Court name
Special Court for Sierra Leone
Case number
SCSL 16 of 2004
Case name

Prosecutor v Alex Tamba Brima & Ors - Separate and Concurring Opinion of Hon. Mr Justice George Gelaga King on Brima-kamara Defence Appeal Motion Against Trial Chamber II Majority Decision on Extremely Urgent Confidential Joint Motion for the Re-appointm
Law report citations
Media neutral citation
[2005] SCSL 183


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
ROAD • FREETOWN • SIERRA LEONE

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IN THE APPEALS CHAMBER


Before:
Justice A. Raja N. Fernando, Presiding Judge
Justice Emmanuel
Ayoola
Justice George Gelaga King
Justice Geoffrey Robertson
Justice
Renate Winter
Interim Registrar:
Lovemore Munlo, SC
Date:
8th December, 2005
PROSECUTOR
Against
ALEX TAMBA BRIMA
BRIMA BAZZY KAMARA
SANTIGIE
KANU

(Case No.SCSL-04-16-AR73)


SEPARATE AND CONCURRING OPINION OF HON. MR JUSTICE GEORGE
GELAGA KING 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


First Respondent:

Court Appointed Counsel for Alex Tamba
Brima
:
The Registrar


Second Respondent:

Kojo Graham
Glenna Thompson


Court Appointed Counsel for Brima Bazzy
Kamara:
The Principal Defender

Andrew K. Daniels
Mohammed Pa-Momoh Fofanah




I. INTRODUCTION

  1. This
    is an appeal by Alex Tamba Brima and Brima Bazzy Kamara (“the
    Appellants”) against the Impugned Decision in which
    their motion for the
    re-appointment of Kevin Metzger and Wilbert Harris as their Lead Counsel was
    dismissed (“former Lead Counsel”).
    By an oral order of 12 May
    2005[1] and a written
    decision published on 20 May 2005 the Trial Chamber permitted former Lead
    Counsel for the Appellants to withdraw from
    the case to which they had been
    assigned on the grounds of threats to former Lead Counsel and their
    families.[2] By a
    motion filed on 24 May 2005 the Appellants sought the following
    Orders:
    • (i) That the
      Registrar re-assign former Lead Counsel;
    • (ii) That the
      Acting Principal Defender do immediately enter a legal services contract with
      former Lead Counsel;
    • (iii) That the
      Justices who re-confirmed the order not to re-appoint be recused from hearing
      the motion;
    • (iv) That the
      decision of the Registrar not to re-assign Counsel be declared null and void
      and;
    • (v) Any other
      relief deemed fit and
      appropriate.[3]
  2. Trial
    Chamber II dismissed the Motion to Re-Appoint on the ground that it was
    frivolous and vexatious. On 5 August 2005 the Trial
    Chamber granted the
    Appellants leave to file an interlocutory appeal against the Impugned Decision.
    Notice of Appeal was filed on
    2 September 2005.
  3. This
    interlocutory appeal which has turned out to be unusually and exceedingly
    protracted, voluminous and haphazard in its compilation
    and presentation and
    seems to be unnecessarily acrimonious, raises certain fundamental and vital
    issues pertaining to the conduct
    of a criminal trial that give me cause for
    concern and alarm. I am accordingly constrained to write this separate and
    concurring
    opinion to express my views not only on the substance of the appeal,
    but more immediately on those discordant matters which, if not
    nipped in the
    bud, may end up adversely affecting, if not undermining, the administration of
    justice in the Special Court.

II.
BACKGROUND

  1. I
    shall, therefore, begin by adumbrating and dealing with those discordant and
    rather disruptive incidents which ought not and cannot
    be allowed to stand
    uncorrected, as otherwise the smooth running and proper functioning of the Trial
    Chamber II will be seriously
    jeopardised. From the records before this Appeal
    Chamber, it appears that it is the norm in Trial Chamber II that majority
    decisions
    and minority or dissenting opinions are not delivered, simultaneously
    as is required by law[4]
    but instead a dissenting opinion is only published several weeks after the
    majority decision.

Refusal To Publish
Dissenting Opinion

  1. Incredibly,
    on at least one occasion, the publication of a dissenting opinion was
    deliberately blocked. I refer to the Dissenting
    Opinion of Justice Sebutinde
    from the Majority Decision on the Application to Reappoint Kevin Metzger and
    Wilbert Harris as Lead
    Counsel for 1st and
    2nd Appellants. The written Majority
    Decision,[5] consequent
    on the oral decision delivered by the Presiding Judge, Teresa Doherty on 12 May
    2005, was published on 9 June 2005. Justice
    Julia Sebutinde issued her
    Dissenting Opinion on 11 July 2005, but Court Management, acting on instructions
    from the Registry, refused
    to publish via the SCSL website.
  2. On
    28 July 2005, Justice Sebutinde in a memorandum referred the refusal to me in my
    capacity then as Vice President and asked for
    redress. On the same day I
    convened a meeting of Hon. Justice Sebutinde, the then acting Registrar and the
    Legal Advisor to the
    Registrar, for the purpose of resolving Justice
    Sebutinde’s complaint. The result of the meeting was that I directed and
    ordered
    “that the Acting Registrar do instruct Court Management to publish
    the said Dissenting Opinion of Justice Sebutinde on the
    SCSL website
    forthwith.” Emphasis mine.
  3. I
    had acted under Rule 21 of the Rules of Procedure and Evidence which
    provides:

“The Vice President...shall exercise the functions
of the President in case the latter is absent from Sierra Leone or is unable
to
act.”

