Then the tribunal considered the application of the defense to review the August 14 order which restricted the number of witnesses the lawyers for Sayedee could call to 20.
1. That on 14th August 2012 the Hon’ble Tribunal passed an order (hereinafter: ‘the impugned order’) that the Defence for the Accused-Petitioner submit a list of 20 witnesses to be called beginning the 28th August 2012. On the same date the Accused-Petitioner filed an application for certified copy of the impugned order and on 28th August 2012 the same was supplied to the defence. The Accused-Petitioner is seriously aggrieve by the impugned order and thereby filing this Application for Review of the said order under Rule 26(3) of the Rules of Procedure (‘RoP’) within seven day’s of receiving the certified copy of the impugned order. (Certified copy of the impugned order dated 14th August 2012 has been annexed herewith as per requirement of Rule 26(4) of the RoP and marked as ANNEXURE – ‘A’.)
2. That the Prosecution submitted lists of Prosecution Witnesses (PW) by indicating an intention to call a total of 138 witnesses to testify in support of the case against the Petitioner. These lists of 138 PWs were accepted with no attempt by the Hon’ble Tribunal to place any restriction or limitation in the case presented by the Prosecution.
3. That the Prosecution called 28 vive voce witnesses, including seizure list witnesses, with the final testimony being that of the Investigation Officer, Mr. Helal Uddin (PW 28) whose examination-in-chief began on 8th April 2012 and cross-examination concluded on 13th August 2012.
4. It is submitted that the significant discrepancy between the number of witnesses the Prosecution initially sought to call and those that were actually physically produced was not on account of any intervention or limitation imposed by the Hon’ble Tribunal, rather, it followed the Prosecution’s alleged difficulties, the legitimacy upon which any reliance was placed by the Hon’ble Tribunal the defence challenged, in securing the attendance of witnesses to testify against the Accused-Petitioner. It was for this reason the Prosecution requested on 20th March 2012 that the statements of 46 further witnesses be tendered into evidence under section 19(2) of the International Crimes (Tribunals) Act, 1973 (hereinafter: IC(T)A) which provides that: “A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.”
5. On 29th March 2012 the Hon’ble Tribunal found that the Prosecution had satisfied the conditions of section 19(2) as set out above in relation to 15 witnesses. Thereafter, on 8th August 2012, following a further application by the learned prosecutor, the Hon’ble Tribunal accepted the statement of 1 additional witness, who was deceased, also under section 19(2) IC(T)A.
6. It may be recalled that the Defence strongly objected to the admission of statements under section 19 (2) and on 28th March 2012 contested the learned prosecutor’s application to do so on the basis that it seriously prejudiced the Accused’s right to a fair trial by essentially admitting untested evidence which the Petitioner had no effective opportunity to challenge.
7. Nevertheless, the Tribunal finally had before it the evidence of a total of 44 Prosecution witnesses and the case proceeded on that basis.
8. It may be recalled that the Hon’ble Chairman of the Tribunal stated in open court on more than one occasion that the Defence could challenge the section 19 (2) statements through calling witnesses on behalf of the Accused-Petitioner.
9. That on 14th December 2011 the Defence submitted a list of 48 witnesses all of which were to be vive voce with no attempt to admit evidence, at this stage, under section 19 (2) IC(T)A.
10. In response, on 14th August 2012, the Tribunal, rejected the Defence’s submission of 48 witnesses and ordered the submission of a new list by 23rd August 2012 of no more than 20 names with particulars of charges as required by the amended Rule 51A(1) of the Tribunal’s Rules of Procedure.
11. The Defence applied for a certified copy of the order of 14th August 2012 and received it on 28th August 2012. The certified copy repeated the claim that the Defence’s proposed 48 witnesses was ‘excessive’ as well as the statement that the Prosecution called only 28 witnesses, omitting mention of the crucial 16 witnesses whose evidence was admitted under section 19 (2) IC(T)A. It is respectfully submitted in this regard that the Hon’ble Tribunal erred in its ruling by holding that the Prosecution had called only 28 witnesses; the Prosecution had relied on the live evidence and unchallenged statements of a total of 44 witnesses.
12. In the meantime an application for recall of 14th August 2012 decision was filed on 28th August 2012 and rejected by the Tribunal without any new reasons being given.
