IN THE APPEALS CHAMBER

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

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

4. 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

5. 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.
6. 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.
7. 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

8. 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.
9. 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

10. 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.

11. 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.
12. 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.
13. 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.
14. 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

15. 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.”
16. 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.
17. 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

18. 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]
19. 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.
20. 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

21. 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.”
22. 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.
23. 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.
24. 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.
25. 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

26. 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]
27. 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]
28. 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]
29. 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]
30. 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]
31. 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

32. 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]
33. 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

34. 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

35. 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.
36. 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?

37. 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...”

38. 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)

39. 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).
40. 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.”
41. 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

42. 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.

43. 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.

44. 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.
45. 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

46. 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

47. 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

48. 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).

49. 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

50. 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

51. 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.
52. This being said, I agree with the Majority Decision on the other aspects.
    

[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.