Friday, 25 May 2012

More on the Removal of Judge Sow

Yvonne McDermott sends a very helpful and complete account, reproduced below. As the conclusion indicates, the colleagues of Judge Sow decided that his rather frustrated and ineffective attempt to make a short statement at the end of the delivery of the summary of the Taylor judgment makes him 'unfit' to be a judge. They cannot, however, remove him from office. They can only recommend that this be done by the Secretary-General of the United Nations, and this is what they have done. Pending a determination by the Secretary-General, they have suspended him from sitting. The authority for this is Rule 24(iii), which states: 'The Judges shall meet in Plenary to... (iii) Decide on matters relating to the internal functioning of the Chambers and the Special Court.' Suspending a judge from sitting in a case, when the Rules themselves say that he is required to be present at every hearing, seems an extraordinarily serious measure to be based upon such a vague provision.

From the sentencing hearing transcript:
"Before proceeding today, it gives us no pleasure to have to place on record some explanation for the extraordinary situation which occurred at the end of the previous sitting of the Trial Chamber on 26th of April, 2012, on which date the Trial Chamber delivered its summary judgement.
On that date, at the conclusion of the proceedings, the Alternate Judge, without any notice to the Trial Chamber, proceeded to deliver his own opinions from the bench on the judgement that had just been delivered on these proceedings and on the Special Court itself. What the Alternate Judge did was in contravention of the agreement, the Statute, and the Rules which govern this Court and amounted to misconduct. The purpose of attaching an Alternate Judge to a Trial Chamber is that he can be designated to replace a sitting Judge if that Judge is unable to continue sitting. See Article 12 of the Statute. No such designation has been made in the present case. Further, during the proceedings, the Alternate Judge may pose questions through the Presiding Judge, but there is no other entitlement for an Alternate Judge to speak during court
proceedings. See Rule 16 bis (B). Moreover, an Alternate Judge not have any say in decisions of the Trial Chamber. He is obliged to be present during deliberations off the Trial Chamber, but he is not entitled a vote thereat. See Rule 16 bis (C). It follows that it was wrong for the Alternate Judge, who has not been designated to replace a sitting Judge, to offer an opinion, whether dissenting or concurring, on a judgement of Trial

The behaviour of Judge Sow was referred by the Council of Judges to a plenary meeting of the Judges of the Special Court. We three Trial Chamber Judges abstained from voting at that plenary.
I will now read onto the record the resolution of the plenary.

'Resolution on complaint by Trial Chamber II against Justice Malick Sow. The Judges of the Special Court for Sierra Leone sitting on the 7th and 10th of May, 2012, in the 17th plenary of Judges, pursuant to Rule 15 bis (B) of the Rules of Procedure of Evidence of the Special Court which mandates the Council of Judges who refer an allegation of unfitness of a Judge to sit to the plenary if it determines that, one, the allegation is of a serious nature, and two, that there appears to be a substantial basis for same.
Pursuant also to Rule 24(iii) of the Rules, which provides that the Judges shall meet in plenary to decide upon matters relating to the internal functioning of the Chambers and the Special Court, seized of the complaint by the Judges of Trial Chamber II, dated 26th of April, 2012, against Justice Malick Sow, Alternate Judge, considering the response of Justice Malick Sow, dated the 1st of May, 2012, to the complaint, having also considered the views and recommendations of the Judges on the matter and the response of Justice Malick Sow to those views
pursuant to Rule 15 bis (C) have reached the following conclusions:

1. The plenary declares that Justice Malick Sow's behaviour in court on the 26th of April, 2012, amounts to misconduct rendering him unfit to sit as an Alternate Judge of the Special Court.
2. The plenary recommends to the appointing authority pursuant to Rule 15 bis (B) to decide upon the further status of Justice Malick Sow.
3. Pursuant to Rule 24(iii), the plenary directs Justice Malick Sow to refrain from further sitting in the proceedings pending a decision from the appointing authority.

Done in Freetown, Sierra Leone, this 10th day of May, 2012, for and on behalf of the plenary, signed by the President Justice
Jon Kamanda.

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