Frequent changes to the three-judge panel in the war crimes trial of Delwar Hossain Sayedee mean that a fair trial is no longer possible and a new trial should be held, Human Rights Watch said today. Human Rights Watch has long called for those responsible for atrocities in the 1971 independence struggle that led to the creation of the state of Bangladesh to be held accountable consistent with international fair trial standards.
On December 11 Justice Nizamul Huq, chairman of the International Crimes Tribunal (ICT) hearing allegations of war crimes, crimes against humanity and other serious crimes committed in the 1971 war of liberation from Pakistan, resigned after audio tapes and email correspondence were published concerning his conduct in his capacity as the presiding judge in the Sayedee case and other ICT matters. The Economist published further emails and communications on December 13 which it said showed collusion between the judge, the prosecutors, and the executive.
Huq was the only remaining member of the original three-judge panel in the Sayedee case. The other members of the bench changed over the course of the trial, meaning that no judge on the panel has heard the entirety of the evidence in the case. Closing arguments in the Sayedee trial finished on December 6, meaning that Huq’s replacement, named on December 12 as Justice Kabir, would participate in a verdict in a case in which he had heard only part of the prosecution evidence.
“It would be highly irresponsible and unprofessional for a verdict to be delivered when none of the judges heard all the evidence and were unable to assess the credibility of key witnesses, particularly in a trial involving 40-year old evidence and complex legal issues,” said Brad Adams, Asia director at Human Rights Watch. “Before the chair of the court resigned for improprieties only one judge had heard the totality of the evidence, and now even that one judge is gone. A new trial is the only way for the court to preserve its integrity.”
The first panel in the Sayedee case, formed in March 2010, consisted of Justice Huq, Justice Fazliq Kabir, and Justice Zakir Ahmed. Justice Kabir, who was reassigned back to the Sayedee panel on December 12 after Huq’s resignation, had left the Sayedee trial in March 2012 when he was transferred to chair a second trial at the ICT. His replacement, Justice Anwarul Huq, heard only one prosecution witness, the investigating officer, before the defense presented its case. In late August, Justice Ahmed unexpectedly resigned, citing health reasons, and was replaced by Justice Jahangir Hossain, who heard only the defense witnesses.
Human Rights Watch expressed concern that the Law Minister, Shafique Ahmed, and the prosecution have each stated that Huq’s resignation would not affect the proceedings in the Sayedee case or other cases at the ICT. The tapes appear to suggest that Ahmed has interfered with the independence of the judiciary at the ICT.
It is common practice in Bangladesh for a trial to continue when a judge is replaced, falls ill, or is unable to continue for other reasons. The statute that governs the ICT contains a section which allows the replacement of a judge. However, the statute does not address cases in which none of the judges is present throughout the trial.
In addition to a new trial, Human Rights Watch urged the ICT law or rules of procedure to be amended to follow the international practice of appointing reserve judges who attend all hearings and are thus prepared to step in if a judge leaves the bench.
“The reason why courts throughout the world listen to oral testimony is to be able to decide for themselves whether they think a witness is credible, or what value to give to the evidence before them based on direct questions and challenges to the evidence ,” said Adams. “In the Sayedee case, three judges— not one of whom has been present throughout the presentation of the entire body of evidence— will be delivering a verdict which could potentially send the accused to the gallows. Sayedee may or may not be guilty, but the only way to know is through a fair trial by judges who hear all the evidence.