16 Jul 2012: Tribunal rejection of Mollah recall applications

In relation to Mollah, the defense filed the following application relating to the decision on the 12 July by the tribunal not to show a video to a witness, and also concerning the partial recall of the order relating to in camera proceedings.

1. That it is recalled that on 12.07.2012, pursuant to an Order of this Hon’ble Tribunal, and complying with the time requirements, the Defence submitted documents including videos showing statements given by the Prosecution witness Sayed Sohidul Hoque Mama as follows:

	Name of Program	Description	Time
1	“Akattorar Ronaggonar Dinguli”	Broadcast on B.T.V. dated 20.04.2012 at 10.30 P.M.	Length of Program 20 minutes 30 seconds.
2	“Mirpur the last frontier”	Directed by Sagir Mustafa	9 minutes 03 seconds
3	“Mirpur the last frontier”	Directed by Sagir Mustafa	9 minutes 23 seconds.

2. The contents of the Videos go to the credibility of the witness, Sayed Sohidul Hoque Mama, and, as such, are integral to the Defence’s presentation of the Accused-Petitioner’s case as it addresses his evidence. However, on 12 July 2012 the Tribunal completed hearing the evidence of Sayed Sohidul Hoque Mama without the Defence being permitted to show the Video and cross-examine the witness on its contents.

3. It is respectfully submitted that the refusal of the Tribunal to allow examination on the content of the Video amounts to a limitation on cross-examination prejudicial to the Defence and that the Accused-Petitioner is aggrieved by the detrimental position he finds himself in.

4. It is further submitted that the Tribunal must only limit the right of either the Prosecution or the Defence to examination where it is strictly necessary in exceptional circumstances and that limiting the right to examination by the Defence when no such restriction has been placed on the Prosecution is wholly inconsistent with the principle of equality of arms and obligations of the Tribunal to ensure a fair trial.

5. Article 6(3)(d) of the European Convention on Human Rights echoes Article 14(3) of the International Covenant on Civil and Political Rights to which Bangladesh is a State-Party by guaranteeing equality of arms through the Accused-Petitioner’s right to summon and examine witnesses under the same conditions as the Prosecution.

6. In such circumstance the Accused-Petitioner humbly prays that the Tribunal pass an Order to recall the witness Sayed Sohidul Hoque Mama to be further examined on the contents of the Videos, which is in the interests of fairness and justice and respects the right to equality of arms between the Prosecution and Defence where the Prosecution will have the opportunity to examine the witness on the contents of The Video.

7. It is further recalled that on 03.07.2012 the Prosecution submitted an application pursuant to Section 10(4) International Crimes (Tribunals) Act, 1973 (heinafter “ICT(A)”) praying that the Hon’ble Tribunal depart from its practice of hearing evidence in open proceedings to hear in camera the examination of the Prosecution witnesses Momena Begum and Rukhsana Khatun Nessa as alleged victims in relation to Charges 4 and 6 against the Accused-Petitioner.

8. It is further recalled that on 12 July 2012, responding to the applications by the Prosecution and Defence on the hearing of evidence in camera, the Tribunal passed an Order pursuant to s.10(4) ICT(A) to hear the evidence on Momena Begum and Rukhsana Khatun Nessa in camera on 17 July 2012 on the basis that their evidence concerned alleged crimes of a sexual nature in which they had been the victims.

9. That the Order was passed with the following conditions: i) there to be the presence of three counsel from each of the Prosecution and Defence; ii) the counsel present to give undertakings not to disclose the matter of the in camera trial; iii) no media presence.

10. It is respectfully submitted that only the evidence of Momena Begum contains reference to a sexual offence, whereas the evidence of Rukhsana Khatun Nessa concerns a “murder”, and therefore the basis of the Order to hear evidence in camera does not apply to Rukhsana Khatun Nessa.

