Professor Ghulam Azam

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The Judge who is Part of the Evidence

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by Steven Kay QC

The Trial of Sayedee at the Bangladesh International Crimes Tribunal has started, with the Defence challenging the impartiality of the process because The Chairman of the panel of Judges has been discovered as being a participant within one of the Prosecution’s key exhibits in the trial: a report written in 1994 identifying war criminals and collaborators of the Bangladesh liberation war in 1971.
The Report dated 26 March 1994 on the Findings of the People’s Inquiry Commission on the Activities of the War Criminals and the Collaborators in the Bangladesh War of Liberation of 1971 reveals the following:
1. The identification of the Chairman of the Bangladesh International Crimes Tribunal Judge Nizamul Huq Nasim as a lawyer at the time of the Secretariat of the People’s Commission, listed in Appendix B;
2. That the accused of the current trial before the ICT, Sayedee, is named by the People’s Commission in the same Report as a war criminal and is accused of many murders and other crimes in the 1971 liberation war;
3. The Report states: “A 40 member Secretariat consisting mainly of lawyers, journalists and writers was formed to assist the Commission with its task” which was the investigation of the crimes for the People’s Inquiry and “The Commission analysed all the evidence gathered by members of the Secretariat.”
The Defence for Sayedee last week challenged the position of the Judge in the trial and requested his recusal. This was refused and no reasons for the decision of the ICT were issued. Instead, the international lawyers including the author of this blog (Steven Kay QC) who advised the Judge of his conflict of interest by letter, which was distributed to the media, have been reported to the Bar Standards Board! This is an obvious attempt to silence criticism, which a reasoned judgment might have been able to achieve if the Judge had a defensible position. Of course, this Tribunal is rigged so that normal constitutional rights which would entitle a Bangladeshi citizen to appeal to the High Court to challenge such a fundamental decision as to the fairness of the trial have been denied by constitutional amendments.
The Chairman of the Bangladesh ICT has a visible and apparent interest and bias in these proceedings, of such a substantial nature he should be disqualified by his fellow Judges “who left it to his good conscience” or by his own decision from acting as a Judge in the ICT.
The principle: “Justice must not only be done it must be seen to be done” applies to all jurisdictions.

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