Tuesday, July 3, 2012

8 May 2012: New procedural rule criticism

Abdur Razak started proceedings by raising a number of matters.

First, he told the tribunal that despite the court’s earlier order the Jail authority was not allowing Golam Azam to have plain paper so that he can make notes. Azam had also asked for some religious books which are also allowed.

The chairman asked him to file an application mentioning what books Azam wanted, and the tribunal will look into the matter.

Razzak, then raised a number of issues relating to the amended Rules of Procedure issued on 19th April 2012 which he said the defence only came to know about the previous day. He said that he was concerned the amended rules would prejudice the defence.

The chairman said that he was willing to hear the concerns

Razak said that in the newly inserted rule 26(4) you have limited the time for filing a review petition to seven days of a order when previously there was no time limit.

The chairman clarified that the time for getting a certified copy of the order will be deducted from this time.

Razak wanted clarification that this rule would not be applicable to the orders made before 19th April 2012 – as the defence is to file some review petition against some orders before 19th April.

The chairman agreed. This will only apply to the orders after the amendment. ‘It will not apply for orders passed before 19th April. You can still file review petition against the orders before 19th April,’ he said

Razak then asked about the newly inserted rule 26A which allows the tribunal to summarily dismiss the application without hearing arguments in court.

The chairman said that they would only use this power in relation to applications which were vexatious and without merit. ‘Some parties are filing unnecessary applications. We want to stop this.’ he said

Razaq said that this was not practice in the High Court where every application must be heard in presence of both the parties.

The chairman said that they have taken this from the rules of the country’s Appellate Division.

Razaq responded by saying that this court does not consider itself equal to the Appellate Division and also said that in practive the appellate division does not dispose of any application without hearing the parties.

The chairman agreed to consider this argument.

Razaq then raised a point about the newly inserted Rule 39A which allows the tribunal to convict a person for a different offence from the one originally charged if the evidence allows this. He said that this was contrary to Section 19 of the 1973 Act which provides that the Tribunal to confine the trial to the issues raised by the charge. He said that this rule would highly prejudice the accused – how can the accused prepare his defence for an offence for which he is not charged, he asked.

The Judge Anwarul Haq said that in the traditional trial it is possible. ‘If a man is charged for Murder then he may be convicted for manslaughter on the same charge’, he said

Razaq said that the Cr.P.C. is not applicable here. Moreover in the CrPC a person may be convicted for a lesser offence than the one he is charged, but there is no such restriction in this newly inserted rule. Under the current rule, you may charge the accused for crimes against humanity and convict him for Genocide. This is unfair.

The chairman did not respond

Razaq continued and said that under the newly inserted 45A the tribunal may proceed against a lawyer for contempt under section 11(4) of the Act if he shows disrespect to any order.

The chairman asked him whether he wanted to say that a lawyer should be allowed to show disrespect to the Tribunal.

Razak said that his point was that the tribunal already has this power under Section 11(4) and so Rule 45A is unnecessary. ‘It shows disrespect to the lawyers,’ he said.

The chairman agreed that they had the power, but wanted to use the new rule to remind lawyers again.

Razak then mentioned the newly inserted 45B which provides that a lawyer will not be allowed to cancel his power of attorney without leave of the tribunal and that until leave is granted the lawyer is legally bound to represent his client. Razak asked, ‘why shall I need to wait for the court’s permission if the client withdraw or cancel my power of attorney’?

The chairman said that in our high court, a lawyer needs to take the court’s permission to withdraw from a case.

Razak said however that the second part of 45B provides that if a lawyer cancels his power without the courts permission then this is a misconduct and appropriate action can be taken against that lawyer and this is not practice in our High Court. This is harsh and we are apprehending that this rule may be misused against the defence counsels.

The chairman said that they would not misuse the rule.

Razak then raised a question about section 50A (2) which stated that the tribunal may presume a fact which is ‘likely to have happened’. He said that this was a civil standard of proof similar to balance of probability. In a criminal trial the standard of proof is beyond reasonable doubt. You cannot lower the standard of proof.

The chairman said, ‘No, we are not lowering the standard of proof. We have no doubt about beyond reasonable doubt. We will apply that standard.’

Razak then asked then if that is the case why have you inserted this rule? This will lower the standard of proof which is very dangerous.

The chairman said that it would not prejudice the accused.

Razak then stated in the newly inserted 51A(1) you have required the defence to give a summary in advance of what a defence witness will say in court. This is not practice in our country. No defence counsel was ever been required to given an advance summary of what his witness may say in doc.

The chairman said that this is necessary for the prosecution to prepare for cross examination witness.

Razak then said that in the newly replaced rule 53 you however want to put restriction on cross examination. Our concern is that this will highly prejudice the accused.

The chairman denied that anyone would be prejudiced by this new rule.

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