This is part-2 of an article titled, 'Salauddin Quader: The missing 26 witnesses'. The first part is here and should be read first before this one.
Explaining the 'missing' 26 witnesses
This is the second part of an article on the 26 key defence witnesses who never had an opportunity to testify either before the International Crimes Tribunal, or the appellate division, in relation to the trial of Salauddin Quader Chowdhury.
The BNP leader now faces the death penalty for four offences committed on the 13th and the 17th April 1971.
The first part of the article summarized the evidence that these witnesses would have provided (according to affidavits that they provided the defence lawyers).
This part looks at how the International Crimes Tribunal only permitted Salauddin Quader Chowdhury’s lawyers to summon 5, and then finally only 4 witnesses, to defend their client in relation to 23 offences.
It was this restriction – which was ordered after the prosecution were allowed 41 witnesses - that meant that the defense could not present their case in court.
The article also considers subsequent submission to the court by the defence lawyer of affidavits given by these 26 witnesses who had been prevented from testifying in court
These affidavits, however, were never going to carry much, if any, weight. It is only witnesses testifying in court and then being subjected to cross examination, whose evidence really count.
Therefore the article focuses on the court’s order restricting the witnesses, and how the appellate division dealt with this issue.
The article also considers the mistakes (or failures) of Salauddin’s defense lawyers; they did not make the Tribunal's witness restriction order a specific ground of appeal (though it was raised at the time of the hearings) and also did not exploit all the opportunities that they had to request both the trial and the appellate division to summon these witnesses.
Restricting the witnesses
The story starts on 20 May 2012, at the very start of the trial, with the prosecution in the middle of examining its first witness.
On that day, defence lawyers provided to the tribunal a list of 1153 names whom they hoped would later to testify as witnesses.
The trial then continued with the presentation of the 41 prosecution witnesses.
Thirteen months later, on 13 June 2013, the day the last prosecution witness was called, the Tribunal considered a prosecution application arguing for the cancellation of the whole defence witness list on the grounds that it did not provide the 'details' of the charges on which these witnesses would give evidence, as required by the rules of procedure.
In its order, given on the same day, the Tribunal made no reference to the lack of ‘details’, which the prosecution lawyers had referred to, but did state that ‘the number of defence witnesses ..appears to be an attempt to delay the trial of the case which is not permitted by law.’
The Tribunal then went onto say that it had powers to regulate the number of defence witnesses and that ‘considering the plea of defence case, the defence is permitted to examine 5 witnesses which will be sufficient to prove the defence plea.’ The tribunal also referred to the rules of procedure of the International Criminal Tribunal for former Yugoslavia to justify its restriction of witnesses.
A justified restriction?
The Tribunal was clearly right to say that the number of witnesses proposed by the defence team was ridiculously long. It was therefore perfectly reasonable for the Tribunal to decide to reduce this number.
However, in its order, the Tribunal provided no clear rationale as to why it thought that 5 witnesses ‘will be sufficient to prove the defence plea’ - when the accused was being prosecuted for 23 separate offences which allegedly took place on different dates.
International or domestic courts that restrict witness numbers generally do so on the basis of one or more of the following reasons: lack of relevance of the witnesses, their repetitiveness (repeating again and again what other witnesses have stated), or to ensure that the time given to the prosecution and the defence cases is proportionate.
So for example, though the ICTY, as stated by the Tribunal, has the power to restrict defence witness numbers, in practice it uses that power to ensure that the time given to the defence to present its witnesses is ‘reasonably proportional to the time given allocated to the prosecution.’ So for example, in the recent Karadic case, having allowed the prosecution to have 300 hours, it allowed the defence to have the same amount of time (though the defence had initially sought 600 hours.)
The Tribunal does not seem to have applied any one of these three principles in reducing the number of witnesses.
If ‘proportionality’ had been an issue in the court’s mind, it would have reduced the number of witnesses from 1153 to around 40 – the number which the prosecution had summoned – rather than to five.
And lack of ‘relevance’ or ‘repetitiveness’ of the purported defence witnesses could also not be the reason for the court’s restriction since the Tribunal had no knowledge about the kind of evidence that any of the proposed defence witnesses on the list were likely to provide. It had not asked the defence lawyers for any details of what their testimony would relate to.
So what might have been the factors that the Tribunal took into account? In stating that five witnesses were sufficient to prove ‘the defence plea’, as the court did, the tribunal may well have been referring to the ‘plea of alibi’ that it assumed the defence lawyers would make when they had their opportunity.
However, if that was so, how could five witnesses be sufficient for the defence to argue that Salauddin was not present at the places where all the offences took place?
In Chowdhury’s case there were at least ten separate dates on which the 23 alleged offences took place, so without knowing the kind of alibi evidence that the defence was going to provide - it is difficult to see how the Tribunal could decide that 5 witnesses were going to be sufficient to be an alibi for all these dates and offences.
