Abusing the System

Written by S.G. Jilanee  •  Region  •  January 2013 PDF Print E-mail

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

“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-e-Islami 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.’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. 

S. G. Jilanee is a senior political analyst and the former editor of Southasia Magazine.
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