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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 210
March 19, 2011

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Law Opinion

ICTA 1973 and its international standards

Professor M Rafiqul Islam
(…from previous issue)

Proceedings: The trial procedure before the Tribunal follows a normal criminal trial procedure of reading out of the charges, followed by guilty or not guilty plea by the accused. A guilty plea is recorded and may attract conviction. A not guilty plea triggers an opening statement by the prosecution; examination, cross-examination, and re-examination of the witnesses for the prosecution as well as for the defence. The Tribunal may ask any witness any question in any form and at any time, or order the production of any document, or summon any witness to discover or obtain proof of relevant facts. Neither the prosecution nor the defence can object or cross-examine any such witness for his/her answer to the Tribunal. The prosecution first and then the defence sums up their respective case, but this order is reversed where the defence examines its witnesses first. The Tribunal delivers its judgment. Its proceedings are open, unless the Tribunal conducts in camera for a specific reason. No oath to any accused is administered. If counsel does not represent an accused, the Tribunal may order for the appointment of a counsel at the expense of the government to defend the accused. Any first class magistrate can record any statement or confession made by an accused voluntarily during investigation or before the trial commencement. The magistrate must explain to such accused that he/she is not bound to make such statement or confession and that such statement or confession will be used as evidence against him/her. The Tribunal may obtain evidence from any person privy to any of the alleged crimes including principal perpetrator or abettor by granting pardon to such person, who shall be examined as a witness in the trial and detained in custody until the termination of the trial (Act ss9, 10, 12, 14 & 15; Rules chapter IV).

These provisions of the 1973 Act bear similarity with the corresponding provisions of the ICTY and ICTR Statutes: ICTY Art 16 and ICTR Art 15: the prosecutor; ICTY Art 18 and ICTR Art 17: investigation and preparation of indictment; and ICTY Art 20 and ICTR Art 19: commencement and conduct of trial proceedings. Refusal to answer by a witness amounts to contempt of the ICTY (Rules of Procedure 1996, Rule 77). The provisions on the number of witnesses that the prosecution may call, the time available to examine them for presenting evidence, and charges against the accused in the 1973 Act appear to be open ended without any limitation whatsoever. It is a common tendency for the prosecution and victims/relatives to prosecute all perpetrators for all crimes they committed. But procuring and filing compelling evidence against each of them for each of their crimes is often uphill daunting and time-consuming tasks. The ICTY has overcome this cause of unreasonable delay by authorising the Trial Chamber to fix the number of witnesses that the prosecution can call, the time available to present evidence, the number of crimes in charges for which evidence may be presented, and direct the prosecution to proceed on some counts in the indictment and not others. To conduct trials in an expeditious manner, the Rules under the 1973 Act (s22) must address the recurring sources of unreasonable delay.

Evidence: The Tribunal is mandated to regulate its own procedure pursuant to the provisions of the 1973 Act (s 22), which is detailed in the Rules chapter VI. It is not bound by technical rules of evidence and can adopt and apply expeditious and non-technical procedure. Any evidence presented, including reports and photographs newspapers, periodicals, and magazines; films and tape-recording; and other relevant materials, having probative value are admissible. The Tribunal may admit as evidence any statement recorded by a magistrate or an investigation officer of any person who is dead or cannot attend without causing unreasonable delay. These are important time saving provisions consistent with Rules 92-94 of the ICTY and ICTR. The evidence taking process may further be improved by allowing witnesses to file written statements or transcripts as evidence, in lieu of oral testimony in person in circumstances similar to those set by ICTY Rules 92bis, 92ter, and 92quater. Rules of Procedure and Evidence of the ICTY and ICTR also allow, as admissible evidence, statements of a “consistent pattern of conduct” (Rule 93), judicial notice of commonly known and previously adjudicated facts without proof (Rule 94), and any relevant documentary evidence with probative value (Rule 89:C). The Tribunal can take the judicial notice of facts of common knowledge without requiring any proof, such as official government documents and reports of the UN, its subsidiary agencies, other international bodies, or NGOs (Act s19). This mandate is consistent with the doctrine of judicial notice, an effective tool that is innovatively used in international crimes trials to avoid the repetition of evidence and information.

Rights of the accused: Certain rights of the accused are recognised in the 1973 Act. The accused is entitled to know the crime of which he/she is charged, together with a notice of the formal charge and accompanied documents within a reasonable time before the trial. During the trial, the accused has the right (a) to offer any explanation pertinent to the charge made against him/her, (b) to conduct his/her own defence or resort to the assistance of counsel, (c) to present evidence in support of his/her defence, and (d) to cross-examine prosecution witnesses (Act ss16-17). There is a right to appeal against any conviction and sentence by the Tribunal before the Appellate Division of the Supreme Court within 60 days of the order of conviction (Act s21amended). These rights of the accused sound reasonable and fairly comparable with that of the ICTY (Art 21) and ICTR (Art 20) Statutes and the Cambodian Agreement (Art 13). The unlimited right to appeal under the 1973 Act is more generous than that of the ICTY, which restricts the scope of appeals with strict conditions, notably challenging jurisdiction, or involving an issue that would substantially affect the outcome or significantly advance the proceedings.

To be continued…

The writer is professor of Law, Macquarie University, Sydney, Australia.



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