearing. In this situation would it be trustworthy to continue the proceedings?
It seems to be contrary to the national practice also. Barrister Rafiqul Huq, an eminent lawyer of Bangladesh , in a television talk show stated: “When we go to appellate division, [suppose] five judges are hearing; in the next day if one of the judges is absent for some reason, no hearing takes place. The court gets adjourned. The hearing starts once the judge comes back.”
David Bergman analyzing section 349A (1) of the Code of Criminal Procedure (CrPC) concluded that “it may well be cited as national practice that can be applied here practice also”
Regarding judges inability to proceed Federal rule of Civil Procedure 63 states that "Any other judge may proceed" if the case can be “completed without prejudice to the parties”.
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After the Skype conversations is leaked the neutrality of the whole proceedings is seriously in doubt. So it is generally believed that continuation of such proceedings could not be done without prejudice to the parties. Even civil society members who are ardent supporters of war crimes trial like Dr. Asif Nazrul [wrote article in Bengali titled “Je bichar hotei hobe”(the trial that must be held) in daily Prothom alo], a professor of law at University of Dhaka and a prominent figure, doubted the neutrality of the proceedings. In a television talk show he said: “In this situation (i.e., after Skype conversation leak), how far the case was heard with an impartial mind, in which areas of the proceedings there was bias – these questions would remain.
Dr. Asif further said, “No original judges are there. If we consider it theoretically it is an unprecedented event. Both prosecution witness defense witness must be heard. Hearing from cassette player or from recorded version is not enough. Court atmosphere is very important. For this reason Judges are always needed to be present in the court ….”
Dr. Akbar Ali Khan, former secretary to Bangladesh Government and former advisor to the Caretaker government, said in a television talk show: “ the verdict cannot be given based on what is written in the paper. First thing is that there can be errors while writing and the person, who writes, doesn’t write everything. Secondly, Judges form an impression by hearing and seeing the witnesses and the verdict of criminal cases depend on this impression. So if new Judge comes, there should be a retrial according to general rule.”
Another important point is that even before Skype leak the tribunal was criticized because of due process failure. David Bergman wrote a series of articles regarding this issue in his blog (titled “Sayedee trial analysis:..”). It will be dealt in a separate post.
From the Skype leak another important aspect revealed was government influence and intervention to the trial process. The former chairman of Tribunal -1 was saying that government has become absolutely crazy….
Even minister met with judge…
The judge has resigned but the same people are there and seems they are continuing their influence in the trial. State minister for law Qamrul Islam He said that the new chair of the tribunal might hear the already-concluded argument anew for his satisfaction and in that case the tribunal might take three to seven more days to complete the process, which would resume on December 17.
Minister even mentioned the exact number of days needed to complete the trial. Can a minister say this?
On 17 December in response to a defence application for Privileged Communication with sayedee, the tribunal observed that all the proceedings of the case against Sayedee ended and the case was awaiting verdict. At this stage the tribunal did not find any reasons for privilege communications. In this regard renowned British war crimes expert Tobby Cadman, who is also a defence counsel, observed that: “Tribunal as per the State Minister for Law has concluded that the Tribunal provides greater protection than any other war crimes tribunal in the world. The newly appointed Tribunal Chairman also declared that there is no scope for a retrial even though a reasoned application has not yet been submitted.” It is really important to note that tribunal Chairman seems to be echoing the Minister’s idea even before any application was submitted as Tobby Cadman mentioned.
After the Skype leak, considering the current law, general practice, biased proceedings and government influence in the trial it can be said that Government’s attempt to continue would devastate the already murky trial’s credibility. But would the government care for the trial’s credibility? Lord Eric Avebury wrote in twitter: “Retrial is only fair solution, but is politically impossible because government wants sentences before 2013 election”. [https://twitter.com/EricAvebury/status/279658758429347840] By saying “Politically impossible” may be he means that political considerations are there in the trial. On 2010 the same thing is reflected in the observation of a US based research firm and a think tank, Heritage foundation. Their report stated that the trial “is widely seen as a political issue aimed primarily at discrediting the JI, rather than as a societal issue to be resolved in the interest of national reconciliation.” [http://www.heritage.org/research/reports/2010/03/bangladesh-checking-islamist-extremism-in-a-pivotal-democracy]
If they are true in their observations then the very legitimate question arises whether a political trial can ever be fair or credible, especially in a country like Bangladesh .
[Shibly Abdullah, Lecturer & Accounting Course Coordinator, Charles Sturt University , Sydney Study Centre]
