Submissions of the Defence Re Recusal hearing of Mr Justice Nasim

21 Nov

SUBMISSIONS OF MR. ABDUR RAZZAQ, BARRISTER-AT-LAW

1.
Today, we have conducted hearing of a very important application before the International Crimes Tribunal. In the 200 years history of British India, 25 year history of Pakistan and in the long 40 year history of Bangladesh, no precedent exists of such an applicationever being moved.

2.
In order to ensure a fair trial, a Judge has to remain above and beyond all controversy. If a Judge is even remotely involved with the subject matter of the proceedings, then he has to refrain from acting as a Judge in the said proceedings – this is a time honoured principle observed by all Judges.

3.
But for the first time in the history of Bangladesh, we see an exception to this time honoured principle in theproceedings of the International Crimes Tribunal, Dhaka. On 25th March 2010, the Hon’ble President appointed Mr. Justice Nizamul Haque Nasim as Chairman of the International Crimes Tribunal. Earlier in 2001, he was appointed as an Additional Judge of the High Court Division of the Supreme Court of Bangladesh. On 26th March 1993, a People’s Inquiry Commission was constituted to conduct an investigation into war crime atrocities committed in 1971. A 40-member Secretariat was also constituted to assist the People’s Inquiry Commission in its investigation. Mr. Justice Nizamul Haque Nasim was a member of the Secretariat of the People’s Inquiry Commission.

4.
On 26th March 1994, the People’s Inquiry Commission submitted its investigation report. As a member of the Secretariat of the Inquiry Commission, Mr. Justice Nasim assisted the Commission in the investigating into allegations of war crimes against Mr. Moulana Motiur Rahman Nizami, Moulana Delwar Hossain Sayedee, Mr. Salahuddin Quader Chowdhury, Mr. Ali Ahsan Md. Mujahid and several other leaders of the BNP and Bangladesh Jamaat-e-Islami.

5.
As a member of the Secretariat of the People’s Inquiry Commission, Mr. Justice Nasim was involved in theinvestigation of war crimes allegations against the aforesaid persons. He was also involved in the process of obtaining statements of witnesses, many of whomare likely appear before the Tribunal to give evidence. In his capacity as a member of the Secretariat, he also recommended that the aforesaid persons be tried for war crimes by the International Crimes Tribunal. In view of Mr. Justice Nasim’s direct involvement withthe People’s Inquiry Commission, he has no right to perform the functions of the Chairman of the International Crimes Tribunal.

6.
During the hearing of the application for recusal, Mr. Abdur Razzaq, Barrister-at-law, Senior Advocate referred to the Constitution of Bangladesh, the Code of Conduct for Judges of the Supreme Court, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rightsand the Rome Statute of the International Criminal Court, and submitted: ‘Mr. Justice Nasim should resign from the post of Chairman of the International Crimes Tribunal immediately. Failure to resign would be tantamount to violation of the principles of a fair trial. It will be a travesty of justice.’

7.
Mr. Razzaq further submitted that if Mr. Justice Nasim does not resign, this will amount to obstructing the course of justice. ‘Mr. Justice Nasim has no constitutional, legal or moral right to remain as Chairman of the Tribunal’, he said. ‘The sooner he resigns the better’.

8.
Mr. Razzaq also submitted, ‘History repeats itself. Perhaps, Supreme Judicial Council proceedings will be instituted against him one day in the interests of a fair trial.’

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