Despite my instructions that Court Management publish the Dissenting Opinion
immediately and without delay, it was not published on
the website until one
week later on 4 August 2005.

Comment on Dissenting Opinion by Presiding
Judge

  1. A
    day after the publication of Justice Sebutinde’s Dissenting Opinion on the
    website, Trial Chamber II on 5 August 2005 published
    its Decision granting the
    Defence leave to file an interlocutory appeal against the Impugned Decision.
    Annexed to that Decision
    is what is headed “Comment of Justice
    Doherty.” In that so-called Comment, Justice Doherty, the Presiding
    Judge, refers
    to the Dissenting Opinion of Justice Sebutinde and then posits
    that “some facts stated are incorrect or misleading.”
    She then goes
    on to pronounce: “I am entitled to put the following before the Appeals
    Chamber”, as if she is a party
    to this Appeal! The
    “following” consisted of a five paragraph review by Justice Doherty
    of Justice Sebutinde’s
    Opinion in the course of which she purported to
    correct and amend portions of the Opinion. I must state that she was
    ill-advised
    to have embarked on such course of action.
  2. By
    law, “all judges are equal in the exercise of their judicial
    functions”[6] and
    shall be independent in the performance of their
    functions.[7] No Judge
    has the mandate or jurisdiction to sit in judgement over the Dissenting Opinion
    of another Judge of coeval jurisdiction.
    It is hoped that such practice will
    not recur. Where there is disagreement, there are channels to pursue, but
    certainly not by
    “Comment” annexed to a Decision granting leave to
    appeal.

Delivery of Majority and Minority
Decisions

  1. I
    now revert to the fact that the majority and dissenting judgements were not
    delivered simultaneously. Article 18 of the Statute
    provides:

“The Judgement shall be rendered by a majority of
the Judges of the Trial Chamber and shall be delivered in public. It shall
be
accompanied by a reasoned opinion in writing to which separate or dissenting
opinions may be appended.”

On a proper construction of that provision, separate or dissenting opinions
should be delivered at the same time as the majority decision
and not days or
weeks later.

  1. It
    is the duty and responsibility of the Presiding Judge of the Trial Chamber after
    consultation with the other Judges to fix a date
    when the Judgement of the Court
    is to be delivered. On that specified date, where a majority Judgement is
    rendered, it must be accompanied
    by a reasoned opinion in writing to which
    separate or dissenting opinion may be appended. The Presiding Judge must ensure
    that sufficient
    time is given to his or her colleagues, who may want to deliver
    separate or dissenting opinion, to enable them to do so at the specified
    date.
    That way, time will begin to run from the date all the opinions are delivered.
    Otherwise it necessarily follows, in my judgement,
    that time for appealing or
    seeking leave to appeal will only begin to run after the publication of the
    dissenting opinion.
  2. To
    say that “a court delivering a majority decision is not even obliged to
    append a dissenting
    opinion”[8] is
    erroneous having regard to Article 18 of the Statute. In my judgement a court
    delivering a majority decision must append a separate or dissenting
    opinion where there is one.
  3. I
    opine that on a proper construction of Article 18 of the Statute the Judgement
    of the Court consists of both the majority (which
    binds the Court) and the
    separate or dissenting opinions. Where there is a separate concurring or
    dissenting opinion they should
    be delivered or published at the same time as the
    majority decision in accordance with the directions in paragraph 10 supra.
  4. Rule
    88(C) of the Rules and the provisions of Practice Directions derive their
    efficacy from the Special Court Statute and they cannot
    be construed so as to
    override the clear provisions of the
    Statute.

III. NOTICE AND GROUNDS OF APPEAL,
RESPONSES AND REPLY

  1. On
    2 September 2005, counsel for Brima and Kamara filed a Notice of Appeal with the
    following 7 grounds of appeal:
    1. Error
      in law and/or fact due to the Trial Chamber’s erroneous interpretation of
      the rights of the accused persons as provided
      under Article 17(4)(c) and (d) of
      the Statute of the Special Court.
    2. Error
      in law and/or fact due to the denial of the Defence request for an Order to the
      Acting Principal Defender to enter into a legal
      services contract with Messrs
      Metzger and Harris.
    3. Error
      in law and/or fact due to the ruling that the Defence 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. Error
      in law and/or fact due to the erroneous interpretation of Rule 45(E) of the
      Rules of Procedure and Evidence to prohibit re-appointment
      of former Lead
      Counsel.
    5. 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 the motion for
      withdrawal by Messrs Metzger and Harris.
    6. Error
      in law and/or fact due to the decision 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 Rule 45(C).
    7. The
      Trial Chamber erred in law and/or fact due to its ruling that “there was
      no determination of the issue of re-appointment
      of Counsel, there are no grounds
      for submitting that any Judge recuse him or her self.”
  2. The
    relief sought is that this Appeals Chamber makes the following
    declarations:
    • (i) That
      refusal of the Registrar and Trial Chamber II 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 Statute.
    • (ii) That the
      Registrar’s decision not to re-assign Messrs Metzger and Harris and also
      the removal of their names from the list
      of eligible counsel is ultra vires and
      null and void.
    • (iii) That the
      Trial Chamber has the inherent jurisdiction and power to review the
      Registrar’s Decision not to reassign Messrs
      Metzger and Harris and the
      Registrar’s Decision to remove those counsel’s names from the List
      of Qualified Counsel.
    • (iv) That
      Justices Doherty and Lussick having advised the Registrar against the
      re-appointment of the two Counsel should properly
      have recused themselves from
      hearing the motion on their reappointment.
  3. On
    9 September the 2nd Respondent (The Principal Defender)
    filed a Response to the Appeal in which, inter alia, he supported the Grounds of
    Appeal. On
    12 September 2005 the 1st Respondent (The
    Registrar) filed his Response to the Appeal which he opposed. A day after, on
    13 September 2005, the 1st Respondent filed what is
    labelled “First Respondent’s Additional Motion to the Interlocutory
    Appeal of Alex Tamba Brima
    and Brima Bazzy Kamara and the Response by the
    Principal Defender (The Second Respondent).” That document is not in fact
    an
    additional motion, but rather additional submissions and a further Response
    to the submissions of the Second Respondent. On 16 September
    2005, the Second
    Respondent filed a Response to the First Respondent’s “Additional
    Motion”. On 16 September 2005
    the Appellant’s filed their Reply to
    1st Respondent’s
    Response.

