Toby Cadman’s response To David Bergman

Shahbag protesters in Dhaka

Dear David,

I have followed your commentaries on the Tribunal for some time.  I have read your ‘opinion’ on the Tribunal and have more or less agreed with the position that you have adopted throughout.  I have also observed the comments made recently concerning your writings on the first three convictions and the Shahbagh demonstrations labeling you as pro-Jamaat or a supporter of the ‘war criminals’. Such comments are ridiculous, biased and indicative of the politics of this whole process.

You have expressed your opinion throughout the trial process and I have quoted you in meetings with members of the international community as the only real impartial voice in Bangladesh.  I don’t agree with everything you say but you are quite right to voice your opinion in a rational, sensible manner by ensuring that any judicial process is a just process.

You are of course entitled to your own opinion just as I am entitled to disagree with you and voice my own.  The fact that I am engaged as defence counsel for the accused does not place any limitation on my right to express an opinion.  Some might consider that puts me in a perfect position to express an opinion on the conduct of the cases, the current situation and whether the trial process should continue in Bangladesh.  That was precisely what I expressed.

It is quite right that I am the most active of the British lawyers engaged to represent the Jamaat leaders.  That is my role.  You say that what I say is unsurprising; I agree. It was not intended as a departure from what I have said in the past.

In the introductory section you refer to the mischaracterisation of Shahbagh.  I disagree; I was stating one of many characterizations of Shahbagh.  The fact that you disagree is quite irrelevant in my view.  You can express your opinion of course and say where you consider I am wrong, but the fact that I have expressed an opinion does not amount to a misrepresentation.

The concern that I raised about Shahbagh is two-fold.  First, whilst some may consider it to be a spontaneous movement making legitimate demands – I don’t agree with that position – it has become a demand for blood and a demand for banning a political party.  The second point I made was that it runs the risk of interfering with the trial process.  You appear to now disagree with these points.  I would remind you what you stated in an article entitled “My response to Tahmina Anam’s article on ‘Shahbag’, 1971 war crimes trials in Bangladesh, and demands for hangings”:

Shahbag promises much. But the demand for hanging – not only Mollah, but also those who have not even been convicted (something which you again ignore in your article) – is worrying in itself (how can the tribunals now run independently?) but also for those concerned about the rule of law and due process in the future in Bangladesh (when perhaps the BNP/Jamaatis are next in power?).

You may now disagree with this point, but criticizing me for making the same point is hypocritical to say the very least.

In my article I refer to being “a thorn in the side of a government hell bent on destroying any political opposition”.  That is an opinion based on the conduct of the Government and the statements that have been made by members of the Government about me.  I simply do not agree that there is a “thriving democracy” and do not see how any independent observer could come to the same realization.  In terms of the Government being hell bent on destroying the opposition the argument goes much deeper than merely locking up 10 Jamaat leaders.  Whilst you may consider it fair that those persons in custody are appropriate targets for prosecution, there is certainly nothing in the cases put forward by the Government that leads an impartial observer, again I’m not talking about myself as I’m not impartial, to conclude that these trials are anything but political.  You appear to accept that Jamaat as a political party is not able to operate and members of the BNP have been arrested under questionable circumstances, but you go on to declare that the country is a thriving democracy. Again, I must highlight the contradiction in your views, evident by the oscillating positions you seem to take on these issues.  You obviously have the right to change your mind but to accuse me simply because I am consistent in my views, simply because they no longer accord with your own, is unprofessional and unnecessary.

You next criticize the statement that the country is deeply divided by the issue of war crimes.  You disagree.  That is of course your right.  I was merely expressing my opinion based on the last two years.  I have never stated that the nation is divided on the fact that crimes were committed on a massive scale that is deserving of a judicial process.  I have made that point quite clear on a number of occasions as you rightly know.  The point that I endeavoured to make was how the nation was now addressing the question of accountability.  The paragraph that refers to the question of division states as follows:

“The central problem in all of this is that the people of Bangladesh, a wonderfully warm and divergent population, are deeply divided by the issue of war crimes. Rational individuals lose all sense of reason when questioned about war crimes. Fair trial and due process rights have no place. All those accused of war crimes must be convicted and duly executed. Nothing less will suffice.”

Therefore, my comment was not on the issue of whether crimes were committed, but the irrational manner in which the question of accountability is dealt with.  Perhaps I should have been more literal in my commentary, but I considered it implicit that there should be accountability, but a segment of Bangladesh society cares little about fair trial and due process rights.

In your article entitled “Bangladesh: Instead of the death penalty, the protesters at Shahbag should be demanding fair trials” published in The Hindu on 2 March 2013 you stated:

“The demands coming from Shahbag show little interest in the subtleties of due process or matters of evidence. The protesters seem convinced that all the men currently before the tribunal are guilty, that any evidential weaknesses evidence are simply due to the long 40 years they have waited for justice, and that if the men do not get the death penalty, they will be released by a future sympathetic government.


“There is much in the Shahbag protests to support. But demands for hanging these men following a rather blemished tribunal process would well be a serious blot on these wider aspirations.”

