‘Think it Through, Benches is the Answer’

This article is based on the position paper titled 'Think it Through, Benches is the Answer' – A Legal and Strategic Analysis of the Government's Stance on Setting up Additional Tribunals, which is based on an internal memorandum prepared by the International Crimes Strategy Forum (ICSF – www.icsforum.org) in January 2012 to communicate the concerns of ICSF to Bangladesh Government and relevant stakeholders regarding the Government's plan that involved setting up additional Tribunals under the International Crimes (Tribunals) Act 1973 to speed up the justice process. The memo was provided confidentially to the Prime Minister's Office, Minister and State Minister of the Ministry of Law, Justice and Parliamentary Affairs, Office of the Chief Prosecutor of the International Crimes Tribunal, National Human Rights Commission, the Bangladesh Law Commission, and Sector Commanders' Forum among other stakeholders.

I.  Introduction

Eight separate cases are being tried before the International Crimes Tribunal (hereinafter, Tribunal) which is comprised of one singular bench of three judges. All cases are each at different stages of the legal process. Currently, witnesses are being heard by the Tribunal in one case, while the other six are in their 'charge framing stage'. Evidently, the workload of the Tribunal has naturally slowed down the justice process which is otherwise progressing steadily. There have been concerned calls from different sections of the civil society[i] to speed up the trial process, and the Government has also rightly acknowledged that the expansion of the capacity of the on going process is a necessity in order to effectively and efficiently deal with the current and future cases. One of the possible options the Government has reportedly considered is establishing one or more Tribunals alongside the current Tribunal. On 29 January 2012, the Hon'ble Minister of the Ministry of Law, Justice and Parliamentary Affairs Barrister Shafique Ahmed categorically declared before the Parliament that "another war crime tribunal would be formed soon to ease and accelerate the trials of crimes against humanity."[ii]

This option to set up additional Tribunals is very much within the remit of International Crimes (Tribunals) Act, 1973 ("Act") as the Government, according to section 6(1), is empowered to set up "one or more Tribunals". However, before taking a final decision to set up one or more new Tribunals it is important that the Government seriously takes into consideration the experiences of the existing Tribunal, possible legal and institutional consequences of setting up new Tribunal(s), possible relationship issues between the Tribunals, and even critically examine the law itself that refers to one or more Tribunals without actually elaborating how such Tribunals would function concurrently.

It is the International Crimes Strategy Forum's (ICSF's) understanding that the rationale behind the creation of additional Tribunals is two-fold: one, distribution of workload leading to a comparatively more speedy and efficient completion of existing cases, and two, enhancing the overall capacity of the current justice process to take up more cases. While ICSF fully agrees with the stated rationale, this memorandum examines the likely effects of establishing additional Tribunals in order to attain the above mentioned rationale, and explores whether the same may be attained by alternative means which would be more conducive to the ongoing process. An informed and objective analysis, this research is grounded in close study of the problems and challenges so far encountered by the Tribunal as an institution, combined with close interactions and engagement of ICSF with the Tribunal, its components, and stakeholders.

Based on this research, the summary of ICSF's finding regarding the proposal of setting up of additional Tribunal(s) are as follows:

First, although section 6(1) of the Act envisages setting up additional Tribunals, a closer study of the rest of the Act reveals that such an expansion would require facilitating provisions to be inserted to address number of crucial issues such as: jurisdiction, rule-making, allocation and re-allocation of cases, uniformity of application of legal principles etc.

Second, even if new Tribunals are set up relying on section 6(1) of the Act, in order for them to work in tandem, the Act would still require major adjustments to incorporate provision for harmonious functioning of the Tribunals.

Third, adopting an alternative strategy, the Government can still achieve the same objectives, keep the institution intact, and avoid the above mentioned problems simply by increasing the number of Members of the existing Tribunal and setting up one or more Benches (as opposed to one or more Tribunals). However, this too will require some adjustments in the Act although very minor in nature, i.e., requiring small changes in only one place in the Act.