SUMMARY OF SUBMISSIONS OF THE
PARTIES

(a) The Appellants

  1. The
    chief submission of the Appellants is that there is no legal basis for the
    Registrar, supported by the Majority of Trial Chamber
    II, not reassigning former
    Lead Counsel. They contend that in matters relating to the assignment of
    Defence Counsel the Accused
    has the right to be consulted as to his wishes and
    the Registrar may only refuse those wishes on “reasonable and valid
    grounds”
    including proven incompetence, misconduct or serious violations
    of Codes of Conduct or where Counsel’s name has been removed
    from the list
    of Qualified Counsel pursuant to Article 13 of the Directive on Assignment of
    Counsel.[9]
  2. They
    further submit that the Trial Chamber has inherent Jurisdiction to allow a
    motion alleging a violation or denial of the Statutory
    right of the Accused
    persons in the overriding interests of justice and having regard to the need for
    a fair trial. The Appellants
    stress that the right of the Accused to a public
    hearing is not limited to the main Trial, but also to interlocutory
    applications.
  3. They
    complain that the Trial Chamber was wrong in law and fact by erroneously
    considering the Motion to Reassign as an application
    to review the application
    to withdraw under Rule 45(E) and by dismissing the former as “frivolous
    and vexatious”. They
    submit that the Trial Chamber’s decision that
    “Counsel are not eligible to be reappointed since they are no longer on
    the list of qualified Counsel required to be kept under Rule 45(C)” was in
    the circumstances wrong in law.

(b) The Second
Respondent

  1. The
    Second Respondent supports the grounds of Appeal. They submit that the rights
    of the accused are enshrined in Art. 17 of the
    Statute and particularly Art.
    17(4)(c) and (d) which should be construed having regard to the mandatory manner
    in which they are
    couched. That although the jurisprudence indicates that the
    Accused person’s right to counsel of his own choosing is not absolute,
    the
    Accused’s motion for re-assignment is
    distinguishable.[10]
    They refer to the interpretation of Article 6(3)(C) of the European Convention
    of Human Rights which is identical with Art. 17(4)(d)
    of the Statute and the
    meaning to be given to “legal assistance of his or her own
    choosing.”
  2. With
    regard to the denial of the Accused’s right to a public hearing pursuant
    to Article 17(2) of the Statute on the ground
    the Accused’s outgoing
    Counsel had sought to have facts under seal and ex parte. The Second Respondent
    argues that such action
    by Counsel should not have been considered in matters
    relating to Accused’s right to a public hearing.
  3. The
    right of the Accused to a public hearing should not have been compromised by
    their Counsel’s action. The Second Respondent
    complains that the Trial
    Chamber failed to differentiate between the Accused person’s Motion for
    Re-appointment of Counsel
    and Counsel’s Motion for Withdrawal. The Trial
    Chamber erroneously perceived the Joint motion for the Re-appointment of Kevin
    Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy
    Kamara, filed pursuant to Art. 17(4)(d) of the Statute
    as a request for review
    of an earlier motion for withdrawal by the former Counsel.
  4. The
    Second Respondent submits that it is not within the power of the Registrar to
    remove names of counsel from the list and more so
    without establishing just
    cause. The Acting Registrar, Mr Kirkwood, had requested the Deputy Principal
    Defender to strike the former
    Lead Counsel’s names off the List, but she
    had declined as the matter was, inter alia, sub
    judice.
    [11] They
    complain that when the Acting Registrar finally struck Counsel’s names off
    the List it was done without the consent and
    despite the legal advice from the
    Defence Office to the contrary. They stress that as the head of the Defence
    Office, the Second
    Respondent should discharge his duties and functions in
    guaranteeing the rights of the Accused persons independently without any
    undue
    interference. That by virtue of Rule 45 of the Rules and Article 13(A),(B),(E)
    and (F) of the Directive on the Assignment
    of Defence Counsel the Second
    respondent in his capacity as Principal Defender is vested with the power to
    compile, maintain and
    place counsel on the List of Qualified Counsel and to
    remove counsel who do not qualify.
  5. In
    support of that submission the second Respondent refers to the dictum of Justice
    Boutet in Prosecutor v. Hinga Norman et al, that the roles of assignment,
    withdrawal and replacement of counsel is “essentially a role and function
    of the Principal
    Defender”.[12]
    They contend that the First Respondent’s reason that “security
    concerns” constituted “just cause”
    could not be good reason as
    the “security concerns” of the withdrawn counsel were not even
    established nor investigated
    by the 1st
    Respondent.[13]

