PROSECUTOR v ALEX TAMBA BRIMA & ORS - SEPARATE AND CONCURRING OPINION OF HON. JUSTICE AYOOLA ON THE DECISION ON BRIMA-KAMARA DEFENCE APPEAL MOTION AGAINST TRIAL CHAMBER II MAJORITY DECISION ON EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE RE-APPOINT
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THE APPEALS CHAMBER
Justice Raja Fernando, Presiding
Justice Emmanuel Ayoola,
Justice George Gelaga King
Justice Geoffrey Robertson, QC
Justice Renate Winter
Mr. Lovemore Munlo, SC
8th December 2005
Alex Tamba Brima
Brima Bazzy Kamara
Santigie Borbor Kanu
SEPARATE AND CONCURRING OPINION OF HON. JUSTICE AYOOLA ON THE DECISION ON BRIMA-KAMARA DEFENCE APPEAL MOTION AGAINST TRIAL CHAMBER II MAJORITY DECISION ON EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL FOR ALEX TAMBA BRIMA AND BRIMA BAZZY KAMARA
Court Appointed Counsel for Alex Tamba Brima:
The Principal Defender
Court Appointed Counsel for Brima Bazzy Kamara
Andrew K. Daniels
Mohammed Pa-Momo Fofanah
1. This appeal is from the majority decision of the Trial Chamber II (“the Trial Chamber”) (Doherty and Lussick, JJ; Sebutinde, J. dissenting), on the “extremely urgent confidential motion for the re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara (“the decision”). The decision was rendered by the Trial Chamber (Justice Sebutinde dissenting) on 9th June, 2005.
2. On May 5, 2005 the Defence teams for accused person, Alex Tamba Brima and brima Bazzy Kamara filed a “confidential Joint Defence Submissions on the Withdrawal of Counsel in the AFRC case (“Joint Defence Submissions”).
3. By the Joint Defence Submissions the Defence teams prayed the trial Chamber to:
the withdrawal of Counsel as Counsel for the Accused persons’
order that Counsel hitherto on record be made Court Appointed Counsel,
any order that the Trial Chamber deems appropriate.
4. By the principal Defender’s Confidential Ex-parte Submissions Regarding Issues Pertaining to withdraw of Counsel (“Ex-parte Submissions”), the Principal Defender was not apposed to Mr. Harris and Mr. Metzger being temporarily designated from “Assigned Counsel” to “Amicus Counsel” until such time as they believe it is safe and effective to retain their designation as Assigned Counsel”.
5. The Prosecution opposed all these requests but submitted that Defence Counsel should not be permitted to withdraw but, rather, should be directed to represent the Accused pursuant to Rule 6(i) (B).
6. The Trial Chamber rendered its decision permitting Mr. Metzger and Mr. Harris to withdraw from the case to which they have been assigned. It is evident from the decision that the ground which weighed most with the Trial Chamber as constituting exceptional circumstances was that of threats to Lead Counsel and their families. There were three other grounds which the Trial Chamber did not regard, by themselves, as constituting exceptional circumstances. The Trial Chamber was unanimous in the view that those three other grounds did not amount to exceptional circumstances.
7. Justice Doherty and Justice Lussick who rendered the majority decision stated as follows:
Taken individually, we find that the arguments put forward by Lead Counsel regarding their difficulties, i.e. that their clients won’t come to court, that their clients will not give them instructions, that there is a deteriorating relationship, not helped by the possibility that they may be called to give evidence in contempt proceedings against the clients’ wives, that they see themselves acting, in the circumstances, against the principles of their own Bar Code, do not constitute “the most exceptional circumstances” warranting the withdrawal of Counsel. However, when all of these problems are considered together with the threats hanging over their heads, the cumulative result, in our view, creates an intolerable situation which places Lead Counsel under an impossible burden.
