SunMay282017

The recent Skype scandal and its impact on the Apex Judiciary of Bangladesh

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By Barrister Nazir Ahmed

 

Mr Chair, the honourable guests, learned friends and colleagues.  Good evening and peace be upon you all.  I am privileged and honoured to be able to speak before you.  I aim to talk about on the recent Skype scandal and its wide impact.  From the discussion, I will attempt to draw some conclusions towards the end.

 The most recent Skype scandal of Justice Nizamul Haque Nasim, the Chairman of the International Crime Tribunal (ICT), has shaken the entire higher judiciary of Bangladesh.  He clearly violated the Constitution.  Article 27 of the Constitution says “all citizens are equal before law and entitled to equal protection of law,” whereas Article 32 says “No person shall be deprived of life or personal liberty save in accordance with law.”  Article 31 of the Constitution ensures all citizens to enjoy the protection of law and to be treated in accordance with law.  Under the Article 94(4) of the Constitution, as a Supreme Court Judge, Justice Nasim supposed to be independent in the exercise of his judicial function.  Considering the above constitutional provisions, it can safely be said that Justice Nasim was neither independent in the exercise of his judicial function nor treated the defendants equally or provided them equal protection of law. 

Therefore, he clearly violated the Constitution.  In addition, Justice Nasim clearly violated his constitutional oath (In fact, all Supreme Court Judges while taking oaths utter, among others, “That I will preserve, protect and defend the Constitution:” “And that I will do right to all manner of people according to law, without fear or favour, affection or ill-will” – Third Schedule [Art 148]).  Furthermore, Justice Nasim violated the Code of Conduct of the Judges of the Supreme Court of Bangladesh.  Particularly, he violated Section 1 (A Judge should uphold the integrity and independence of the judiciary), Section 2 (A Judge should avoid impropriety and the appearance of impropriety in all activities) and Section 3 (A Judge should perform the duties of the office impartially and diligently) of the Code of Conduct.  Section 2A of the Code says “A Judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, whereas, Section 2B of the Code says “A Judge should not allow family, social or other relationships to influence judicial conduct or judgment.”  Section 3(1) of the Code of Conduct says “A Judge should be faithful to and maintain professional competence in the law and should not be swayed by partisan interests, public clamor or fear of criticism,” whereas, Section 6(a) of the Code says “The Judge shall disqualify himself or herself in a proceeding in which the Judge’s impartially might reasonably be questioned.”  Section 5 of the Code of Conduct says “A Judge should practice a degree of aloofness consistent with the dignity of his office” and Section 11 of the Code of Conduct says “Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is becoming of his office.”  It is clear from the above provisions that Justice Nasim clearly violated various provisions of the Code of Conduct of the Judges of the Supreme Court of Bangladesh and thereby he committed gross professional misconduct.  

Now the question is: if an ordinary employee has committed misconduct, a stern action is taken or he is sacked, should a Supreme Court Judge be left alone having committed such gross professional misconduct?        

 Apart from this, Justice Nasim has deliberately perverted the course of justice and, to that extent, thereby committed a serious criminal office.  The matter should immediately be referred to the Supreme Judicial Council to investigate the whole matter and at the same time he should be arrested for the criminal offence/intention he had committed/shown.  If the law is said to be equal to all, he should be arrested and taken into remand, as usually taken in ordinary cases.  With him State Minister of Law should also be arrested and taken into remand for interfering with the course/process of fair trial/justice with political ill motives. 

The way Mr Chairman spoke, the language he used in the conversation, the information he shared and the dictation he took from outsiders/politically motivated persons are beyond all legal and moral boundaries.  He has shown that he is incompetent, partial, and having malafide intention.  He used defamatory words against his colleagues, Dr Kamal, Barrister Amirul Islam, Waliur Rahman, Advocate Kamrul Islam.  The authenticity of the contents of the report of the Economist and Daily Amar Desh are beyond any question, as his verbal sound of speaking is heard at face book and YouTube to verify the truth.  We all want the justice for war crimes, but that has to be fair, transparent and at international standard so that the real criminals can get punishment and the innocents can be cleared for the rest of their life from painful stigma. 

 Although Justice Nizamul Haque Nasim has resigned from the ICT, he still remains a Judge in the Supreme Court of Bangladesh. Law Minister has confirmed. It is disgraceful. Any future judgment delivered/given by him will be questionable and doubtful for good.  Should a person in his character be in the higher judiciary? His honesty is at stake, his integrity is questioned, and he [as a Judge of the Supreme Court] brought disrespect and disrepute on the apex judiciary of Bangladesh.  He lied even in the last Order passed against the Economist as an ICT Chairman and misled the nation.  Unless the truth was unveiled/unearthed he was certainly going ahead of [judicial] murdering of nearly a dozen people without following proper judicial process. This is tantamount to ‘attempt to murders.’ Therefore, he should not only be sacked from the higher judiciary immediately through Supreme Judicial Council but also criminal charges be brought against him now or later. Persons of corrupted Public Prosecutors (PPs) stature/calibre at lower court, party cadres, lower/third class morality holders are made Judges of the apex court and State Ministers.  Where the country is going to?

