There is a misconception in Bangladesh on the admissibility of hearsay evidence while conducting the trial of war crimes in the International Crimes Tribunal. In this connection, we shall, for example, discuss on the evidence given by Late Professor Dr. Anisuzzaman in the Salauddin Kader Chowdhury v. The Chief Prosecutor, International Crimes Tribunal, Dhaka, Bangladesh case.
In this case, Dr. Anisuzzaman gave a testimony against SK Chowdhury which he heard from another person. In his testimony, Dr. Anisuzzaman stated that in 25th March, 1971, when the atrocities started, he along with his colleagues left the Chittagong University Campus and after changing several location, on 10th April, they took shelter at Ramgarh Police Station. He further stated that sometimes in 20th April, he met Profulla Singha at Ramgarh who told him that his father Nutan Chnadra Singha was shot to death by the Pakistani Army at the instigation of Salauddin Kader Chowdhury. Interestingly, Profulla himself did not witness the incidence. He told Dr. Anisuzzaman that, he heard from Gopal Das, Principal of Kundeshwari Girl’s High School that, Salauddin Kader Chowdhury along with Pakistani Army came there and shot Nutan Chandra Singha, where Salauddin Kader also shot with a pistol twice.
It is to be clarified that this evidence is not hearsay in its absolute legal terms, it should be called a double hearsay as Dr. Anisuzzaman quoted another’s statement who heard the incidence. As our Evidence Act, 1872 does not approve admissibility of hearsay evidence except for certain cases (see, section 32 and 33 of the Evidence Act, 1872), question remains how this evidence can be admitted in the tribunal.
It is to be noted that, the Constitution was amended in 15th July, 1973 [THE CONSTITUTION (FIRST AMENDMENT) ACT, 1973] and clause-3 was inserted in article 47, which stipulates that no law or any provision thereof providing for detention, prosecution or punishment of any person, who is a prisoner of war, for genocide, crimes against humanity or war crimes shall be deemed void or unlawful, on the ground of inconsistency with any provision of the Constitution. Moreover, article-47A was added which makes some fundamental rights inapplicable for such accused persons as mentioned in article 47(3) and also restrict any remedy before the Supreme Court in violation of them.
Moreover, there are plenty of examples in the international practice on the admission of hearsay evidence. In many countries e.g. Australia, New Zealand etc. accept hearsay evidence based on reliability and reasonableness.
Additionally, there is established international practice of admission of hearsay evidence. In Prosecutor v. Dusko Tadiac, the defence brought up a motion to exclude hearsay evidence brought to the court. While dealing with the issue of admissibility of such evidence the Presiding Judge Gabrielle Kirk McDonald interpreted Rule 89 C of the Rules of Procedure and Evidence that states –“a Chamber may admit any relevant evidence which it deems to have probative value” to include hearsay evidence.
The pre-trial or trial chambers of the ICC may admit hearsay evidence under Article 69 of the Rome Statute that states -“The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth.”
In this case, Dr. Anisuzzaman gave statement before the International Crimes Tribunal (Bangladesh) which is established under The International Crimes (Tribunals) Act, 1973. According to Section 19.(1) of the Act-“A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.”
Section 19(2) of the Act clearly prescribes- “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”.
Therefore, the admissibility of an evidence depends on the satisfaction of the Court and the court may or may not admit any evidence. Therefore, court can admit the evidence that anyone gives, based on the reliability of his statement, which is dependent on the substantive satisfaction of the court, as there is no formal way to justify such evidence.
It is evident that, there is clear international practice in the ad hoc tribunals of International Criminal Court and relevant international laws that hearsay evidence is admissible, because, in case of genocides or war crimes, it is not always possible to have direct evidence; and the 1973 Act of Bangladesh explicitly recognizes that it shall not bound by the technical rules of evidence. Therefore, admission of hearsay evidence is absolutely lawful in the case of Salauddin Kader Chowdhury.
- The Constitution of the People’s Republic of Bangladesh
- http://www.supremecourt.gov.bd/resources/documents/700203_Criminal_Appeal_No.122_of_2013.pdf ).
- The International Crimes (Tribunals) Act, 1973