After dealing with the lack of defense witnesses, the review application concerning the tribunal's order to limit the number of defense witnesses to six was heard at the tribunal. The defense application is set out below as is the order of the court.
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. A certified copy of Order No. 83 dated 05.11.2012 is annexed herewith and marked as Annexure- 1.
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 treaties and 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. That earlier Defence filed an application for recalling the order No. 83 dated 5.11.2012 as if that the defence did not obtain certified copy of this order, but the prayer was rejected on 12.11.2012. 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.
36. That on 11.11.2012 defence got certified copy of the order no. 83 dated 05. 11. 2012 but unfortunately 8 days delayed to file this review application. That delay has been occurred for mere a mistake and wrong perception on the part of the defence counsels and the Accused- petitioner should not suffer irreparable loss for taking only delayed step his counsels and defence humbly prayed to condone a delay of 12 days to file this application for review.
Wherefore it is most humbly prayed that the Hon’ble Tribunal will be pleased to pass an order in the interests of justice condone a delay of 8 days to file this application for review the order No. 83 dated 5th November 2012 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.The tribunal passed the following order in the afternoon session
Accused Abdul Quader Molla has been produced before the Tribunal from pirson. The record is taken up for order on two application filed by the defence.
Decision on application seeking review of order not 83, dated 05 November 2012
1. This has been an application dated 26 November 2012 seeking review of order 83 dates 05.11.2012 limiting defence witnesses to 06 filed on behald of accused Abdul Quader Molla on the grounds stated therein together with a praryer to condone delay of 08 days in bringing the instant application.
Defence of Submission
Mr Tajul Islam the learned counsel for the defence has firstly submitted that dealy has occurred in brining the instant application due to mistante and worng conception on part of defence counsel for the which the accused should not suffer and thus the levant counsel has submitted for condonation of the delay. The learned counsel mainly sumitted in support of the the review application, that to ensure equality of arms number of defence witnesses should be enahanced to 12 so that the accused may have fair opportunity to prove the please of alibi and to dspove prosecution case. It has been further submitted that there has been no legal sanation to limit defence witness either in the Act of in the ROP and no unreasonable delay will be causes if the accused is permited to adduce and examine more than 06 witnesses.
Submission by the Prosecutor
2. Conversly Mr Mohammad Ali, the learned Prosecution objecting the application has submitted that the application is not well within time and the delay has not at all been satisfactorily explained. The learned prosecution went ontot submit that there is no new and substantial ground for considering the instant application seeking review and the defence has been justificatly allowed to examine 96 witnesses to prove the please of alibi
Discussion and decision
According to Rule 26(5) of the ROP an application seeking review is to be filed within 07 days of the order under review. It appeasr that the defence has come up with the instant application on 26 November 2012 seeking review of order no 83 dated 05 November 2012 i.2 21 dauys after the order under review was passed. Defence has preayed to condone only 08 days delay on the ground that it obtained certified copy of the order on 11.11.2012. thus pursuant to Rule 26)5) the instant application appears to have been brought 14 days beyond the period as specified in the Rule.
5. Further it appears that instead of preferring review application the defence filed an application seeking recall of the order no 83 dated 5 Novmeer 2012 and on hearing it the Tribunal rejected it by an order dated 12 November 2012. It can be failely observed that if either party feels aggrieved by any order it should be been vigilant in obtaining certified copy of the impugned order so tha review soulc be brought well within time as required under Rule 26(5) of ROP
6. The delay does not appear to have been satisfactorily explained. Jhoever we hereby consdone the delay so occurred in the interest of justice and the application is taken up for disposal.
7. In our earlier order dated 12 November rejecting the application seeking recall of the order dated 5 November under review we have observed it categorically that
"The defence is to prove nothing and the burden squarely lies upon the prosecution to prove the charges reasonable doubt. Despite this universally recognized legal position, in our earlier order by stating reasons, we haye permitted the defence to call and examine in all 6 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.'
8. Additionally, the plea of alibi does not constitute a defence in its proper sense' An alibi, however is nothing more than the denial of the accused's presence during the commission of a criminal act. An alibi, in contrast to a defence, is intended to raise reasonable doubt about the presence of accused at the crime site, this being an element of the prosecution's case, thus the burden of is on the prosecution.
9. To ensure a good administration of justice and efficient judicial proceedings, any notice of specific defence case should be tendered or suggested in a timely manner, ideally in the course of cross examining the prosecution witnesses. But we already in our order dates 12 November.
"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. "
10. Having regard to the above settled legal position we have considered it just and appropriate to allow six witnesses to be examined by the defence and accordingly it alaredy adduced and examined 3 witnesses who appear to have testified chiefly on the please of alibi. It is quite misconceived that the defence is burdened to ‘disprove prosecution case’. We cannot agree that limiting defence witnesses by our order dated 5 November 2012, considering the above situation, thus cannot be inferred to have caused disadvante to the accused in presenting its case in any manner. We do not find material any new ground whatsoever for considering the application