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THE atrocities perpetrated by all the sides in East Pakistan in 1971 were reprehensible. For its excesses, Pakistan expressed regret to the people of Bangladesh in 2002, with a desire to bury the ghosts of the past and forge robust ties for the future.
But, since assuming power in Bangladesh in 2008, the Awami League government of Prime Minister Hasina Wajed has adopted a regressive pathway that may disrupt relations between the two countries, even upset the regional balance of power in South Asia. Dhaka has been selectively mining the tragic events of 1971 for political gains by holding shambolic war crimes trials of its political opponents belonging to the Bangladesh Jamaat-i-Islami and Bangladesh National Party.
Initiated in 2010 , these trials are being held four decades after the events of 1971 and are a violation of the 1974 Tripartite Agreement concluded in “the larger interest of reconciliation, peace and stability in the subcontinent” between Pakistan, India and Bangladesh. Under this, the latter agreed not to proceed against those it accused of committing war crimes in 1971. It was, in fact, in reciprocity of this guarantee that Pakistan officially recognised Bangladesh as a sovereign state.
These trials, which have so far resulted in over two dozen capital and life sentences and four executions, have been marred by consistent miscarriages of justice in breach of international law norms and standards.
From a legal standpoint, the trials have been blighted by, inter alia, denial of the accused person’s right to bail; limited rights to appeal capital and life convictions; pro-prosecution bias; admission of hearsay evidence and evidence from intercepted communications between the prosecution and judges amounting to prohibited and biased communications; capital convictions based on hurriedly enacted retrospective legislation; and arbitrary limitation on production of defence witnesses and documents. These are serious violations of fair trial and due process guarantees enshrined in the International Covenant on Civil and Political Rights to which Bangladesh is a party. By conducting these trials, Bangladesh is responsible under international law for directly breaching at least 11 Articles of the ICCPR (Articles 2, 3, 6, 7, 9, 10, 14, 15, 17, 18 and 26).
The trials make a mockery of justice.
The International Criminal Tribunal established to hold these trials is fundamentally flawed — Article 47(A) of the Bangladeshi Constitution states: “This Article further denies any accused under the ICT Act from moving the Supreme Court for any remedies under the Constitution, including any challenges as to the unconstitutionality of Article 47(A).” The latter essentially strips the accused before the ICT of certain fundamental rights, including the right to an expeditious trial by an independent, impartial tribunal, and the right to move the courts to enforce fundamental rights.
Moreover, the ICT Act 2009 excludes the application of normal rules of procedure and evidence in proceedings before the ICT. Section 23 states: “The provisions of the Criminal Procedure Code, 1898 (V of 1898), and the Evidence Act, 1872 (I of 1872), shall not apply in any proceedings under this Act.”
Disturbingly, one accused, Delwar Hossain Sayeedi, was handed down the capital sentence despite allegations that government forces abducted a key defence witness. Mohammed Kamaruzzaman was hanged in April 2015 even though witnesses and documents were arbitrarily limited by the courts and the inconsistency of statements by prosecution witnesses were not factored into the evidence. In the case of Salahuddin Quader Chowdhury, hanged in November 2015, the ICT refused to accept any testimony from his alibi witnesses.
Despite allowing the prosecution to call 41 witnesses, the ICT limited Chowdhury’s defence to four witnesses. The authorities ordered airlines flying into Dhaka to declare if any of Chowdhury’s defence witnesses, including some distinguished Pakistani citizens, were booked on their flights ahead of his review hearing, so as to deny them entry.
The numerous procedural and substantive flaws that have turned these trials into a farce have been highlighted by eminent lawyers and human rights groups across the globe. The current Bangladesh supreme court chief justice himself remarked during the appellate proceedings in Mir Qasim Ali’s case that he was “very disappointed to see that you [the prosecution] are using these trials [for] your political benefit.…” He was “shocked that the prosecution’s case is full of contradictions”. Despite these remarks, Ali’s capital sentence was upheld by the supreme court, doubtless due to political pressure.
Last Wednesday, Jamaat-i-Islami chief, Motiur Rahman Nizami was hanged on trumped-up war crime charges. Pakistan must raise this issue at bilateral, regional and international levels to ensure that Bangladesh honours its international legal obligations by immediately halting these flawed trials as well as quashing all outstanding sentences pronounced by the war crimes tribunal. Apart from affirming the international rule of law, this will enhance peace and stability in South Asia.
The writer is ex-caretaker federal law minister.
Published in Dawn, May 18th, 2016
