Saturday, November 19, 2011

Defence walkout: Wise heads must prevail

This is my comment following the defence walkout from the tribunal on Wednesday, 16 November.

The decision by Delwar Hossain Sayedee’s lawyers to ‘walk out’ of the International Crimes Tribunal on Wednesday is a serious escalation of what appears to have become a trial of strength between them and the tribunal itself.

How did we get to this situation and, more importantly, what can be done to ensure that the trial process gets back on track?

To understand why we have reached the present impasse, one needs to appreciate that the defence legal team has an entrenched view that the trial will not be fair under the International Crimes (Tribunal) Act 1973 or its rules of procedure as they are currently applied by the tribunal.

Amongst its many criticisms, they point to the lack of normal constitutional protections afforded to the accused, inadequate definitions of offences, vagueness of the charges and inadequate time to prepare their defence.

Whilst these arguments barely resonate in Bangladesh (where they are simply seen as part of a political attempt to discredit or destroy the trial) they do have traction outside the country with many if not most of their criticisms accepted by independent lawyers working outside Bangladesh.

The reason the lawyers walked out of the court, however, was not directly about any of these concerns, but rather their view about how the tribunal dealt with a new issue that they had raised.

In relation to a new application, they argued on Sunday last week that Nizamul Haque, the chairman of the tribunal, should ‘recuse’ himself from being a judge in the case against Sayedee.

Their argument was that when he had been a high court lawyer, Justice Haque was a member of a 40 person secretariat of the Peoples Inquiry Commission which in 1994, following an investigation, had published a report alleging that eight people, including Sayedee himself had committed war crimes in 1971.

This report had been submitted by the prosecution as part of its evidence against Sayedee.

Relying on a sentence from the report’s introduction which states that the ‘Commission analysed all the information gathered by members of the Secretariat’, the lawyers argue that the Commission’s report was based upon evidence actually collected by the secretariat itself, of which Haque was a member.

They specifically pointed to 7 out of the 20 counts, now alleged against Sayedee in the charge-framing order, which they claim were first investigated by the secretariat.

The defence lawyers argue that the tribunal’s chairman should ‘recuse’ himself from the tribunal as otherwise he ‘will essentially be ruling on evidence that he has assisted in preparing.’

A lot of this argument is uncontested. Nizamul Haque was a member of the secretariat of the people’s commission, and the report certainly does suggest that the report was written on the basis of information given by this body.

However, the defence relies solely on the role that the report states that the ‘secretariat’ played and doesn't provide any evidence that the tribunal chairman himself actually undertook any investigations.

It may well be the case that he played no actual part in any investigation - and if so the question would then come down to whether having been a member of the Peoples Commission which produced this report in itself creates a sufficient appearance of bias to justify recusal.

The Tribunal’s order on the Monday sidestepped taking a decision on the merits of these arguments and instead stated that the law did not give judges the authority to consider the recusal of another judge.

The two tribunal judges who gave the order in fact put the decision into the hands of the chairman himself by saying that, ‘the matter largely depends on the good conscience of the judge concerned.’

For the defence, this decision failed to resolve its concerns about the bias or apparent bias of the chairman. They wanted a decision on the merits of their arguments – and with the tribunal saying it could not deal with the matter, their focus moved to try and get the chairman to justify his decision not to recuse himself.

Two days later, on the very morning that the tribunal was due to hear another defence application, this time relating to the charge-framing, the defence lawyers filed a new application seeking an explanation from Haque as to why, ‘he continues to sit as Chairman of the Tribunal despite the uncontroverted allegations of bias against him.’

They argued in court that the tribunal should not proceed further in dealing with any others application until it had considered this one.

However, in filing the application that very morning, the defence failed to abide by an agreed procedure that parties should file applications the day before they were to be argued.

After a terse verbal exchange between the judges and the defence counsel, the chairman said that the tribunal would hear the new recusal application on the following Sunday (i.e 20 November) but would continue to consider the application that was due to be heard that day.