11. That it is respectfully submitted that in the application for holding examination of witness is camera, prosecution stated “Who are the victims of the two occurrences as shown in charge No-6 and 4” but actually Momena Begum and Roksana Khatunnessa are not the victim of any occurrence as evidence in the statements of the witnesses before investigation officer. Prosecution mislead the Hon’ble tribunal by stating totally wrong facts and as such the petitioner will be prejudiced by the order dated 12.07.2012.

12. In these circumstances it is not necessary for the tribunal to depart from the open and fair practice of hearing evidence in public in relation to the witness Rukhsana Khatun Nessa, with a view to limiting the risk of damaging the Tribunal’s appearance of openness.
13. The Accused-Petitioner therefore humbly prays that for the foregoing reasons the Tribunal will be pleased to avail itself of its inherent powers under Rule 46A of the International Crimes Tribunal Rules of Procedure 2010 to act as necessary to meet the ends of justice and recall the part of the Order of 12 July 2012 in so far as it relates to the evidence of Rukhsana Khatun Nessa to be heard in camera.

The prosecution opposed it (see tribunal order below for their arguments).

The tribunal passed the following order:

An application has been filed today on behalf of accused Abdul Quader Mollah. Copy thereof has been served to the prosecution. The application is taken up for hearing and disposal at 2.00 P.M. This has been an application initiated on behalf of accused Abdul Quader Mollah seeking order (i) to cross-examine the PW.2 Shahidul Haque Mama on re-call and (ii) to recall the order dated 12 July 2012 relating to taking testimony of Rukhsana Kahtun Nesa in camera, on the grounds stated therein. Heard submissions made by the leamed counsel appearing for the accused. It has been submitted that the PW.2 is needed to be crossexamined, on re-call, by drawing attention to the three videos submitted by the defence on 12 July 2012. Next, the learned Counsel went on to submit that witness Rukhsana Khatun Nesa is not witness relating to any sex crime, rather she is supposed to testify on an incident of murder and as such her testimony should be taken in public, instead of camera as ordered. Heard the learned prosecutor who has submitted that the P.W.2 is not available in Bangladesh and he already left for Sweden, Next, he submits that attention of P.W.2 about the said video clippings has been taken in his cross-examination and thus there can be no question to cross-examine him on re-call on same point. The learned prosecutor further submitted that the Tribunal considered it fit to take testimony of two women witnesses by - stating reasons and as such order relating to one witness Rukhsana Khatun Nesa cannot be re-called as sought for. Having regard to submission made by both sides, application and the order dated 12 July 2012 we are not inclined to consider the prayer seeking re-call of P.W.2 for the reasons that

Firstly, the videos submitted are to be exhibited and only then the contents thereof will be admitted and unless the same is so admitted there can be no room to cross-examine the P.w.2 but is found on record that attention about said video clippings has already been drawn in his cross examination. Defence will have liberty to prove the contents of those videos by adducing witness. Secondly, as submitted by the prosecutor PW2 has already left Bangladesh for Sweden and he will not be available in near future. Now, keeping the matter in mind that attendance of the Pw2 cannot be procured without an amount of delay the prayer seeking opportunity to cross-examine him is hereby rejected.

In respect of second prayer, we express our considered view that according to the proviso of section 10(a) of the Act of 1973 the Tribunal considered it fit to pass an order for taking evidence of two women witnesses in camera. At time of hearing, on this issue, the learned senior counsel Mr. Abdur Razzak did not oppose it at all. Besides, the Act of 1973 does not provide provision for taking evidence of victim of sex crime only. It is to be noted that 'camera proceeding refers to proceeding that takes place not in public but of course in presence of the accused and counsels of both sides. It appears that the order dated l2 July 2012 allowed three counsels for defence and three prosecutors to present during the proceedings in camera and obviously in presence of accused. As such we do not find any acceptable reason that may cause prejudice to the accused in any manner if testimony of witness Rukhsana Khatun Nesa is taken in camera as ordered earlier. For the reasons stated herein above, the application is hereby rejected.

[Note on 15 July, the day before, the Defence lawyers for Molla submitted a list of 995 witnesses whom they wished to call]