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Sayedee trial analysis: limiting defense witnesses
Tuesday, 04 December 2012
With the first Bangladesh 1971 war crimes trial about to end, David Bergmann has published the first of a series of blogs that will discuss whether Delwar Hossain Sayedee is receiving a fair trial.

The first post deals with the order issued by the tribunal which limited the number of witnesses that the defense was able to call and discusses the implications of it on a fair trial. The order was issued by the tribunal on 14 August 2012 and limited the number of witnesses that the defense of Sayedee was allowed to call to 20 witnesses. This is a first of a series of posts looking at some of the issues relating to whether or not Delwar Hossain Sayedee, a Jamaat-e-Islami leader accused of genocide and crimes against humanity during the 1971 War of Independence, is receiving a fair trial.

Whilst the daily newspapers in Bangladesh provide reports of some of what goes on at the tribunal, they provide very limited analysis. This and a number of subsequent posts are intended to help provide a better understanding of the trial process. The focus on his trial – rather than any of the others taking place in the two tribunals in Dhaka – is because it is the most advanced; if press reports and rumors are to be believed the verdict will be given just before or after 16 December 2012, a day known in Bangaladesh as ‘victory day’, the 41 years ago when the Pakistan military surrendered and Bangladesh became independent.

In the past I have written about the issue of national vs international standards and about a number of legislative and procedural weaknesses in the tribunal (these are all listed here). What I am writing about in these series of posts is more fundamental; decisions made by the tribunal that go to the heart of whether or not Sayedee has/had a fair trial (irrespective of whether the tribunal was aspiring to national or international standards).

The 20 witness order

This first analytical post looks at an order made by the tribunal on 14 August 2012 in which it ruled that Sayedee’s defense lawyers could present a maximum of 20 witnesses in court.

Summary of facts and concerns
The summary of the facts and concerns are as follows:

In July 2011, the prosecution gave the tribunal 138 names of witnesses it wished would testify before the tribunal to substantiate 20 counts (involving 35 separate offenses) involving crimes against humanity/genocide.
The defense in December 2011 then gave a list of 48 names of witness it wished to call to the tribunal. This is one third of the prosecution number and was at the time accepted by the tribunal.
When the trial started, the prosecution were only able to summon a total of 28 witnesses – 20 of which were witnesses of fact – to the tribunal. The tribunal accepted
as evidence a further 16 written statements from witnesses of fact. Substantive statements of 36 people were admitted as evidence
In August 2012, when the prosecution finished its case, the tribunal – without having any knowledge about what evidence any of the defense witnesses were going to give – passed an order saying that the defense could only call 20 out of their 48 witnesses.
In its order, the tribunal explained why 28 witnesses could not be called by saying that 48 witnesses was ‘given with the intention to delay the trial.’
The tribunal did not have in its hand any information to suggest that any of these witnesses were not relevant to Sayedee’s defense, and so how calling them would inappropriately delay the trial
It cannot be suggested that 48 witnesses to defend 20 counts of crimes against humanity/genocide – when conviction for any of them could result in the death penalty – is excessive.
The tribunal did not deal substantively with the application to review the order – simply saying that the review application of the order was itself also intended to delay the tribunal.
The ability of the accused person like Sayedee to call relevant witnesses is crucial to a fair trial. Cutting by more than half the number of witness that an accused can call to the court, without evidence that these witnesses are unnecessary, is a serious matter, going to the heart of the integrity to the process. One would have expected that the tribunal would have wanted to hear all relevant evidence before making coming to judgement.

Background
The law: Section 9(5) of the International Crimes (Tribunal) Act 1973 requires that at the beginning of the trial, before any prosecution testimony is heard in court, the defense provide to the court (and the prosecution) a list of the witnesses it wishes to rely on. It states:
‘A list of witnesses for the defence, if any, along with the documents or copies thereof, which the defence intends to rely upon, shall be furnished to the Tribunal and the prosecution at the time of the commencement of the trial.’
[As an aside, this provision itself is very unusual - and is one example of the many problems in the International Crimes (Tribunal) Act 1973. Such a provision is not part of Bangladesh law where the practice is for the defense to provide the magistrate with details of any witnesses it may wish to call after the prosecution has presented its case. It is also unheard of in any international tribunal for the defense to have to inform the court which witnesses it will call prior to the prosecution case. There is good reason why the defense should not be required to provide details of their witnesses at such an early stage; the defense needs to hear exactly the nature of the evidence against them before deciding which particular witnesses should be called. It makes no sense to have the Defense be required to form a witness list before they have heard the Prosecution case]

Prosecution provides witness list/statement: In July 2011, at the time of taking cognizance for offences against Sayedee the prosecution team provided to the tribunal and the defense statements of 60 witnesses (30 of which were witnesses of fact) that it hoped would testify before the tribunal. Subsequently it gave a further 78 witnesses (of which 35 were witnesses of fact, making a total of 65 witnesses of fact with the remaining as seizure list witnesses).