Moreover, even if, for the sake of arguments, five witnesses was considered sufficient for the presentation of the alibi defence, what if the defence also wanted to call witnesses that would provide evidence which sought to discredit the prosecution case and its witnesses?
In orders given in other cases (for example in the case of Abdul Quader Molla), Tribunal-2 had argued that since it was the prosecution’s obligation to prove its case beyond reasonable doubt, an accused person had no need to call witnesses to prove his or her innocence.
However, whilst it is true that accused persons do not need to prove their innocence, they do have a right, if they wish, to call witnesses that disproves the prosecution’s case by, for example, questioning the credibility of prosecution witnesses – which is in fact what 20 of the witnesses would have done in relation to the four charges for which Salauddin was subsequently sentenced to death. It is clearly relevant for any criminal court to hear that kind of evidence.
Following the Tribunal’s decision to restrict the witnesses, the BNP leader’s lawyers sought a review of the order before the same Tribunal (since there is no right to appeal an order to any other court.)
In a detailed application, the defence argued that five witnesses was not sufficient to support their alibi defence and moreover that the tribunal had not asked them what would be the minimal number of witnesses they required to prove it.
The application also argued that the defence wanted to call witnesses so that it could disprove the credibility of the prosecution witnesses and that unless the accused was allowed to call more witnesses the lawyer could not put forward a proper defence. It argued that restricting the number of witnesses to five in comparison to the prosecution case was a ‘gross inconsistency’ and that five witnesses was an ‘arbitrarily’ chosen number with no rationale.
In its order given on 26 June, the Tribunal rejected the review application by stating that ‘We find no new ground to reconsider the matter and as such the prayer for increasing the number of D.W.s is rejected.’
The tribunal did not respond to any of the new points made by the defence in its application.
When Tureen Afroze, one of the prosecutors against Salauddin was asked to comment on the the Tribunal's decision to restrict the number of defence witnesses to five, she said that she did not know why the Tribunal had taken this decision but that ‘they must have reasons for it. …. It is the tribunal that decided on the number, and how they come to the number is not known to me.’
The sworn statements
The restriction of witness numbers has been common in many of these trials before the International Crimes Tribunal. In the case of Abdul Alim whilst the prosecution was allowed 35 witnesses, the defence was restricted to 3 witnesses to disprove 17 offenses; 4 witnesses were permitted in Motiur Rahman Nizami’s defence relating to 16 charges; 5 witnesses were permitted in the trial of Kamaruzzaman involving 7 offences; and 6 witnesses in the case of Abdul Quader Molla in defence of 6 offences.
However, unlike in all these other cases, after the Tribunal’s initial order restricting witnesses, the defence team collected sworn statements from witnesses they had wanted to summon, and submitted them to court.
On 21 July, after the third defence witness had given evidence, Chowdhuryís lawyers made an application seeking to adduce as evidence a total of 59 documents including 46 affidavits. These included the 26 that are relevant to this article
The Tribunal passed an order stating that, ‘It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial. Despite of this fact, for the ends of justice, we are inclined to give permission to the defence to submit additional documents and accordingly the defence is permitted to submit the additional documents as mentioned in the application and those documents be kept with the documents filed earlier by the defence.’
Under the International Crimes Tribunal Act 1973, ‘statements’ of witnesses can only be considered ‘evidence’ in limited circumstances which did not exist here, so, although the wording of the order is ambiguous, one can assume that the court was not treating them ‘as evidence’.
However, had the Tribunal read these statements the judges could well have realized that there were highly relevant to the question of guilt or innocence of the tribunal.
At this point in the trial, the defence case will still open (in that it was presenting its witnesses), and so the tribunal could have re-evaluated its earlier two decisions to restrict the defence to only allow 5 witnesses and allowed all or some of the people who had given affidavits to be called as witnesses.
Section 11(1)(a) specifically states that the tribunal has the power ‘to summon witnesses to the trial and to require their attendance and testimony and to put questions to them.’
However, this did not happen.
The defence though were also at fault. The defense should have specifically re-applied for a revision of the witness restriction order. The court may well have rejected such an application but at least the rejection would have been recorded, and no stone would have been left unturned.
In any case, three days later the court forcibly closed the defence case without the accused being able to bring to court even its fifth witness.
Closing the Defence
On 21 July, when the defence submitted the affidavits, the defence had already called three witnesses.
DW1 had given evidence for 9 days from between 17 June and 4 July. DW2 testified on 8 and 9 July and DW3 on 16 and 21 July. DW4 was supposed to give evidence on 23 July, but did not do so until 24 July.
As the defence lawyers did not have their fifth witness ready that day, the court, which had already warned the lawyers that it would not allow any more adjournments, closed the defence case.
