The Moving Judge and the Replacement Judge - Bangladesh International Crimes Tribunal and Interference by the Government with the Legal Process

By Steven Kay QC

On 2 March 2012 the Bangladesh Law Minister Shafique Ahmed announced the need for a second war crimes tribunal to be established so “War criminals from other parts of the country will be brought to justice”. State Minister for Law Qamrul Islam described the intention thus: “Politics of fundamentalism will come to an end with the trial of war criminals”, see link:

http://www.bdnews24.com/details.php?id=219422&cid=2

On 4 March 2012, Qamrul Islam reaffirmed that the second Bangladesh International Crimes Tribunal would be open by the end of the month and that new rules facilitating the transfer of cases from one tribunal to the other were being formulated, see link:

http://www.bdnews24.com/details.php?id=219509&cid=3

On 20 March 2012, Qamrul Islam on another visit to the Bangladesh International Crimes Tribunal announced the appointment of new Judges would be made soon and that the new tribunal would take on some of the cases from the other court, see link:

http://www.bdnews24.com/details.php?id=220678&cid=3

On 25 March 2010, the Bangladesh International Crimes Tribunal was established with just three Judges elected to the bench under section 6 (1) of the International Crimes Tribunal Act 2010, to hear cases of international crimes committed during the 1971 liberation war that led to the creation of the State of Bangladesh. The first bench of Judges, who sit in the single courtroom available in the Tribunal in Dakkar consisted of:

- Justice Nizamul Haque Nasim (Chairman)

- District Judge A K M Zahir Ahmed

- Justice ATM Fazle Kabir

The Registrar of the Tribunal was a Md. Shahinur Islam, who established the infrastructure for the running of the court.

The 3 Judges at this Tribunal began to deal with the cases of the first 8 men arrested during 2010 and 2011 and started the first trial of a man named Delewar Hossain Sayedee (ICT-BD Misc. Case No. 01 of 2011) in October 2011. All the arrested men were members of either the opposition Jamaat Islaami and BNP parties. This is in conformity with the statement of Law Minister Qamrul Islam on 2 March 2012 to rid Bangladesh of alleged “fundamentalism”.

The second International Crimes Tribunal was announced on 22 March 2012 and started work on 25 March. It was reported on the 9 April that the Bangladesh Government with Sheikh Hasina the Prime Minister in the chair had approved a draft International Crimes (Tribunals) Act 2012, enabling the transfer of cases from one Tribunal to another as under the original ICTA 1973 there was no power to do so as the Cabinet Secretary Musharraf Hossein Bhuiyan explained, see link:

http://unbconnect.com/component/news/task-show/id-73318

So we need to examine how the Government has achieved its stated objectives and whether the new measures are lawful or unlawful. The second Tribunal bench is composed of:

- Justice ATM Fazle Kabir (Chairman)

- Justice Obaidul Hasan

- Md. Shahinur Islam (Registrar ICT1)

This is the same Justice ATM Fazle Kabir originally serving as a judge in the first Tribunal and currently hearing the case against Delewar Hossain Sayedee, which is still at the stage of hearing the Prosecution evidence. The Defence case has yet to begin so he has been transferred in mid-trial of Sayedee. Under section 6(4) IC(T)A 2010, the removal of a Judge in the proceedings of a case is limited to strict circumstances:

“If any member of a Tribunal dies or is, due to illness or any other reason, unable to continue to perform his functions, the Government may, by notification in the official Gazette, declare the office of such member to be vacant and appoint thereto another person qualified to hold the office (emphasis added)”.

These circumstances have not arisen in the removal of Justice ATM Fazle Kabir from the first International Crimes Tribunal as he is able to continue to perform his functions in the second Tribunal. It is apparent that it is more for the convenience of the Bangladesh Government who have prevented the continuance of his functions within the first Tribunal. The Government failed to provide any prior indication to the fact that a judge would be removed from the first Tribunal in mid-proceedings, thereby giving the Defence the opportunity to object and raise arguments against either the lawfulness of the move or whether it was fair and in the interests of justice. They also failed to place a notification in the official Gazette declaring Justice ATM Fazle Kabir’s office to be vacant, contrary to section 6 (4) IC(T)A.

The new judge appointed to replace Justice ATM Fazle Kabir in the Sayedee trial in the first Tribunal is Justice Anwarul Haque. He will be joining the trial not having heard nearly all the Prosecution witnesses give evidence, so it would be an impossible task for him to convict an accused in these circumstances, as he could never be sure of the quality of the case against Sayedee. We do not know if in fact Justice ATM Fazle Kabir was moved because he was inclined to acquit Sayedee, which of course is another possibility in this affair of the moving Judges.

The Bangladesh International Crimes Tribunal actually prevents the Defence from being able to safeguard their rights or object to such machinations by prohibiting any right to interlocutory appeal in order for an independent appellate court to address these issues.