SECOND ANNIVERSARY OF BDR TRAGEDY
Cries for justice ring hollow
M. Shahidul Islam
The pages of history relay scarce precedent of a mutiny trial taking
so long. Much less is evident from the historical chronicles that an
undiluted military crisis could be allowed to get so messed up in the
political and judicial mishandling we've witnessed for too long.
As we hit the newsstand with the current issue, our knowledge of
who had hatched this grisly conspiracy to destroy our armed forces is
no more enlightened than what we knew from the beginning; partial
disclosure of the three investigation reports' findings
notwithstanding.
So, what has gone wrong and why the victims' families and the
conscience of the world are yet to see any credible justice being
dispensed? The answers are rooted in the ongoing judicial handling of
the crimes and the trials, as was the political mishandling from the
outset.
Take for instance the sentencing of 111 accused in early February
by a Special Dhaka Court. The sentences ranged from 2-7 years, as is
permissible under s10 A (1) of the BDR Act 1972. Now, ask a
responsible politician of the ruling party whether the justice so
dispensed fits the barbarity of the crimes. The answer would be: this
is the beginning and the punishment for the crimes of murder, rape,
looting etc. will be followed in the civil court.
Fair enough. But why the government is so obsessed in punishing few
hundreds of accused who had known nothing of the event's coalescence
and its coming, and, had just joined the gung-ho-bandwagon unleashed
by a few who had vanished into oblivion?
Lest we're misread for having espoused that mass trials are not
necessary to reinforce a threshold of deterrent, we must make
ourselves further clear: We are more concerned about whether such
trials are perceived to be just and befitting to the crimes of wanton
barbarism aimed at destroying the nation's armed forces, and, whether
they at all address the core issue of the crime; which even the
government's handpicked investigator, special superintendent of police
Abdul Kahar Akand, admitted to be 'pre-planned' during his
post-investigation press briefing on February 25, 2010.
One would be utterly hypocritical not to admit that the BDR today
is a mere skeleton of its former self and, the mass trials had already
resulted in the desertion of nearly 2000 soldiers from the force while
another over 3,000 are in custody. The impact on the entire military
families, on the other hand, has been too devastating. That is why
observers at home and abroad have begun to question why the
two-year-long melodrama of investigation and trial failed to overlook
some vital clues relating to the crime's planning and execution.
Prominent among such unavoidable concerns are: (1) discovery of
foreign-supplied weapons used in the crime, (2) discovery of
pre-mutiny meetings of some BDR personnel with a number of politicians
and the continuation of communications between the two groups prior to
and during the mutiny, (3) lack of any effort by the government to
trace sepoy Moeen and four of his associates who had triggered the
mutiny and had flown to Dubai and Delhi on the night of February 25,
2009; allegedly with help from some intelligence officials.
Even a toddler of this nation knows how a powerful politician got
whisked out of the country to get medical care following the
military-led investigators' request to question him due to his
constant collaborations with the mutineers. Suspicion also lurks
because the catalogue of what seems like indispensable clues to any
criminologist in unearthing the intent and the identities of the real
culprits remains too big, while the pattern of justice seems to be
more ornamental than otherwise.
Two years on, the families of the victims have turned discernibly
pathetic to the outcome and the nation has begun to reflect upon some
of the failures that were deliberately allowed to take place during
the incident and its aftermath.
Past forwarding, one is also reminded of the popular thesis
propounded by the government in preventing military intervention to
quell the mutiny by citing the fear of collateral damages, although
such a rationalization is unheard of in the annals of history of
rebellion and mutiny in any armed forces. Moreover, a layman knows how
this particular concern is usually addressed by ordering evacuation of
civilian population from the specified zone of military action. The
step thus taken emits a stern message to the mutineers that the game
is up. Simultaneously, it incapacitates the mutineers' morale to harm
hostages for fear of death from the impending and overpowering
military action.
Even if one overlooks that, the legal bungling, or the deliberate
orchestration of it ever since, remains inexcusable due to following
reasons:
Firstly: The Bangladesh Rifles Order 1972 being inadequate to
punishing the kinds of inhuman crimes perpetrated by the accused, the
trial was supposed to occur pursuant to Chapter V of the Bangladesh
Army Act (BAA) 1952. This is because the BDR is a disciplinary force,
as is narrated in Article 152 of the Constitution, as well as in
section 4(3) of The Bangladesh Rifles Order, 1972.
Secondly: Rigorous pursuance of this standard procedure was
necessary for another legal reason. Article 35 (1) of the Constitution
prohibits conviction of persons of offence(s) except for violation of
a law in force at the time of the crime's commission, while, Article
45 of the Constitution made it incumbent upon the authorities to try
military crimes under their respective Acts. Article 45 states:
"Nothing in this Part shall apply to any provision of a disciplinary
law relating to members of a disciplined force, being a provision
limited to the purpose of ensuring the proper discharge of their
duties or the maintenance of discipline in that force."
The rationale behind this constitutionally-guaranteed exception—for
trial of military crime under military laws—is grounded in the special
nature of the duties performed by members of the armed forces;
requiring imposition of strict discipline, devotion and obedience of
command.
Thirdly: Section 2 of the Army Act (BAA) having excluded the BDR
personnel as not being subject to the dispensation of the BAA, section
5 (BAA) had authorized adding all other 'auxiliary' forces into the
Act's jurisdiction. Besides, section 59 of the BAA has the inbuilt
mechanism to deal comprehensively with the crimes of murder, rape and
other barbarity that had occurred during the BDR mutiny.
Despite so much of clarity having been enshrined in existing laws,
the President's referral of the matter to the Supreme Court in
September 2009 defies logic, so to speak.
Worst still, the decision to hold trials in civil courts of crimes
committed by members of the armed forces vitiated the specific
constitutional stipulations outlined in the Article 45 exemptions;
making the entire trial efforts amenable to prospective legal
challenges.
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