The written application of the prosecution is set out below (as filed):
1. That from the prosecution side only 12 witnesses including two formal witnesses have been adduced and examined in the Tribunal to prove as many as 6 charges leveled against the accused, but from the side of the defense a list of as many as 965 witnesses has been submitted.
2. That as it appears from tire trend of, cross examination by the defense that the single 'alibi' has been taken, that the accused was not in Dhaka from 7th March, 1971 to 31January 1972. And in order to prove the only aforesaid alibi not more than 3 or 4 witnesses need to be adduced for examination in the Tribunal by the defense.
3. That the very motive of, submitting the list of the large number of, defense witnesses is undoubtedly ill motive to cause unreasonable delay so that the case can not be disposed of expeditiously.
4. That in the intemational Crimes (Tribunals) Act, 1973 repeated reminder has been given and stressed upon that by some Rules of Procedure of the Act for expeditious disposal of the trial as per provisions as laid down in Sections 11(3)(a), 11(3)(b), 11(4) and also in Section 19(I) of the Act read with Rules 53(i1) and 53(III) as well 46-A of the Rules of Procedure of the Act.
But without showing any respect and honor to this provisions of law in the Act, from the defense side the learned counsel of the accused submitted a list of a vast number of witnesses for nothing but to cause most unreasonable delay in disposal of the trial which should he stopped by your Lordships by exercising your Lordships' inherent power in accordance with the above rnentioneed provisions of law as provided in the Act for ends of justice.
5. That other submission if it is required shall be made over before your Lordships at the time of hearing.
Wherefore it is most humbly prayed that your lordships w,ould be pleased to disallow the list as submitted earlier by the learned defence counsel for the accused and necessary orders may kindly be passed for allowing to submit as rninimum as possible number of defense witnesses not exceeding more than half of the number of prosecution witnesses for ends of expeditious disposal of the trial and in the interest of justice under the Rule 46(A) of rhe Rules of procedure of the International Crimes (Tribunals) Act.
Prosecutor, Mohammed Ali made the following oral arguments (summarized): 'I stand before the tribunal asking you to reject the list of defense witnesses. Your Honor the tribunal shall organize a speedy disposal of the case. They make 965 defense witnesses in their list. Your Honor is it reasonable? They call the defense witness in order to create unreasonable delay. (He read out section 2(f), 11(3) a, 11(3) b, 11(4), 19 A (1), 22 and 46 A of the ICT Act for reference) Your Lordship we used 10 witnesses for 6 charges then why do they need more. I supposed t 2 or 3 witnesses is enough for them. The witnesses should be limited for ends of justice.
The defense then responded. Here is their written response given to the court.
Procedural history1. 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. Recalling that the Prosecution have been permitted to call 12 witnesses in order to prove their case against the Accused-Petitioner.3. Recalling that on 15.07.12 the Defence submitted its list of witnesses pursuant to 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. Recalling 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. Recalling 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. The Prosecution accordingly prays 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. As such, the Defence respectfully submits here in order to object in the strongest possible terms to the Prosecution’s attempt to persuade the Tribunal to limit the number of witnesses it is permitted to call to half the number the defence is able to call.8. It is 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.9. 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.10. It is clear that the Prosecution’s adduced total of 12 witnesses to prove their case. 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.11. It is respectfully suggested that the Prosecution would have been permitted to call more witnesses should they have been able to procure them.12. In an effort to be reasonable the Defence would be willing to accept a review of its witness list but not arbitrary limitation.13. To accede to the Prosecution’s prayer limiting the Defence to half the number of Prosecution witnesses would thereby introduce an appearance of bias on the part of the Tribunal towards the Prosecution.14. Further, 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.15. The natural result of this limitation is a curtailment of the Defence’ scope for making submissions based on oral evidence in the latter stages of the trial.Limitation and equality of arms16. Section 17 IC(T)A 1973 enshrines fundamental principles of due process, including the principle of equality of arms, by providing that; during trial an 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 [emphasis added].17. It is submitted that this provision sets out the starting point that it is for the Petitioner not the Prosecutionor Tribunal to decide what evidence he presents and that he must be able to present that evidence by way of witnesses of his choosing.18. 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].19. 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].20. 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].21. 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’.22. 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 they enshrine.23. 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 [Prosecutor v. Édouard Karemera et al., Case No.ICTR-98-44-AR 15bis 3, Decision on Appeal Pursuant to Rule 15 bis (D), 20 April 2007, para. 27.] 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’.