Following are some of the issues that must be taken into account and accordingly resolved if the government takes the route of setting up another Tribunal:

II. The question of jurisdiction

ICSF feels that the first question that needs to be very clearly addressed before additional Tribunals are set up, is the issue of jurisdiction. The procedure under which jurisdiction of individual Tribunals (when there is more than one) would be decided will need to be clearly addressed in the Act. The Act, in its current form, stipulates three different kinds of jurisdictions, namely, territorial[iii], subject-matter[iv], and temporal[v]. In case of a single Tribunal there remains no ambiguity regarding jurisdiction of a case under the Act. However, under the current scheme of the Act, in case of multiple Tribunals, there remains a number of uncertainties, including for example, the procedure for distribution of cases between Tribunals, as the Act does not address the issue whether cases would be accepted by the Tribunals on the basis of subject-matter or territorial jurisdiction. Even if it is accepted that such Tribunals would have concurrent jurisdiction, there still will remain uncertainty as to how the case load will be evenly distributed among the Tribunals. Even without the obstacles regarding transfer and re-allocation of cases which we have discussed subsequently, the current scheme of things presumably envisage that the choice of forum is left in the hands of the Chief Prosecutor who will decide the Tribunal of his choice. However, there is nothing in the Act that provides any indication or guideline or any legal basis whatsoever to the Chief Prosecutor regarding the manner in which his office may exercise this choice of forum. As such, if there are multiple Tribunals, the Chief Prosecutor can, in theory, submit all his cases in one Tribunal ignoring the other.

Ideally, the decision of a Prosecutor regarding the choice of forum in case of multiple tribunals should be governed by clear legal basis and criteria, which must be both transparent and comprehensible to all concerned parties. A matter as important as choice of forum in case of concurrent jurisdiction should not be left to the discretion of anyone. As a matter of policy, a clearly articulated legal criteria is also necessary to avoid subsequent challenges regarding choice of forum as made by the Chief Prosecutor, and also to preempt other applications involving transfer of cases from one Tribunal to another.

If the Government chooses to proceed with the plan of setting up new Tribunals, such a plan will require extensive changes in the Act in order to ensure smooth functioning of the Tribunals.

III. On Rules of Procedure:

The next major concern that the Government must overcome relates to the Rules of Procedure which the Tribunal has the power to enact under Section 22[vi] of the Act. Pursuant to this provision, the current Tribunal has formulated its own Rules of Procedure ("Rules"), which have already gone through two rounds of amendments. The Tribunal proceedings have so far been carried out in compliance with these Rules which were framed by the three Judges of the current Tribunal[vii]. The scheme of the Act is that while one or more Tribunals may be set up as per Section 6(1), such "a" Tribunal or Tribunals, as per Section 22, shall be regulated by its own procedure. Furthermore, the use of the word "may" (i.e., a Tribunal may regulate its own procedure) in Section 22 clearly indicates that whether or not to formulate own rules is a matter for the Tribunal which suggests that it is entirely and exclusively for the Judges of a Tribunal to decide, and when that decision has been taken, the Rules so formulated cannot be imposed upon another Tribunal. This is precisely where ICSF's concerns lie. The ICSF believes that in the case of there being multiple Tribunals, with each having its own rule-making authority and therefore its own set of Rules of Procedure, chaos and uncertainty will ensue.

The current Rules of Procedure is the result of the Judges' experience so far gained in course of running the Tribunal since March 2010. In course of formulating these Rules, the judges not only have aimed to complement the Act elaborating and clarifying its provisions, but has also made necessary stipulations in the form of new rules towards ensuring an efficient and fair justice process. Different Rules by different Tribunals are likely to differ from each other even on same points as the Members' experiences, understandings and even approaches are likely to vary in the new Tribunals. Such differences will invariably lead to inconsistencies in the Rules of Procedure between Tribunals. If rules formulated by different Tribunals will differ from each other, they will also create the scope of varied and inconsistent interpretation of the Rules even on identical procedural issues. The Government must remember that consistency in law and its consistent application is imperative to ensure fair application of law, as well as to ensure confidence of public in the justice process.

Difference of rules is also likely to pose another problem in that the orders so far issued by the current tribunal cannot be used as a guideline or precedent for the other Tribunal(s) since they are likely to be bound by a different set of rules. This will effectively make the procedural findings and guidance stipulated by the current Tribunal inapplicable to the proceedings of other Tribunal(s).

