International Crimes Tribunal Act 1973 (Bangladesh): A Critical Review
Abu Umar Faruk
Abstract:
Till 1970, Bangladesh was still an underdog state of West Pakistan and the people of the future "Bangladesh" were gravely displeased with the Government of Pakistan that governed "Bangladesh" for various reasons of bad governance and hypocritical administration. As a result, "Bangladeshi" people declared an independence movement in March 1971 to relieve themselves from the yoke of gross incompetent governance of the ruling Government. The Freedom Fighters of Bangladesh fought a liberation fight against the Pakistani Army for 9 months after which they were ultimately and decisively victorious on 16 December 1971 and emerged as an independent country named as 'Bangladesh'. After the independence of Bangladesh, Sheikh Mujibur Rahman, the first Prime Minister of Bangladesh, enacted the International War Crimes (Tribunals) Act 1973 (IWCTA 1973) to punish the war criminals during the 9 months of liberation movement. The object of this paper is to critically analyze the provisions in the IWCTA 1973 in light of the international war crime laws.
Keywords: International crimes, war crimes, crimes against humanity, International Crimes Tribunals Act 1973, investigation, prosecution, trial, punishment.
I. INTRODUCTION
After a long struggle of independence against the English rule in the Indian subcontinent, the English people agreed to leave India in 1947. In that year Pakistan was formed as a federal state consisting of East Pakistan (now known as Bangladesh) and West Pakistan (now known as Pakistan) as being separated from the Indian subcontinent. The objective of establishing a new state by the name 'Pakistan' was to rule this new country by the Muslims who had not the slightest wish to remain with India and to be ruled by the Hindu politicians of India due to a long period of bitter experiences suffered by the Muslims in the Indian sub-continent during the English rule. Another objective of forming Pakistan was to establish an Islamic State which will be developed with all aspects of good, fair and genuinely responsible governance managed by people of the highly intellectual class of the society. Unfortunately, the objectives were not fulfilled due to the pure lack of academic intelligence, which normally resulted in negligence and arrogance of the Pakistani rulers who were from the West Pakistan.
The rulers of West Pakistan had harbored an ungovernable, overtly and undying political grudge against the East Pakistan state as well as against the highly intellectual and honest citizens who have along been discriminated on different political aspects, such as, determining the national language of Pakistan, the socio-political development, including the economic and industrial development, etc. It is prominently and historically worth mentioning here that in 1970, about 250,000 people died in Bangladesh due to an unprecedented devastation by a cyclone from the Bay of Bengal, and even though the cyclone created a massive holocaust known throughout the whole world, nevertheless the military Government of Pakistan at that time, led by General Yahia was totally indifferent to the cyclone victims in Bangladesh and did not lift a finger of authority to provide enough relief materials for the millions of hungry and diseased ridden people to alleviate their sufferings in East Pakistan, in spite of the irrevocable fact that the majority of the West Pakistan people had close relatives in East Pakistan. To highlight his historic, unbridled sadistic character which only a few world leaders could match, he purposely failed the mission to solicit foreign assistance for the deadly disastrous devastation in coastal Bangladesh caused by the cyclone (Unigroup, online). During the nine months of war, six political parties in Bangladesh opposed the separation of Bangladesh from Pakistan and assisted the Pakistani Army to arrest and kill the members of the Bangladesh Freedom Fighters. The Pakistani Army and the supporters of the Army (six political parties) were involved in the heinous and barbaric crimes against fellow humans of similar religion and similar ancestry in Bangladesh.
In 1973, the first Prime Minister of Bangladesh, Sheikh Mujibur Rahman enacted the International War Crimes (Tribunals) Act 1973. Under this Act thousands of people were investigated including the Pakistani Army officers. After the investigation, the war crime charges were proved against 195 Pakistani Army officers, and no Bangladeshi citizen was identified as war criminals. However, these 195 Pakistani war criminals were accorded an amnesty and were safely returned to Pakistan after the establishment of a tripartite agreement between the Bangladesh-India-Pakistan in 1974 under the instruction of the Prime Minister of India, Mrs. Indira Ghandhi. Subsequently different parties came to the political power in Bangladesh, such as, President Ziaur Rahman of Bangladesh Nationalist Party (BNP), President H.M. Ershad of Jatio Party (JP), Prime Minister Khaleda Zia, (BNP), Prime Minister Sheikh Hasina, Awami League (AL), but none of them took any initiative to investigate and to reveal the Bangladeshi war criminals during the last 40 years.