24. In the Orić case [Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, (“Orić Decision”)] 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. [Orić Decision, para. 8.] 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’.25. 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 rights contained in paragraphs 16 – 22 inclusive.26. 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 three or four witnesses is far from sufficient to address the substantial ground covered by 6 charges of an extremely serious and complex character.27. It is submitted that acceding to the Prosecution’s prayer for limitation to half its number of witnesses would compel the Defence to conduct the case of the Accused-Petitioner under conditions of inequality vis-a-vis the Prosecution. This would cause the Tribunal and, by extension, Bangladesh, to fall short of its international obligations to afford a fair trial to the Petitioner.28. It is submitted that nowhere can these undertakings be more important than in proceedings that carry the death penalty upon conviction, as in the instant case.29. For the abovementioned reasons the Defence prays that the Tribunal sees fit to avoid the unfairness that threatens to be rendered to the Accused, as well as the perception of bias that has attached to proceedings.30. For the reasons set out here the Accused-Petitioner prays that the Hon’ble Tribunal would reject the application filed by the prosecution dated 18.10.2012 for limiting the number of defence witnesses by disallowing the list of defence witnesses.Wherefore it is most humbly prayed that the Hon’ble Tribunal will be pleased reject the application filed by the prosecution dated 18.10.2012 for limiting the number of defence witnesses by disallowing the list of defence witnesses as submitted earlier and/or pass such other or further order(s) as it may deem fit and proper.
The defense advocate Tazul Islam was not present before the tribunal. When he came he apologized by saying that a defense witness was arrested by police from a defense lawyer's car and many defense council couldn't enter the tribunal today.
After that he started his submission,and said that if there is a limit like being proposed by the prosecution then the defense will be in trouble and it will be tough for us for prove our case. In addition to this our witnesses have life threats against them - take an example today’s incident. In this case an important alibi is that Abdul Kader Molla was in Faridpur during the liberation war. This issue can’t be proved by just 2 or 3 witnesses - their oral evidences are more necessary than documentary evidence. My Lord, due to this reason the list should not be limited for ends of justice.
The tribunal then passed the following order
Today is fixed for applications hearing. Mr. Md. Abdus Sobhan Tarofdar has filed a written explanation in support of his non appearance before this Tribunal on 31.10.2012. Mr. Md. Abdus Sobhan Tarofdar submits that due to some unavailable circumstances he could not appear before this Tribunal on 3l .10.2012 and for such reason he prays for an unqualified apology to the court for the alleged absence from the court without notice. Mr. Mohammad Ali, the leamed prosecutor did not oppose the application Since the learned counsel for the defence has regreted for his absence, we are inclined to accept the unconditional apology of the learned counsel and he is exonerated from the explanation. Let the explanation be kept with the record.
Prosecution has filed an application praying an order not allowing the defence to adduce and examine 965 witnesses who have been shown in the list submitted under section 9(5) of the Act of 1973, on the grounds stated therein. The defence has filed an application for rejection of the prosecution's application dated 18.10.2012 praying for disallowing the list of defence witnesses. Both the applications are taken up for hearing.
1. Prosecution submission Mr. Mohammad Ali, the learned Prosecutor has submitted that the defence , with a motive to cause delay of trial of the case, has submitted list of 965witnesses whom it intends to examine. This is unheard of. The leamed Prosecutor went on to submit further that intention of furnishing list of about thousand witnesses is unprecedented. It is not clear on which specific facts the defence intends to examine those huge number of witnesses, while the prosecution examined only 10 witnesses excluding the IOs, to prove the charges. The Tribunal, according to the provision of section 11(3) of the Act is authorized to regulate the number of defence witnesses, in exercise of its inherent power as contained in Rule 46(4) together with the power given in section 22 of the Act.
