27 Aug 2012: Mollah tribunal witness review order

The tribunal first passed the following order following an application for review of an order passed on 7 August relating to the prosecution request to call three additional witnesses.

Here is the application for review. Below is a copy of the order of the tribunal.

1. That under section 9(4) of the International Crimes Tribunal Act 1973 as amended 2009 (hereinafter: ICTA) and Rule 18(6) of the Rules of Procedure of the International Crimes Tribunal 2 (hereinafter: RoP), the Prosecution may call, with the permission of the Tribunal, additional witnesses at any stage of the trial, provided that notice shall be give to the Defence of the additional witnesses intended to be called.

2. That under section 17 ICTA which safeguards the rights of the accused during the trial, an accused shall have the right to present evidence at trial in support of his defence and to cross-examine any witness called by the Prosecution.

3. That under Rule 43(4) RoP the accused shall be entitled to a fair hearing.

4. That pursuant to these sections, “notice” ought to be such notice as is reasonable for the preparation of the Defence case, namely, the analysis of the new witness statements, the investigation into evidence to support his case against these new witnesses, and the preparation of the cross-examination of the new witnesses.

Procedural history 5. It is recalled that on 6 August 2012, the Learned Prosecutor filed a request to the Hon’ble Tribunal for the inclusion of three additional Prosecution Witnesses. These are:
a. Dr. Mujammal Hussan Ratan
b. Abdul Mojid Paluan
c. Nurjahan

6. On 7 August 2012, responding to the application by way of oral submissions, Counsel for the Accused-Petitioner requested an adjournment until the following day, 8 August 2012, so as to prepare a reply to the Prosecution’s application.

7. The Hon’ble Tribunal refused to adjourn proceedings and passed Order No. 41 dated 07.08.12 to insert these three witnesses on to the list and allowing the Prosecution to examine the said three witnesses as early as the morning of following day, the 8 August 2012, stating that the Defence will be given an opportunity and time to cross-examine those witnesses after due preparation.

8. It is recalled that on 8 August 2012, prior to the examination-in-chief of the first of the three Prosecution witnesses, the Accused-Petitioner filed an application for adjournment requesting the Hon’ble Tribunal to order an adjournment of two to three weeks so that the Defence could prepare an adequate case against the three new Prosecution witnesses.

9. In his oral submissions accompanying the written application, Counsel for the Accused-Petitioner made the following arguments:
a. Notice means “reasonable notice”. As “reasonable notice” is not defined under section 9(4) ICTA, the Hon’ble Tribunal ought to act in the spirit of the Act and apply to application under section 9(4) ICTA the same three-week period which is provided for under section 9(3) ICTA.
b. Section 9(4) emphasises the fact that these witnesses are “additional”. This term infers that the Prosecution only may apply to call “additional witnesses” once they have examined all the other witnesses originally registered under section 9(3) ICTA. At the outset of the trial, the Prosecution gave the Accused-Petitioner notice that they would seek to call 40 witnesses under section 9(3) ICTA. To date, they have only called three. The Prosecution neglected to explain to the Hon’ble Tribunal why they have not called the remaining 37 witnesses, whose statements the Accused-Petitioner had proper notice of, and instead opted to call three new witnesses with extremely short notice if any at all.
c. This is a flagrant abuse of process. The right to call new witnesses under section 9(4) ICTA is subject to the permission of the Hon’ble Tribunal. Respectfully, the Hon’ble Tribunal ought to only use its discretion where the Prosecution has made a successful case for the inclusion of new witnesses, where the Defence is not prejudiced and where it is in the interests of justice.

10. Following submissions, the Hon’ble Tribunal rejected the application for adjournment stating that as the Order No. 41 had already been passed, there were no good reasons to order an adjournment of proceedings.

11. For the following reasons, the Accused-Petitioner prays for the Hon’ble Tribunal to review Order No. 41 dated 07.08.12 and provide adequate safeguards that the Accused-Petitioner will have adequate time to prepare his defence against the three new Prosecution witnesses.

The right of the accused to confront witnesses
12. The right to cross-examine any witness testifying against one’s case is one of the fundamental cornerstones of the adversarial system upon which the judicial process of Bangladesh is based.

13. Section 17 ICTA enshrines fundamental aspects of due process and the equality of arms principle by providing that during the trial the 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.

14. Further, Article 67(1)(e) of the Statute of Rome for the International Criminal Court (hereinafter: ICC) 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. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute” [emphasis added]

15. The Hon’ble Tribunal is under a duty to uphold these fundamental and basic rights.

16. Whilst it is acknowledged that the Hon’ble Tribunal is not proposing to deny outright the Accused-Petitioner’s right to actually cross-examine the three Prosecution witnesses, in failing to allow the Accused-Petitioner to conduct a thorough analysis of and investigation into the statements of the witnesses, it is, with respect, effectively be making this right redundant.

17. Indeed, it is respectfully submitted that Order No. 41 effectively denies the Accused-Petitioner’s right to raise defences, to prepare adequate cross-examinations, to give an explanation, to present other evidence of these witnesses as provided under section 17 ICTA and article 67(1)(e) ICC.

18. Therefore, it is respectfully submitted that Order No. 41 dated 07.08.12 amounts to a significant breach of the Accused-Petitioner’s right under section 17 ICTA.