(c) The First Respondent

  1. The
    First Respondent opposes the appeal and submits that there is no absolute right
    of an Accused to be provided with counsel of their
    choosing and that this is
    recognised by the Appellants in their Original
    Motion.[14]
  2. The
    First Respondent submits that the right to a hearing in open Court is not
    absolute and reasons must be presented to the Trial
    Chamber as to why there
    should be an Open Court
    hearing.[15]
  3. He
    avers that Messrs Metzger and Harris had both applied to withdraw from the trial
    on the basis that they were not receiving full
    instructions from the Accused and
    that they had received unspecified threats. The Trial Chamber allowed them to
    withdraw stating
    that they doubted that Counsel “would be able to
    represent their clients to the best of their
    ability.”[16]
    In the circumstances, the 1st Respondent states that
    “the Principal Defender acted reasonably within his powers under Rule
    45(C) of the Rules in refusing
    the request for the re-appointment of Counsel by
    the Accused, particularly where there were no new circumstances which would
    override
    the observations of the Trial Chamber as to the ability of Counsel to
    effectively defend the
    Accused.”[17]
  4. The
    First Respondent maintains that the trial Chamber has power “to review an
    administrative decision of the Registrar and,
    in this case, the Principal
    Defender, as it affects the right to a fair trial of the Accused under Article
    17(4)(d) of the
    Statute.”[18]
    They contend further that “the right to review must also give full
    authority to the Principal Defender’s powers under
    the legislation and not
    be used as a means of overruling a decision with which the parties or even the
    Trial Chamber
    disagree.”[19]
  5. The
    First Respondent in support of the Majority decision of the Trial Chamber
    reiterates that the “Motion was a ‘backdoor’
    attempt to review
    the original order of the Trial Chamber in allowing Counsel to withdraw. It
    never was a separate application from
    the Original Motion of Withdrawal of
    Counsel.”[20]
    They submit that “the Appellants filed a Motion for the Re-Assignment of
    Counsel but this was neither an application to vary
    the Order of 12 May or to
    have it rescinded, nor was it an appeal against the Order of 12
    May.”[21]
  6. As
    for the request that Justices Doherty and Lussick recuse themselves this
    Respondent states that those Justices acted within their
    authority and there are
    no grounds upon which to seek that they recuse
    themselves.

(d) Appellants Reply to
1st Respondent’s Response

  1. The
    Appellants take issue with the 1st Respondent on his
    Response and repeat their earlier submissions. The Appellants
    “respectfully question the legal validity
    of the Honourable Justice
    Doherty’s ‘personal comment’ appended to a totally unrelated
    matter. The Defence takes
    issue with this procedure and submits that it is an
    irregular procedure engendering a serious violation of the accused
    persons’
    rights to a fair trial. It is the view of the Defence that the
    ‘personal comment’ was intended to unduly influence the
    Appeals
    Chamber. Honourable Justice Doherty should not have proffered a ‘personal
    comment’ on a Dissenting Opinion containing
    pertinent legal arguments,
    which favour the Accused. The Defence contends that the Honourable Justice
    Doherty’s ‘personal
    comment’ makes her a party to the Appeal,
    which she is not. After having issued a majority decision on 9 June 2005, the
    Honourable
    Justice Doherty is functus officio and cannot, therefore,
    purport to change that decision or dissenting opinion in such an unconventional
    manner.[22] The
    Defence appeals to the Honourable Justices of the Appeals Chamber not to
    consider that ‘personal
    comment’.[23]
  2. The
    Appellants adopt mutatis mutandis the submissions contained in
    2nd Respondent’s Response and reaffirm their
    adoption of the Dissenting Opinion in its entirety in support of this
    Reply.

THE PRINCIPAL ISSUES AND THEIR
DETERMINATION

  1. In
    my judgement from the foregoing submissions of the parties, the principal
    questions which arise for determination in this appeal
    are:
    • (a) Was the
      proper procedure followed when Counsel Kevin Metger and Wilbert Harris applied
      orally on 3 May 2005 in the middle of the
      trial to Trial Chamber II to withdraw
      their respective representation of Alex Tamba Brima and Brima Bazzy Kamara?
    • (b) Was the
      Registrar the proper person to remove the names of the two Counsel from the List
      of Highly Qualified Criminal Defence
      Counsel (“the List”) more so
      when the matter was sub judice?
    • (c) What are
      the functions and powers of the Registrar and Principal Defender
      vis-à-vis the Compilation and Maintenance of
      the List?
    • (d) How may
      Counsel be reappointed following their withdrawal? Must reappointed Counsel be
      of Accused’s own choosing?