The Accused are charged with crimes of a most serious nature. They are entitled to the best Counsel available, Counsel who can fully dedicate themselves to their demanding task. We are of the view that Lead Counsel, with their present difficulties, would not be capable of acting in the best interest of their clients. We doubt that they would be able to represent their clients to the best of their ability when, apart from everything else, they are concerned for their own safety and that of their families. Although we are loath to come to a decision which possibly may adversely affect an expeditious trial, we are of the view that the rights of the Accused to be represented by counsel would best be served by appointing counsel able to carry out their duties free of the constraints inhibiting present Lead Counsel. (Italics mine)
8. In the event, the Trial Chamber granted the motion for the withdrawal of Lead Counsel Kevin Metzger and Wilbert Harris as Counsel for the Accused Brima and Kamara, respectively, and made consequential orders, inter alia, directing the Principal Defender to assign another Counsel as Lead Counsel to Alex Tamba Brima and another Counsel as Lead Counsel to Brima Bazzy Kamara. They made orders for representation of the two accused pursuant to Rule 60(B).
9. It is pertinent to note that Justice Sebutinde dissented, although that dissent is not of any importance in this appeal. She was unable to find that threat to the accused had been substantiated or that either Mr. Metzger or Mr. Harris had demonstrated the most exceptional circumstances. I pause to note that although the majority decision which is the decision of the Trial Chamber had been rendered on 20 May 2005, the dissenting opinion of Justice Sebutinde which was not appended to the decision of the Court, was not given until 8 August 2005. In my opinion, an opinion, given so late after the decision of the Trial Chamber has been filed and published could hardly be regarded as forming part of the opinions rendered in the case. To hold otherwise will create an indefinite, and unacceptable, uncertainty were a judge who has dissented at liberty to render and publish his or her dissenting opinion at his or her leisure, no matter how long after the Trial Chamber had announced and published its majority decision. If it is permissible to render and publish a dissenting opinion two months after the Trial Chamber has disposed of the matter, what stops it from being rendered one year or two years after!
10. I continue with the narration of the background facts. There was no appeal from the decision on the confidential Joint Defence Application for withdrawal of Counsel. The validity of that decision and the consequential order made is incontestable in the present proceedings.
The Present Proceedings
11. The present proceedings were initiated by a motion whereby the accused Alex Tamba Brima and Brima Bazzy Kamara sought the following orders:
(i) In the first place,........, the Defence herewith respectively prays the Trial Chamber to order the Registrar to ensure that Mr. Metzger and Mr. Harris are re-assigned as Counsel for Accused persons Brima and Kamara.
(ii) In the second place, an order to the Acting Principal Defender to immediately enter into a legal services contract with Mr. Metzger and Mr. Harris.
(iii) In the third place, that the Justice that re-confirmed the order not to re-appoint as indicated in the letter from the Registrar’s Legal Advisor recluse (sic) themselves from hearing this present motion.
(iv) In the fourth place, an order to declare as null and void the decision of the Registrar not to re-assign Counsel as the decision was made without legal or just cause and therefore ought to be quashed accordingly and set aside.
(v) In the fifth place, any other relief the Trial Chamber may deem fit and appropriate in the circumstance.
12. By its decision rendered on 9 June 2005 the Trial Chamber (Doherty and Lussick, JJ, Sebutinde, J dissenting) dismissed the motion.
13. Justice Sebutinde, once again, did not append her dissenting opinion to the decision of the Trial Chamber but filed one on 11 July 2005 more than one month after the Trial Chamber had already rendered its decision. She wrote an opinion which was more like an appellate decision from the opinion of her colleagues.