Moreover, existing Rules of Procedure (i.e., of the current Tribunal) cannot be imposed on the new Tribunal, without extensively amending the Act, since the Rule making power is a prerogative of the judges of the Tribunal which is "independent" under Section 6(2A) of the Act.

Even if, hypothetically, the Government perceives that such 'legal inconsistencies' (i.e., different Rules by different Tribunals) may be addressed by arranging for multiple Tribunals to consult with each other to arrange for a 'harmonious' drafting and interpretation of Rules, such a solution will be unworkable for two reasons. First, requiring the different Tribunals to work towards harmonious drafting and interpretation of Rules, whether formally or informally, is a very ambitious goal, one that is likely to be practically unachievable without thorough amendments in the Act. Second, even if such arrangements are made, that certainly will contravene one of the cardinal provisions of the Act which in its section 6(2A) envisages the Tribunal(s) to operate independently. For the purpose of the Act, such independence of Tribunals will mean being independent even from each other, or being independent from the influence of Rules of each other.

After having functioned for a considerable period, each Tribunal is expected to develop its own legal culture in dealing with cases. Such legal culture may be manifested in the approaches of a Tribunal in dealing with, for example, bail applications, granting of interrogations, allowing motions, allocating time and suspensions etc. In case of many Tribunals, their cultures are bound to vary since the different Tribunals are not subject to any single hierarchy that may engender uniform culture in the approaches of the judges of the different Tribunals.

IV. Re-allocation of cases to the new Tribunal

Another important concern of constituting multiple Tribunals relates to the resulting uncertainty regarding how existing cases before the Tribunal will be re-allocated to the newly constituted Tribunal(s). It goes without saying that one of the principle motivations prompting the Government to constitute another Tribunal is to reduce the workload of the existing Tribunal which has as many as 8 (eight) cases involving leading perpetrators of crimes committed in 1971. Obviously, in case of a second Tribunal, an inevitable eventuality will be transferring or re-allocating some such cases from the existing Tribunal to the new one. Such an approach, however, poses threefold obstacles.

First, it is important to take note of the fact that there is no existing legal provision within the Act providing for any transfer, redistribution, reallocation or reassignment of cases whatsoever from one Tribunal to another. As such, without extensive amendments to the Act any such transfer or reassignment will be impossible.

Second, established practices regarding hierarchy and case management in criminal trial courts also indicate that such a strategy of case re-allocation/re-assignment is likely to be unworkable particularly in a setting of multiple tribunals under the Act. Although the Act does set out the Tribunal's legal order and dictate ways to enumerate its procedures and also mentions setting up new Tribunals under section 6(1), it simply does not envisage multiple Tribunals actually working side by side. One of the hallmarks in the general practice in Bangladesh judicial system is that criminal cases can not be transferred by trial courts.[viii] This is clear from our Code of Criminal Procedure. Similarly, the International Crimes Tribunal bearing all characteristics of a 'trial court' should, on principle, not be empowered to transfer cases.

Third, another significant problem that shall arise as a result of the transfer of existing cases to other Tribunal(s) revolves around the issue of taking cognizance. This may be explained through a simple example – cognizance of offences against accused X by a Tribunal will depend on the satisfaction of that particular Tribunal's judges as to whether a prima facie case exists against X. Such satisfaction will be reached by the judges only after perusing the formal charge, investigation report, and other evidence. The matter of cognizance, therefore, is always specific to the Tribunal of judges concerned who have actually taken such cognizance. Such cognizance cannot be neither transferred to another Tribunal, nor imposed on the judges of any other Tribunal. In the former case such a bar is grounded in the lack of opportunity of the other Tribunal's judges which is essential for being convinced of the case against X, whereas in the latter case it is simply a matter of judicial independence, a principle that has been expressly embedded in the Act in its section 6(2A).

With regard to transfer of cases, some policy makers within the government are of the opinion that the Chief Prosecutor should be able to initiate the process of case transfer by filing a 'withdrawal application' before the Tribunal. The ICSF believes that this suggestion is legally untenable because it fails to comprehend that a case whose cognizance has been taken by the International Crimes Tribunal (ICT) can either be tried or dismissed via judicial determination, not withdrawn.

