By Sohrab Hussain
The present Awami League Government arranged a war-crime-tribunal-trial drama with a naked intention to hang the Islamic leaders in Bangladesh. This judicial killing has been criticized in national and international arena. Despite the world wide criticism they are continuing this biased trial to stay in power. They re-enforced the International Crimes (Tribunal) Act, 1973 and made another supplementary rule named the International Crimes Tribunal Rules of Procedure 2010.There are lots of discriminatory provisions in ICT Act and the Rules of Procedure which have been criticized by various national and international human rights organizations. The Bangladesh government invited Stephen Rapp, The United Ambassador-at-Large for War Crimes Issues, to observe the activities of the government. The government informed him the procedure that has been followed in war crimes tribunal. The government claimed that they ensured the transparency and legal rights of the accused person. After visiting Dhaka city twice, he submitted a ten-page letter to the government setting out his concern about the justice. He exposes his distrust in relation to the credibility of bona fide intention of the government describing the absence of international standard of war crimes law. He recommended adopting the laws to maintain international standard like the International Crimes Tribunal for Rwanda. He recommended to formulate laws eradicating all loopholes existed in the act.
The identified enormous loopholes of the Act and the tribunal are sufficient to ascribe this Tribunal for biasness. Generally If a person is accused of committing a crime, whatever the nature of the crime, he can, as of right, exercise his fundamental rights unless the court convict him after the completion of the trial. But article 47(3) of our constitution states that a person, who is accused of not convicted for war crimes, shall be deprived of his fundamental rights inserted in chapter three of our constitution during the trial procedure. Article 47(3) lies that if the following matters are inconsistent with the fundamental rights chapter these shall not be void for such inconsistency. Article 47(3) explicitly describes these provisions for a member of any armed or defense or auxiliary forces or any individual, group of individuals or organization or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law. Article 47 (A) signifies that the rights guaranteed under Article 31 (right to protection of law), Article 35 (1) (3) (protection in respect of trial and punishment) and Article 44 (rights to property) shall not be applied to any person to whom article 47(3) is applicable.
Section 6(1) of the International Crimes (Tribunals) Act, 1973 states that the government can, by notification of official gazette, if he wants, establish one or more tribunals consisting of a chairman along with not less than two and not more than four members. Whereas government is complainant and he is also empowered to established tribunals appointing judges of his choice, a fair and free trial is not possible. Section 6(8) signifies that the tribunal or appointment of chairman and members shall not be challenged by the prosecution or defense party. This section has closed the scope of challenging the legality of appointment of a judge who is alleged by lots of criminal charges. 10(3) (a) (b) can be regarded as another defect which gives unfettered power to the Tribunal in relation to trial. Now, the Tribunal can, if it thinks fit, take measure to direct an expeditious hearing to prevent unreasonable delay as well as to accept irrelevant issues as statements. The problem arises when the tribunal does not permit the defense team to produce their own witnesses or permits only some witnesses which are not sufficient to prove the defense’s stance. After hearing the issues, sometimes even not hearing the issues at all, the tribunal often discharges various issues raised by the defense party. More importantly, nothing has been mentioned about what issues or statements are inadmissible or irrelevant in the trial, this ambiguity gives unfettered power to the judges to manipulate their own ill-will.
The problem of manipulation is exacerbated by the provision that the Evidence Act 1872 and the Code of Criminal Procedure 1898 are not applicable in the Tribunal. Thus the tribunal has discretionary power in relation to the evidence and the procedure of the Tribunal. Section 23 was incorporated in this act to facilitate the attempts to hang the accused persons through a fragile and politically biased trial. The ridiculous matter is that the prosecution can produce reports and photographs, periodicals and magazines, films and tap recording and other materials produced after the liberation war as evidence. Under rule 44 of the International Crimes Tribunal Rules of Procedure 2010, the Tribunal is at liberty to admit any evidence oral or documentary, print or electronic. But nowhere of the Evidence act has it been said that these materials may be produced as documents only because these materials are not reliable. The reason behind it is most of these documents are made by those authors who have political or racial identity. They, being influenced by emotion, made these books or magazines. These materials are made based on merely their personal opinions and emotions and do not represent any concrete truth of our liberation war.
