Friday, July 6, 2012

29 May 2012: Sayedee witness recall application

The first issue before the tribunal was an application by the defence to recall three witnesses who had already given evidence. The application was made under Rule 46A of the International Crimes Tribunal Rules of Procedure, 2010 which states: 'Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make such order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process.'

Mizanul Islam read out the same arguments that he had made at a previous hearing.

After setting out his main arguments, the lawyer ended by saying that though there was no provision for recall under the Rules, the Tribunal can pass the necessary order under rules 46A.

He also said that the defence could have specified the questions that they wanted to ask the witnesses – a requirement of the Evidence Act – but since the Evidence Act is not followed, they have not done so. He said however that the lawyers would be willing to do so if they were asked to.

Chairman: Now you would like to say that, the material exhibit had displayed the interview of the prosecution witness, whereas the witness has mentioned he can’t remember whether he has given any interview. But you we all have heard that he has stated that he could not remember; and we have seen what has been displayed. Do we need clarifications?

Defence: My Lord, the newly amended International Crimes Tribunal Rules of Procedure-2010 rule- 53(2) says that—  “The cross examination shall be strictly limited to the subject matter of the examination in chief of a witness but the party shall be at liberty to cross examine such witness on his credibility and to take contradiction of the evidence given by him.” This newly amended rule means we can cross examine about credibility and to take contradiction. This is my purpose for recalling these PWs.

Chairman: We have already considered the point. He has stated he can’t remember; whether you would like to compel him to remember by showing that exhibit? Moreover the issue regarding PW 2 failing to sit the exam in Dhaka University is not relevant here.

Justice AKM Zaheer: Though the Evidence Act is not applicable here, we would like to know the questions for these PWs. This will help us to decide on this application.

The chairman asked Haider Ali on behalf of the prosecution to respond

The prosecutor made the following arguments. He read out section- 19(1) of the ICT Act-1973. This states “A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.”

He said that the video file is clearly admissable under Rule- 44 of the International Crimes Tribunal Rules of Procedure-2010 which states: “The tribunal shall be at liberty to admit any evidence oral or documentary, print or electronics including books, reports and photographs published in newspapers, periodicals and magazines, films and tape recording and other materials as may be tendered before it and it may exclude any evidence which does not inspire any confidence in it, and admission or non admission of evidence by the Tribunal is final and cannot be challenged.”

He added that rnder rule 55 - which states that ‘Once the document is marked as exhibit, the contents of a document shall be admissible’ - the document can be admitted. He said that there was no scope to cross examine these videos and the tribunal will consider credibility at the time of judgement. He pointed out that the two witnesses were questioned for a number of days and during this time this video was with the defence. He said that now there is no way to ask question about the matter in the context of those rules.

The defence lawyer responded by saying My Lord, it has been mentioned that- Manik Poshari has been cross examined for 2 days and Mahbubul Alam Hawladar has been cross examined on 5 days. Now our point here is that- it is not the matter of time it is the matter of necessity. He has stated about the section- 19(1) and 55 of the ICT Act-1973; but I think those are not relevant. If the Prosecution has stated either positive or negative statement we could follow one way; but the witness has preferred the middle way by stating- I can’t remember.

The prosecutor argued, that if the witness says that he can’t remember is there are any scope to put him pressure on him

The defence responded by saying they can show through the TV interview that the defendents were lying before the Tribunal.

Now, he is not making the answer specific. My Lord, you may set a date for passing order and we could submit what we would like to ask.

Chairman: Okay, submit your questions tomorrow and the order will be passed on the day after tomorrow.

The prosecution was reminded about the need to provide a written reply on the review petition about the admissibility of the 15 witnesses.

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