From the above discussion, it is apparent that the current Tribunal, should existing norms and rationale be followed, shall be bound to continue adjudicating the eight cases before it as they cannot be transferred or re-allocated to another Tribunal. Under such a circumstance, the available option is to rush the process of dealing with these 8(cases) which in effect could jeopardise the credibility, acceptability, transparency, image of the Tribunal, perception of fairness regarding the justice delivered by the Tribunal. The ICSF believes that this certainly is not an option to pursue and should not even be considered as one. The alternative, ICSF believes, is to expand the existing Tribunal by appointing more Members/Judges, facilitated by minor amendments in the Act, and through that introducing a new system where the existing Tribunal can function as a combination of several Benches all operating under a single (i.e., existing) Tribunal serving as an umbrella. Such a solution, we believe, addresses each of the re-allocation related issues raised in this section.

V.  Concerns regarding Prosecution Team, Chief Prosecutor and Investigation Agency

In cases if there are more Tribunals than one, the number of prosecution teams, or of Chief Prosecutors, will be an issue in case of creating multiple Tribunals. The questions that need to be addressed are – whether, in case of multiple Tribunals, each of the Tribunals will have its separate prosecution team led by its own Chief Prosecutor, or alternatively, as has been reported, whether a single prosecution team will be required to serve the multiple Tribunals under the leadership of one Chief Prosecutor.

It is ICSF's view that under the present scheme of the Act, each Tribunal is envisaged to have its own prosecution team which means if there are multiple Tribunals, each of them will be served by a separate prosecution team led by its own Chief Prosecutor. Section 7[ix] of The International Crimes (Tribunals) Act 1973 is clear in this regard. According to Section 7(1) of the Act, prosecutors may be appointed by the government to conduct prosecution before "a Tribunal". Here, the use of the phrase "a Tribunal", clearly discounts the possibility of one single Prosecution Team (led by its designated Chief Prosecutor) carrying out prosecutorial functions in multiple Tribunals. Similarly, Section 7(2) provides that the Government may designate one of the prosecutors as the Chief Prosecutor. Read together, sections 7(1) and 7(2) confirms the above assessment and conclusion that each individual Tribunal has to have its own set of prosecutors led by a Chief Prosecutor.

In case of one Chief Prosecutor serving multiple Tribunals, which as analysed above not contemplated in the Act, will be problematic also from an operational point of view. Because, under such a scheme, the Chief Prosecutor has to operate simultaneously on potentially different rules of procedure if there are multiple Tribunals, since each Tribunal will be free to formulate its own Rules, which will simply pose an impossible situation to the Chief Prosecutor. Only on this ground alone, a single Chief Prosecutor should not be expected to assist more than one Tribunal.

Similarly, in case of Investigation Agency, the Act contemplates that each Tribunal will have "an Investigation Agency" under Section 8(1).[x] This means that in case of multiple Tribunals, each Tribunal will be served by its own Investigation Agency. Alternatively, if hypothetically presumed that a singular Investigation Agency to serve two or more Tribunals, then that arrangement will certainly cause chaos. Because, under such arrangement, an Investigation Agency will have to simultaneously cater to multiple prosecution teams with potentially different understanding and ideas regarding case strategies and priorities which in itself will be another impossible situation. Uncertainty will follow also in case of submission of Investigation Reports as there will be more than one prosecution team to receive and act on those reports. Finally, the Rules of Procedure requires the prosecution team to submit periodic reports on the progress of ongoing investigations. In cases where investigations are initiated by an investigation agency, as opposed to being initiated at the prosecution's behest, further uncertainties will follow as the law does not specify which of the prosecution teams is to submit the periodic progress reports and for which investigation team in particular, given that under the current law the Investigation Agency do not possess any standing before the Tribunal to submit such periodic reports by itself.

Another practical problem that is foreseen is that if new prosecutors and investigators are appointed to serve the new Tribunals, such personnel will need to be afforded the opportunity to go through the learning curve in the same manner as the current personnel in the prosecution team and investigation agency, who had been serving the Tribunal for nearly two years. This means, even if a new Tribunal is established to speed up the process with a new prosecution team and investigation agency to operate under such a Tribunal, practically, it would take a considerable period until the newly appointed personnel are sufficiently well-versed and are ready to serve such new Tribunal(s) they are assigned to.

