1. That on 18th October 2012 the Prosecution filed an application objecting to the Defence’s list of proposed witnesses and praying that the Hon’ble Tribunal pass an order limiting the Defence to between three and four witnesses and not exceeding half the number of Prosecution witnesses.
2. That the Prosecution have been permitted to call 12 witnesses in order to prove their case against the Accused-Petitioner.
3. That on 15.07.2012 the Defence submitted its list of witnesses pursuant to requirement under section 9 (5) of the International Crimes (Tribunals) Act 1973 (hereinafter ‘ICTA 1973’) and Rule 18 (6) of the Tribunal’s Rules of Procedure (hereinafter ‘ROP’).
4. That the Prosecution’s aforementioned application was made pursuant to Rule 53 (iii) of the ROP, which provides that: “The tribunal shall have jurisdiction to regulate the matter of time management as and when it deems necessary, for ensuring effective and expeditious trial”.
5. That the Prosecution objected to the Defence’s list of witnesses on the basis that it was filed with “ill motive to cause unreasonable delay so that the case cannot be disposed of expeditiously”.
6. That the Prosecution accordingly prayed that the Tribunal limit the Defence in its number of witnesses by exercising its inherent power to meet the ends of justice under Rule 46 A of the ROP.
7. In response, the Defence submitted an application on 01.112012 objecting in the strongest possible terms to the Prosecution’s attempt to persuade the Tribunal to limit the number of witnesses it was permitted to call to half the number the defence was entitled to call.
8. In doing so it was stressed that the Defence did not intend to call the 965 witnesses submitted in the initial list, which was only submitted because the Defence was not privy to the Prosecution case and could therefore not know exactly which of the 20-30 witnesses that the Defence did in fact intend to call were relevant to the Prosecution charges.
9. It was further submitted that any such ruling from the Tribunal limiting the Defence to half the number of Prosecution witnesses would constitute an unfair limitation on the Defence case by manifestly falling foul of the equality of arms principle which ensures parity between the parties in cases.
10. Then on 5th November 2012 the Tribunal heard an application from the Prosecution praying to limit the number of Defence witnesses to a maximum of 4. Subsequently on the same day submissions were made by the Defence praying that the Tribunal reject the Prosecution’s application for limiting the number of Defence witnesses and requesting instead permission to call 25. In response the Tribunal passed an order limiting the Defence to just four witnesses – even fewer than the Prosecution had initially prayed for.
11. On this occasion Advocate Farid Uddin Khan made oral submissions praying for an increase in the permitted number of witnesses and the Tribunal responded by increasing the number to 5. Thereafter Learned Defence counsel Advocate Abdus Sobahan Torofder then made further oral submissions again praying for an increase in the number of permitted Defence witnesses. The Tribunal responded by increasing the number to six and fixed 11th November as the date on which to begin hearing those witnesses.
12. Rule 53 (iii) of the ROP affords the Tribunal the right to regulate the matter of time management. However, there is no provision within either the Act or the Tribunal’s ROP that provides for the Prosecution to determine limitations in respect of Defence witnesses or for the Tribunal to set down arbitrary limits. More specifically, although the number of witnesses must of course be subject to a measure of reasonableness, there is no guidance as to what obtains for reasonable.
13. It is clear that the Tribunal considered the Prosecution’s total of 12 witnesses to be reasonable. It is suggested that the Prosecution’s failure to bring more witnesses has not been due to any limitation by the Tribunal but rather its own inability to procure more witnesses to give evidence in the box against the Petitioner.
14. It is the Defence’s respectful submission that the Prosecution would have been permitted to call more witnesses should they have been able to procure them.
15. Witnesses are produced to substantiate the cases of the respective parties. It stands to reason as a general proposition that production of 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 6 witnesses in contrast to the Prosecution’s 12.
16. The natural result of this limitation is a severe curtailment of the Defence’s scope for disproving the Prosecution case and making submissions based on oral evidence in the latter stages of the trial.
17. Under Rule 43(4) ROP an accused person is entitled to a fair hearing.
18. Section 17 ICTA 1973 enshrines fundamental principles of due process, including the principle of equality of arms, by providing that, during trial, an accused person shall have:
a. the right to give any explanation relevant to the charge against him;
b. the right to conduct his own defence or to have the assistance of counsel;
c. 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].
19. It is submitted that this provision sets out the starting point that it is for the Accused and not the Prosecution or the Tribunal to decide what evidence he presents and that he must be able to present that evidence by way of witnesses of his choosing.