The government shall fix the time of execution of the sentences [Section 20]. This provision has been inserted to carry out political purposes the government. Whenever oppositions prompt to call strike to pressurize the government for different issues it steps to execute the death sentence which has been declared by the appellate division before. Thus, government can easily control the people’s concentration and sentiment.
Section 21 of this act clarifies that only the accused party can go to appellate court against the judgment of the tribunal; the prosecution is permitted to appeal against the order of acquittal of the tribunal. But in the case of Abdul Quader Mollah, when the tribunal convicted him life imprisonment instead of death sentence what the pro-government activists expected and demanded. After a mocking strike by pro-government activists the government incorporated another statute empowering the prosecution to appeal to the appellate division against the judgment of the tribunal if they are aggrieved. It is contradictory to natural justice. Nevertheless there is no instance in the world where, after commencement of trial, the government can change the statute. Section 24 says that no order, judgment of the tribunal shall be challenged in any court except in appellate division. In general, any aggrieved person can, by appealing to higher court, appeal for twice or thrice against the decision as any one is not perfectionist in his decision. But when there is only one chance to appeal then it must not be sufficient to ensure the justice. Section 25 indemnifies the government and concerned persons from being accused afterward if they do everything in good faith. It exempts them from accountability and encourages the authority and witnesses to give false evidence.
In rule 9(5) of International Crimes Tribunal Rules of Procedure 2010, the investigation officer shall, if an accused is in custody at the time of his investigation, conclude the investigation within one year of his arrest. The tribunal may release the accused person on bail subject to fulfillment of some conditions imposed by the Tribunal. But no specific condition has been mentioned what may be fulfilled for bail. Moreover, a person cannot claim the bail whenever he is accused though he is not guilty.
Under this section the prosecution team gets one year and six months for preparing their investigation report; in contrary, the defense team, under section 38(2), gets only three weeks or a less uncertain period which depends on prior permission of the Tribunal. This discriminatory statute elucidates the wrongful intention of the government to hang the leaders by hock or by crock.
Rule 42 of the International Crimes Tribunal Rules of Procedure 2010 states that the Tribunal may allow appearance of any foreigncounsel to secure the justice. Unfortunately, this provision has not been enforced since it went against the interest of the government. When the defense team called for foreign counsel the Tribunal did not allow their petition. In particular, they imposed some restrictions on the rights of audience of foreign lawyers.
Rule 58(1) (2) permits the tribunal to exercise discretionary power to give due weight to the primary and secondary evidence and direct and circumstantial evidence and also accord in its discretion due consideration to both hearsay and non-hearsay evidence. This section has given the tribunal discretionary power in the exercise of evaluating the evidence by which they can abuse the power to satisfy the government. More interestingly, in section 66 of chapter-x, the authority admitted that this Act is not exhaustive so it can be amended when necessary.
Some other identified loopholes are as follows:
1. An accused person can be arrested before submission of formal charges to the Tribunal and they can challenge their detention for once without having right to appeal.
2. The investigation officer can investigate in the absence of counsel and they are not bound to expose what they asked to the accused person.
3. There is no provision to challenge the jurisdiction of the tribunal or the judges or to challenge the validity of ICT act and Rules of Procedure.
4. The prosecution team is not obliged to disclose the exculpatory evidence to the defendants or his counsel.
5. ‘Crime’ has not been defined in this law. Trial cannot be performed without defining Crime referred to various International Criminal Court Laws.
As long as the law confined them not to apply the prevailing laws i.e. The Evidence Act or The Code of Criminal Procedure, the defense team had a little chance to prove that their client was innocent. But their performance was outstanding considering all obstacles what they had to face. Now let me discuss some notable judgments of the Tribunal.