In conclusion, it is ICSF's opinion that all the above problems, uncertainties and chaos associated with establishing multiple Tribunals can be easily avoided by establishing as many Benches as necessary under one singular Tribunal. Such a Tribunal will be served by one Prosecution Team and one Investigation Agency, but in each case an expanded one with more personnel, as necessary.

VI. Concerns regarding judicial chain of command

Another possible area of concern from the formation of multiple Tribunals is the inevitability of each having its separate Chairman. Section 6(1) of the Act envisages each constituted tribunal to have separate Chairman and section 6(2A) states that these tribunals would be independent in exercising judicial functions. In this respect ICSF thinks that there could be potential conflict in direction and command amongst the Chairmen in leading their respective Tribunals. Conflicts of such nature could not only undermine public confidence in the justice process, they could potentially cause hindrance to the trial process generally. The root of such conflict is the concurrent exercise of similar judicial powers and position in similar institutions. Multiple independent tribunals will also have the authority to frame their own rules of procedure under Section 22 of the Act, as discussed earlier, which is bound to create confusion and chaos due to parallel leadership of the justice process in multiple Tribunals.

VII. Conflict of interpretation, crisis of jurisprudence

Another major concern arising from creation of multiple tribunals is the potential conflict of interpretation of law amongst the different Tribunals. It means that different Tribunals with different set of Rules[xi] and with no single chain of command to bring harmony, the Tribunals will be free to interpret legal texts without having to conform to each other. For example, similar matters are highly likely to be treated different by different tribunal following different approaches and consequently issuing different Orders/decisions. It is ICSF's concern that such conflicts and chaos arising out of application and interpretation of law will potentially affect the confidence of public in the justice process for want of harmony when similar incidents will potentially be dealt in different ways. Needless to mention, such conflicts are also likely to weaken the ICT by opening its jurisprudence up to more questions and chaos at the subsequent stages of the Tribunal, i.e., during appeal. It must be reiterated here that due to the requirement of "independence" as per Section 6(2A) of the Act, no Tribunal can be compelled to conform to interpretations adopted by other Tribunals.

It needs to be mentioned that potentials for similar interpretive conflicts cannot be discarded in case of Benches too, but since all the Benches (of a single Tribunal) will be governed by a single set of Rules of Procedure framed by the Tribunal itself, such Benches are more likely to operate in interpretive harmony.

VIII. Scope for abuse of process

The creation of multiple Tribunals will open up scope for the abuse of process at the behest of the defense counsel. The newly constituted Tribunal will potentially invite a whole new set of motions, applications, petitions some of which the current Tribunal has already addressed. Due to the fact that the Tribunals will be independent of each other, it will not be possible for the newly constituted Tribunal to ignore the applications before it on the ground that similar applications were heard by the other Tribunal. In essence, the newly constituted International Crimes Tribunal can potentially be flooded with applications concerning the likes of transfer of case motions, recusal of judges motions, jurisdictional challenges as to how one Tribunal adjudicates a particular case while another tribunal does not, petitions highlighting the uneven application of law following the unearthing of inconsistencies in orders concerning similar matters adjudicated by the multiple Tribunals. The fact that each International Crimes Tribunal shall be independent of each other but nonetheless be expected to adjudicate similar facts and issues only exposes the fact that neither of the two Tribunals will hold the authority to decisively conclude any such application placed before it which will be binding and acceptable to both Tribunals. This would automatically create grounds for appeal which must be taken into account at this stage.