As said earlier, there were six parties who opposed the separation of Bangladesh from Pakistan. Bangladesh Jamaat-e-Islami (known as Jamaat) was one of the six parties which opposed the separation of Bangladesh from Pakistan for reasons considered good to them in the prevailing circumstances at that time as said by top Jamaat leader on many occasions and that was published in different daily newspapers in Bangladesh. For the last 40 years the top leaders of Jamaat have been saying that they only opposed the separation of Bangladesh peacefully by organizing rally and by giving speech to the people in support of an undivided Pakistan. They were not involved in any war crimes or international crimes, such as, murder, rape, arson, looting, etc. The Pakistani Government formed "Rajakar", a para-militia to assist the Pakistani Army Government to find out members of the Freedom Fighters in Bangladesh. 'Rajakar' is an urdu word which means "assistant or helper or collaborator". The Bangladesh Collaborators (Special Tribunal) Order 1972 (herein after referred to as 'the Collaborators Order 1972') was enacted in 1972. About 100,000 people were arrested and investigated in order to weed out the Rajakars. Out of these 100,000 people, only 752 people were found guilty and they were given jail sentences for different periods. No Jamaat leader or member was among the 752 guilty people who were Rajakars. This means that no Jamaat leader or member was identified as a Rajakar or a war criminal during the rule of Sheikh Mujibur Rahman from 1972-1975.
For the past 40 years no person had ever filed any war crimes or international crimes suit against any Jamaat leaders or members in any police station in Bangladesh. This proves beyond a shadow of doubt that no Jamaat leader or member had ever been involved or had ever taken part in the war crimes or international crimes in 1971 during the nine-month liberation struggle. However, recently in 2010, the Awami League (AL) Government had amended the International War Crimes (Tribunal) Act 1973 (the IWCRA 1973) and renamed it as the International Crimes (Tribunals) Act 1973 (ICTA 1973) and armed with this amended Act, the Awami League Government forthwith arrested the top 5 Jamaat leaders to stand on trial for the so called international crimes committed in 1971, after a time lapse of 40 years. The strangest and most bewildering political phenomenon was that not a single person from the other five political parties had been arrested for the international war crimes although there were collaborators and war criminals in those five parties who made up the 752 found guilty out of the 100,000 people. Even though it is a public knowledge that there are international criminals and Rajakars in the Awami League (AL) party itself but none of them have ever been arrested for trial mainly because they are supporters of the present AL Government. The Jamaat political party leaders are the only ones arrested out of malice and with mala fide political motive as the people of Bangladesh are well aware of whereas this typical political scenario is well known and well acknowledged by the educated and conscientious people nationally and internationally as a real political vendetta against the Jamaat leaders to weaken the political strength of this popular democratic party. Only political idiots with prejudiced minds, jaundiced eyes and mental aberration will agree with this type of governance for the country.
As was earlier mentioned, the objective of this paper is to critically review the recently amended International Crimes (Tribunals) Act 1973 (amended in 2010) to establish beyond a shadow of doubt on its inconsistency with the Constitution of Bangladesh and the international conventions related to war crimes and other laws in Bangladesh. Descriptive and analytical research methodology has been applied in this paper to critically evaluate some serious legal discrepancies found in the sensitive provisions in this impugned Act.
II. RATIONALE FOR ENACTING THE ICTA 1973
Bangladesh is a south Asian country surrounded on three sides by India and to the southern side there is the Bay of Bengal and the Indian Ocean. The Indian subcontinent was ruled by the British for more than two hundred years. In 1947, Pakistan, a nation state was formed by taking some parts of India. These parts are known as Pakistan and Bengal. When Pakistan was formed as an independent country separated from India it had two states: West Pakistan and East Pakistan. The present Pakistan, an independent country was known as West Pakistan and the present Bangladesh was known as East Pakistan at that time. East Pakistan was also known as Bengle as its language is Bangla.
Muhammad Ali Jinnah was the first Prime Minister of Pakistan. After Muhammad Ali Jinnah, Field Marshal Ayub Khan came to power in the military Government. During the rule of Jinnah and Ayub Khan, the people of Bangladesh were not happy with the rule of the Pakistani rulers due to their discriminative attitudes against Bangladeshi welfare and prosperity. Most of the development projects were established in East Pakistan and in Bangladesh a few development projects were undertaken, which directly or indirectly severely affected the badly needed economic and developmental growth of Bangladesh and was highly viewed as a discrimination between the two provinces of Pakistan at that time. Moreover, the mother tongue of West Pakistan was Urdu but the mother tongue of Bangladesh was Bangla. The Pakistani Government declared in 1950 that 'Urdu' would be the state language of Pakistan. The people of Bangladesh did not agree with such a unilateral decision of the Government of Pakistan and seriously protested against its implementation. To be fair to one and all concerned, Bangladesh demanded two state languages for the Pakistan: Urdu and Bangla, but Pakistani Government did not accept the demand of the people of Bangladesh as Pakistan considered that Urdu was inferior to Bangla for academic, commercial, scientific and diplomatic purposes.
