Dhaka, Nov 28, (bdnews24.com)?The war crimes tribunal has dismissed a petition asking its chairman to state his reasons for continuing in his role despite what it termed 'reasonable apprehension for bias'. The International Crimes Tribunal trying war crimes of Bangladesh's Liberation War in 1971, on Monday, termed the petition of Jamaat-e-Islami leader Delwar Hossain Sayedee, "contemptuous, outrageous, and unheard of".
Sayedee's counsel had filed a petition, first seeking removal of tribunal chairman Justice Nizamul Huq, which was disposed of by the two other judges, Justice ATM Fazle Kabir, and AKM Zaheer Ahmed saying that they were not empowered in any way to remove a fellow judge and had stated that the matter rested upon "the good conscience" of the chairman.
Subsequently, when Huq continued with his duties, Sayedee's defence filed another application asking that the chairman give his reasons as to how he exercised his good conscience, in the form of an order.
The Jamaat executive council member is on trial at the court on 20 counts of war crimes and crimes against humanity including murder, rape, arson and loot.
The tribunal said in its order that questioning the impartiality of a Supreme Court judge, as was done in the case of Huq, required hard facts.
The order stated that appointment of a Supreme Court Justice automatically signified presumption of impartiality.
It said that once the judges have been sworn in, it is their sacred duty to dispense justice impartially and that presumption of impartiality must not be taken lightly.
Justice Nizamul Huq said such questions could not be raised merely on the basis of "suspicion, perception or conjecture".
He began with providing an elaborate background that led to the day's order. He noted the deliberations of the defence and the prosecution as regards his removal and subsequent application for his explanation to stay on.
He said that such an application was unprecedented in the long and rich legal history and in the court of law in Bangladesh.
The tribunal chairman noted that the defence had been cavalier in its citation of cases related the recusal or removal of judges. He explained some of those cases mentioned by the defence at length showing how and why they did not apply to the one at hand.
Justice Huq stated in his order that the defence had alleged misconduct on his part for not disclosing his role in a people's enquiry commission, where he allegedly collected evidence against certain individuals including the Sayedee, and where he had been associated with a prosecutor Zead-Al-Malum, who was also a member of the commission.
He said such allegations were preposterous. He stated that the chairman 'was under no legal obligation to make such a disclosure since his involvement was obvious in publicly available documents.'
Regarding the alleged misconduct, Huq said, "The defence should be more careful to impute such serious allegations and as such merits serious reprimand."
The tribunal chairman also said that the accused petitioner was also in a position to know of this involvement and could have raised the doubts much earlier in the trial and not just the day before the prosecution was about to begin its opening statement in the case.
In this respect, Justice Huq said that the tribunal was of the same view as that expressed by the attorney general Mahbubey Alam, who had argued before the court that this petition was 'not out of a genuine concern but only to delay the proceedings'.
The court questioned the defence's stance regarding 'bias' since it had alleged an that there might an 'appearance of bias' in one petition and in another alleged that there was 'actual bias' or a 'reasonable apprehension of bias', wondering what had caused such a shift in the span of a few days.
The order said that the alleged partiality on the part of Nizamul Huq had to be firmly proven. As such, the defence had failed to satisfy the requirements. The order also noted that the defence could not demonstrate that the tribunal chairman was in any way involved with any activity of during the preparation or finalisation of the commission report other than establishing that his name was among the 40 member of the commission.
Judge Huq recalled the deliberation of the attorney general too. Mahbubey Alam's name was also included among the 40 commission members, but he told the court that he was not even aware of that.
As regards a threat from the defence that the judge would be called as a material witness, Nizamul Huq quoted its definition and said in his order that he did not quite qualify as a material witness since he did not have the degree of involvement that would warrant such an action. The order said such a stance was rather 'unusual'.
As proof of the tribunal's impartiality, Justice Huq pointed out that the Sayedee, the accused petitioner, had been given privileges that other ordinary prisoners are not generally given, which showed that the tribunal was mindful of his welfare.
Upon conclusion, chief prosecutor Ghulam Arieff Tipoo approached the court to initiate judicial proceedings for contempt, to which Nizamul Huq said, "We have observed that it was contemptuous. Let it stay at that."
ATM Fazle Kabir addressed the defence counsels just before leaving the courtroom as everyone stood up. "Members of the defence," he said, "Have you forgotten the norms of the court? The chair has just given an order."
Two defence lawyers hurried forward and meekly stated, "Much obliged."
A number of senior defence lawyers were absent on the day, including Tajul Islam who generally argues for Sayedee.
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Source: bdnews24.com
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