14. In a decision which is commendable for its succinctness and which was directed to the issues in the Motion, the Trial Chamber having reviewed the submission of Counsel on behalf of the accused, of the Registrar and of the Principal Defender disposed of the motion as follows:
i. In regard to the relief:
That the Justices that reconfirmed the order not to re-appoint as indicated in the letter from the Registrar’s Legal Adviser recluse themselves from hearing this present motion,
the Trial Chamber ruled that:
There was no order made in the Trial Chamber refusing re-appointment of Counsel per se. The orders sought in the original application made for leave to withdraw from the case. The orders were granted in full as sought and additional orders for, inter alia, appointment of Lead Counsel were made.
ii. In regard to the relief:
That the Trial Chamber order the Registrar to ensure that Mr. Metzger and Mr. Harris are re-assigned as Counsel for Accused persons Brima and Kamara
the Trial Chamber having stated that:
In our earlier decision permitting Lead Counsel to withdraw, we found that the Accused were merely boycotting the trial and obstructing the course of justice. In our view, that is exactly what they are seeking to do in bringing the present motion. We do not believe that they genuinely wish to be represented by those particular counsel. We believe that their real motive is to cause as much disruption to the Trial as possible.
The Trial Chamber went further to say:
As the Deputy Principal Defendant has correctly stated, the duty to assign Counsel in the event of a withdrawal rests in the Principal Defender. However, we do not consider this entirely relevant as Rule 45 (E) provides the appointment must be of “another Counsel. There is no provision for re-assignment of former Counsel in the event that they or their client, or both, have changed their mind.
iii. In regard to the relief that an order be made to the Acting Principal Defender to immediately enter into a Legal contract with Messrs Metzger and Harris, the Trial Chamber re-iterated its earlier opinion that there is no provision for re-appointment and added the Trial Chamber has no power to interfere with the law relating to priority of contract.
iv. In regard to the prayer that the decision of the Registrar not to re assign Counsel null and void as it was made without legal or just cause, the Trial Chamber disposed of that shortly by pointing out that that the Registrar had sought to uphold the order of the Trial Chamber order allowing Counsel’s application to withdraw and ordering another Counsel be assigned in accordance with Rule 45(E). It concluded that to argue that upholding and implementing a Court Order, made on application of the parties concerned is ‘without Legal or just cause’ is fallacious.
15. It is noteworthy that the Trial Chamber doubted the good faith of the statement by the Defence that the “circumstances where Counsel previously withdraw his services for stated reasons and circumstances have changed” given, as stated in the decision, that the application emanated from a letter from the accused purportedly written on the same day as the Trial Chamber’s order.
16. In the event, the Trial Chamber dismissed the motion which it described as not founded on bona fide motives and as one which sought to reverse an order granting relief which the Defence itself sought. It was in the light of these findings that the Trial Chamber considered the Motion to be frivolous and vexation.
17. The appeal from the decision was on seven grounds as follows:
1. First Ground of Appeal
Error in law and/or fact due to the Trial Chamber’s erroneous interpretation, of the statutory rights of the accused persons as provided under Article 17(4) (c) and (d) of the Statute of the Special Court. The Defense submits that the appealed decision wrongfully denied the rights of the Accused persons to have counsel of their own “choosing” as provided for in Article 17 (4) (d) of the Special Court Statute.
2. Second Ground of Appeal
Error in law an/or fact due to the appealed decision’s denial of the Defense request for an Order to the Acting Principal Defender to enter into a legal services contract with Messrs. Metzger and Harris on the grounds the Trial Chamber has no power to interfere with the law relating to privity of contract.
3. Third Ground of Appeal
Error in law and/or fact due to the ruling of the Trial Chamber that the Defense request for “an open and public hearing” is an application for further relief in a Reply and that “there has been no submission to support or explain this application for a public hearing”.
4. Fourth Ground of Appeal
Error in law and/or fact due to the Trial Chamber’s erroneous legal interpretation of Rule 45 (E) of the Rules of Procedures and Evidence of the Special Court for Sierra Leone (Rules) to prohibit re-appointment of former Lead Counsel. The ruling in this respect is entirely misplaced because the Original Motion was not a Rule 45 (E) application.
5. Fifth Ground of Appeal
Error in law and/or fact due to the Trial Chamber’s treatment of the Original Motion as an application for review of its earlier decision on Motion for withdrawal by Messrs. Metzger and Harris.
