By David Bergman
The lawyers appealing against the convictions of Abdul Quader Mollah for crimes against humanity have filed two applications seeking the recusal of two judges from the appellate division – Justice Sinha and Justice Manik.
In relation to the Justice Manik, the key allegations against him concern his claimed presence and comments at certain meetings whilst in London in April 2010 and in June 2011 relating to the International Crimes Tribunal which the defence states ‘has eroded his credibility and threatened the integrity and independence of the appeal proceedings.’
These concerns are set out in paragraphs 15 to 19 of the application:
15. That on 1st April 2010 Mr. Justice AHM Shamsuddin Choudhury attended a meeting of the members of Awami League and Ghatok Dalal Nirmul Committee at the Dockland Memsab Restaurant in East London. It is stated that both the Awami League and the Ghaok Dalal Nirmul Committee had campaigned for the trial of the Respondent as a war criminal. In the said meeting the leaders of Awami League and Mr. Shahrier Kabir, the Acting President of the Ghatok Dalal Nirmul Committee were present and they were campaigning for the trial of alleged war criminals in Bangladesh. This was reported on 9th April 2010 in the Daily Amar Desh. It is respectfully submitted that the presence of the Honourable Judge in the said meeting to support the cause of the Awami League and the Ghatok Dalal Nirmul Committee who had actively and publicly campaigned for trial of the Respondent as a war criminal is a evidence of bias and sufficient to disqualify him to be a judge in the instant appeal.
16. Further on 21st June 2011 Mr. Justice AHM Shamsuddin Choudhury attended a public meeting at the Crowne Plaza Hotel, London and launched a public attack on a member of the defence team of the Tribunal and then proceeded to speak about the Tribunal, the legal framework, the practice of the Tribunal and the trials. In particular the Hon’ble Justice declared, in his detailed presentation, that the trial process met international standards and that the criticisms raised by the defence were without foundation. It is respectfully submitted that the Hon’ble Justice made a number of public declarations that concern a number of matters that are now subject to appeal. ….
18. At the public meeting on 21st June 2011 the Hon’ble Justice went further than merely commenting on the general legal and constitutional framework. The Hon’ble Justice gave a detailed account of the legal and constitutional framework, dismissing the numerous concerns raised by the defence as to lack of due process, and further by discussing matters that were sub judice and expressing an opinion on their eventual outcome, there is reasonable doubt that the Respondent will now receive a fair hearing and the Hon’ble Justice will dispense justice according to his oath on the basis of the public remarks he made on 21st June 2011. It is further submitted that a number of the Hon’ble Justice’s remarks amounted to political statements unbecoming a member of the Judiciary.
19. It is respectfully submitted that this is not a matter that the Appellate Division of the Supreme Court need conduct an extensive examination into – there is little doubt that the Hon’ble Justice attended the meetings and made the public declarations – the question is whether an objective observer would apprehend that there is a legitimate fear that he will lack the required level of impartiality due to his attending the meetings dated 1st April 2010 and 21st June 2011 and making such public declarations.
In relation to Justice Sinha, it is alleged that the judge made an offer to the former chairman of one of the international crimes tribunals, Justice Nizamul Huq Nassim about being promoted to the appellate division if he completed three tribunal cases. This, the defence claim, ‘amounts to an unlawful interference in the proceedings pending before the Tribunal’ and that he ‘has disqualified himself from sitting as a judge in any Appeal from any Judgment of the Tribunal.’
This are set out in paragraph 17 of the application:
17. That in Skype conversation on 6th September 2012 published in the Daily Amar Desh dated 9th December 2012 the former Chairman of the Tribunal Mr. Justice Nizamul Haque is reported to have had a conversation with Mr. Justice Surendra Kumar Sinha. The translation of the relevant portion of the Skype conversation is reproduced below: “ ‘Sinha Babu’ (Mr. Justice Surendra Kumar Sinha) said, pass three verdicts within December. This one [Delwar Hossain Saydee], Ghulam Azam and Saqa [Salauddin Qader Chowdhury]. It would suffice to pass verdicts in these three [cases]. Then we will bring you here [to the Appellate Division of the Supreme Court]. Thereafter you will not be required to stay there [International Crimes tribunal]. This is all we talked about. I said you may do whatever you want to do, promotion should be given first. My concern is promotion.”
The defence claim that if this does not amount to unlawful interference in the proceedings, ‘it raises serious concerns of appearance of bias against all the Accused before the Tribunal including the Appellant.’