by David Bergman
MAHFUZ Anam, the editor of The Daily Star, in his column titled, ‘War crimes trial and failure of our politics’ is absolutely right. He is also completely wrong. This is how.
He is right when he says that ‘without the Awami League in power, and without Sheikh Hasina’s determined leadership’ there would not be war crimes trials now.
He is also, of course, right to say that terrible atrocities were committed in 1971, with hundreds of thousands dying at the hands of the Pakistan military and their collaborators.
And yet again he is right to say ‘We need to remember the atrocities of 1971 and the brutality perpetrated on our people, in order to fully understand the relevance of the war crimes trials.’
There is also nothing wrong with keeping hold of the memory of 1971. Few would argue against him when he says, ‘There is no way we, as a self-respecting people, can and should forget what happened in 1971.’
These reasons — and the emotion with which they are attached — are why so many people, including myself, supported the establishment of war crimes tribunal, a process that appeared genuinely popular throughout Bangladesh.
However, Mahfuz is wrong when he tries to hitch these reasons and the emotions to an argument about providing unwavering support to the actual process of the trials.
Supporting the demand for tribunals should not result in turning a blind eye to significant unfairness (and this is not a criticism of the judges) in the way in which the process has been conducted.
In the article Mahfuz minimises the concerns about the trial — wishing only that the tribunal was a bit ‘more efficient,’ ‘more tech-savvy’ and ‘more up to the international standard.’
These are however totally inadequate descriptions of the problems with the tribunal process.
It is very difficult to write accurately about these trials.
Apart from the social stigma of being portrayed as pro-Jamaat or pro-war criminal (which is the inevitable knee jerk reaction of many towards those who raise issues about the tribunal), there is the real risk that the tribunal will issue contempt of court proceedings.
But let me have a go by setting out some issues which have already been written about.
The first two scandals concerned the Sayedee case.
In May 2013, it emerged that the investigation and prosecution authorities had misled the tribunal about seven witnesses whose written statements they wished to be admitted as evidence.
Although the prosecution claimed that these witnesses could not be found, it in fact emerged, through copies of the safe house register, that the prosecution had brought them to Dhaka but decided not bring them to testify before the court.
Then five months later, in November 2012, the state authorities abducted from outside the court a witness, who was about to testify on behalf of Delwar Hossain Sayedee. When it happened, many chose to disbelieve it pointing out that the main eye-witnesses to the abduction were Jamaat lawyers, but the abduction has now been confirmed by Bali himself both in a statement provided to New Age newspaper, and more recently to an Indian court in his claim for asylum.
There was a good reason why state authorities would have wanted to prevent Bali from giving testimony in court; his evidence would have severely weakened a key case against Sayedee, one of two which finally resulted in him receiving the death penalty.
Then a month later there was the Skype scandal.
There were many things said in these conversations which raised concerns about the whole trial process — but perhaps the most shocking aspect of it was the collusion between a judge and a number of prosecutors.
The judge concerned resigned. But the prosecutors involved in this ‘collusion’ continued in their role before the tribunal.
Arguably, in no other case in Bangladesh would there have been such an outcome; the High Court would have simply quashed the case. But here the accused has no right to seek such a remedy.
And then there are the witnesses.
One of the very basic tenets of a fair trial is to provide the defence opportunity to present their case. This is most obviously represented by a court allowing the defence lawyers to bring witnesses to court.
However, the tribunal has restricted, severely in some cases, the number of defence witnesses.
In the case of Abdul Alim, the prosecution brought 35 witnesses, but the defence were restricted to only 3. In the Salauddin Quader Chowdhury trial the prosecution had 41 witnesses, but the defence were allowed only 5.
And then there is the actual assessment of evidence by the court.
The one case that can be discussed with a greater level of openness is the Quader Molla case where issues of sub-judice no longer prevail.
Abdul Quader Molla has received a death penalty for an offence where the reliability of the evidence of the sole witness has to be in real question.
Prior to her testimony in court in which she said Molla was present at the scene of her family’s massacre, the witness had given two statements (one of which was in to an investigation officer), neither of which mentioned that Molla was present at the scene of death. In fact one said that she was not even in Mirpur when her family was massacred.
Can it be appropriate for Molla to be put to death when the sole witness on which the court is reliant, had given prior contradictory statements — and had never in all the intervening years apparently ever mentioned Molla’s presence at the scene?
Using patriotic emotion to turn a blind eye to these substantial matters involving the country’s most significant trials in its history is the wrong approach.
Mahfuz, in his personal columns, and The Daily Star as a paper, boldly take on the Bangladesh state on many issues. Why are these trials exempt from that scrutiny and searing analysis?
Yes, the establishment of the trials was a great achievement in Bangladesh. Yes, it was right for the particular individuals detained by the tribunal to be subject to investigative and prosecution scrutiny.
However, the acclaim for the trial’s establishment should not then preclude a proper assessment of the subsequent fairness of the proceedings — in which people are likely to be put to death.
It is also very short-sighted.
Unless one protests now, these same unfortunate practices will simply be repeated and used against a different set of political opponents. And this time it will be people whose politics Bangladesh’s civil society establishment supports.
The writer is a journalist based in Bangladesh.
Source: The Daily Star