Abus­ing the Sys­tem

In its mad venge­ful­ness, the Bangladesh government is mak­ing a mock­ery of in­ter­na­tional law and pro­ce­dures.

Southasia - - Bangladesh - By S.G. Ji­la­nee

“There is a risk not only of a mis­car­riage of jus­tice af­fect­ing the in­di­vid­ual de­fen­dants, but also that the wrongs which Bangladesh has al­ready suf­fered will be ag­gra­vated by the flawed process of the tri­bunal. That would not heal the coun­try’s wounds, but deepen them.” - The Econ­o­mist

Th­ese are prophetic words. The jour­nal al­ludes to con­cerns with re­gard to the In­ter­na­tional War Crimes Tri­bunals in Bangladesh. The ti­tle it­self is a mis­nomer. Th­ese are not in­ter­na­tional courts founded on in­ter­na­tional law nor are they spon­sored by the UN or have any for­eign judges as in the case of Rwanda and Cam­bo­dia. The ac­cused are top rank­ing lead­ers of the rul­ing Awami League’s (AL) ri­val po­lit­i­cal par­ties: Bangladesh Na­tional Party (BNP) and Ja­maat-e-Is­lami (JI). The tri­als then look, prima fa­cie, like po­lit­i­cal vic­tim­iza­tion. In ad­di­tion, Prof. Ghu­lam Azam, ex-chief of the JI, is 90 years old. Hang­ing him is cer­tain to in­flict a deep and abid­ing wound on a large sec­tion of the peo­ple.

Sheikh Mu­jibur Rah­man en­acted the In­ter­na­tional Crimes (Tri­bunal) Act in 1973 to pun­ish those who had al­lied with the Pak­istan army in 1971. No tri­als were pro­posed though, for the Bangladeshis who mas­sa­cred, raped and drove thou­sands of Bi­haris out of their homes in the af­ter­math of in­de­pen­dence. The Act re­mained in cold stor­age, un­til Sheikh Hasina, af­ter coming to power, re­vived it in 2010, amend­ing some its clauses and formed the In­ter­na­tional Crimes Tri­bunals. Some of the pro­vi­sions of the Act are unique: the ap­point­ment of Judges can­not be chal­lenged on the ground of bias. Sec­tion 23 of this Act bars the ap­pli­ca­tion of the Crim­i­nal Pro­ce­dure Code, (Cr. PC) and the Ev­i­dence Act, in any pro­ceed­ing, although that is con­trary to “Ar­ti­cle 11(1) of the Uni­ver­sal Dec­la­ra­tion of Hu­man Rights, Ar­ti­cle 14(2) of the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights and Ar­ti­cle 11(1) of the Rome Statute.”

The es­tab­lished prin­ci­ple of pre­sump­tion of in­no­cence for the ac­cused is de­nied. But news­pa­per re­ports are made ad­mis­si­ble as ev­i­dence. More in­ter­est­ingly, a report that Niza­mul Huq, chair­man of Tri­bunal No.1, wrote in 1994 when he was a prac­tic­ing lawyer, ac­cus­ing the cur­rent sus­pects of war crimes, “forms a key part of the pros­e­cu­tion ev­i­dence.” Sec­tion 265C, Cr. PC says that if upon con­sid­er­a­tion of the record of the case and doc­u­ments submitted there­with, and af­ter hear­ing the sub­mis­sions of the de­fense and the pros­e­cu­tion in this be­half, the Court con­sid­ers that there is no suf­fi­cient ground for pro­ceed­ing against the ac­cused, he shall be dis­charged.

Sec­tion 561A Cr. PC al­lows the ac­cused to make an ap­pli­ca­tion where the pro­ceed­ings against him con­sti­tute an abuse of the process of the Court. But by mak­ing the Cr. PC in­ap­pli­ca­ble, the ac­cused is de­nied th­ese re­liefs. On the con­trary a death sen­tence can now be ex­e­cuted di­rectly be­cause a con­fir­ma­tion by the High Court un­der Sec­tion 374 Cr. PC will not be re­quired.

