Hocus-pocus may derail BDR massacre trial M Shahidul Islam Justice and law are distant cousins. In times when law and justice fail to connect, as seems to be the scenarios evolving now with respect to the prospective trial of the Peelkhana massacre of February 25-26, powerful emotions are bound to be unleashed by aggrieved parties, unless the usefulness of law meets the demand of justice. The recent decision of the government to conduct the trial in two different courts comes at the risk of (1) overruling the recommendations of two of the three investigation bodies, and (2) alienating the sentiments of the armed forces, who are the victims of those heinous crimes. The decision also leaves unanswered many vital questions, which should have been satisfactorily dealt with in order to ensure judicial fairness and the kind of political correctness deserved by such an unprecedented crime. Instead, what follows will indicate in a nutshell that the handling of this most sensitive affair has so far been anything but hocus-pocus. Justice demands sparing of innocents and convictions of all who had planned, aided and executed such a horrendous crime. That implies a venture beyond the conventional circle, the Peelkhana compound. It also seeks answer to some other questions: will the decision to conduct the trials under both BDR law (for rebellion and mutiny) and the penal code in Special Tribunals (for murder, rape and other criminal offences) meet the expectation of those, who are heirs of the victims? Last but not the least-will the justice system so devised address the most important concern of the nation? Who was behind this crime to destroy the nation?s armed forces? Unwarranted complications Critics say although the decision to refer the debate to the Supreme Court by the President apparently aimed at ensuring Constitutional correctness, it was otherwise. They say that despite the Constitution having stipulated in Article 35 ensuring of any trial under the laws existing at the time of commission of the crimes, the existing laws did allow the Army Act to be extended to the trial of the Peelkhana massacre, something the government managed to avoid by doing what it did so far in the most circuitous manner. The government is thus accused of biding its time and allowing destruction of vital evidence that could probe preponderantly the involvement of forces - other than BDR members - within and outside the country in commission of the crimes. Fear is also growing that the real intent in doing so is to keep the trial limited to the accused BDR members only, although the crime has had its tentacles spread beyond the BDR personnel by virtue of having stemmed from reasons and pretences that had serious political connotations and connections, and had matured over months prior to the occurrences of February 25-26. A radical departure Besides, two of the three investigation reports having recommended holding of the trial under the Bangladesh Army Act, and the Army Act having sufficed to try the accused of over 20 other rebellions that the nation had witnessed since Independence in 1971, a radical departure in this particular instance is bound to raise further suspicion unless the true masterminds of the crimes are brought to justice along with the accused BDR personnel. At the same time, the argument that the Army Act could not be applied to the BDR trials with a 'retrospective effect? by issuing a gazette notification under Section 5(1) of the Act remains a nebulous one in the context of the gravity of the crime, the interpretation it brooks, and the justice it demands. Not only Section 5(1) of the Army Act has the requisite mandate to apply it to any disciplined force by issuing a gazette notification -and the BDR is one of such forces - the naked time-wasting debate over interpretation of the words like 'prospective? and 'retrospective? is being considered by many legal experts as mere 'invention of convenience.? An ex post facto law (from the Latin for "after the fact") - also known as retroactive law - is a law that retroactively changes the legal consequences of acts committed, or the legal status of facts and relationships that existed prior to the enactment of that law. In reference to criminal law, it may criminalise actions that were legal when committed or aggravate a crime by bringing it into a more severe category than it was in at the time it was committed, or change or increase the punishment prescribed for a crime, by adding new penalties or extending terms. It may as well alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action, for which prosecution occurs. That is one side of it, which the Amici Curie had used to the fullest extent. Conversely, another form of ex post facto law, commonly known as an amnesty law, may decriminalise certain acts or alleviate possible punishments (for example, by replacing death sentence with life-long imprisonment), retroactively. Although most common law jurisdictions do not permit