2. Defence submissionOn the contrary, the learned defence counsel Mr. Tajul Islam has submitted that the charges framed against the accused relate to capital punishment and considering the nature of the charges the defence need to adduce and examine the witnesses whose list has been submitted as required under section 9(5) of the Act. It is further submitted that neither the Act nor the Rules contain any specific provision of regulating the number of defence witnesses to be examined. In the name of expeditious trial and disposal of the case the defence should not be debarred from adducing and examining the witnesses it needs. Regulating the number of defence wibresses may likely to cause prejudice to the accused which is not consonant with the concept of fair trial , interest of justice and rights of defence. Mr. Tajul Islam lastly submits that the defence would not examine all the listed witnesses rather it would examine required number of witnesses to prove the alibi taken by the defense.
3. Discussion Reasons & decision 3.1 In a criminal trial the burden or obligation of proof of the guilt of the ) accused is placed squarely on the prosecution. That burden rests upon the prosecution in respect of every element or essential facts that makes up the offence with which the accused has been charged. That burden never shifts to the accused. It is of course not for the accused to prove his/her innocence.
3.2 Presumption of innocence, a crucial part of the criminal justice system means that a person charged with a criminal offence is presumed to be innocent unless and until the prosecution or the state persuades the court that the person is guilty beyond reasonable doubt. Rule 43(2) speaks of presumption of innocence until the accused is found guilty. Therefore, and in view of the settled criminal jurisprudence the burden of proof of the guilt entirely lies upon the prosecution.
3.3 It does not appear from the trend of cross-examination of prosecution witnesses that the accused does have specific considerable facts in defence which are needed to be proved by examining witnesses and if those are not proved the accused may be prejudiced. The claim that the accused was not involved with the commission of offences for which he has been charged is a negative assertion which is not required to be established by adducing evidence.
3.4 According to section 9(5) a list of witnesses for the defence, if any, shall be furnished to the Tribunal at the time of the commencement of the trial. It is very fair to say that the phrase 'if any' is clear indicia that the defence is not obligated to fumish list of witnesses. However, the accused can do so only when it seems to him necessary for establishing any specific defence case. Thus, the provision of section 9(5) patently reflects that fumishing list of defence witnesses is not at all mandatory.
3.5 Provision, as contained in section 9(5), on any count, does not provide the defence an unfettered license to furnish list of thousand of witnesses. In a criminal trial, either in our domestic court or in any international tribunal established for prosecuting crimes against humanity, such kind of action from the end of the defence, in the name of complying with the provision of the statute, never happens, and or is allowed as well.
3.6 It appears that apart from the plea of alibi there has been no significant defence case which the defence needs to prove by examining witnesses. Besides, the defence is to prove nothing. Adjudication of facts in issue does not depend upon the success or failure in proving defence. In a criminal trial, 'defence case' is simply of ‘innocence'. However, the defence may be allowed to adduce and examine witnesses to prove the specific plea of alibi only and in doing so the defence may be allowed to examine few numbers of witnesses, instead of about thousand of witnesses.
3.7 Speedy trial is also one of requirement of fair trial and Rule 43(5) also insists that the accused shall be tried without undue delay. No person of normal human prudence will say that as against l0 prosecution witnesses examined in a criminal trial thousand of defence wiblesses should be allowed to be adduced and examined. Furnishing list of about thousand defence witnesses itself demonstrates an intention to somehow drag the trial and disposal of the case.
3.8 It is true that neither the Act nor the Rules contain any specific provision in respect of regulating the number of defence witnesses. But at the same time the Tribunal is fairly authorized to give its decision on the issue, in exercise of inherent powers contained in Rule 46A together with the powers given under section 22 of the Act of 1973, for the purpose of keeping consonance with the provision as laid down in section 11(3). We are thus inclined to hold that fumishing list of about thousand of defence witnesses is a mechanism to cause perverse delay which we consider to be prevented.
3.9 For the reasons stated above, we allow the application submitted by the prosecution. Considering the number of charges and number of prosecution witresses examined, we are inclined to allow only 06 defence witnesses from the list as has been fumished under section 9(5) of the Act. Accordingly the defence is permitted to examine only six witnesses to prove the defence plea.