Are the tribunals justified in restricting defence witness numbers?

David Bergman

Perhaps the most significant set of decisions made by both courts of the International Crimes Tribunal impacting upon the question of the fairness of the trials of those alleged to have committed crimes during the 1971 war of Independence concerns the restrictions placed upon the number of defence witnesses allowed to give evidence in court.

In all the cases so far tried before the two tribunals, the judges have not restricted the prosecution in the number of witnesses it can bring to court, but at the same  time have limited the number allowed by the defence – in some cases very severely considering the number of offences charged.

This is particularly stark in the two most recently completed cases.

In the trial of Salauddin Quader Chowdhury, who last month was sentenced to death, the prosecution brought 41 witnesses to the tribunal to prove 23 offences, but the defence was restricted to only calling 5 witnesses.

And in the case of Abdul Alim, who in the same month received a sentence of life imprisonment, the prosecution was allowed 35 witnesses, but the defence was restricted to 3 witnesses to disprove 17 offences.

In three other cases the tribunal has allowed an equally small number of witnesses: 4 witnesses have been permitted in Motiur Rahman Nizami’s defence relating to 16 charges; 5 witnesses in the trial of Kamaruzzaman involving 7 offences; and 6 in the case of Abdul Quader Molla in defence of 6 offences.

Only in the cases of Delwar Hossain Sayedee (the first case brought to trial) and Golam Azam were the number of defence witnesses allowed to be in double figures – 20 and 12 respectively.

This restriction is significant as the most obvious characteristic of a fair trial is allowing an accused person to present his or her case  - and limiting witnesses inevitably precludes the ability of the accused to do just that.

So what reasons have the tribunals given for restriction, and are they justified, particularly since the International Crimes (tribunal) Act 1973 states that an accused person has ‘the right to present evidence at the trial in support of his defence ...’?

In the case of Sayedee, the tribunal gaveno clear reason for limiting to 20 the number of defence witnesses. However, the tribunal did state in its order that the defence request for 48 witnesses was 'given with the intention to delay the trial' and the court may have chosen the number 20 to equal the number of prosecution witnesses that had ‘made statements regarding occurrence.’

In some of the subsequent trials, particularly those that took place in Tribunal 2, the judges have given more detailed reasons.

Decisions given in Molla’s case

Abdul Quader Molla’s case was the second case to come to trial at the International Crimes Tribunal and the reasons given in that case for limiting the number of witnesses have set the precedent for most of the subsequent cases.

In the trial, the prosecution brought 12 witnesses to the tribunal in support of six charges against Molla.

After all these witnesses had deposed, the prosecution lawyers filed an application asking the tribunal to limit the number of defence witnesses ‘to 3 or 4’ which it was argued would be sufficient for the accused to prove his defence of ‘alibi’ (i.e, the claim that the accused was not present at the time the offence was committed.)

The prosecution in its application to the tribunal argued that the list of 965 witnesses that the defence had earlier given the tribunal was simply intended ‘to cause unreasonable delay so that the case can not be disposed of expeditiously.’

In response, Molla’s defence lawyers told the tribunal that although they had originally listed nearly 1000 witnesses, they wished now only to bring to court about 20.

In its order given on 5 November, the tribunal initially limited the defence to four witnesses, but - following further urging by the defence lawyers – the number was increased to five and then to six.

A week later this order was challenged by Molla’s lawyers, but without success.

The tribunal’s basic argument for the restriction, set out in its original order and in response to the review application, was that the accused only needed witnesses to present his defence of alibi, and that for this purpose six witnesses was sufficient.

“From the trend of cross-examination of prosecution witnesses no specific and substantive defence case could be perceived excepting the plea of alibi,” the first order stated.

The order went on to argue that the defence did not need to produce witnesses to question any other aspect of the prosecution case since the burden of proving the charges was wholly on the prosecution.

 “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,’ the order stated. ‘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'”

The second order supported thisargument: ‘In a criminal trial, defence may examine witnesses in support of his defence and not to disprove prosecution case… [W]e are constrained to reiterate that the defence is to prove nothing and the burden squarely lies upon the prosecution to prove the charges beyond reasonable doubt.’

