Tuesday, November 20, 2012

28 Aug 2012: 20 defence witness recall order rejected

Mr. Abdur Razzaque has presented 5 names of witnesses in response to the order of 14th August, 2012

Abdur Razzaque then sought the recall of the order of 14 August. The written petition is set out below:
Procedural history
1. That on 14th December 2012 the Defence submitted to the Tribunal a list of 48 Defence witnesses and associated documents in anticipation of the start of the Defence case as required under Section 9(5) of the International Crimes (Tribunal) Act 1973 (‘ICTA’) and Rule 18(6) of the Rules of Procedure (‘RoP’).

2. That on 14th August 2012, in receipt of the Defence witness list, the Tribunal insisted that the Defence limit itself to 20 witnesses and passed an order (hereinafter ‘the Order’) directing the Defence to submit the list of 20 defence witnesses (DWs) with particulars of charges by 23rd August 2012. The learned defence counsels prayed to allow the Accused Petitioner to open the defence case as this is traditional practice for an accused to open defence case. But the Hon’ble Tribunal rejected the prayer and fixed 28th August 2012 for recording defence witness.

3. It is submitted that the Accused-Petitioner is seriously prejudiced and aggrieved by the above order of the Tribunal dated 14th August 2012. To date the Defence has not been provided with a certified copy of the Order meaning that it is unable to file a petition for review under Rule 26 (4) of the Rules of Procedure. As a result the Accused-Petitioner has no other option but to file the instant Application for Recall of the Order dated 14th August 2012.

Limiting 20 DWs
4. The Tribunal rejected the Defence’s submission of 48 witnesses and substituted the order for 20 witnesses on the basis that the Prosecution had called only 28 witnesses, 20 of which were on the facts, 7 of which were seizure list witnesses and the other being the Investigation Officer.

5. It may be recalled that prior to opening its case the Prosecution indicated that it intended to call 138 PWs to testify in support of the case against the Accused-Petitioner. There was no restriction on the Prosecution as to the number of PWs they might call. The Prosecution were permitted to call all the 138 PWs and the Tribunal was in fact critical to the prosecution for not being able to call their listed witnesses. The prosecution was allowed many adjournments so that they can produce all the prosecution witnesses. But despite that the Prosecution could only produce and examine 28 PWs including the Investigation Officer in the instant case.

6. It may be recalled that following alleged difficulties, which the Defence has nonetheless challenged, in securing the attendance of further PWs to testify in proceedings, the Prosecution requested on 20 March 2012 that the statements of 46 Prosecution witnesses be tendered into evidence pursuant to section 19(2) ICTA. On 29 March 2012 the Hon’ble Tribunal found that the Prosecution had satisfied the conditions of section 19(2) in relation to 15 PWs. In addition, on 8 August 2012, following a further application of the Prosecution, the Tribunal accepted the statement of 1 additional PW under section 19(2) ICTA who was deceased. The Tribunal therefore have before it 44 (28+15+1) witness statements in support of the Prosecution case.

7. It is to be noted that the Defence strongly objected to the receiving of evidence under section 19 (2) and contested the Prosecution’s applications to do so on the basis that it seriously prejudiced the Accused’s right to a fair trial by essentially admitting untested evidence which the Petitioner had no opportunity to challenge.

8. It is submitted that there is no provision within either the Act or the Tribunal’s Rules of Procedure that allows the Tribunal to limit the number of witnesses for either the Prosecution or Defence.

9. Moreover, the Prosecution initially submitted a list of 138 witnesses, which was accepted with no attempt at limitation by the Tribunal. That the Prosecution in the event only produced 44 witnesses was not due to limitation but their inability to produce the remaining 94.

10. It is respectfully submitted that by only looking to the numbers and not the evidence of the witnesses, the Tribunal was in no position to make a determination as to necessity of the Defence witnesses proposed.

11. The submission of a list of 48 DWs as opposed to the list of 138 PWs clearly shows the honest intention of the defence to call only the necessary and relevant witnesses. It is submitted that the Accuse-Petitioner’s right to call necessary and relevant witnesses should not be limited at the cost of expediency. It may be noted that the defence is not calling any unnecessary or irrelevant witness and proving all assistance to the Tribunal for expeditious hearing of the trial.

12. The Tribunal also sought to base its decision to limit the Defence’s case on time management considerations under section 22 of the Act. However, it is submitted that 48 witnesses 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.

Limitation of the Defence case
13. It is submitted that the impugned Order amounts to a limitation of the Defence case in general and limitation of Accused’s opportunity to challenge the evidence against him in particular.

14. Pursuant to section 17 (3) of the Act, the Accused should be given ‘the right to present evidence at the trial in support of his defence…’. This is a key provision that goes to ensuring the Accused’s overriding right under Rule 43 (4) of the Tribunal’s Rules of Procedure: that of a fair hearing, which can nowhere be more important than in proceedings that carry the death penalty upon conviction, as in the instant case.

