By Salil Tripathi
The atrocities committed during Bangladesh’s war of liberation in 1971 were horrendous. It is important that survivors and victims are getting access to justice.
Some lawyers in Bangladesh have found a new way to restrict freedom of expression—by using contempt proceedings. Three local lawyers, not connected with the cases before the International Crimes Tribunals where alleged war crimes from Bangladesh’s 1971 war of liberation are being tried, have filed a complaint against David Bergman, a British journalist atNew Age, a national daily. Bergman, who has been writing about the prosecutions in his blog, has been asked to explain criticisms in three articles on his blog. In a separate case, the editor of Bangladesh’s leading Bengali daily, Prothom Alo (First Light), Matiur Rahman, and his deputy, Mizanur Rahman Khan, have been asked to show cause regarding why they should not be punished for contempt for running stories about bail hearings in different matters.
Such actions by lawyers suit the government well; it can say it is not interfering with the judicial process at all, even if critical questions about the tribunals may irritate government officials. Bergman is no stranger to the accusation—for several years now he has been examining the tribunal proceedings in an informed blog, and one tribunal warned him earlier regarding possible contempt. But Bergman cares deeply about justice for the victims of the 1971 war of independence. Indeed, in 1995 he researched the award winning Channel 4 documentary War Crimes File, which investigated alleged war crimes by three Bangladeshi men who migrated to Britain, and one of whom has since been convicted by the tribunal.
Critics of the ICT are not all defenders of the Jamaat-e-Islami, the fundamentalist political party, many of whose leaders the tribunal has found guilty, sentencing most of them to death. (The first execution was carried out late last year). The Jamaat is critical of the tribunal because it sees it as a tool designed by the ruling Awami League party to eliminate the Jamaat from Bangladesh’s political scene. (The Jamaat is an ally of the opposition Bangladesh National Party, and the two boycotted the parliamentary elections, which helped return Awami League to power with a large majority in elections where most candidates were returned uncontested). The Jamaat doesn’t want the war crimes trials to take place at all, since its leaders say what happened in 1971 was only a civil war, leading to Pakistan’s break-up. Many Bangladeshis challenge that, and see in that the denial of their war of liberation, in which they fought against Pakistani forces, who were assisted by razakars and other collaborators, including many Jamaat politicians.
Bergman has not argued against the principle of justice. He challenges the culture of impunity that had prevailed in Bangladesh for nearly four decades. However, as Bergman’s reporting shows, he has been meticulous in analysing the trials, pointing out what he sees as procedural flaws and holding up a mirror to the process, which has otherwise not faced much serious review. He has also raised troubling questions about witnesses turning hostile, the alleged disappearance of one witness, and perceptions of bias in procedural rulings, which have often favoured the prosecution.
These are fair comments. Instead, lawyers, suddenly concerned about the court’s reputation, have taken it upon themselves to lodge complaints. The court has allowed the process to continue so far, in effect diverting the focus from the hard work of pursuing prosecutions for war crimes to investigations of statements and comments by those interested in seeing justice done.
In any case, recent developments have not helped. After one tribunal sentenced Quader Mollah, a Jamaat member, to life imprisonment, public fury erupted, and thousands of Bangladeshis marched to Shahbagh, seeking stronger punishment, leading to the ghoulish spectacle of young Bangladeshis demanding the death penalty, fearful that without he would escape punishment altogether under a different government. There is precedent in Bangladesh of notorious self-confessed assassins being given diplomatic posts in the past—one even ran for president. The government ultimately amended the law permitting the prosecution to appeal to seek a higher penalty, which it did, and the appellate court sentenced him to death. The execution was carried out last year.
In a democracy, people should have the right to comment freely, not only as an inalienable right of free expression, but also to ensure that the justice system remains transparent and accountable. Take away that right, and you build a barricade around the justice system, and when that happens, Bangladesh ends up stifling discussions of the sort that its founding fathers and mothers fought so hard to establish.
The mass atrocities that the Pakistani army and its collaborators in Bangladesh committed during 1971 were horrendous, and it is important and right that survivors and victims are getting access to justice.
But justice delivered poorly sows the seeds of future injustices. Bangladesh needs justice and freedom of the press and the two need not be mutually exclusive—together, they strengthen democracy, bringing the nation closer to its ideals.