However, these arguments are problematic on a number of counts.

First, one has to ask whether it is the job of the tribunal to decide what is - or what will or should be - the nature of the defence’s legal strategy?

This is for the defence to decide, not the tribunal.

Do note that this decision was made before the accused has even started presenting his case, and without the tribunal having seen any information on the likely testimony of the proposed defence witnesses.

Secondly, even if the tribunal happened to be correct that Molla’s lawyers only wanted to bring Alibi witnesses (in fact at least one of the witnesses Molla called was not an alibi witness) how could the tribunal, before it had heard any defence witnesses, be in a position to state that six witnesses would be sufficient?

It was of course reasonable for the tribunal to say that 955 alibi witnesses was way over the top.

But if Molla needed 2 or 3 witnesses to ‘prove’ his alibi for each of the six different offences which took place on six different dates – each of which, one should remember, had the potential of a death sentence - it is difficult to see why the tribunal would not be willing to allow that.

Thirdly, and most significantly, the tribunal surely cannot be right to assert that the defence can only bring witnesses to prove an alibi defence – and not to prove in other ways that the prosecution case was wrong.

The tribunal’s logic seems to be that since it is for the prosecution to prove the charges, the accused lawyers have no role in disproving them by bringing witnesses.

This is rather extraordinary.

Yes, the burden is on the prosecution to prove its case ‘beyond reasonable doubt’, but this in no way means – and Bangladesh law has never stated otherwise - that the defence cannot bring witnesses to discredit different elements of the prosecution case, and show, for example, the unreliability of prosecution witnesses.

Doing so is a completely standard defence practice in just about any country around the world – including in Bangladesh.

The need for the prosecution to prove its case ‘beyond reasonable doubt’ cannot be turned into a rule that prevents the accused from disproving the case against him or her.

How to explain the tribunal’s reasoning

Since there is no prior jurisprudence in Bangladesh supporting such a contention, what then might be the basis for the tribunal’s argument?

In ordinary criminal cases in Bangladesh, defence counsel – though they have every legal right to do so - rarely produce witnesses in support of the accused.

This is for many reasons, but primarily the decision by the defence not to call witnesses, is because it is their view that the prosecution’s legal case against the accused is so weak that they can succeed in obtaining acquittals simply by discrediting prosecution witnesses in their cross examinations.

As a result, there is no reason for the accused to subsequently produce any witnesses in support of its case.

Arguably, the tribunal judges may in their minds have converted this practice in the country’s criminal courts into some kind of legal principle.

Under the International Crimes Tribunal Act 1973, the tribunal can set its own procedures – but legal arguments justifying something so essential as the limitation of witnesses do need to have some prior jurisprudential support.

And whilst the Act does state that the tribunal should ‘confine the trial to an expeditious hearing’ it also requires the tribunal to ‘ensure fair trial’ and specifically provides that the accused be given ‘the right to present evidence at the trial in support of his defence ...’.

The court’s decision preventing defence lawyers from calling witnesses who could discredit the prosecution case does raise very legitimate questions about how Molla – and indeed all the other accused - received a fair trial.

Clearly, it was unjustified for the defence lawyers to provide the tribunal with a lists of witnesses  with hundreds and sometimes thousands of names in Molla’s and other cases – and the tribunal quite rightly rejected the idea that anywhere near that number of witnesses could be brought to court by the defence.

But conversely it is questionable for the tribunal to have restricted the number of witnesses to six in Molla’s case and even fewer in others – particularly without having any information on the relevance of the witnesses on substantive issues before the court.

The appellate division has upheld Molla’s convictions, and so one assumes that the highest court in Bangladesh did not feel that the restriction on the number of defence witnesses precluded a fair trial. 

It will be interesting – when the full judgment of the appellate division in Molla’s case is published, (which could well be soon) - to see how the court justifies the restriction in defence witnesses.

And also to see what view the appellate division will take when it subsequently deals with other cases where the restrictions on the number of defence witnesses were even more stark – particularly when contrasted with both the number of offences for which the person was accused and the number of witnesses the prosecution were allowed to bring.