The Defense is of the opinion that the Trial Chamber erred in law by not considering the original Motion as separate and distinct from the Motion for Withdrawal of Counsel.
6. Sixth Ground of Appeal
Error in law and/or fact due the Trial Chamber’s decisions that “Counsel are not eligible to be reappointed since they are no longer on the list of qualified Counsel required to be kept under the Rule 45 (C).
7. Seventh Ground of Appeal
The Trial Chamber erred in law and/or fact due its ruling that since “there was no determination of the issue of re-appointment of Counsel, there are no grounds for submitting that any Judge recuse him/herself.
18. By their notice of appeal the accused sought relief as follows:
. . . . . the Defense respectfully prays the honourable Appeal Chamber to:
i. Find the Appeal admissible.
ii. Declaration that refusal of the Registrar and the Trial Chamber to re-appoint Messrs. Metzger and Harris as lead Counsel amounted to a violation of the Statutory rights of the Accused as provided in Article 17 (4) (d) of the Special Court Statute.
iii. Declaration that the Registrar’s decision against the re-assignment of Messrs Metzger and Harris and also the removal of their names from the list of eligible Counsel is ultra vires and null and void.
iv. An order for the reinstatement of Kevin Metzger and Wilbert Harris on the list of qualified Counsel.
v. A declaration that the Trial Chamber has both the inherent jurisdiction and the power to review the Registrar’s decision not to reassign Messrs. Metzger and Harris as assigned Counsel as well as the Registrar’s decision to remove their names from the list of qualified Counsel.
vi. A declaration that Justices Doherty and Lussick, having advised the Registrar against the re-appointment of Messrs. Metzger and Harris should properly have recused themselves from hearing the Original Motion on their re-appointment.
19. Grounds of appeal must arise from the decision appealed from if they are to be relevant to the appeal. It is misconceived to complain that a tribunal erred in its decision or is erroneous in its finding on an issue when such finding has not been made. It is a different thing if it is complained that the impugned decision is vitiated by absence of findings on an issue that is relevant and material to the decision. That is not the complaint in any of the grounds of appeal.
20. In this case most of the grounds of appeal do not arise from the decision appealed from. Ground 1 complains of “erroneous interpretation of the statutory rights of the accused person as provided under Article 17 (4) (C) and (d) of the Statute of the Special Court and that the decision wrongfully denied the rights of the Accused to have counsel of their own ‘choosing’”. However, a careful reading of the decision shows that it was not based on an interpretation of Article 17 (4) (C). There was no controversy about the principle that the right to have legal assistance of assigned counsel does not carry with it an absolute right to any counsel. What was in issue was whether accused was entitled to insist on counsel, as counsel of his choice, when that counsel had -
(i) been permitted to withdraw from the case on grounds stated;
(ii) not applied to vary or discharge the order permitting him to withdraw and the consequential order that another counsel should be substituted for him, and
(iii) not at all shown a change of circumstances from that that had constituted exceptional circumstances for permitting his withdrawal in the first place
The Trial Chamber held that (i) there was no direct evidence from counsel permitted to withdraw that their circumstances have changed; (ii) that all the other factors the Trial Chamber considered in arriving at its decision were still in existence and (iii) that it was unclear on what legal grounds the application was made as it was not brought pursuant to Rule 45 (D).
21. Instead of dealing with the grounds of the decision as summarized above, the defence dwelt on the question of the right of an accused to be represented by a counsel of his own choice, which in the circumstances of this case is a purely academic and hypothetical question, whereas the real question was whether the previous subsisting order and the ground on which it was made had not limited that right.
22. It was clear from the reasoning of the Judges who delivered the majority decision hat the accused could not claim a right to the particular counsel who have been permitted to withdraw from the case without first having the order, varied or rescinded. Nothing has been shown on this appeal in the grounds or in the submissions that that reasoning was erroneous.