Withdrawal of Counsel Kevin Metzger and
Wilbert Harris


  1. Guidance
    on this matter can be found in the ‘Directive on the Assignment of
    Counsel’, (“the Directive”).
    It is important to state that
    the Registrar, in consultation with the President of the Special Court issued
    the Directive laying
    down the conditions and arrangements for the Assignment of
    Counsel to an Accused or
    Suspect.[24] The
    Directive derives its validity and statutory efficacy from the Agreement between
    the United Nations and the Government of Sierra
    Leone on the Establishment of
    the Special Court signed in Freetown on 16 January 2002, and the Statute of the
    Special Court for
    Sierra Leone annexed to that Agreement and, in particular, the
    rights guaranteed all individuals appearing before the Special Court
    under
    Article 17 of the Statute, including the right to Counsel, and the rights of a
    suspected or accused person or detainee under
    international law. The Directive
    is also issued pursuant to the Rules of Procedure and Evidence (“the
    Rules”) and more
    particularly, Rule 44, 45 45 bis and 46 of the
    Rules.
  2. Withdrawal
    of Assignment of Counsel is provided for in Article 24 of the Directive. The
    relevant portions of Article 24 reads:

(A) The Principal
Defender
may:

(i) in exceptional circumstances, at the request of the Suspect or Accused,
or his Assigned Counsel withdraw the assignment of Counsel.

(ii) in exceptional circumstances, at the request of the Assigned Counsel
withdraw the nomination of other Counsel in the Defence
Team;

(B) The Principal Defender shall withdraw the assignment of Counsel or
nomination of other Counsel in the Defence Team:

(i) in the case of serious violation of the Code of Conduct;

(ii) upon the decision by a Chamber for misconduct under Rule 46 of the
Rules.

(iii) where the name of the Assigned Counsel has been removed from the
list kept by the Principal Defender under Rule 45(C) and Article 13 of
this Directive.

(D) The Principal Defender shall immediately assign a new Counsel to
the Suspect or Accused, and where appropriate, authorise the nomination of other
Counsel
in the Defence Team...

(E) Where a request for withdrawal, made pursuant to (A) has been denied,
the person making the request may seek review of the decision
of the Principal
Defender by the Presiding Judge of the appropriate Chambers.

(G) Where the assignment of Counsel...is withdrawn by the Principal
Defender
pursuant to paragraph (B)(i) and (iii), Counsel affected by
withdrawal may seek review of the decision of the Principal Defender
by the
Presiding Judge of the appropriate Chamber. (Emphasis mine)

Was the procedure laid down in Article 24 followed?

  1. The
    records reveal that during the trial of the Accused persons in Trial Chamber II
    on 3 May 2005, an oral application was made by
    both Mr. Kevin Metzger and Mr.
    Wilbert Harris to withdraw from the case as counsel. The Transcript
    reveals:

“Mr Metzger:...In those circumstances I would seek,
as is courteous and proper, the leave of this Trial Chamber to withdraw
from
this case as Counsel for Alex Tamba Brima. I will not play a further part in
this case unless and until his instructions
change.”[25]

“Presiding Judge: Mr Metzger, I will not invite you to say anything
further until I have heard the stance of other counsel in
the case...Mr
Harris?”

“Mr Harris: Your Honour, yes. My position regrettably, and I do say
very much regrettably is the same as my learned friend
Mr. Metzger...”

  1. It
    is of the greatest significance to highlight the fact that crucially and
    timeously, Ms. Monasebian, who was Principal Defender
    at that material time, did
    call the attention of the Judges of Trial Chamber II to Article 24 of the
    Directive and she did so quite
    succinctly.’

“Ms.
Monasebian: But what I would just like to simply offer your Honours is that
pursuant to Article 24 of the Directive of
Assignment of Counsel, it is
initially within my purview for Defence Counsel to make that request to me ex
parte.
So I think that Mr Metzger’s suggestion that this be done on
an ex parte basis is in keeping with the spirit of Article 24,
that would say
that the counsel would come to the Principal Defender or, if the Principal
Defender denies the request, the Judges,
because there is that remedy as
well in Article 24, to hash this matter
out...”[26]
(Emphasis mine)

  1. If
    the Judges had paused to read Article 24 cited to them by the Principal
    Defender, it would have been quite clear to them that the
    application for
    withdrawal was to be made in the first instance to the Principal Defender and
    NOT to the Trial Chamber (Art. 24(i)). It is only where the Principal
    Defender has denied a request for withdrawal that the person making
    the request
    may seek review of the Principal Defender’s decision by the
    Presiding Judge of Trial Chamber II and not by all the Judges of that
    Chamber (Emphasis mine).
  2. No
    such request for withdrawal was made to the Principal Defender and consequently
    there could have been no request for review by
    the Presiding Judge of Trial
    Chamber II. And yet in the face of all these conditions precedent which had not
    been observed or fulfilled,
    and in clear breach of the provisions of Article 24,
    the Presiding Judge thought it fit to order that the Defence Counsel file their
    submissions to withdraw “by Thursday at the opening of the
    Registry...Prosecution will file reply by Friday at 2.00pm and,
    if appropriate,
    may include a reply pursuant to Rule 24 of the Rules. Sorry, I have corrected
    myself this on this draft: It is
    Article 24 on the Assignment of Counsel...and
    I correct myself yet again. The application from Counsel shall be under seal,
    confidential
    and ex parte. The Principal Defender is at liberty to file any
    submission which the Principal Defender thinks relevant in the light
    of the
    situation.”[27]
    The Presiding Judge later amended her Order to the effect that Defence and
    Prosecution “file by Thursday at the opening of
    the Registry at
    9.00am.”
  3. In
    my judgement the Trial Chamber with respect, was rather hurried and precipitate
    in making the aforesaid orders and ignoring the
    provisions of Article 24 of the
    Directive. There is hardly any excuse for this since the Principal Defender had
    brought Article
    24 to their Chamber’s
    attention.