20. Although the quantity of that evidence must be subject to a measure of reasonableness, the Tribunal has already indicated what is reasonable in its acceptance of the Prosecution’s 12 witnesses, compared to which it is submitted the Defence’s prayer for 12 also seems very reasonable. On this basis it is submitted that the Tribunal should next look to equality between the Prosecution and Defence.
21. Article 67 (1) (e) of the Statute of Rome for the International Criminal Court (hereinafter: ‘ICC 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].
22. It is submitted that this provision from the ICC Rome Statute provides the most up to date statement of the fundamental principle of equality of arms and should be read in its widest sense with the words ‘under the same conditions against him or her’ clearly including quantity of witnesses.
23. 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].
24. Article 14 (3) (e) of the International Covenant on Civil and Political Rights (hereinafter ‘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].
25. 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’ [emphasis added].
26. 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 2000and ratified the Rome Statute on 23 March 2010, meaning that the Government and its instruments, including the Hon’ble Tribunal, are now under an obligation to adhere to its undertakings with respect to the rights and principles that those treatiesand documents enshrine.
27. In its application of these principles, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (hereinafter ‘ICTY’) in the Karemera et al. case has endorsed the following reasoning of the Appeals Chamber in the Orić case: ‘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’.
28. In the Orićcase, the Appeals Chamber held that: ‘[a]lthough Rule 73ter gives the Trial Chamber the authority to limit the length of time and the number of witnesses allocated to the defence case, such restrictions are always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute of the International Tribunal be respected. Thus, in addition to the question whether, relative to the time allocated to the Prosecution, the time given to the Accused is reasonably proportional, a Trial Chamber must also consider whether the amount of time is objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights. Consequently, the Appeals Chamber must determine whether in ordering the Appellant to reduce the number of his witnesses, the Trial Chamber took into consideration the complexity of the Appellant’s case and determined that the maximum number of witnesses allotted to him was sufficient to allow the Appellant a fair opportunity to present his defence’.
29. Thus the Petitioner does not pray simply that he 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 right set out.
30. Mindful of the ICTY Appeals Chamber’s judgment in Oric that limitation of witnesses should take into account ‘the complexity’ of an accused’s case, the Petitioner submits that just 6 witnesses is far from sufficient to address the substantial ground covered by 6 charges of an extremely serious and complex character. That amounts to just one witness one charge whereas ordinarily it requires the evidence of several dozen witnesses in all other international tribunals against one charge.
31. It is submitted that acceding to the Prosecution’s prayer for limitation to half its number of witnesses compels the Defence to conduct the case of the Accused-Petitioner under conditions of inequality vis-a-vis the Prosecution. This will cause the Tribunal to fall short of ensuring a fair trial for the Accused.
32. It is submitted that the 20 witnesses requested by the Defence 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 12 witnesses, which included the lengthy evidence of the Investigation Officer for which there is no corresponding Defence witness requiring comparable time.
33. It is submitted that only by rendering conditions of parity between the Defence and Prosecution with an order to permit 12 Defence witnesses can the Tribunal meet its international obligations as set out above, including that of satisfying the overriding right under Rule 43 (4) of the Tribunal’s Rules of Procedure that the accused be entitled to a fair hearing.
34. It is further submitted that nowhere can these undertakings be more important than in proceedings that carry the death penalty upon conviction, as in the instant case.
35. For the abovementioned reasons the Defence prays that the Tribunal sees fit to avoid the unfairness that threatens to be rendered to the Accused by exercising its inherent right under Rue 46 A ROP to act in the interests of justice and recall its order of 5th November 2012 and issue an order in its place permitting the Defence to call 12 witnesses
Wherefore it is most humbly prayed that the Hon’ble Tribunal will be pleased to pass an order in the interests of justice to recall the 5th November 2012 order limiting the Defence to 6 witnesses and substitute that order permitting the Defence to call 12 witnesses and pass such other or further order(s) that it may deem it fit and proper to you lordships.
Here is a summary of the oral arguments made in court.
Prosecutor: Your Honor today they filed an application for allow the 12 witnesses for proving their case. The tribunal allows already 6 witnesses.
Defence: My Lord, limitation is severe curtain the scope for defense proving the case. 12 witnesses are very reasonable. (Give reference the ICCPR and case law) Your Lordship allows prosecution 12 witnesses so that, we also deserve allow 12 witnesses. If you limited the witnesses then it makes extremely serious complexity.