23. The second ground of appeal suffers from the same misconception as the first in that it ignored the preceding statement that there was no provision for re-appointment of counsel under Rule 45 (E). My understanding of the reasoning of the Trial Chamber is that the power of the Trial Chamber to order a legal services contract with the particular counsel must be predicated on a statutory provision for their re-appointment, otherwise there would be no legal source of the power which the Defence had requested the Trial Chamber to exercise. The reference to privity of contract may not have been apt, but the idea it sought to convey when read in the context of the preceding statement is clear enough. The Defense should have challenged that preceding statement. They did not.
24. Put under close scrutiny, the remaining grounds may be found to suffer from the same shortcoming, albeit to a lesser degree.
Issues on the Appeal
25. The issues that are decisive of this appeal are really few. They are as follows:
(i) Whether Justice Doherty and Justice Lussick erred in not disqualifying themselves.
(ii) Whether the Trial Chamber made an erroneous interpretation of Rule 45 (E) or erroneously regarded the application as one brought pursuant to Rule 45 (E).
(iii) Whether the Trial Chamber misconceived the nature of the Motion by not considering the “Original Motion as separate and distinct from the Motion for withdrawal of Counsel”.
(iv) Whether the statement that “Counsel are not eligible to be re-appointed since they are no longer on the list of qualified counsel required to be kept under the Rule 45 (C)” is correct in the circumstances of the case.
26. The question whether or not the two judges who delivered the majority decision should have disqualified themselves by reason of alleged bias or reasonably doubt as to their impartiality arose from the relief sought in the Trial Chamber that “the Justices of the Trial Chamber who reconfirmed the order not to re-appoint Counsel as indicated in the letter from the Registrar’s Legal Adviser should disqualify themselves. The ground for this relief was that the said Judges having previously ordered that Mr. Metzger and Mr. Harris were not to be re-appointed as Defence Counsel, would not be in a position to adjudicate upon the Motion by the defence to re-instate them fairly and impartially.
27. The background facts can be briefly stated: The Deputy Principal Defender in a memorandum to the Registrar informed him on 17 May 2005 that although Mr. Metzger and Mr. Harris had been permitted to withdraw from the case, the accused persons had chosen them as their Counsel. She was inclined to re-appoint them as Lead Counsel for the accused persons instead of assigning new Counsel to the accused.
On 18 May 2005 the Registrar wrote a memorandum to the Presiding Judge of the Trial Chamber as follows:
Justice Doherty, as promised, this is the formal update by the Defence Office as to the present position on Metzger and Harris. As I have mentioned to you, as a matter of expediency, there are reasons which would support their return. But from the long term conduct of the trial, and considering both Counsels’ performance and demeanor, my view is that it would be counter-productive to reassign them. One point I would like to put to you for your advice is the issue of who, ultimately, has the final word on this. Whilst it is clear from the Directive on Assignment of Counsel that the Principal Defender and I have a major role, I cannot believe that a Trial Chamber does not have at least a say if not the final say”.[underlining mine]
By an inter-office memo of 18 May 2005 the Presiding Judge wrote as follows:
Re-Appointment of Mr. Kevin Metzger and Wilbert Harris as Lead Counsel:
This matter was already brought orally to the Court and the following order made on 16th May 2005:
“This Court read an order on an application. The application was an application to withdraw. That order was made and any letters, correspondence or documents that seek to go behind that decision cannot be countenanced in this Court. The decision has been made.”
That ruling stands and the order stands. The Court will not give audience to Counsel who make an application to withdraw on one day on various grounds, particularly security and then come back the day after and basically say they retract. They cannot make fools of the Court like this, nor can they do it in a “back door” way through the Principal Defenders and the Registrar’s power to appoint Counsel.
28. In his memorandum of 17 May 2005 to the Presiding Judge earlier referred to the only question on which the Registrar sought assistance from the Presiding Judge was “who ultimately has the final word on this. Whilst it is clear from the Directive on Assignment of Counsel that the Principal Defender and I have a major role, I cannot believe that the Trial Chamber does not have at least a say, if not the final say”.