Rule 45 of the Rules of Procedure and
Evidence

  1. In
    the majority Decision the Trial Chamber purported to act under Rule 45(E) of the
    Rules. In my judgement the Trial Chamber misinterpreted
    the Rule. Rule 45 of
    the Rules must be read and interpreted as a whole. It is headed “Defence
    Office” and it imposes
    on the Principal Defender the obligation and
    responsibility to ensure protection of the rights of suspects and accused. The
    Defence
    Office is headed by the Principal Defender whose functions and powers
    are listed in the various subrules. As I stated
    earlier,[28] the
    Preamble to the Directive links the genesis of the Directive, inter alia, to the
    Rules of Procedure and Evidence and in particular
    Rules 44, 45, 45 bis and
    46.

Rule 45(E) states:

“Subject to any order of a Chamber, Counsel will represent the accused
and conduct the case to finality. Failure to do so,
absent just cause approved
by the Chamber, may result in forfeiture of fees in whole or in part. In such
circumstances the Chamber
may make an order accordingly. Counsel shall only be
permitted to withdraw from the case to which he has been assigned in the most
exceptional circumstances. In the event of such withdrawal the Principal
Defender shall assign another Counsel who may be a member
of the Defence Office,
to the indigent accused.”

In my judgement, on a proper construction of Rule 45(E), taking into
consideration Article 24 of the Directive, the proper authority
vested with
power to permit Assigned Counsel to withdraw in the most exceptional
circumstances is the same authority as that stated
in Article 24(A)(i) of the
Directive, namely, the Principal Defender. Not the Trial Chamber. It is only
when the Principal Defender
denies Assigned Counsel’s request to withdraw
that the latter may seek review of the Principal Defender’s decision by
the Presiding Judge of the Trial Chamber. Not by the Judges of the Trial
Chamber. See Article 24(E) of the Directive. I have come to this decision
bearing in mind that the Appeals Chamber may affirm, reverse or revise the
decisions taken by the Trial Chamber, see Article 20(2)
of the Statute.

  1. It
    must be noted that on an examination of Rule 45 of the Rules, where an
    application or request is to be made to a Chamber, it is
    clearly so stated in
    the Rule. For example Rule 45(D). Although that Rule states in emphatic terms
    that request for the replacement
    of assigned counsel shall be made to the
    Principal Defender, it then goes on to provide that under certain circumstances
    and for
    well-defined reasons such request may be made to a Chamber. Let me
    reproduce the Rule which speaks clearly for itself:

45(D)
“Any Request for replacement of an assigned counsel shall be made to the
Principal Defender. Under exceptional circumstances, the request may be made
to a Chamber
upon good cause being shown and after having been satisfied
that the request is not designed to delay proceedings.” (Emphasis
mine)

In Rule 45(E) there is no such power given to a Chamber as regards
withdrawal. The Trial Chamber in its Majority Decision refers
to Rule
44(D).[29] There is
no Rule 44(D) of the Rules, so that must be an error. What they meant to refer
to must be Rule 45(D) quoted supra.

  1. I
    have not lost sight of the fact that under Rule 45(E) of the Rules, Counsel may
    only be permitted to withdraw in “the most
    exceptional
    circumstances” whilst in Article 24(A)(i) of the Directive it is stated
    that the Principal Defender may “in
    exceptional circumstances”
    withdraw the assignment of Counsel at the latter’s request. I opine that
    as Rule 45(E) now
    stands, having regard to the fact that an assigned Counsel has
    the duty, obligation and responsibility to represent the accused and
    conduct his
    case to finality and taking into account the rights of the accused as enshrined
    in Article 17 of the Statute, the Principal
    Defender may only withdraw
    assignment in the most exceptional circumstances.
  2. From
    the foregoing it is beyond argument that the procedure laid down in Article
    24(A)(i) of the Directive was not followed. There
    is no provision for a Trial
    Chamber to permit withdrawal of assigned counsel – that mandate is
    specifically given to the Principal
    Defender. In the International Criminal
    Tribunal for the former Yugoslavia (“ICTY”) since they did not have
    a Defence
    Office and a Principal Defender that mandate is specifically given to
    the Registrar. In the case of Prosecutor v Delalic et
    al[30]
    the Appeals
    Chamber of that Tribunal stated:

“It is not ordinarily
appropriate for a Chamber to consider motions on matters that are within the
primary competence of the
Registrar”

I accept and adopt that dictum, substituting “Principal Defender”
for “Registrar”, This prohibition was expanded
and reemphasized by
the Appeals Chamber in Prosecutor v. Blagojevic
(ICTY)[31] when they
held as follows:

“The only inherent power that a Trial Chamber has is to ensure that the
trial of an accused is fair; it cannot appropriate for itself a power which
is conferred elsewhere.
As such, the only option open to a Trial
Chamber,
where the Registrar has refused the assignment of new counsel and
an accused appeals to it, is to stay the trial until the President
has reviewed
the decision of the Registrar. The Appeals Chamber considers that it is only
by adopting this approach that the Trial
Chamber properly respects the power
specifically conferred upon the Registrar and the President by the Directive to
determine whether
an accused’s request for withdrawal of counsel should be
granted in the interests of justice” (Emphasis mine).

