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.