Discrepancy between Prosecution and Defence
13. In both the oral and written rejection of the Defence’s prayer for 48 witnesses the Tribunal based its insistence on the Defence limiting it to 20 witnesses on the statement that the Prosecution had called only 28 witnesses. It is submitted that this statement of that figure did not took into account the additional 16 statements under section 19 (2) IC(T)A, which brought the total to 44. Thus the Tribunal’s impugned order that the Defence confine itself to 20 witnesses represents a selective statement of the facts and unfair limitation on the Defence case.
14. Rule 53 (3) of the Rules of Procedure afford the Tribunal the right to ‘regulate the matter of time management as and when it deems necessary, for ensuring effective and expeditious trial’. However, there is no provision within either the Act or the Tribunal’s Rules of Procedure that provides for the Tribunal to limit the number of witnesses for either the Prosecution or Defence. More specifically, although that number must be subject to a measure of reasonableness, there is no guidance as to what obtains for reasonable.
15. It is clear that the Tribunal considered the Prosecution’s total of 44 witnesses to be reasonable. Further evidence for this can be found in the Tribunal’s acceptance, without any attempt at limitation, of the Prosecution’s initial list of 138 witnesses. That the Prosecution in the event only produced 44 witnesses was not due to limitation but their inability to produce the remaining 94 witnesses. Even the fact of 16 witnesses entering their evidence by way of section 19 (2) IC(T)A, as set out above, was not a product of the Tribunal’s limitation but again the failure of the Prosecution to procure them for the witness box.
16. It is respectfully submitted that it is quite evident that the Defence submitted its list of 48 witnesses in the honest belief that the figure was comparable with that of the Prosecution and therefore reasonable before the Tribunal.
17. It is respectfully submitted that by looking only to the numbers and not the evidence of the witnesses, the Tribunal was in no position to make a determination as to the necessity of the Defence witnesses proposed.
18. There is therefore an appearance of bias on the part of the Tribunal towards the Prosecution. Witnesses are produced to substantiate the cases of the respective parties. It stands to reason as a general proposition that production of less than half as many witnesses will limit the Defence in its ability to challenge the evidence put forward by the Prosecution. This is clearly the risk if the Tribunal insists on the Defence’s limitation to the evidence of 20 witnesses in contrast to the Prosecution’s 44.
19. It is respectfully submitted that the statement concerning the notion that no Tribunal in the world allows more witnesses to be called by the Defence than the Prosecution has no bearing on the Hon’ble Tribunal’s decision. First, the Tribunal has repeatedly declared that it is not bound by the precedent of the international tribunals; even if the Defence has repeatedly argued that it is bound by the international treaties to it is a State Party and is invited to consider the persuasive authority of the international tribunals in order to cover lacunae in the Tribunal’s own legislative framework. Second, and more importantly, the question of how many witnesses and how much time management should fall on the judges is purely one of relevance. It is a basic principle of practice that the parties should be permitted to present their case without interference from the bench unless they exceed the boundaries of reasonableness. It is not a question of expediency or convenience, but one of fairness based on relevant testimony. It is respectfully submitted that the learned Prosecutor has been granted a great deal of freedom in calling evidence that is not directly relevant to the charges the Accused-Petitioner faces, but may is considered by the learned Prosecutor as relevant to the general nature of the allegations, i.e. the historical context. To prevent the Defence the same opportunity would not be consonant with the principle of equality of arms and in breach of the principle of fairness.
20. The natural result of this limitation is a curtailment of the Defence’ scope for making submissions based on oral evidence in the later stages of the trial.
Limitation and equality of arms
21. Section 17 IC(T)A enshrines fundamental aspects of due process including the principle of equality of arms by providing that during trial an accused person shall have:
(1) the right to give any explanation relevant to the charge against him;
(2) the right to conduct his own defence or to have the assistance of counsel;
(3) the right to present evidence at the trial in support of his defence and to cross-examine any witness called by the prosecution [emphasis added].
22. It is respectfully submitted that this provision sets out the starting point that it is for the Petitioner not the Tribunal to decide what evidence he presents and that he must be able to present that evidence by way of witnesses of his own choosing, that principle is consonant with the safeguards under Article 14 of the International Covenant on Civil and Political Rights (hereinafter: ICCPR).
