Tag Archives: bias

22 August 2013: ICT-1 Daily Summary – Abdus Sobhan Pre Trial Proceedings, Contempt Proceedings against Human Rights Watch

Today the Tribunal heard matters in the following cases:

  1. Pre-trial Proceedings against Abdus Sobhan
  2. Contempt Proceedings against Human Rights Watch

On 19 August 2013, Prosecution in the case against Abdus Sobhan filed an application requesting permission to interrogate the suspect in the safe home under Rule 16(1) of the Rules of Procedure. The Defense submitted a written objection against the application. Today the Tribunal heard arguments from both sides regarding the application. The Prosecution submitted that the investigation is in its final stage but asserted that for proper and effective investigation the Investigation Officer is required to interrogate the accused. The Prosecution further argued that for total verification, interrogation in the safe house is necessary.

Continue reading →

21 January 2013: ICT 1 Daily Summary – Sayedee, Golam Azam, Nizami

The the verdict in the case of Chief Prosecutor vs. Kalam Azad was read out by the Chairman of ICT-2 in the ICT-1 room. Therefore Tribunal 1 did not convene until 12:30 and adjourned early at 1:30pm.

Today Tribunal 1 heard matters in the following cases:

  1. Chief Prosecutor vs. Delwar Hossain Sayedee: Resubmission of Defense Closing Arguments (Accused was Present)
  2. Chief Prosecutor vs. Golam Azam, Nizami, Sayedee: Order on application for review (Golam Azam and Nizami were not present)

Continue reading →

14 Jan 2013: ICT 1 Daily Summary – Sayedee, Chowdhury, Gholam Azam

Today the Tribunal heard matters in the following cases:

  1. Chief Prosecutor vs Delwar Hossain Sayedee: Response to Yesterday’s Applications (Accused Present in Court)
  2. Chief Prosecutor vs Salauddin Quader Chowdhury: Contempt Proceedings against Defense Counsel, Hearing of Application for Removal of Prosecutor (Accused Present in Court)
  3. Chief Prosecutor vs Golam Azam: Defence Case-in-Chief  (Accused Not Present)

In the Sayedee case the Tribunal rejected the six applications filed by the Defense yesterday, January 13. The Tribunal stated that it had already given orders pertaining to the issues raised and that it would be redundant to deal with them again.

In the Chowdhury case, the court issued an order to show cause for contempt against Defense counsel Fakhrul Islam. The Tribunal also rejected an application from Defense counsel Ahsanul Huq Hena requesting the adjournment of the tribunal until the contempt proceedings against foreign lawyer Dr. Ziauddin (implicated in the Skype controversy) had been disposed of.

The Tribunal heard joint arguments from the defense for Chowdhury and Golam Azam in favor of their application to remove lead Prosecutor Zead al-Malum.

The Tribunal then heard arguments from the Golam Azam Defense team in favor of their application to allow the skype conversations and emails between the former Chairman Nizamul Hoque and foreign lawyer Dr. Ahmed Ziauddin to be exhibited before the court.

for more detail, continue reading Continue reading →

3 January 2013: Tribunal 2 Daily Summary

Tribunal 2 heard matters in the following cases:

  1. Chief Prosecutor vs. Qader Molla -Defense petition for review of order dying permission to produce additional witnesses
  2. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid – Cross examination of Prosecution Witness #11 [See here for more detail]
  3. Chief Prosecutor vs. Muhammad Kamaruzzaman – application for retrial hearing [see here for more detail]
  • The Counsel for Defense made request for a later hearing date of the review application filed a for reconsideration of the tribunal’s decision denying the permission to produce additional defense witnesses. The request was immediately denied orally, along with the request for two hours of time for enabling the Senior Defense Counsel to appear. The Tribunal required the Counsel for Defense to make submissions instantaneously. The Tribunal rejected the review application reasoning that the ICT rules of procedure contain no provision allowing the defense to call additional witnesses and noting that only the prosecution may do so. The Tribunal further stated that the application was virtually identical to one rejected earlier, and that it must have been submitted in order to cause delay in the proceedings. The rejection was accompanied by a sanction of 10,000 BDT imposed on the Defense for submitting repetitive applications.
  • The court then moved to Mujahid’s case wherein the prosecution witness PW-11, Mr Foyez Uddin Ahmad, was cross examined by the defense counsel. The core line of questioning was aimed at attacking the reliability and credibility of the witness’s testimony, suggesting that the testimony is fabricated and based on the coaching of the Prosecution, and that the witness neither knew the accused, nor was he capable of recognizing him.
  • Finally, the Court heard at length the application filed on behalf of Muhammad Kamaruzzam for the recall of the order by which the Tribunal took cognizance of the charges against him and for a full and complete retrial. The Defense argued that the perception of bias created by the leaked Skype and email conversations between the former ICT 1 Chairman and outside legal expert Dr. Ziauddin prejudiced the Accused’s right to fair trial and therefore necessitate a retrial. They supported these arguments with international legal precedents.  The court denied the application, firmly rejecting any such possibility of bias and condemning the content of Skype conversation. They stated that the statements in the Skype conversations were at all true, they reflected only on the former Chairman and Dr. Ziauddin. The Tribunal then passed  a suo moto order requiring Mr Ziaduddin, the Brussels based Bangladeshi international law expert, to explain, within 30 days from the receipt of this order, why contempt proceedings shall not be commence for his Skype conversations with the retired chairman of ICT-1 and the appearance that he was attempting to interfere with the independence of the tribunal. Prosecution witness PW-16 who was present expressed his inability to give testimony on that day due to his sudden illness.

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.