Next, you criticize my statement that the Shahbagh demonstrations are ultimately seeking the abolition of Jamaat.  Whilst you may disagree, you accept that that is one of the demands of the demonstrators.  My statement was to argue that there is simply little comparison between Tahrir Square and Shahbagh.  Whether readers consider the demands of the Shahbagh protesters to be reasonable or not the argument I advanced was that there is little comparison with the Egyptian revolution.  Shahbagh is seeking the death penalty and banning of Jamaat as a political party.  I didn’t comment on the history of Bangladesh politics.  Perhaps I should have discussed the history of one party rule, the assassination of Sheikh Mujibur Rahman and the development of Bangladesh divided politics.  I merely commented on Shahbagh and its intentions.

Next, you take issue with my use of the term ‘mob rule’.  You quite rightly state that it should be termed ‘mob justice’.  I take your point entirely.  However, you then go on to state that there is mob rule on the streets albeit under the control of supporters of Jamaat and its student wing.  Whilst we may disagree as to who is the cause of the violence there is certainly agreement that violence is occurring that may be characterized as mob rule.

The fifth point that I am alleged to have misrepresented is that concerning use of the term ‘civil war.  You allege that this is the desire of the opposition and anarchy is being used as a tool of survival by Jamaat.  You also allege that the Jamaat strategy is to create a scenario where the army is forced to take over.  I cannot say what is the political strategy for the opposition, but I would hardly expect it to be in anyone’s interest that there is such instability in Bangladesh that a military assumes power.  That would almost certainly result in both the ruling party and the opposition losing out.

The comment I made actually refers to the risk that the country “is descending dramatically and rapidly towards civil war”.  It remains my view, that unless things change dramatically, there is a real possibility of the exasperation of the present situation descending into something more serious and widespread (call it a ‘conflict’ or any term you wish to use).   I do not consider that to be an irrational or irresponsible statement.  On the contrary, willful denial of the seriousness of the present situation I do consider to be irrational and irresponsible.

The sixth point refers to the Orwellian comment of throwing fuel on the flames of discontent.  Once again the statement is made attempting to take out of context my comment.  If one is to accept that the Shahbagh demonstrations are part of a spontaneous movement of the people and the Government has no part to play and that this is an entirely just movement, then the words of the Prime Minister, which I referred to in my article, stating that the courts should take account of the will of the people, namely the protesters, in considering its verdicts, are truly irresponsible. I agree with the sentiment that the Government should take steps to ensure that law enforcement officials do not operate a “trigger happy” response to the demonstrations by Jamaat supporters.  There is no getting away from the fact that there have been numerous deaths since the Sayedee conviction.

The seventh point concerns the statement as to what would have happened had Sayedee not received the death sentence.  It remains my view that this is a legitimate statement to make.  The Shahbagh protesters started their protests following the failure to sentence Abdul Quader Mollah to death.  This prompted the Government to accelerate a change in the law to allow the Prosecution to appeal against what it perceives to be an inadequate sentence.  This was not a policy decision.  This was to satisfy the protesters.  The next judgment to follow was Sayedee.  I do not need to say anything concerning the conduct of the Sayedee case.  The proceedings should have been stopped long ago and a retrial ordered.  It is notable that he received the death penalty for two counts in the indictment; one of which concerned the murder of the brother of Shukho Ranjan Bali, the witness who was abducted outside the Tribunal premises.  I made it clear in my article, and I maintain the position, the Shahbagh protesters, whether or not they have maintained a violent presence on the streets, have nonetheless had a strong impact on dictating the proceedings.  The Government is quite aware that the protesters, for all their purported solemnity, could easily turn on the Government if its demands are not met.

Eighth, you say it is preposterous to suggest that the protesters represented any physical threat.  That is your opinion of course and as you have observed the demonstrations first hand I will have to defer to your unpartisan view of what kind of threat they represented, whether physical or otherwise.  Whilst you may take issue with the language used, you accept that the judges were under great pressure as a result of Shahbagh.

Ninth, you take issue with the suggestion that this could descend into bitter sectarian conflict.  You also make the point that I should be advising my clients to stop the violent protests. You would be wise to recognize that the clients I represent are a group of elderly men who have been in custody for almost three years.  As regards what is occurring on the streets it would be advisable that all parties wishing to demonstrate are given the freedom to demonstrate peacefully.  Allowing the Shahbag demonstrators to freely demonstrate, but not permitting the opposition to do so of course presents a dilemma.  It would be in the best interests of all concerned that any violent demonstrations cease immediately and that the parties to the conflict, for want of a better word, settle their differences in a non-violent forum.  This also leads onto the final point.  You seem to have taken the position that only Jamaat is responsible for the violence on the streets.  I fully accept that you are expressing an opinion, as is your right, but I do not consider that it represents the reality on the ground.

As a final concluding note I would add that your desire to take issue with my article for the reasons cited is both surprising and disappointing.  You have always adopted a liberal view to these trials and have had your wrists slapped on more than one occasion for expressing your concerns.  I hope that continues.  Whilst there is no requirement for me to be impartial one would hope that you, as a responsible journalist, remain wholly impartial and unpartisan in your views.

Respectfully yours,

Toby M. Cadman