It was this decision that provoked the lawyers to walk out.

It is difficult to see any justification for this action by the defence lawyers.

First, in any courtroom, a walk out of lawyers is serious showing significant disrespect for the judges. If this was done in any international tribunal, the lawyers may well be considered in contempt of court. (The defence team would no doubt claim, of course, that it would never need to take such a step if it was arguing before an international tribunal as in these procedures there are clear procedures to challenge judges.)

Secondly, the defence team’s argument that it could not have filed the application on Tuesday, the day before the hearing, since the lawyers were not certain whether Justice Haque was going to recuse himself or not, simply does not stand up. The lawyers could well have found out from the registrar on the Tuesday whether the tribunal chairman was due to sit in court the next day. And even if the registrar could not confirm this, they could still have filed the application that day, and simply withdrawn it on if it turned out that the chairman had decided in the meantime to recuse himself.

Arguably, by not filing the application on Tuesday, the defence team created a very difficult situation for the tribunal to deal with - setting it up for a confrontation of the kind that did in fact happen.

However, arguably, the tribunal could well have played its cards differently.

On receiving the new application, the judges could have adjourned proceedings for a short while in order to allow them to privately consider the situation and the ramifications of this new recusal application.

If they had done so, they may have realized that, putting the late-filing issue to one side, that there is logic to the defence team’s argument that the whole issue of recusal should be dealt with before other decisions were made by the tribunal.

The judges could then have returned to court and adjourned the hearing until either that afternoon, the next morning or even to Sunday. The tribunal could, once reconvened, have then dealt with both this second recusal application, followed by the other application about the order framing charged against Sayedee then before it.

Now, however, the process is in a tricky situation. Even if the judges can resolve the recusal issue to the defence team’s satisfaction (and that is rather uncertain: it remains unclear whether the defence lawyers will continue to defend their client if Justice Haque remains on the bench), there still remains the defence application seeking a review of the charge-framing order which, after the lawyers walked out last Monday, the judges rejected as ‘not pressed.’

Since this application goes to the heart of the nature of the charges against their client, it is difficult to see how the defence will find it easy to agree to continue with the trial process unless this application is properly heard.

So here is a couple of suggestions to get the tribunal process back on track.

The tribunal should first consider revising its ‘rejection’ order and allow the arguments on the charge-framing application by the defence to be made.

It is true this would likely require a further adjournment to the start of the trial, but this is something the tribunal should not be overly concerned about.

Many supporters of the tribunal have strongly criticized what they believe is the unnecessary delay in holding the tribunal – but, as the judges undoubtedly know, a fair trial does require that those accused have adequate time to prepare their defence.

In this case the lawyers received information about the criminal charges that the prosecution wanted framed against Sayedee at the end of July, and found out exactly what charges were going to be framed on 3 October.

It is debatable which of these dates should be considered the starting point for determining the length of time that the defence have had to prepare themselves, but even assuming that it is the earlier date, then it is still only a period of four and half months.

When a person is facing 35 offences involving genocide and crimes against humanity, crimes alleged to have taken place 40 years ago, conviction for any of which can result in a death sentence, this is not an excessive period for a person to have to prepare their defence.

So the tribunal should not think there is any problem in delaying this trial for a short while if doing so would help ensure its smooth running.

And the second suggestion is this. The judges should sit with both the defence and prosecution lawyers, work out a schedule for dealing with all the applications that the defence have filed and intend to file prior to the trial, and any potential review applications that they could file if their original applications are rejected. Having worked out that schedule the tribunal can then set a provisional date for a trial.

This would prevent the defence springing any new surprises, deal with the current obstacles and provide a clear run for the trial. It would also help ensure that the defence had sufficient time to prepare itself removing one of its current, and probably legitimate, grievances.

These suggestions will not remove many underlying concerns that the defence - and indeed others - may have about the tribunal, but at least it will ensure that the tribunal is put back on the right track.

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