IX. Concluding remarks:

After talking to the stakeholders within and outside the government, it is ICSF's understanding that the Government is reluctant to amend the Act at this stage of the Tribunal. While ICSF is also against unnecessary amendments having been cautious to amendments generally, ICSF does not completely rule out amendments if appropriate circumstances merit them. Under such circumstances, ICSF favours a pragmatic and rational approach. In ICSF's opinion, institutional expansion of the ICT is one of the circumstances that merit amendments to the Act. Because, from the above analysis, it is very clear that multiple Tribunals, although permitted by the Act, will not be able to function properly without major amendments to the Act. Also, even with such amendments there will still be certain institutional problems. Since no institutional expansion can be achieved without amendments to the Act, it is advisable to amend the Act in order to establish Bench or Benches under the current Tribunal, which can achieve the same objectives of expediting and speeding up the process without having any of the discussed set backs that are associated with multiple Tribunals.

We are also of the view that the Government must not hesitate to amend the Act when it is absolutely necessary to achieve the objectives of the Act. Neither should the Government hesitate simply because how it may (or may not) be perceived by others, or what others might say for not entertaining the amendment-suggestions put forward by certain quarters.

X. ICSF's proposed amendment to the Act to implement multiple Benches:

Building on the analysis presented so far in this Memo, ICSF proposes the following amendments to be incorporated in the Act in order to establish new Benches under the current Tribunal.

The amended Section 6(1) of the Act to replace the words "not less than two and not more than four other members" with "as many members as the Government may decide. The Chairman shall constitute one or more Benches each composed of three members."

As such, the amended section will finally read as:

6(1) For the purpose of section 3, the Government may, by notification in the official Gazette, set up one or more Tribunals, each consisting of a Chairman and as many members as the Government may decide. The Chairman may constitute one or more Benches each composed of three members.

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International Crimes Strategy Forum (ICSF) is an independent global network of experts, activists and organizations established with the purpose to understand, research, and support the justice process initiated to end impunity, establish rule of law, and ensure accountability for the international crimes committed in 1971 in Bangladesh. As part of its mandate, ICSF engages and interacts with the ICT and other stakeholders. In addition, ICSF provides research and documentation support to the Tribunal and its various components. All questions and comments related to this document could be directed at ICSF WorkGroup at <[e-mail]>.

Footnotes:

[i] For instance, Ghatak Dalal Nirmul Committee, Sector Commanders' Forum, Dhaka University Teachers' Association (DUTA).

[ii] Staff Correspondent, "Law minister tell JS Another war crimes tribunal soon" Banglanews24.com < http://www.banglanews24.com/English/detailsnews.php?nssl=c366211d15a83c5e4d72f04ab3b1cf9d&nttl=20 12013131948 >

[iii] The territorial jurisdiction of the Tribunal is whole Bangladesh. Under section 1(2) of the Act when read along with section 2(e), the territory of the Republic as defined under Article 2 of the Constitution of the People's Republic of Bangladesh is the territory on which the tribunal has jurisdiction.

[iv] The subject-matter jurisdiction of the Tribunal has been provided under section 3 of the Act. According to section 3(1), the tribunal has power to try and punish offenders who has committed crimes under section 3(2) of the Act. The crimes are crimes against humanity, crimes against peace, genocide, war crimes or any other crimes under international law.

[v] The Tribunal's temporal jurisdiction is provided in section 3(1) of the Act, which states that the tribunal has power to try crimes committed before or after the commencement of the Act, that is, before or after 1973.

[vi] Section 22 of the same Act states, "Subject to the provision of this Act, a Tribunal may regulate its own procedure."

[vii] The current Tribunal comprised of a Chairman Mr. Justice Nizamul Haq and two other judges Mr. Justice ATM Fazle Kabir and Mr. Justice A K M Zahir Ahmed who had been appointed by the government. The Rules of Procedure they have formulated was first enacted on 15 July 2010 and subsequently were amended twice by the judges on November 2010 and on 28 June 2011.

[viii] On the contrary, Session Judges' Courts at the district level are empowered to transfer cases.

[ix] Section 7(1) of the Act reads: "The Government may appoint one or more persons to conduct the prosecution before a Tribunal on such terms and conditions as may be determined by the Government; and every such person shall be deemed to be a Prosecutor for the purposes of this Act.

(2) The Government may designate one of such persons as the Chief Prosecutor."

[x] According to section 8(1): "The Government may establish an Agency for the purposes of the investigation into crimes specified in section 3; and any officer belonging to the Agency shall have the right to assist the Prosecution during the Trial."

[xi] As explained above.