15. The imperative nature of this right is reflected in Article 14 (1) of the International Covenant for Civil and Political Rights, Article 64 of the Statute of Rome for the International Criminal Court and Article 7 of the Universal Declaration of Human Rights; which together provide for the right of fair trial and equality of arms.

16. It is submitted that the limitation of the Defence’s case to the advantage of the Prosecution will undermine the right to a fair trial and negate the basic principle of equality of arms.

17. It is submitted that witnesses are produced to bolster the cases of the respective parties. It stands to reason as a general proposition that production of less than half as many witnesses will limit the Defence in its ability to challenge the evidence put forward by the Prosecution. In particular, 20 witnesses are far from sufficient to address the vast ground covered by 20 charges of an extremely serious and complex character.

18. It is further submitted that 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.

19. It may be noted that the list of 48 DWs were served against the initial disclosure of the prosecution documents before commencement of the Trial. But throughout the course of its case, the Prosecution has further disclosed through its witnesses about 200 new documents, which amount to several thousand pages. To date, the Defence has been exclusively engaged in trial proceedings and the cross-examination of Prosecution witnesses as the Tribunal has sat five days a week. Therefore the Defence has lacked any opportunity to investigate the vast amount of newly disclosed documents and to conduct adequate defence preparation in response to them. It is submitted that the Defence may be required to examine new DWs in addition to the previous list to address any issue raised by the newly disclosed prosecution documents.

Allowing Accused to open the Defence Case:
20. The Hon’ble Tribunal may recall that section 17 of ICTA allows for an accused to give explanation in support of his defence. Section 17(1) ICTA provides: “During the trial of an accused person he shall have the right to give any explanation relevant to the charges made against him”. Section 17(3) ICTA provides: “An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution”.

21. It is also submitted that it is the practice of the local and international tribunals to allow the accused to open the defence case. In view of section 17 of ICTA it is therefore submitted that the Accused-Petitioner should be allowed to open his defence case.

Recall of the Order
22. For the abovementioned reasons, and in the absence of a certified copy of the order, the Defence prays that the Tribunal recall its order dated 14th August 2012 and allow the Accused-Petitioner to call all the listed 48 DWs and also allow the Accused-Petitioner to open the defence case, by exercising its power under Rule 46 A of the Rules of Procedure which acknowledges its inherent right ‘to make such order(s) as may be necessary to meet the ends of justice’.
The tribunal rejected this application. The full order taken from the original is set out below:
Accused Delowar Hossain Sayeedi has not been produced in this Tribunal  today by the prison authority as directed by the Tribunal. Today is fixed for recording of Defence Witness. Two applications have been filed by the defence today. The first one ls for an extension of time to submit list of defence witnesses and particuiars and points and the other one is for recall of the order dated 14.08.2012.  
Mr. Abdur Razzaq, the learned counsel appearing for the accused petitioner submitted that the recording of evidence of prosecution witnesses was completed on 13.08.2012 and this Tribunal by order dated 14.08.2012 directed that defence will be allowed to examine 20 witnesses and to submit the particulars and points of them within 23.08.2012. As the petitioner could not submit the names of defence witness on the date and to-day they only filed names of 05 witnesses with particulars and prayed for some more time to submit the list of witnesses with patticulars. For that reason they require privileged communication with the accused and that having not been done they pray for time to submit the list of remaining defence witness with paruculars of evidence. In the second application they have prayed for recalling the order dated 14.08.2012, on the ground that liimiting the number of Defence witnesses to 20 has been done by the Tribunal without any support of Law and Rules even it violates the principie of equality of arms because of the fact that the prosecution examined 28 witnesses and 16 more statements made before the Investigation Officer has been accepted by the Tribunai as evidence that means they have produced evidence of 44 witnesses. As such equality of arms having been denied, the otder is liable to be recalled. He further submitted thar the moot question of criminal justice is this that no party should be prejudiced and if the order dated 14.08.2012 is not recalled then the accused will be seriously prejudiced.

Mr. Syed Haider Ali, the learned prosecutor opposed the petitions, by submitting that they were to submit list of 20 witnesses by 23.08.2012 and that having not been done the order of the Tribunal has been violated and as such the accused should be barred from producing any witness in their favour.

We have heard Mr. Abdur Razzaq the iearned counsel and Mr. Syed Haider AIi, the learned prosecutor. We have found that the petitroner has not submitted the list of witnesses on 23.08.2012 but they have come with the petition mentioning only five witnesses and the particular of charges upon which they will give evidence today and prayed for time to submit the remaining list with a further prayer to recall the order dated 14.08.2012 and in the order passed by this Tribunal on the order dated was considered and found valid, and as such there is no reason to recall that order, and the recall prayer stands rejected.

The petition for time to submit the temaining list of witnesses although they did not file it on 23.08.2012 but it appears that they have filed it today containing the names of 5 witnesses, we are inclined to accept it. The remaining number of Defence of witnesses ate to be deposited within 05.09.2012positively and the prayer for ad)ournment is aliowed for to-day only. The examination of defence witness is to be started tomorrow.
The tribunal then moved onto the Chowdhury case

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