Here again, substituting “Principal Defender” for
“Registrar”, I accept and adopt the dictum.


Trial Chamber should have stayed the Trial and referred
Withdrawal Application to the Principal Defender


  1. Applying
    the ICTY dictum to this appeal, I hold that the only option that was open to
    Trial Chamber II when Assigned Counsel Kevin
    Metzger and Wilbert Harris applied
    to them to withdraw was to stay the Trial and direct that the application be
    made to the Principal
    Defender in accordance with Article 24(A)(i) of the
    Directive. They should have further directed that if the Principal Defender
    refuses to grant the application to withdraw, then the applicants may seek
    review by the Presiding Judge of the Trial Chamber as
    provided in Article 24(E)
    of the Directive. In the event, Trial Chamber II failed to respect the power
    specifically conferred upon
    the Principal Defender and the Presiding Judge.
    Instead, Trial Chamber II purported to appropriate to itself power that is
    conferred
    elsewhere. In my judgement, therefore, Trial Chamber II’s
    Majority Decision permitting the withdrawal of Assigned Counsel
    Kevin Metzger
    and Wilbert Harris was ultra vires and wrong in law. I agree with
    Justice Sebutinde when she says:

“I perceive the Trial Chamber’s legitimate role...as
being limited to adjudicating upon ancillary motions, requests and
issues
properly brought before the Trial Chamber, within the confines of the Rules.
That is my understanding of the provisions of
the Rules, and of the Directive on
the Assignment of Counsel. I am of the considered opinion that any involvement
of the Trial Chamber
or myself in the manner suggested by the Registrar in his
note would clearly be ultra vires my powers and certainly the legitimate
powers of the Trial
Chamber”.[32]

It must always be borne in mind in the words of Rule 26bis of the Rules:

“The Trial Chamber and the Appeals Chamber shall ensure that a trial is
fair and expeditious and that proceedings before the Special Court are
conducted in accordance with the Agreement, the Statute and the Rules, with full
respect
for the rights of the accused
and due regard for the protection of
victims and witness” (Emphasis mine).


The Functions and Powers of the Registrar and Principal
Defender in the Compilation and Maintenance of the List of Highly Qualified
Criminal Defence Counsel


The Principal Defender

  1. Having
    found that Trial Chamber II was wrong in law in permitting the two assigned
    counsel to withdraw, I only feel called upon, in
    consequence, to adjudicate on
    the above-mentioned topic only. The Acting Registrar, Robert Kirkwood, in his
    Response which incidentally
    is imprecisely labelled “Reply” To
    Extremely Urgent and Confidential Motion for Re-Appointment of Kevin Metzger and
    Wilbert
    Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara,
    states: “The position of Principal Defender has no statutory
    authority...”[33]
    That is not an accurate statement of the law. The position of Principal
    Defender has statutory authority. The Office of the Principal
    Defender has its
    nascency in Rule 45 of the Rules. Those Rules themselves have their genesis in
    Article 14 of the Statute. Rule
    45 of the Rules provides for a Defence Office
    which shall be and is headed by the Special Court Principal Defender. The
    powers of
    the Principal Defender are to be found in the Directive, as I
    explained earlier.[34]
    The Directive itself was promulgated by the Registrar himself in consultation
    with the President of the Special
    Court.[35] It was the
    Registrar himself who armed the Principal Defender, and not himself, with the
    powers enumerated in the Directive. It
    is instructive to observe that in the
    ICTY and the International Criminal Tribunal for Rwanda (“ICTR”) the
    Registrar
    is given Article 24 powers of the Directive. In these Tribunals, the
    Registrar is clothed with the primary responsibility and duty
    of deciding
    matters relating to the qualification, appointment and assignment of counsel.
    Significantly, there is no Defence Office
    in those two Tribunals and in
    referring to the Blagojevic dictum, supra, I had substituted
    ‘Principal Defender’ for ‘Registrar’ in relating the
    dictum in that case
    to the Special Court.

The
Registrar

  1. In
    order to fully appreciate the Office of the Registrar and his functions in the
    Registry, it is best to go to source and refer to
    the relevant empowering
    instruments. First, the Agreement between the United Nations and the Government
    of Sierra Leone on the Establishment
    of a Special Court for Sierra Leone
    (“the Agreement”). The Agreement provides in Article
    4:

“1. The Secretary-General, in consultation with the
President of the Special Court, shall appoint a Registrar who shall be
responsible
for the servicing of the Chambers and the Office of the Prosecutor,
and for the recruitment and administration of all support staff.
He or she
shall also administer the financial and staff resources of the Special
Court.”

In the Statute, however, the Registrar is not stated to be responsible for
the servicing of the Office of the Prosecutor who, by Article
15 (i),
“shall act independently as a separate organ of the Special Court. He or
she shall not seek or receive instructions
from any Government or from any other
source.” In Article 16 of the Statute, the other provisions of Article 4
of the Agreement
are generally reflected in sub-rules (1), (2) and (3).

