3 Jan 2013: Kamaruzzaman Retrial Application Hearing

Chief of Prosecution vs. Kamaruzzaman
Tribunal 2 heard the Defense’s application to recall the order taking cognizance of the charges against Kamaruzzaman and to order a full and complete retrial by a new and reformed bench. The Defense’s arguments focused on the following issues:

  • Issue of bias, breach of natural justice, and the necessity of retrial following the Skype controversy.
  • Public opinion and perception of judicial fairness, independence and neutrality of ICT-2 is an essential aspect of fair trial.
  • Doctrine of procedural bias and its relevance to the instant case.
  • Admissibility of evidence obtained through impropriety or illegality.
  • Contempt proceedings issued against Dr. Ziauddin for attempting to obstruct the independent proceedings of the Court.

Key Arguments of the Defense

Perceived Bias Jeopardizes Fair Trial
The Defense asserted that the present bench of Tribunal 2, with the presence of Judge Shahinul Islam, should not try the instant case and there should be a complete retrial based on the perception that he may have been influenced while working in close proximity with the former chairman of ICT-1 Mr Justice Mohammad Nizamul Haque, who resigned following the Skype controversy. The Defense did not allege that actual bias was present, but focused on the importance of perceived neutrality and independence on the part of the judiciary in order to insure fair trial. The Defense stated that even if the record of the Skype conversations was illegally obtained or the contents are untrue (though they noted there has been no such allegation), the public confidence on all associated with the instant benches of ICT has been adversely affected, requiring a retrial to uphold the legitimacy of the entire trial. They cited the judicial maxim “justice need not only be done but be seen to be done”. In the event that the judiciary or a particular trial is perceived to involve bias or breach of natural justice, The Defense argued there should be rearrangement in the Bench. The Defense drew an analogy to the case Re Pinochet (1999) HL, involving the trial of Senator Pinochet who was the head of State of Chile from 1973 until 1990 for various crimes against humanity. In this case, the House of Lords unanimously opined that there was a real danger or reasonable apprehension or suspicion that the  presence of Lord Hoffmann sitting in judgment could give rise to the appearance of bias because his wife worked for Amnesty International and he served as a Chairman for the organization and the organization had intervened and effectively become a party to the litigation. Counsel for Senator Pinochet submitted that such links gave rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that Lord Hoffmann might have been biased. Giving importance to the possibility of such perception, their Lordships held that it was appropriate to direct a re-hearing of the appeal before an entirely different committee that shall neither include Lord Hoffmann nor the others who had already expressed their conclusion of the points at issue.

Reply by the Prosecution
The prosecution argues that the Skype conversations are material obtained through hacking, which in itself is a crime, and therefore should be considered inadmissible.

Secondly, the Prosecution alleged that the focus on the Skype conversations and their initial leak is a part of a plot to attack the sanctity of the tribunal and disrupt the proceedings. They urged the Tribunal not to allow any such interference, implying that they should deny applications for retrial based on the skype controversy. The Prosecution noted that one of its own members (Prosecutor Saiful Islam) was also referred to in the Skype conversation and that the Prosecution Counsel will soon take appropriate actions. What kind of action they plan to take was not specified.

Conclusions of Tribunal 2
Having heard the Defense’s application and the reply of the Prosecution, Tribunal 2 stated issued its order. It noted that it is agreed that people’s perception of justice and the tribunal is very important to upholding the reliability of the orders of the tribunal. However, the application for retrial based on the perception of there being bias is not appropriate.

Tribunal 2 rejected the application by stating that it is not maintainable under law as no provision exists  in the rules of procedure for the ICT that allow for an order of retrial. Additionally, the tribunal noted that Judge Shahinul Islam was never a judge at Tribunal 1, he was only the then acting Registrar for the ICT. Therefore the allegation that he could be biased by the actions of the former Chairman of Tribunal 1 are unfounded. Furthermore, the Skype conversations, if at all true, reflect the dislike of the former Chairman and Dr. Ziauddin towards Judge Shahinul Islam, which further exemplifies that he was not a part of any bias or collusion etc. Finally, the decision to take cognizance of the charges against Kamaruzzaman was not taken by the single former chairman of ICT-1, but by the entire bench upon consultation with each other. This decision is based on the presentation of evidence and formal charges by the Prosecution and was not influenced by bias. Therefore the application for retrial based on alleged bias is without merit and must be rejected.

Notes Regarding the Demeanor of the Court
The Defense Counsel expressed discomfort in presenting the application and making submissions alleging biasness. Proceedings were polite and apologetic.

The judges agreed on the general point of the public’s negative impression on the role of the tribunals following the Skype controversy, but the Tribunal was firm in denying the possibility of any actual bias whatsoever or finding any legal basis for such an allegation.

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