19. For these reasons and those laid out below, the Accused-Petitioner prays the Hon’ble Tribunal to review Order No. 41 and insert safeguards for time to protect the Accused-Petitioner’s rights under the relevant sections.

Adequate time and facilities
20. Article 14(3)(b) of the International Covenant for Civil and Political Rights (hereinafter: ICCPR) and Article 67(1)(b) ICC provide for the right of an accused to have “adequate time and facilities for the preparation of his defence”.

21. The Human Rights Committee (hereinafter: HRC), tasked with upholding the ICCPR provisions, has on numerous occasion held that: “the right of an accused person to have adequate time and facilities for the preparation of his defence is an important element of the guarantee of a fair trial and an emanation of the principle of equality of arms.” (Smith v. Jamaica (282/88) para. 10.4; Paul Kelly v. Jamaica (253/87) para. 5.9; Aston Little v. Jamaica (283/88) para. 8.3)

22. Furthermore, in its General Comment No. 31, the HRC has held that under Article 14(3)(b) ICCPR “[t]here is an obligation to grant reasonable requests for adjournment, in particular, when the accused is charged with a serious criminal offence and additional time for preparation of the defence is needed”.

23. This is a universal right that has been agreed to by Bangladesh as signatory state party to both the ICCPR and ICC.

24. The Prosecution submitted its application on 6 August 2012 and the Hon’ble Tribunal issued Order No. 41 on 7 August directing for the examination of one or more of the witnesses to begin on 8 August and making a vague statement about the Defence being allowed time to prepare the cross-examination of the additional Prosecution witnesses. The Defence has therefore been given two days to fully investigate the statements of these three witnesses in relation of each on of the charges concerned, interview all the necessary witnesses, compile accompanying witness statements and take full instructions from the Accused-Petitioner.

25. It is respectfully submitted that two days of preparation do not amount to “adequate time” or reasonable notice to prepare a proper defence to the additional witnesses.

26. Therefore, it is respectfully requested that the Hon’ble Tribunal review Order No. 41 and allow the Accused-Petitioner further time to adequately prepare its defence to these testimonies by the new Prosecution Witnesses.

Unsatisfactory reasons for refusing the application to adjourn 27. It is recalled that the Hon’ble Tribunal held that as Order No. 41 had already been passed there were no good reasons to order an adjournment of proceedings.

28. It is respectfully submitted that the Hon’ble Tribunal failed to give satisfactory reasons for the rejection of the application for adjournment filed and argued on 8 August 2012.

29. Rule 64(2) ICC RoP provides that “A Chamber shall give reasons for any rulings it makes on evidentiary matters. These reasons shall be placed in the record of the proceedings if they have not already been incorporated into the record during the course of the proceedings in accordance with article 64, paragraph 10, and rule 137, sub-rule 1.” [emphasis added]

30. Article 64(10) ICC provides that “The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused”.

31. The Hon’ble Tribunal is therefore required to provide proper or adequate reasons for its refusal to an adjournment and the infringement of the rights of the Accused-Petitioner under section 17 ICTA and article 67 ICC.

32. That for the abovementioned reasons, the Accused-Petitioner prays that the Hon’ble Tribunal exercise its discretion in the interests of justice and reviews the Order No. 41 dated 07.08.12.

The tribunal then passed the following order

The application under Rule 26(3) filed on behalf of the accused-applicant seeking review of order dated 07 August 2012 permitting the prosecution for calling 03 additional witnesses under section 9(4) of the Act of 1073 is taken up for hearing.  

Mr. Tajul Islam, the leamed defence counsel, instead of making submission on merit of the application, mainly for the reason that already two of three additional witnesses have been examined and cross-examined has urged to dispose of the matter by passing necessary order with observations. Prosecution, in view of above defence submission, abstained from making its own submission.  

 It appears that by the order dated 07th August 2012 prosecution was allowed for calling 03 witnesses of which already two have been examined and cross-examined. It is to be reiterated that in calling additional witnesses at any stage of trial under section 9(4) prosecution is not required to explain as to why without completion of examining the listed witnesses it intends for calling additional witness.  

 On plain construal of section 9(4) of the Act of 1973 it is manifested that calling for additional witness by the prosecution 'at any stage of trial’ is a matter of their right which is to be exercised 'with the permission of the tribunal'. Thus, providing permission for calling additional witress under section 9(4) of the Act of 1973 cannot be termed as 'discretion' of the tribunal. Because, submitting list of witnesses as required under section 9(3) of the Act 'shall not preclude the prosecution' from calling additional witness and in such case the tribunal is to simply permit them by ensuring that ‘due notice' is given to the defence of the additional witnesses intended to be called by the prosecution so that the defence may have necessary preparation.  

Further, there has been no provision either in the Act or in the Rules that unless and until exhaustion of the list of witnesses submitted under section 9(3) of the Act by examining them, prosecution shall not be permitted to call or adduce additional witness. Since the prosecution shall have right to call or adduce additional witness, ‘at any stage of trial’ it is not correct to say that they cannot be permited to insist on for calling additional witness under and unless the witnesses as shown in the list submitted under section 9(3) of the Act and produced and examined by the prosecution. With the above observation and since the learned defence counsel has eventually not preferred to agitate the matter, the application is hereby rejected.

The court then dealt with an application relating to contempt of court.