23. Repeating the argument cited above, that although the quantity of that evidence must be subject to a measure of relevance and reasonableness, the Tribunal has already indicated what is reasonable in its acceptance of the Prosecution’s initial list of 138 witnesses, compared to which the Defence’s prayer for 48 witnesses appears minimal. As such, it is submitted that it is the duty of the Tribunal to act as the arbitrator of fairness and must ensure equality between the Prosecution and Defence. It is recognised that the Tribunal must ensure that the proceedings proceed at a pace in accordance with the Accused-Petitioner’s right to a fair trial within a reasonable time, but once again it is not a tool of convenience for fast-tracking the proceedings at the expense of the Accused-Petitioner’s fundamental rights.
24. Article 67(1)(e) of the Statute of Rome for the International Criminal Court (hereinafter: ‘Rome Statute’) provides that: ‘In the determination of any charge, the accused shall be entitled to the following minimum guarantees, in full equality: to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her’ [emphasis added].
25. It is submitted that this provision from the Rome Statute provides the most modern statement of the fundamental principle of equality of arms and must be read in its widest sense with the words ‘under the same conditions against him or her’ clearly including quantity of witnesses.
26. In further support of the principle of equality of arms, Article 6(3)(d) of the European Convention on Human Rights (hereinafter: ‘ECHR’), stipulates that: ‘Everyone charged with a criminal offence has the following minimum rights to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’ [emphasis added].
27. Article 14(3) (e) of the ICCPR, which provides the basis for the foregoing Article 67 (1) (e) of the Rome Statute, also guarantees an accused person the right to summon and examine witnesses under the same conditions vis-à-vis the prosecution: ‘In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees: to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’ [emphasis added].
28. Further, Article 10 of the Universal Declaration of Human Rights (hereinafter: ‘UDHR’) provides that: ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him’.
29. Bangladesh became a member of the United Nations on 17 September 1974 (by which it acceded to the UNDHR), adopted the ICCPR on 6 September 2000 and ratified the Rome Statute on 23 March 2010, meaning that it is now under an obligation to adhere to its undertakings with respect to the rights and principles that they enshrine. This position has been confirmed by the United Nations Working Group on Arbitrary Detention in its Opinion No. 66/2011 (Bangladesh).
30. In application of these principles, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (hereinafter ‘ICTY’) in the Karemera et al. case (Prosecutor v. Édouard Karemera et al., Case No.ICTR-98-44-AR 15bis 3, Decision on Appeal Pursuant to Rule 15 bis (D), 20 April 2007, para. 27) has endorsed the following reasoning of the Appeals Chamber in the Oric case (Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005): ‘The Appeals Chamber has long recognised that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity’.
31. Thus, the Accused-Petitioner does not argue simply that he should be afforded nominal equality with the Prosecution, but that he should be afforded substantive equality in his choice of witnesses that will allow him to fully present his case in accordance with the foregoing rights contained in praragraphs 23 – 30 inclusive.
32. It is submitted that 20 witnesses is far from sufficient to address the vast ground covered by 20 charges of an extremely serious and complex character. In responding to the Hon’ble Tribunal’s suggestion that the Defence shall be entitled to one witness per count in the indictment, it is respectfully submitted that such an approach is arbitrary without considering any other facts or circumstances.
33. It is restated that the Prosecution was permitted to tender the crucial evidence of 16 witnesses by way of section 19 (2) IC(T)A about which the Order is silent.
34. It is respectfully submitted that the impugned order compels the Defence to conduct the case of the Accused-Petitioner under conditions of inequality vis-a-vis the Prosecution. As such, to proceed with the impugned order in place would cause the Tribunal and, by extension, Bangladesh, to fall short of its international obligations to afford a fair trial to the Accused-Petitioner.
35. It is stated that the Tribunal also sought to base its decision in the impugned order to limit the Defence’s case on time management considerations under section 22 of the Act. However, it is submitted that 48 witnesses would in no way prevent the Tribunal from confining the trial to an expeditious hearing of the issues raised by the charges pursuant section 11 (3) (a) of the Act. This has already been demonstrated by the reasonably expeditious consideration of the evidence of the Prosecution’s 44 witnesses, which included the lengthy evidence of the Investigation Officer, Mr Uddin, to which there is no corresponding Defence witness requiring comparable time.
36. For the abovementioned reasons the Accused-Petitioner prays that the Tribunal sees fit to expunge the unfairness rendered to the Accused and review the impugned order.
Another application was submitted by Fakhrul Islam for enlarging Sallaudddin Quder Chowdhury on bail to attend the parliamentarian session. But Tribunal Chairman said “Not today, we will hear it any other day” and also said “please will you submit only the new ground as we have rejected it earlier”