Hanging of Abdul Quader Mollah
In Abdul Quader Mollah’s case we can find out some flaws which went against the justice. Bangladesh is a member of the International Covenant on Civil and Political Rights (ICCPR) which prohibits the retroactive effects of criminal law as it goes against the international fair trial standards. The death sentence against Mr. Mollah was handed down based on retroactively amended legislation. Moreover, if any retrospective law is inserted after conviction of accused person and afterward, sentence has been increased by appellate division under such retrospective law, the defense team has no scope to challenge the validity of such laws. So the end cannot be justified the means in a legal context. Truly, it must have an immense bad effect in future. For instance, if any anti-Awami League government comes to power in future and steps to prosecute the retroactive legislation making activities related to the shahbag protest equal to treason. Then there would be no legal barrier to executing all those involved in mocking shahbag protest.
Abdul Quader Mollah’s defense team was only allowed 6 defense witnesses. But they proved their case beyond reasonable doubt. Mollah was not involved in the heinous allegations against him. In fact, he was trained to participate in the liberation war in Faridpur. He resumed his studies at Dhaka University immediately after 1971, and became a teacher at the UdayanSchool and the Rifles School. During his university life, he was a member of the Chatra Union (Matia group) and an ex-comrade of Matia Chowdhury and Nurul Islam Nahid.
Third prosecution witness Momena Begum was about 12 or 13 when her family members were brutally massacred in Mirpur on March 26, 1971. She had not filed any complaint to the court at that time. Then, on 28 September 2007, she gave a statement in relation to her family’s massacre to a researcher at Jallad Khana in which she blamed her Bihari neighbors for her family’s brutal murder.
She survived because she left for the place two days prior to the incident. Fast forward five years. Momena Begum reappears in the ICT testifying that she had heard Mr. Mollah was a fellow of one Akter Gunda who had killed people in Mirpur. This statement indicates that Mr. Mollah was not involved in killing mission. But surprisingly such a contradictory and inconclusive statement was sufficient to find Mr. Mollah guilty and ‘deserving’ the death sentence.
Dramatic Judgments of Maulana Delwar Hossain Sayeedi
The Tribunal convicted Maulana Delwar Hossain Sayeedi death sentence alleging him to commit crimes specified in eight of the twenty charges of crimes against humanity. Two of these charges pertained to killings. But no name of persons being killed by him was specified in charge sheet. What was his role in the assassination during the Liberation War of 1971 and place, date or time nothing was mentioned. They only urged that Maulana Sayeedi has killed 40 people somewhere once in a day during the war. The defense team said that the prosecution lawyers argued merely on the basis of imaginary and rootless charge sheet. The arrangement of such trial against any prisoner is beyond example. No crime has been specified in the charge sheet in any occurrence. The prosecution team argued that rape has been occurred, but not said to whom and when it has been conducted. Nothing is mentioned specifically about the name of the place of crime. The charge mentioned only the name of the village, not the union or thana. They only said that Mr. Sayeedi has killed that person in any day between March 25 and Dec. 16, 1971.
The Death Sentence of Mohammad Kamaruzzaman
In Kamaruzaman’s case, when the defense team started cross-examination and questioned a prosecution witness that how much the distance was between the home of Kamaruzzaman and the Bidhoba Polli, he answered that about 35-40 miles. In response to a question of defense he said that he saw Mr. Kamaruzzaman to carry 30-35 dead bodies by a track from Bidhoba Polli to Kamaruzzaman’s house on that road. When the same question was raised in front of another prosecution witness, he answered that there was no street at all. This was the main fact upon which the judges convicted him death sentence. But the fact was itself ambiguous upon which no neutral and competent judge can give death sentence.
The intention of the government has disclosed when ‘Skype Scandal’ has been leaked out. Now government is accelerating their own ruin by continuing this biased trial. Obviously, this nation irrespectively will have to endure the effect of this execution. We are waiting for a sunshine which will eradicate these biased judgments and bring fortune to the nation.