by Toby Cadman
In 1971, East Pakistan seceded from West Pakistan and Bangladesh was born out of a violent nine-month conflict that pitted long-term foes India and Pakistan. Although there is little reliable data on the numbers of civilian casualties, it is beyond doubt that all sides to the conflict committed crimes of an international character.
It was originally envisaged by the international legal community that an international criminal tribunal would be established to put those on trial bearing criminal responsibility for war crimes, crimes against humanity and genocide. It was determined that only under international jurisdiction could trials be held under the right conditions before an independent and impartial tribunal of law. This did not happen.
Bangladesh waited more than four decades to establish a system of justice, if one can call it as such. The International Crimes Tribunal Bangladesh, a domestic court, has strived to label itself as a model in delivering national criminal justice according the highest universally recognised standards. It has recently alluded to being a process of complementary justice to the International Criminal Court. In reality this is all a complete fallacy as it represents little more than a manifestation of hatred and vengeance. It represents a missed opportunity and clearly demonstrates the need for the trials in Bangladesh to come under international supervision.
Any system of justice is about accountability and ending impunity. Judges are appointed as the arbitrators of fairness. They are appointed to make decisions independently and impartially irrespective of the gravity of the crime charged. They are free from personal interest and must act dispassionately on the basis of the evidence presented at trial. This would seem to be an elementary theory upon which the rule of law is built.
The criticism raised against the judicial process in Bangladesh is widespread. It has come from a host of sources from within the United Nations and the international legal community. Whilst one recognises the need to ensure that impunity is ended, where such a process is so devoid of transparency and equality it cannot properly be called a judicial process.
Geoffrey Robertson QC, a senior war crimes advocate and the first President of the UN’s Special Court in Sierra Leone, recommended in a press release on 24 March 2014 that the UN Security Council suspend the current proceedings and establish an international ad hoc tribunal in The Hague. Robertson is expected to issue a full report on the situation in Bangladesh in August/September 2014 to be presented to the UN Security Council and the UN Human Rights Council.
Against this backdrop of criticism, the Appellant Division of the Supreme Court of Bangladesh is expected to deliver its appeal verdict in the case of Maulana Allama Delwar Hossain Sayedee. Whilst the date for the delivery of the verdict is yet to be announced, it is unlikely to cause any great surprise in an environment where discussions on the planning of the execution and the immediate fallout are already taking place. The reality is that the Government has so much vested politically in the outcome of the war crimes trials that it simply can not afford any other outcome.
On 5 February 2013 the Tribunal convicted Abdul Quader Mollah and sentenced him to life imprisonment. Protesters took to the streets in their thousands to vent their outrage and the Government pacified the protesters by amending the law retroactively to allow a sentence of death – a process that has been characterised as a grotesque violation of international law. The Prime Minister spoke in Parliament that she would ensure the judges understood the ‘sentiment of the people’.
On 28 February 2013, the Bangladesh Tribunal convicted Sayedee of eight charges of crimes against humanity and imposed a death sentence in respect of two of those charges, thereby following the direction of the Prime Minister. Like previous judgments before it, the Sayedee verdict was internationally condemned. The Defence argued on appeal that the procedural irregularities were so grave that only a full retrial would suffice.
The Sayedee case represents everything that is wrong with the trial process in Bangladesh. Sayedee is an Islamist with a great following. Whether one subscribes to his ideological beliefs, and many will not, is not altogether relevant. He should not be on trial for his religious beliefs or his politics. He is supposed to be on trial for whether or not he committed crimes against humanity in 1971. The evidence in that regard is decidedly unpersuasive.
Without going into the legal and factual arguments presented at trial, there are two critical matters that require attention. First, the courts refused to consider an important piece of exculpatory evidence tendered by the defence at trial that lends strong support to the fact that Sayedee did not commit the crime for which he received the death penalty. The charge concerns the murder of Ibrahim Kutti. The defence presented evidence at trial that demonstrates the charge was unsustainable that both the Tribunal and the Supreme Court refused to consider. Moreover, the original complainant, Kutti’s spouse, Momtaz Begum, was not produced as a witness at trial.
The second issue concerned the witness Shukharanjan Bali. On 5 November 2012, Bali, previously a prosecution witness, was due to give evidence for the defence. However, before he could do so, members of the Bangladesh law enforcement agencies abducted him on the steps of the Tribunal, held in custody for several weeks, tortured, and then transported over the border into India where he remains to this day.
The separation of powers is the principle of vesting in separate branches the executive, legislative, and judicial powers of government. It is the hallmark of a democracy. In Bangladesh this principle is but an illusion. It has no relevance in practice and the autocratic regime has complete control over the courts – all courts. There have been repeated warnings about this and the international community has turned a blind. One must continue to ask why.
This is all happening in South East Asia in a country of very little significance internationally. It is happening in a country that is known for conflict and political corruption. It is happening in a country with a judicial system in a state of disarray. But why should we care. Well frankly we should care and it is shameful that the majority do not. It is shameful that we are prepared to sit back and watch as a Government kills a section of its own people under the veil of democracy and accountability. This is not a democratic process and it has very little to do with justice and accountability. In the words of Martin Luther King “Injustice anywhere is a threat to justice everywhere.” Now is the time for the Bangladesh Supreme Court to turn the page and side with justice rather than politics.
Source: CNN iReport