 The international community must not put a blind eye into this serious matter.  As the government, some members of the civil society, some constitutional post holders, High Court Judges and a Judge of the Appellate Division appear to be involved in whole conspiracy and scandal, any internal or domestic investigation is unlikely to unveil the truth.  Therefore, the UN should perhaps come forward to lead a proper inquiry/investigation to unearth the whole truth that would be acceptable to all, domestically as well as internationally.     

 Majority media in Bangladesh seem prone to superficial or one sided discussion.  They do not want to go to the root of the problems.  Many one sided intellectuals appear to be interested on why and how Skype conversation was disclosed.  They do not bother to discuss on the contents of the discussion of the Chairman [Chief Judge] of the ICT with Dr Ahmed Ziauddin where lives of nearly a dozen people are at stake and where whole judicial process of the ICT was made a joke and laughable. 

The leaked Skype conversation revealed, among others, (i) The government (the executive) was pressuring for judgement by December (ii) An Appellate Division Judge, who is waiting to be the first Chief Justice from minority ethnic origin in Bangladesh, was putting undue influence on the Chairman of the ICT to give three judgements [of hanging] by December by telling him that he would then be taken to the Appellate Division [this is tantamount to undue pressure and bribe] (iii) One can get clear impression that the second and third Judge are ‘yes man,’ they will say ‘yes’ to whatever the Chairman would say and they were taken to the ICT based on that understanding (iv) Getting dictation, Charge Sheets, Orders and judgement from outside individuals unconnected to the ICT (v) The Chairman was using very offensive words/defamatory remarks against his colleagues [Judges], Ministers and senior/notable lawyers of the country (vi)  The Chairman was taking advice and dictation from Dr Ahmed Ziauddin as to what Order to be given, whose cases should be brought first, what should be written in the Orders etc. (vii) The Chairman was discussing with a person, no matter how expert he may be, who has clear links with the government and prosecution and who has ill political motives (viii) Prosecution have link, unknown to the defence, and unfair ties and secret access to the Chairman. 

These are crucial points and information that go to the heart to the norms and manner of the fair trial.  People have right to know.  So, the publication of the Skype conversation was of public interest.  One does not have to be expert to realise what disaster would have happened if those information were not leaked and published.  It is universally true that justice should not only be done, but must be seen to have done.  The whole ICT and its trial process has been vitiated.  I cannot fairly and logically see how justice can be done [let alone seen to have done] without having a full retrial with completely new Judges and prosecution.

 Who is Dr Ahmed Ziauddin? I do not know him personally. Nor have I ever seen/met him. I have read some information about him in the social media. I believe many people in Bangladesh, especially those who do not have access to the modern technology do not know him well. He along with Mr Rayhan Rashid, whose name also came out on the Skype conversations, should be fully exposed. Their life story, their past and present political connection and affiliation, their network and their ill motives should properly be exposed.

Perhaps as a part of unearthing the truth a reputable newspaper in Bangladesh could take a lead. Without such exposure, mass/general people would not be able to get clear picture of the full conspiracy. Furthermore, Dr Ahmed Ziauddin along with Mr Rayhan Rashid has committed serious criminal offences. An attempt should be taken by the concerned to see if criminal charges could be brought now or in future against them, in Bangladesh or abroad, for (i) interfering the course of justice of an independent sovereign country, (ii) conspiring to commit [judicial] murders of nearly a dozen of people (iii) conspiring with and dictating/ordering a Judge of the Supreme Court of an independent country (iv) bringing disrespect to the Judges of the apex court of an independent country. If they could be brought into justice and exemplary punishment could be ensured, some damage on the higher judiciary of Bangladesh could be repaired.  At the same time similar incidents could perhaps be prevented. Otherwise, the real risk and great danger remain of happening similar thing in similar or in different fashion could happen again and again.

 Finally, the recent Skype scandal has made irreparable damages to the apex court of Bangladesh.  The public are losing confidence on the upper judiciary.  Justice Nasim has brought disrespect and disrepute on the higher judiciary.  Unless the whole matter is dealt with great wisdom, due care and looking at greater national interest as opposed to narrow party/alliance political benefits, the public will lose confidence on the upper judiciary, the dire consequence of which will be chaos and anarchy within the country.  We, as conscious citizens, must do everything possible to protect the county from going on that direction. 

 

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*Nazir Ahmed FRSA FCMI FRSPH FCIArb
LLB Hons (London), LLM (London), Barrister-at-Law (Lincoln’s Inn)

 

** The important part of the paper presented on 20 December 2012 as a Keynote Speaker at a Round Table discussion in London, UK, organised by Justice Concern.

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