Trial starts: The prosecution started calling witnesses on 7 December 2011. Prior to starting, the tribunal made no comment or passed no order limiting the number of witnesses that the prosecution could bring, or making any other negative comment. There was no assertion by the tribunal that seeking to bring 138 witnesses as a delaying tactic.

Defence provides list: Seven days later on 14 December 2011 the defense provided the tribunal and the prosecution with a list of its own 48 witnesses. This is a third of the number of prosecution witnesses which the

Prosecution calls 20 witness: The prosecution case lasted between December 2011 and August 2012 (9 months). 28 out of the 138 prosecution witnesses testified at the tribunal – 20 of which were witnesses of fact. In addition, following an application to the tribunal, the judges ruled that the unsigned statements of 15 additional witnesses could be admitted as evidence. [It should be noted that the 1973 Act does not appear to allow the defense to seek the admission of written statements*] An additional statement was also admitted when one witness died. This made the total number of witnesses whose oral or written statements have been admitted to be 44 (36 of which were witnesses of fact). At no point during the prosecution case did the tribunal try to limit the number of prosecution witnesses.

The 14 August Order

On 14 August, just after the prosecution had completed its case, the tribunal passed an order limiting the defense witnesses to 20. A full transcript of this order can be found here. The pertinent part is below:
“It appears that the recording of prosecution witnesses has been completed. Now the next step according to the Act is fixing a date for defence witness. It appears that the defence has submitted list of witnesses and also materials upon which they want to rely with. This case involves 20 charges against the accused Person The witness produced in this Tribunal by the prosecution is number 28 including the Investigation Officer. Upon eye view of them, we find that that out of 28 witnesses the Investigation Officer is witness Nos 28 and there are 27 witnesses more who have been produced in this Tribunal by the prosecution Among them, we find 20 witnesses made statements regarding occurrence and there are more witnesses who have produced documents and are seizure list witnesses. We now find that 20 witnesses have been produced by the prosecution in support of the 20 charges brought against the accused’ We have also examined section 11 (3) (a) and (b) of the Act and Rule 51(A)(1)(2) and 53(3) of the Rules. We have given our anxious thought as to the number of defence witnesses to be allowed to be produced. The defence has submitted list of 48 witnesses and we find that this is excessive. There is no reason to allow 48 witnesses to be produced by the defence Rather it has been given with the intention to delay the trial. After due consideration of the fact and laws, we are of the view that the accused may be allowed to produce 20 witnesses in his favour and in that case, ends of justice will be met. As such the defence is directed to submit the list of those 20 witnesses along with particulars of the points and the charges on which the witnesses will adduce their evidence by 23.08.2012 positively’ To 28.08.2012 for defense witness.”

Section 11(3)(a) and (b) of the Act states:

A Tribunal shall-(a) confine the trial to an expeditious hearing of the issues raised by the charges;
(b) take measures to prevent any action which may cause unreasonable delay, and rule out irrelevant issues and statements.

Rule 53(3) states that the tribunal the right to:

‘regulate the matter of time management as and when it deems necessary, for ensuring effective and expeditious trial’.