The UK police's failure to investigate 1971 war crimes 20 years ago

Chowdhury Mueen Uddin with Prince Charles

The Jewish Chronicle and the Spectator have written two articles critical of how the British government, and others groups within the UK have allowed themselves to dialogue with 'Islamists who dominate Muslim institutions in the UK.'

These articles were written in light of the conviction in Bangladesh last week of British citizen, Chowdhury Mueen Uddin for crimes relating to his alleged masterminding the abduction of 18 'intellectuals' in the final days of the country's independence war in 1971. (Here is a copy of the judgment)

He was given the death penalty.

As written elsewhere, Mueen Uddin and his lawyers have strongly attacked the tribunal that prosecuted him - and, unfortunately, with some legitimacy.

Whilst the questions suggested by the Spectator and the Jewish Chronicle may be interesting to ask, there is is a far more significant concern that requires consideration, and maybe even investigation.

This relates to a point that Martin Bright makes in his JC article. In response to Mueen Uddin's assertions of innocence and also his stated willingness to be tried in another forum, Bright asked whether one should:

"... allow this country’s legal system to deal with the allegations against Mr Mueen-Uddin. Scotland Yard investigated the case in the 1990s after a Channel 4 documentary brought the allegations to light and the police should look again at whether there is enough evidence to bring him to trial in the UK."

This extract suggest that Mueen Uddin's conduct in 1971 was investigated by the British police 20 years ago in 1995 when they were first brought to its attention by the Channel 4 documentary.

However that was not the case.

A file of evidence was indeed sent to Scotland Yard - but the police never 'investigated' the allegations. It decided that it need not look any further as its lawyers advised it that 'primary jurisdiction' over such a case was with the Bangladesh government, and - that being so - the police sent the file to the Bangladesh High Commission.

It is this UK police decision which needs to be subject to a great deal of criticism.

This is because international lawyers will tell you that there is no concept in international law of 'primary jurisdiction'. Whilst it may be true that the normal preferred position is for a war criminal to be prosecuted where the crimes took place - and in that sense Bangladesh has primary jurisdiction - if Bangladesh is not going to prosecute and the United Kingdom is not going to extradite then the United Kingdom should take action itself

It is arguably the failure of the British police to take the allegations against him seriously in 1995 that is the reason why Mueen Uddin will most likely never have to face a court of law (having been tried in absentia in Bangladesh, and will not be extradited to face the death penalty.)

In 1995, although even then 24 years had passed since the alleged crimes, a significant amount of evidence was available. This not only comprised the evidence that was collected for the film itself, but other evidence collected subsequently - in part facilitated by the libel case which Mueen Uddin initiated against Channel Four.

A large amount of evidence was collected in the form affidavits or signed statements. As part of its preperations in defending the libel action, Channel Four lawyers also filmed interviews with the witnesses reading out their statements. This was all available then.

In the 20 years since, however, many crucial witnesses have now died. Also some evidence has been lost.

The point is whilst evidence does continue to exist concerning Mueen Uddins's involvement in 1971 crimes (and the police should certainly be looking at what is currently available) the evidence in 1995 was that much stronger than it is now, and the question is: why was it not properly scrutinised and assessed at that time, and if necessary further investigations carried out?

As mentioned above the view of Scotland Yard that it lacked 'primary jurisdiction' was very questionable. It is a great pity it was not legally challenged properly at the time.

The British police could certainly have investigated  these offenses, and if there was sufficeint evidence prosecute in the UK courts, particularly as it should have been very clear that there was no appetite for prosecuting these offences in Bangladesh at that time.

The failure of the police to investigate Mueen Uddin in 1996 is arguably a matter of some negligence on its part - and may well have allowed a person, against whom serious allegations lie - to escape justice.

Mueen Uddin's strategy of deflection

In August 2011, I wrote in New Age:

'The government needs to recognise that many of the criticisms that people make of the tribunal is not ‘propaganda’—and in many cases it comes from people who are very keen for the tribunal to succeed. Yet, unless significant changes are made to the law and the tribunal’s operation, it is quite predictable—though unfortunate—that the criticisms will get even more shrill.'