Be­ing tried by the two tri­bunals are 14 ac­cused in­clud­ing Ja­maat-eIs­lami chief Motiur Rah­man Nizami, its Sec­re­tary gen­eral, Ali Ah­san Mu­jahid, Nayeb Ameer, Delawar Hos­sain Say­eedi, as well as ex-Ameer Ka­maruz­za­man, Qader Mollah, Prof. Ghu­lam Azam, BNP leader Salahud­din Quader Chowd­hury and former BNP min­is­ter, Ab­dul Aleem.

Nowhere else in the world -Rwanda, Sierra Leone, Cam­bo­dia -- did po­lit­i­cal par­ties ag­i­tate in the streets or the government pres­sur­ize the judges to speed up the tri­als. Bangladesh is the only ex­cep­tion. Here, ev­ery other day peo­ple take to the streets to de­mand “speedy trial.” Of­ten such demon­stra­tions are spon­sored by the government and ad­dressed by its min­is­ters. What they ac­tu­ally mean by “speedy trial” is a death sen­tence with­out any pro­ce­dural ado.

A talk be­tween Jus­tice Niza­mul Huq, ex-chair­man Tri­bunal No. 1, and Ah­mad Zi­aud­din, di­rec­tor, Bangladesh Cen­tre for Geno­cide Stud­ies in Brus­sels, cited by The Econ­o­mist re­veals the ex­tent of government pres­sure. “The government has gone to­tally mad,” says the judge. “They want a judg­ment by 16th De­cem­ber, I am telling you. ...it’s as sim­ple as that.” In fact the stage was all set for Prime Min­is­ter Hasina to present the first scalp to the na­tion as a V-Day sou­venir, on De­cem­ber 16. Ar­gu­ments had been com­pleted. News­pa­pers were al­ready scream­ing, “Judg­ment ex­pected any day!” And Say­eedi’s de­trac­tors had been wait­ing in ex­cited sus­pense.

Then, sud­denly The Econ­o­mist dropped a bomb. It claimed to have heard “17 hours of recorded tele­phone con­ver­sa­tions and seen over 230 e-mails” be­tween Jus­tice Niza­mul Huq and Ah­mad Zi­aud­din, re­gard­ing Say­eedi’s case. It had also ques­tioned Nizam and Zi­aud­din. From the ev­i­dence at­tained, it tran­spires that Nizam had been con­sult­ing with Zi­aud­din as the case pro­ceeded. And Zi­aud­din had also been coun­selling both Nizam and the pros­e­cu­tion on con­duct­ing the case. Af­ter The Econ­o­mist ques­tioned Nizam and a Dhaka daily, Amar Desh, pub­lished his pri­vate e-mails to Zi­aud­din, which cast doubt upon his role and upon the court pro­ceed­ings, he re­signed. The ma­te­rial with The Econ­o­mist sug­gests that the government tried to put pres­sure on the judge. It points, par­tic­u­larly, in Say­eedi’s case “to the pos­si­bil­ity that, even be­fore the court had fin­ished hear­ing tes­ti­mony from the de­fense wit­nesses, Nizam was al­ready ex­pect­ing a guilty ver­dict.”

The ver­dict is fore­told. In fact the min­is­ter sans port­fo­lio, Su­ran­jit Sen Gupta, is so cer­tain about the judg­ment that, at a government-spon­sored “speedy trial” rally last month he an­nounced:“The next year is 2013. Ver­dict of 14 iden­ti­fied war crim­i­nals has al­ready been fi­nal­ized. Trial of th­ese 14 war crim­i­nals would be com­pleted any­time within 2013. Their ver­dict of ex­e­cu­tion will also be im­ple­mented. None would be able to re­sist it.”

He may be right to sur­mise. Sheikh Hasina has whipped up pub­lic fury to such a pitch that any sen­tence less than death may ex­pose the judges to pub­lic wrath. In ev­ery speech she vows to con­tinue with the tri­als, ig­nor­ing both the watch­ful eyes of the in­ter­na­tional com­mu­nity and the un­pre­dictable fall­out of the ver­dicts and their ex­e­cu­tion. It is in this con­text that The Econ­o­mist’s warn­ing makes sense.

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