Judge MD. Shahinur Islam says parity is not equality.
Defence: 6 witnesses exactly harm for us. This is totally inconsistency with equally before law. It is totally unreasonable.
Judge Obaidul Hasan why you don’t make any review.
Defence: We coming for re-call because, we did not get copy of order that’s why we can’t make review.
Judge Shahinur Islam says, some uncertainty exist in your application. You repeated the term equality of arms again and again.
Defence: My final submission is that limitation list makes exactly harm for us.
Proseuction: Tribunal 1st allows 4 witnesses then Mr. Torafdar made appeal allow another witness after that tribunal allows 5 witness again he made appeal for another one. Then 6 witnesses is final. Everyday the defence comes and make an application.
Chairman A.T.M Fazle kabir says, this tribunal is situated for trial until decision has been given. They can make any application. It’s totally up to tribunal.
Prosecution: Process can’t be abused. I oppose increasing the number of witnesses and stay such numbers of witnesses which are already you published. (Reference section 53(3) of ICT.
Later in the day the tribunal passes the following order.
l. Now let us move on to the another application filed on behalf of accused Abdul Quader Molla seeking re-call of the order dated 05 November 2012 limiting the defence witnesses and substitution of the order by permitting the defence to adduce and examine 12 witnesses, on the grounds stated therein.
Submission by the Defence
2. Mr. Abdur Razzak, the leamed senior counsel appearing for the accused submits that there is no provision either in the Act or in the ROP as regards limiting the defence witnesses, although the number of witnesses should be subject to a measure of reasonableness. The leamed counsel went on to submit further that limiting defence witness is inconsistent with the provision contemplated in section 17(3) of the Act. Although the number of witnesses must of course be subject to a measure of reasonableness, there is no guidance as to what obtains for reasonable. Limiting defence witnesses may likely to cause disparity affecting the recognized principle of equality of arms which is inevitably related to the fairness of trial. Now, in order to avoid unfairness and ensuring equality of arms, the Tribunal, in exercise of its inherent power under Rule 46.4 of ROP should permit the defence to call and examine 12 witnesses, instead of 06 witnesses, by re-calling its earlier order dated 05 November 2012.
Submission try the Prosecution
3. Mr. Mohammad Ali the leamed prosecutor has emphatically opposed the application. He submits that there has been no provision of re-calling an earlier order of the Tribunal; that prosecution examined l0 witnesses (excluding 02 formal witnesses) as against 06 charges and since the defence is not burdened to prove innocence, excepting the plea of alibi, the Tribunal by its earlier order permitted the defence to call and examine 06 wihesses which is quite fair and reasonable.
Discussion and Decision
4. In a criminal trial, defence may examine witnesses in support of his defence and not to disprove prosecution case. From the trend of cross-examination of prosecution witnesses no specific and substantive defence case could be perceived excepting the plea of alibi. Thus, allowing the defence by limiting it to adduce and examine 06 witnesses ipso facto cannot be termed as an indicator of any disparity causing inequality to the defence. in any manner.
5. We are not convinced to accept the submission that allowing the defence to examine mere 06 witnesses is inconsistent with the principle of equality of arms. Prosecution examined in all 12 witnesses in support of its own case. Only keeping it in mind, it is not appropriate to argue that parity between the parties can be ensured merely by permitting the defence to examine equal number of prosecution witnesses.
6. Having regard to submissions made by both sides and our earlier order dated 05 November 2012, we are constrained to reiterate that the defence is to prove nothing and the burden squarely lies upon the prosecution to prove the charges beyond reasonable doubt. Despite this universally recognized legal position, in our earlier order, by stating reasons, we have permitted the defence to call and examine in all 06 witnesses. In exercise of power given under section 22 we have regulated the number of defence witnesses, even in absence of any explicit provision either in the Act or in the ROP.
7. It cannot be accepted to be a fair argument that considering the number of charges and the number of prosecution witnesses examined, the defence should also be permitted to adduce and examine such number of witnesses. In limiting defence witnesses. we did not consider it reasonable either to keep it open for the defence to adduce witnesses whatever number it intends or to keep consonance to the number of prosecution witnesses examined.
8. In view of reasons stated above we are not at all inclined to re-call our earlier order dated 05 November 2012 limiting defence witnesses and as such the application is hereby rejected.