retroactive criminal legislation, some exceptions are illuminating. In Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372 (1910) it was stated that, "Judicial decisions have had retrospective operation for nearly a thousand years." That means a court?s interpretation of law becomes retroactive each time a new precedent is applied to events that occurred prior to that judicial decision. In some nations that follow the Westminster system of government, such as the UK, ex post facto laws are technically possible due to the 'doctrine of parliamentary supremacy? allowing parliament to pass any law it wishes, any time. Contrasts, connivance and conspiracies This begs another relevant argument: Why did our government choose not to use the parliament if it thought laws were needed to be changed to try a mutiny as a mutiny, not with as outdated a law as the BDR Act, where the punishment is only seven years of imprisonment. The reasons are as much political as they are historic. The Indemnity Ordinance of 1975 was a retroactive law, which the last AL regime changed after coming to power in 1996 in order to facilitate trial of Mujib killers. Ironically, the 1975 Indemnity Ordinance was annulled without using the two- thirds votes in the parliament - as was required by law, which the AL did not have. Now the AL does have the two-thirds majority to change the existing laws, including giving retrospective effect to subsection 5 of the Army Act, if it is deemed necessary. But the government is pursuing the most dubious and circuitous way only to spare some people, whose direct and indirect involvement in the Peelkhana massacre has been unearthed by investigators. We have learnt from authentic sources about commission of other dreadful conspiracies and cover-ups that can no way be swept aside as insignificant. Earlier, one of the 'suspected politicians? was first made to be hospitalised within the country when the army investigators requested to interrogate him, and, later, he was sent abroad for treatment. The concerned politician only returned to the country upon being assured that he would not be interrogated. Likewise, another powerful politician was ordered by high-ups in the executive, and then heli-lifted to Sylhet two days prior to the Peelkhana rebellion to, according to sources, 'meet some foreign commandos? while the media report confirmed him being on a trip abroad at that time. Upon being exposed, the pilot of the helicopter died in a mysterious chopper crash along with a Major General while the concerned politician resigned from his post in a flurry of events, of which the public knows little as yet. Then there are other oblique utterances and wolf crying by responsible personalities within the government. It is one thing for the government not wanting to use certain segment of the Army Act in a retrospective manner. On September 16, the law minister said, "A decision has been taken to recommend issuance of a notification under Section 5 of the Army Act 1952 to apply the Act on the Bangladesh Rifles so that the BDR soldiers could be tried under the Act for any recurrence of rebellion and heinous crimes in future." Almost in tandem with this expressed fear of recurrence of such a crime, the PM said in the Parliament the same day, "BDR-type incident may happen elsewhere" and her loyalists should stand guard against that. These are not mere hyperboles or propaganda whippings. Insiders say these are the feedings from the intelligence outfits, and, despite that being the reality, the melodrama relating to the trial continues unabated. The referral of the matter to the Supreme Court and soliciting of opinions from a number of 'partisan? experts, many of whom even served in higher positions of the AL-led administrations in the past, is one of those dramatic exercises. Precedents ignored Such displays of stunts and theatrics notwithstanding, the lack of knowledge and expertise was quite noticeable so far in the manner the issue is being handled. For example, some of the Amici Curie argued that there was no precedent of retrospective application of law in the subcontinent. This is not true. In August 2007, a Delhi court ruled that the Domestic Violence Act of India could be applied retrospectively. The court opined that an abused woman could seek relief under India?s domestic violence law for atrocities perpetrated against her before the statute came into force. "The present enactment is mere expression of remedies, which had not been existing previously and are now made available," Delhi Metropolitan Magistrate, Nirja Bhatia said while ruling that the Protection of Women from Domestic Violence Act, 2005 was to be given retrospective effect. The decision followed initiation of a complaint of alleged violations committed prior to the law being enforced on October 26, 2006. Judge Bhatia noted in the verdict, "The Act sought enforcement of existing rights that are guaranteed to citizens under the Indian Constitution." |
__._,_.___