29. The Registrar’s enquiry should not be read out of context. The enquiry was made in the context of a subsisting order of the Trial Chamber that another Counsel be appointed. The Registrar, a highly experienced judicial administrator, was perfectly in order in his view that the Trial Chamber has at least a say if not the final say in a matter that affected its order. He would have risked committing a contempt of the Trial Chamber if he had not taken the precaution of enquiring before he acted. He acted appropriately pursuant to Rule 33 (B).
30. The response of the Presiding Judge cannot be faulted. It was merely to restate the existing state of affairs about which there could not have been be any reasonable dispute, namely:
(i) an order has been made permitting Mr. Metzger and Mr. Harris to withdraw from the case
(ii) Counsel who obtained that order cannot turn round to seek re-appointment, without much more.
The opinion which in substance meant that the Counsel could not be allowed to approbate and reprobate cannot be faulted. No self respecting tribunal would allow its process to be trivialized and brought to ridicule.
31. However, in fairness to Mr. Metzger and Mr. Harris, they did not apply to be re-appointed as counsel, and so they had no cause to show that the circumstances had changed and when and how.. They merely gave an indication that they would be prepared to act on condition that their security concerns were taken care of.
32. Mature consideration would show that there was really no question of bias or reasonable apprehension of impartiality by Justice Doherty or Justice Lussick. The two Judges had restated existing and known facts. They made obvious statements, which well interpreted, was in fact a statement of principle regarding a court protecting its order from being treated with contempt. The Registrar’s enquiry as to whether the Trial Chamber had a say or final say in the matter was not even directly considered in their response. The issue in the present defence motion which was whether a right of choice of Counsel extended to a right to choose counsel who has been permitted to withdraw from the case with a consequential directive that another counsel be appointed, while the order and the consequential directive subsisted, were not raised by the Registrar’s memorandum nor was it addressed by the Presiding Judge’s response.
33. There was really no basis, whatsoever, for the charge of bias or likelihood of partiality made against Justice Doherty and Justice Lussick by Justice Sebutinde in her dissenting opinion which was adopted by the defence. It was unfortunate that such an allegation was hastily and without an iota of justification made against the two highly experienced and competent Judges without proper analysis of the memoranda and the circumstances. Had the two judges not been denied the opportunity of discussing Justice Sebutinde’s opinion perhaps a lot of misconceptions would have been cleared.
34. I find no substance in the submissions of the defence that Justice Doherty and Justice Lussick should have disqualified themselves.
35. The remaining issues can be dealt with shortly. There is no substance in the submissions that the Trial Chamber made an error in interpretation of Rule 45 (E). Indeed, it had not been shown where that error occurred. The Trial Chamber took the trouble to show the ordinary meaning of “another” as “different from the one already mentioned”. It has not been shown that they were wrong.
36. In regard to the nature of the defence motion, it is clear that although it was not a motion for withdrawal of counsel, the order permitting withdrawal of counsel and the consequential directive are relevant to the motion. It was in that context that the Trail Chamber discussed the matter of withdrawal of counsel and found that there was no direct evidence that their circumstances have changed. The complaint that they misconceived the nature of the motion is without substance.
37. That statement that “Counsel are not eligible to be re-appointed since they are no longer on the list of qualified Counsel” was one of several reasons for dismissing the motion. The other reasons were valid. Even if the impugned reason were erroneous that would not affect the result.
38. I have confined myself to issues which I find arise from the appeal. I have refrained from discussing the question whether the Trial Chamber could review the decision of the Registrar because I do not see the Defence Motion as a request for a review. If it can be said to be a request for a review, I am content to agree with the decision of the Appeals Chamber that it was rightly rejected.
39. I agree with the decision that the appeal be dismissed and append to it this concurring opinion to express my views on some of the issues.
Done at Freetown this day 8th day of November 2005
Justice Emmanuel Ayoola
[Seal of the Special Court for Sierra Leone]