Bangladesh’s war crimes tribunal is sullying its judicial and political systems. Now consider the trials under way at the International Crimes Tribunal in Dhaka, Bangladesh. Innocent persons are being tried and executed for accusation of dreadful crimes committed 44 years ago, during Bangladesh’s independence war from Pakistan, in 1971.
Now it is no secret that the government has interfered in the court’s deliberations. Public discussion of the proceedings has been restricted. The number of defence witnesses was curtailed. One was even kidnapped on the stairs of the court and later on he was reportedly found in Dum Dum central jail in Kolkata. In one case, the presiding judge resigned and the death sentence was handed down by three men who had not heard all the witnesses. In another case, the defendant was represented by a lawyer who did not have nearly enough time to prepare a case. That also ended in a death sentence. These are profound judicial failings in Bangladesh.
As many of the defence lawyers were arrested and taken to remand several times without any charges by this measure, the trials have been an utter failure. The detainees were arbitrarily arrested on other matters and then rearrested once in custody, for things to do with 1971. The detainees haven’t been served with a single piece of paper detailing what it is that they’re likely to have to contest later till one year after their arrest.
‘FLAWED’ TRIAL AND APPEALS PROCESS
With the impending executions, Amnesty International issued a statement claiming that the “trial and appeals process of two men Salauddin Quader Choudhury and Ali Ahsan Mohammad Mujahid were clearly flawed”.
“The crimes committed during the war of independence were horrific, but the death sentences only perpetuate violence. The lack of fair trials makes the use of death penalty even more disturbing,” stated David Griffiths, research director, Amnesty International, South Asia.
The international human rights organisation only pointed to one particular flaw in the appeal of Chowdhury, a national leader of the Bangladesh Nationalist Party (BNP), who had been convicted of nine offences and sentenced to death in relation to four of them.
“In one instance, the Supreme Court failed to dismiss the statement of a witness known as ‘PW6’,” Amnesty stated. “The witness testified that a person who could corroborate his statement was dead when in fact the individual was very much alive and had even submitted a signed affidavit to the court to prove it.” PW6 was the only eyewitness to Chowdhury’s presence at the scene of an offence for which he received a life sentence.
As to Mujahid, Secretary General, Bangladesh Jamaat-e-Islami, sentenced to death for orchestrating the killing of intellectuals in the final days of the 1971 war, Amnesty’s statement stated: “The Supreme Court failed to dismiss the prosecution’s claim that he had instigated his subordinates to commit human rights abuses, when no subordinates had either been identified or testified on record”.
The criticisms did not go down well with war crimes trial campaigners in Bangladesh who mostly support executions and claim the process is fair.
“Amnesty International is an anti-humanity organization,” Imran (H) Sarkar, the head of the one fraction of Gonojagoron Moncho (meaning Mass awakening forum), mainly a group of anti–Islamic atheist, told a public meeting in Dhaka.
Prime Minister Sheikh Hasina suggested that Amnesty had been corrupted and “surely … got a hefty amount of something” for writing such reports. “Or else, why they would do this?” she said. She also slammed Amnesty’s comment that “[s]erious crimes were also committed by the pro-independence forces, but no one has been investigated or brought to justice for them”. “This is not acceptable to us that they will [speak] against our freedom fighters,” Hasina stated.
The most significant problem with the Chowdhury’s trial is the number of witnesses that the defence was allowed to call and the limited time it was given to present its case. After the prosecution had summoned 41 witnesses to prove the 20 offences charged against Chowdhury, the tribunal allowed defence lawyers to summon only five witnesses. The court stated that this number would be “sufficient to prove the defence plea”. The ICT did not, though, wait until all five witnesses had testified. Rather, it decided to close the defence case after the lawyers had called only four of its permitted witnesses, arguing that the defence was failing to bring their witnesses quickly enough to the court. As a result, the defence could not present eight key witnesses, five of whom lived in Pakistan, to support Chowdhury’s alibi. The accused has claimed that during the 1971 war, he was not in Chittagong, but in Karachi and then Lahore.
The ICT’s restriction on how many defence witnesses can be called is infamous. In the case of Abdul Alim, the prosecution summoned 35 witnesses, but the defence was restricted to three witnesses to disprove 17 offences. Four witnesses were permitted in the case of Motiur Rahman Nizami’s defence relating to 16 charges; five witnesses were allowed in the trial of Muhammad Kamaruzzaman involving seven offences and six in the case of Abdul Quader Molla in defence of six offences.
IS TRIBUNAL INDEPENDENT?
As for the trial itself, is it independent when, from bottom to up, all actors were appointed by the government? The investigators, the prosecutors and the judges, all were appointed by the government. Is it right that the judges have an unfettered right to question witnesses and the defence with no right of re-examination after that questioning takes place? Is it right that the tribunal or the act should deny defendants any chance of challenging or making interlocutory challenges to other courts? Is it right that the defence should be called to prove beyond reasonable doubt the existence of an alibi or any other specific fact in the course of their defence?
How is it possible that the traditional rules of evidence should be specifically ruled out from the trial that, as stated in the act, the judges may take judicial notice of what is contained in magazines, press reports, newspaper cuttings, and television reports as the evidences? It becomes trial by rumour rather than trial on evidence. And is it right that the prosecution can get away with serving their case papers on the court just three weeks before the trial.