One hundred and fifty million jurors
Mozammel H. Khan
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings which are then applied by a judge. It is to be distinguished from a bench trial where a judge or panels of judges make all decisions. Typically, the jury only judges guilt or a verdict of not guilty, but the actual penalty is set by the judge.
In most common law jurisdictions, the jury is responsible for finding the facts of the case, while the judge determines the law. In countries where jury trials are common, they are often seen as an important check against state power. Other common assertions about the benefits of trial by jury is that it provides a means of interjecting community norms and values into judicial proceedings and that it legitimizes the law by providing opportunities for citizens to validate criminal statutes in their application to specific trials.
In Pakistan trial by jury was abolished in 1959 during the reign of martial law, while in India, jury trials were abolished by the government of India in 1960 on the grounds they would be susceptible to media and public influence. However, in the United States, Canada and many of countries of Europe, jury trial is still the only mode of legal proceeding when a crime is considered serious.
Notwithstanding the absence of jury trial, if the accused is a popular public figure, then each and every concerned citizen of the Republic becomes a de facto juror who monitors every word of deposition of the plaintiff and the witnesses not only to evaluate its validity but also to judge how far the crime in questions deviates from the 'community norms'. A case of such interest happened in 1969 when the then government initiated the so called Agaratala conspiracy case against Sheikh Mujibur Rahman and 34 other Bengali civil and military personnel. The trial was held in the Cantonment by a three-member trial judge, but through the verbatim publications of the proceedings in the print media, seventy five million de facto jurors became an integral part of the trial process. The verdict of the de facto jurors became evident especially after the depositions of one after another of the accused who narrated their horrific stories of torture in obtaining the confessional statements. The end result was not only the withdrawal of the case, but the transformation of the chief accused from a popular politician to a national hero.
After a lapse of nearly forty years, incidentally, the daughter of that aforesaid national hero is in the dock on charges of extortion, bribery and misuse of authority. In fact, the charges against her came from three directions: the current government, the current ACC and the ACC under the previous government. Before exploring into the merits of apparent charges, it would be worthwhile to identify a few distinctions, albeit most of them unfortunate, the accused enjoys. Firstly, she is burdened with the greatest family tragedy that any human soul has ever experienced. Secondly, her entry into public life was neither a planned one nor was guided by her greed for materialistic enhancement. Her 20 years of public life was never a cake-walk. There were multiple attempts on her life. Thirdly, if the financial disclosure she has made is true, she, by all probability, would be the poorest among the front ranking politicians of the Republic, even without a shelter of her own in the city to dwell in. Finally, she is the only democratically elected former PM of the country who has been put in the dock by the very government that was born out of her leadership to galvanize the resistance against holding a farcical election.
The legal suit of extortion has been brought against her by a businessman who by no means enjoys an impeccable past. He has reportedly (Prothom Alo, August 19, 2007) laundered 237 crores out of the country and has returned the amount to the national exchequer during early tenure of the current CTG. Lately he has confessed in a seemingly pre-arranged press conference that he did not sue the former PM. Likewise during his deposition in the court he did not identify her as one of the accused either. His logic behind not filing the case in the tenure of a political government does not bode well in the psyche of any de facto juror since the last government undoubtedly was the most hostile one for the accused. So the merit of the case, albeit remains dissolved in the verdict of HC, pivots around a confessional statement of a co-accused who has already disclosed in the court that the confessional statement has been obtained under severe duress while on remand.
The second case in question is the one lodged by the newly reconstituted ACC. The charge against her in the case is of taking a 'bribe' from a firm for the Bangabandhu foundation, which the chief executive of the donor organization has termed 'donation'. Before the charge was laid the chief of ACC made a comment, in whose response I wrote to the ACC chief, a part of which I am sharing with the readers. "I am respectfully forwarding a query vis-à-vis one of your comments on a corruption case against Sheikh Hasina initiated by the ACC. According to a public statement by the Summit Group chief, they donated the money to the Bangabandhu foundation. In fact, a close relative (a former student of mine) of one of the accused of the Summit Group communicated to me that the authorities tried to coerce them (it will come out eventually) to file an extortion case against Sheikh Hasina, as they allegedly did for Noor Ali, Gazi Dastgir etc., failing which allegedly a case of bribery has been lodged. In your answer to a question by the reporters, you said (I am quoting from memory); "no one gives 3 crores for no reason". The statement is true. But is it not true for any donation? Whenever any donation (including philanthropy) is made, an implicit dividend is expected, be it be materialistic or spiritual. If Sheikh Hasina has used the donation for her personal use, there is no argument against the accusation. However, If the money has been used to carry out numerous social works of the Bangabandhu Foundation, it would be impossible to sale it to the people that a wrongdoing has been committed. Recently, a company has reportedly donated 850 laptops to EC. May I humbly ask, what was the reason behind this massive donation? Is the ACC going to lodge a legal suit under EPR against the donor and the EC?" The ACC chief in his prompt reply indicated, "You are absolutely correct about the purpose of making donations. Yet I would think the amount and timing may indicate certain motives which, of course, have to be established before drawing any definite conclusion. I may not comment on specific instances of other donations at this stage. You may kindly wait and see if the ACC ignores such matters even after being convinced of the doubtful intentions."
I was told by a relative of one of the absconding co-accused that he has been absconding for fear of the very realistic apprehension of 'confession by torture'. It was also reported that the said firm has a noble history of making numerous donations whose recipient lists include the Army General Hospital (a hefty14 crores) and the Dhaka University. It was also reported in DS that the firm in question was indeed the lowest bidder. So it would be an uphill task to convince any de facto juror that her incrimination has been guided by the merits of the accusation, rather by indiscreet selectivity- the very discretionary act that has been painting a dark shadow on the honest intent of our collective effort to get the nation out of the curses of corruption. The hundred and fifty millions jurors are not that blockish not to sense the obvious which kept the wealthy owner of a dozen houses in the city a free man while the poor owner of a mortgaged apartment languishes in jail in an alleged charge of accumulating wealth disproportionate to his income.
The de facto jurors are the ultimate arbiters in dissecting the fact from the fiction in people's court thereby repudiating or rehabilitating a public figure. Power of emergency, of course, can do either of them, albeit only transiently.
Dr. Mozammel H. Khan is the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh.
Mozammel H. Khan
Canadian Committee for Human Rights and Democracy in Bangladesh
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