And a few months later in October 2011, I again wrote in the same paper:

'With the tribunal now assessing evidence and considering defence applications about the nature of the offences, it must be at the top of its game. At the moment, however, there is a serious risk of the tribunal providing additional reasons for the defence to argue that they are being subject to an unfair trial.'

It was not just me of course, there were others within Bangladesh and outside (Human Rights Watch and the US Steven Rapp, Ambassador-at-Large, heading the Office of Global Criminal Justice in the U.S. Department of States) making the same point - that failure to make changes in the operation of the tribunal, would make the trials easy targets for those who wished to discredit the process.

It was in fact entirely predictable to anyone who cared to look independently at the process, even before the trials themselves had formally started, that the International Crimes tribunal appeared to be going down a wrong track, and could well provide legitimate reasons for the accused and the Jamaat-e-Islami to question the credibility of the trials. 

Of course one was not to know how far-reaching the concerns about the trials would become.

The supporters of the tribunal and in particular those in the government who had the opportunity to put the tribunal back on track - by ensuring tribunal independence, making changes to the law and procedures, and employing a much more professional set of investigators and prosecutors, including  international experts (something I had called for early on) - are now reaping the effects of failing to have done this.

This is no more evident than in the response of Chowdhury Mueen Uddin to his conviction and death sentence for crimes during the 1971 war. 

His trial was an in absentia trial (without the government having even sought his extradition from the UK) so it was of course an easy target for Mueen Uddin to criticize. However, the statement issued by Chowdhury Mueen Uddin following his conviction and death sentence is an attack on the whole trial process:

'The defence team believes the tribunal has been characterised by widespread judicial and prosecutorial misconduct. They continue to cite clear evidence of witness tampering, witness perjury, governmental interference and collusion. .....

Commenting Toby Cadman, the defendant’s Legal Counsel, said:
‘The trial process has been shown to be nothing short of a political show trial.

‘What is clear from a number of damning disclosures by the international community and the media is the overwhelming evidence that reveals serious judicial and prosecutorial misconduct and the collusion of the Government with members of the judiciary and prosecution.

‘I am not at all surprised by the verdict that has been passed today by an institution that has lost all credibility. We reject each and every charge leveled against Mr. Mueen-Uddin. This is coming from a body that has been accused of gross irregularity and misconduct by human rights groups, notable figures and institutions around the world.

‘The system in Bangladesh is so far below even the minimum standards of fairness that it does not deserve to be called a judicial process. It is not an international tribunal. There is nothing remotely international about its practice. There are also serious questions raised as to whether it constitutes a national judicial institution, as it sits outside of the law – seemingly in a black hole. It has become a travesty of justice that is writing a very dark chapter in Bangladesh’s short history.’ 

‘Mr. Mueen-Uddin has consistently maintained that he is prepared to stand trial and establish his innocence before a court of law that is fully independent and impartial. There is a wealth of authority to suggest that the trial conducted before the Tribunal constitutes a flagrant denial of justice. 

Of course, Mueen Uddin does amongst all of this criticism of the tribunal, plead his innocence, but the vast majority of the statement is an attack on the tribunal process. And whilst calling the trial process a "political show trial" and saying that the tribunal "sits outside the law - seemingly in a black hole" are hyperbole, at the same time many of the criticisms are unfortunately justified.

As someone who knows an awful lot about the evidence against Chowdhury Mueen Uddin, and does believes that the evidence of his involvement in these abductions is substantial and compelling, I am extremely troubled by how he is so easily able to deflect the questions away from the evidence against him and onto the criticisms about the tribunal. 

And responsibility for this sits just about entirely with the present government of Bangladesh, who - extraordinarily argued - and indeed still now continue to argue - that the tribunals meet international and national standards, and in fact even surpassed them, and failed to make the changes necessary.

And responsibility for providing propoganda opportunities to the Jamaat-e-Islami and the accused  also rests in part upon the shoulders of the "tribunal supporters" who ignored the concerns, turned a blind eye to what was going on at the trials and even, in some cases, verbally attacked those who made the criticisms.