Recall and review application

The defense sought to recall the order and, once it received a copy of the written order, sought to review it. (These are detailed arguments in the defense applications can be seen at these links)

In its order of 28 August 2012 rejecting the recall application the tribunal stated:

“In the second application they have prayed for recalling the order dated 14.08.2012, on the ground that limiting the number of Defence witnesses to 20 has been done by the Tribunal without any support of Law and Rules even it violates the principle 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 Tribunal as evidence that means they have produced evidence of 44 witnesses. As such equality of arms having been denied, the order is liable to be recalled. He further submitted that 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 learned counsel and Mr. Syed Haider AIi, the learned prosecutor. We have found that the petitioner 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 23.08.201.2 the order dated 14.08.201.2 was considered and found valid, and as such there is no reason to recall that order, and the recall prayer stands rejected.” (emphasis added)

This order refers back to an earlier order given on 23 August 2012. In that order (which dealt primarily with an application for adjournment of the trial) the tribunal stated that the review application, which had not yet been filed, would be rejected because it was only being filed for the purpose of delay. It stated:

“It appears that in the Act there is no provision for review application; only to correct mistakes and to give a chance to either parties we introduced review in the rules framed by us. It now appears that this has become a frank stain and is being used for the prayers for adjournment and delay the trial which cannot be done. We do not find any reason to consider the review application if filed as such for preferring review application we are not included to allow any adjournment.” (emphasis added)

 

This 23rd August order does not, actually explain why the order was ‘considered and found valid’

When the review application was filed (which happened after the tribunal had given the defense a certified copy of the order) the tribunal dismissed it referring back to these orders. At not time therefore, does it appear that the Tribunal gave a substantive response to the detailed defense application questioning the lawfulness of the 14 August order. Instead the tribunal simply said that the review application was undertaken to waste time.

Safe house witnesses – no flexibility on 20 witnesses

There will be a separate post on this issue, but at one point during the trial the genuineness of a register of the ‘witness safe house’ became an issue, and the tribunal in an order given on 9 October said that the defense had to prove its genuineness through ‘evidence’. However the tribunal subsequently ruled that if the defense lawyers wanted to bring any witness to help provide the authenticity of the register it would have to be within the 20 witnesses. Any witnesses on this issue could not be additional to the 20 permitted witnesses.

Comment

In the context of a fair trial, the August 14th order is significant. Sayedee has to defend himself in relation to 35 offenses. In that context 48 defense witnesses do not appear in any way excessive, in particular when the prosecution had originally hoped to bring 138 witnesses to court. The prosecution’s inability to call more than 20 oral witnesses, should not limit the number of defense witnesses. In any case the prosecution is also relying on a further 16 written statements, so if it was parity that the tribunal sought (though parity on number of witnesses should not be the logic that is operating) the tribunal should have allowed 36 defense witnesses – particularly in the context that the the 1973 Act does not allow witness statements to be admitted as evidence.

It is not uncommon for international tribunals to rule that a particular witness should not be brought to court court – but any decisions of the kind taken had an objective basis. The relevant international tribunal will having looked at a summary of the evidence which the particular witness is likely to give, and determined that it was either redundant (since similar evidence has already been given) or because it is not legally relevant; if the tribunal considered that a witness should not be called, then it will pass an order about that particular witness providing reasons.

In the Bangladesh tribunal however: (a) the judges could not assess these issues as they did not have any details about what the witnesses would say; (b) did not make an assessment witness by witness (c) instead it made a decision to reject hearing the evidence of 28 witnesses (why 28?) (d) provided no reasons for this decision other than the defense was trying to waste time (e) provided no evidence to suggest that bringing these witnesses were part of a defense strategy of delay.

Effectively the tribunal appears to be saying to Sayedee; bringing witnesses (other than the number that we allow you) to provide evidence to substantiate your claim of innocence is wasting time. However, one must ask: what is the purpose of the tribunal other than to hear relevant witnesses?

It is also worth nothing how the prosecution and the defense have on this issue been treated differently:
(a) the tribunal was not critical of the prosecution seeking to call 138 witnesses, but it was critical of the defense calling 48 witnesses;
(b) allowed the prosecution to admit evidence of 36 substantive witnesses, but only allowed the defense to admit 20 witness (in fact it only allowed 17 witnesses – a matter that I will come to in a different post.

A further disconcerting matter is the fact that the Tribunal rejected the recall/ review application because the tribunal thought that they were filed in order to waste time. So one has the rather bizarre situation that the tribunal first decides to reduce the number of witnesses of the defense, arguing that the defense is trying to ‘delay the trial’ by seeking to bring 48 witnesses. And then when this order was challenged, judging the ‘review’ application itself called a delay strategy.

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* Section 19(2) of the Act states: A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.’ The reference to ‘magistrate’ and ‘investigation officer’ seems to suggest that only the prosecution have access to this opportunity – another problem with the 1973 Act of course.