Tuesday, February 19, 2013

24 Dec 2012: Molla defence seeks more witnesses

This is the forth of four applications argued that day by the defense relating to Mollah (see other three here). This one concerns another application seeking to call more defense witnesses.
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. 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.  
5. 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.  
6. That thereafter The Tribunal passed an order fixing the numbers of Defence Witness to six and fixed 11th November as the date on which to begin deposition of those witnesses.  
7. That on 11.11.2012 defenced filed an Application for recalling Order dated 5th November 2012 limiting the Defence to 6 witnesses and substitute that order permitting the Defence to call 12 witnesses.  
8. That hearing of this application taken place on 12.12.2012.  
9. That at the time of hearing learned Senior Counsel Abdur Razzaq submitted before the Tribunal not close the Door of examining more Defence Witnesses after adducing 6 witnesses.  
10. That it is submitted that, at that time Hon’ble Chairman of the Trubunal-2 replied if they think necessary after completion of the recording the deposition of 6 Defence Witness they will consider to give permission for some more Defence Witness.  
11. That in the same day this Hon’ble Tribunal passed an order rejecting the application for recall the oder dated 05.11.2012.  
12. That on 26.11.2012 Defence filed an application to review Order no. 83 dated 05.11.2012 of this Tribunal regarding limiting numbers of Defence Witness to 6 but on 29.11.2012 after hearing this application this Hon’ble Tribunal was pleased to reject the application.  
13. That on 15.11.2012 Defence produced their first D.W. into the witness box for recording his deposition by this Hon’ble Tribunal.  
14. That on 13.12.2012 defence produced their Defence Witness no. 6 before this Hon’ble Tribunal for recording his Deposition.  
15. That it is submitted that in this circumstance Defence feel that to prove the defence case they need to produce some more Defence Witnesses before this Hon’ble Tribunal.  
16. That there were some names of material witnesses who are very essential for establishing the defence case on the point of alibi and some other points.  
17. It is stated that the Hon’ble Tribunal considered the Prosecution’s total 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.  
18. 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.  
19. 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.  
20. 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.  
21. 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.

22. 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.

23. 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.  
24. It is submitted that initially 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.  
25. 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.  
26. 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.  
27. That it is humbly submitted that only 6 defence witnesses as permitted by this tribunal is a very small number for defence and defence will be highly prejudiced if the number is not increased.
See here for subsequent tribunal order

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