  1. In
    my judgement, it is reasonable to conclude from the foregoing that the Defence
    Office, while officially part of the Registry must,
    in the interests of justice,
    act as an independent office. Although the Principal Defender and the Defence
    Office technically fall
    within the province of the Registry, the Principal
    Defender must act independently from other organs in the interest of justice.
    I
    am reinforced in this conclusion by the opinion of Assistant Secretary-General
    for Legal Affairs, Mr Ralph Zacklin in this letter
    to the erstwhile Registrar,
    Robin Vincent, dated 11 February 2005 in which he states decisively, pointedly
    and poignantly: “while
    the Defence Office technically falls within the
    Registry, they operate independently from other organs”. One can,
    therefore,
    see, appreciate and understand why it has been authoritatively stated
    that “It is the Registrar’s intention that the
    Office will, in
    future, become as fully independent as the Office of the
    Prosecutor”.[36]

Authority
of Principal Defender

  1. I
    opine, in conclusion and in all circumstances that the Principal Defender, as
    Head of the Defence Office, is vested with the mandate
    to discharge his duties
    and functions in guaranteeing the rights of accused persons independently and
    without any undue interference
    from the Registrar. The Principal Defender is in
    full legal possession of the authority and power to compile, maintain and place
    counsel on the List of Highly Qualified Criminal Defence Counsel by virtue of
    Rule 45(C) of the Rules and Article 13(A), (B), (E)
    and (F) of the
    Directive.

DISPOSITION

  1. For
    all the reasons I have given, I find that the Majority Decision of the Trial
    Chamber II in permitting the withdrawal of Assigned
    Counsel Kevin Metzger and
    Wilbert Harris was ultra vires and wrong in law.
  2. This
    being said, I agree with the Majority Decision on the other aspects.
Done at Freetown this day 8th day of November
2005

Justice George Gelaga King



[Seal of the Special Court for Sierra Leone]


[1] Transcript. 2 (12
May 2005), lines 13-16 (“Oral Order Permitting
Withdrawal”).
[2]
Decision on the Confidential Joint Defence Application for the Withdrawal by
Counsel for Brima and Kamara and on the Request for
Further Representation by
Counsel for Kanu, filed on 23 May 2005; and Corrigendum Decision on the
Confidential Joint Defence Application
for the Wihtdrawal by Counsel for Brima
and Kamara and on the Request for Further Representation by Counsel for Kanu,
filed on 10
June 2005 (both hereinafter referred to as the (“Written
Decision Permitting
Withdrawal”).
[3]
Extremely Urgent Confidential Joint Motion for the Re-Appointment of Kevin
Metzger and Wilbert Harris as Former Lead Counsel for
Alex Tamba Brima and Brima
Bazzy Kamara, pursuant to Articles 17(4)(C) and 17(4)(D) of the Statute of the
Special Court for Sierra
Leone and Rule 54 of the Rules of Procedure and
Evidence and the Inherent Jurisdiction of the Court, filed on 24 May 2005
(“Motion
to Re-Appoint”).

[4] Art. 18 Special
Court Statute.

[5] See note 3
supra.

[6] Rule
17(A)
[7] Art. 13.1
of the Special Court
Statute.
[8] Separate
and Concurring Opinion of Judge Lussick in granting leave to appeal.

[9] Brima-Kamara
Defence Appeal Motion p.4.

[10] Defence
Response pp. 6 and
7.
[11] Letter of
26 May 2005 to Mr
Kirkwood.
[12]
Separate and Concurring Opinion of Justice Boutet on Request for Withdrawal as
Court Approved Counsel for 1st Accused, 1 March 2005,
page 4 para 4 (SCSL doc
356).
[13] Para 3
of 1st Respondent’s Response (SCSL Doc No.
290).

[14] 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 Pursuant to
Article 17(4)(C) and 17(4)(D) of the Statute and Rule 54 of the
Rules.
[15]
Respondent’s Response p.3 para
5.
[16] Decision on
Motion for Withdrawal, para
60.
[17]
1st Respondent’s Response p.6, para
20.
[18] Ibid. para
24.
[19] Ibid. para
26.
[20] Ibid. para
47.
[21] Ibid. para
55.

[22] T. 12 May 2005
p. 9-10, lines 25-29 and p.10 lines 1-20, where the same Hon. Justice made
another misplaced personal remark on one
of the withdrawn Counsel, in his
absence.
[23] Reply
to 1st Respondent’s Response p. 6 para 16.

[24] Preamble to
the Directive on the Assignment of
Counsel.
[25]
Transcript of 3 May 2005, p.3 lines
2-5.
[26] Ibid. p.5
lines 8-17.
[27]
Ibid. p. 7 lines 24-29 p.8 lines 1-7.

[28] Vide para.
35.
[29] Majority
Decision on the Application for Withdrawal, 20 May 2005, p.8 para
32.
[30] Prosecutor
v Delalic et al Order on Escad Land 30’s motion for Expedited
Consideration 15 September
1999.
[31]
Prosecutor v. Blagojevic, Public and Redacted Reason for Decision on Appeal by
Vidoje Blagojevic to Replace his Defence Team, 7 November
2003 Case No.
IT-02-60-AR73.
[32]
Justice Sebutinde’s memo to Justice’s Doherty and Lussick, 19 May
2005, p.2 para 4(i).

[33]
1st Respondent’s Response para 5 pp. 2 and
3.
[34] See paras
35 and 42
supra.
[35] See
para 35 and Article 24 of the
Directive.
[36] See
Special Court Annual Report 2002 – 2003 p. 16.