However, the prosecution had taken a very similar amount of time as the defense to hear its first four witnesses, and during the period when the prosecution presented its cases there had been a similar number of days in which the court did not take testimony.
The prosecution’s first four witnesses were heard during the course of 28 working days (between 14 May and 20 June 2012), during which there were 13 days in which no evidence was taken. And in the defence case, the first four witnesses were also heard in 28 working days (between 17 June and 24 July 2013) with 12 days in which no evidence was taken.
It is therefore not clear why the Tribunal considered it so necessary to close the defence case – as a similar amount of time was required by the prosecution to bring its witnesses.
It is also notable that whilst 13 months was required for the prosecution to present its 41 witnesses, the defence were only allowed a total of 28 days, less than a month to present its case. And during those 13 months, there were many gaps in which witnesses did not testify. For example in July 2012, there were only seven days when a prosecution witness testified. And in the whole of October 2012, there were only two dates where a witness gave evidence.
The Judgment and after
On 1 October, the Tribunal gave its judgment. In its section on the alibi evidence,
the judgment stated that, ‘The defence in violation of the provision of section 9(5) of the Act submitted some documents before the Tribunal at the fag end of defence argument and intentionally refrained from proving those documents by recalling defence witnesses.’ The court did not refer to its order given on 24 June in which it accepted the documents.
The appellate division’s judgment published on 31 September, deals at some length with the issue of the admissibility of these statements and held that no reliance should be given to them.
It gave many reasons for its decision and it is unclear which of these reasons it considered decisive. In relation to the 6 foreign affidavits, the judgment stated that: ‘beyond doubt’ Toby Cadman, a British based defence lawyer for the accused has ‘manufactured all these affidavits to save his client Salauddin Qader Chowdhury’ (something which he vehemently denies); that the affidavits coming from abroad were not properly authenticated and one of them was not affirmed before a notary public; that they ‘do not inspire any confidence’; and that ‘there is no evidence to show that the person before whom the notarial acts were done, were Notary Publics and that the States in which the notarial acts were done authorized him by law to do the notarial acts.’
In relation to the statements obtained in Bangladesh, the judgment stated ‘the defence did not explain why it did not affirm those affidavits before the Registrar of the tribunal or that why it did not seek tribunal’s permission; that the affidavits were ‘prepared in the same sitting, by the same persons and created with a view to confusing the prosecution case’; and that taking into account the contents and the form of the statements, ‘there cannot be any doubt that these are all collusive affidavits.’
Putting to one side whether the judgment was right on these particular points, the appellate division did not consider in its judgement that the only reason why these statements had to be given at all, was because the Tribunal had only allowed the defence to call five witnesses.
The appellate division judgment did not consider the legitimacy of that decision, and whether the defence should have been given every opportunity to call these witnesses.
The appellate division also did not consider, as far as one can tell from the judgment, whether these witnesses should be summoned before it. The appeal court has the power to look at the evidence in its totality, and of course the constitution requires it to do ‘complete justice’ which specifically includes passing ‘orders for the purpose of securing the attendance of any person.
In nothing this, however, it should be stated that the defence lawyers did not make any application seeking the attendance of these witnesses - something it clearly should have done.
All legal avenues are just about closed – though there does remains the option of the defence lawyers seeking a review of the appellate division order. However, this is undertaken by the same judges who gave the appellate division judgment, can only be based on very limited grounds (that there is an 'error apparent on the face of the record'), and are rarely successful.
However, the situation that we have now is that Salauddin Quader Chowdhury is due to be put to death for extremely serious crimes though he has not been permitted to present anywhere near a full defence case i.
Whilst the prosecution called 41 witnesses – and never had any restriction imposed upon them – the defence were only allowed to call 5 witnesses, which was subsequently restricted to 4.
After the court imposed this restriction, the defence then submitted to the Tribunal the affidavits of 26 witnesses, whom the defence had wanted to testify in court - and whose testimony if true would have exonerated him from the 4 charges for which he was subsequently sentenced to death.
Both the tribunal and the appellate division considered that these statements were invalid. However, neither court apparently thought that these witnesses, which raise serious questions about the integrity of the prosecution case, should be given an opportunity to attend court and provide their testimony.
Process is important. It is a basic principle of due process, that a person should not be convicted for a serious offense - yet alone executed - without being able to present their defense case as fully as possible. Therefore, if the execution of Salauddin Quader Chowdhury is not seen by many as an irreversible miscarriage of justice, a way must be found for these 26 witnesses to be given an opportunity to testify in court, be subject to cross examination and their evidence assessed to determine whether they raise any doubt as to the guilt of the accused.
These witnesses may well be lying. However, the only way to assess whether they are telling the truth or not is for them to testify in a court of law.