Subsequent to this discrimination, there was a serious movement against the Pakistani Government between 1950 and 1952 to demand Bangla and Urdu as the state and the national languages of Pakistan. On 21 February, 1952 the Pakistani Army attacked a rally in Dhaka that demanded Bangla as one of the state languages of Pakistan but the Pakistani Army promptly responded, as instructed by their Pakistani commanders, by killing several innocent Bangladeshi people by gun fire. For that particular brutal reason, till today 21st February is observed as the 'mother tongue day' in Bangladesh. The United Nations has also declared 21st February as the International Mother Tongue Day for the member countries of the United Nations, which incidentally refreshed the memory of the brutality committed on the Bangladeshi people by the Pakistani Army who directly use similar languages, consume similar types of food and have the same ancestors with the same chronological history.
After that uncalled for incident, the movement against the Pakistani Government continued to gain momentum as a result of which on the night of 25th March 1971, the Pakistani Army was ordered to kill several people in Dhaka, Bangladesh, probably as part of the conspiracy of Zulfikaar Ali Bhutto who wanted to be the Prime Minister of Pakistan although Sheikh Mujibur Rahamn from Bangladesh Awami League Party (AL) obtained the majority seats in the national election of Pakistan in the 1970 national election. In consequence to these acts of genocide committed by the Pakistani army on the night of 25 March 1971, Major General Ziaur Rahman, the then Chief of Army in the Bengle Regiment in Chittagong, Bangladesh, gave a speech to the people of Bangladesh on 26 March 1971 from Chittagong Radio Station in Kalurghat. In that speech, Major General Ziaur Rahman declared the independence of Bangladesh and requested the people of Bangladesh to be united and to rise against the Pakistani Army military Government's relentless onslaught on the Bangladeshi's freedom movement.
It is to be noted that not all the people in Bangladesh jointly fought side by side with the 'Muktijoddha Bahini' to separate Bangladesh from Pakistan. Several Bangladeshi people opposed the separation of Pakistan saying that Pakistan is a large country and in case a war between Pakistan and India was declared, India would not likely win if Pakistan remained as one country. On the other hand, if Pakistan was divided into two states through the help of the Indian Army, then India might likely occupy Bangladesh with ease and might declare Bangladesh as a province of India. They also argued that if Pakistan was separated into two countries, then India would ultimately dominate over both countries as India would be more powerful than the split Pakistan. It is to be noted that at that time to make matters worse, there was the serious enmity between India and Pakistan due to the separation of Pakistan from India. Some religious groups in Bangladesh opposed the separation of Pakistan saying that India might occupy Bangladesh and they would not accept it as long as they were still alive. Thus, subsequently there were six political parties that opposed the separation of Bangladesh from Pakistan and only one party, the Awami League (AL), supported the separation from Pakistan. The six parties that opposed the separation of Pakistan were: Muslim League, Nejame Islami, Bangladesh Jamaat-e-Islami, Pro-China Communist Party and two others.
The parties that opposed the separation from Pakistan gave information to the Pakistani Army about the Bangladeshi Freedom Fighters on their whereabouts during day time. As a result, the Pakistani Army could easily find them who were then arrested as the Freedom Ffighters; many of whom were seriously oppressed and while several were killed by the Pakistani Army who also committed rape on the women whose fathers or husbands supported the separation of Bangladesh from Pakistan. Some people who opposed the separation of Bangladesh also committed arson and looting.
Subsequently, as a result of the brutality perpetrated by the Pakistani Army had gone over the limit, a liberation militancy organization was formed in the name of 'Muktijoddha Bahini' to fight against the Pakistani military Government's General Yahia Khan subsequently causing the Pakistani Army to lose their will to subjugate the Bangladeshi's militant fighters when the Pakistani Army ultimately surrendered to 'Muktijoddha Bahini' in Dhaka and Bangladesh became a proud and independent country since then. Students, teachers, intellectuals and farmers all joined their concerted efforts in this liberation movement and ultimately Bangladesh became an independent country on 16 December 1971 After the independence of Bangladesh, the first Prime Minister of Bangladesh Sheikh Mujibur Rahman enacted the International War Crimes (Tribunal) Act 1973 as stated earlier to investigate those involved in the war crimes as well as crimes against humanity. But the present Awami League Government had amended the Act in 2010 with a modified name called the 'International Crimes (Tribunals) Act 1973' (ICTA 1973) as mentioned above.
The word 'War' had been dropped after discussing with some foreign countries as the Bangladeshi people who opposed the separation of Pakistan obviously was not involved in war, because only the Freedom Fighters and the Pakistani Army were involved in the war. In consequence, some 195 Pakistani Army officers were identified as war criminals but the then Prime Minister of Bangladesh declared an amnesty for them and allowed them to return to Pakistan upon the instruction of India. The present Awami League (AL) Government wants to put to trial the Bangladeshi people who were involved in the crimes against humanity during the nine-month liberation movement in Bangladesh as they were not involved in a war, technically speaking, as the word 'War' had been dropped from the main Act of 1973. Thus, the ultimate objective of the amended 1973 Act is to investigate, arrest and try the accused who were involved in committing the offences against humanity in 1971.
The International Crimes (Tribunals) Act 1973 (ICTA 1973) in its 'preamble' has provided that this is an Act to provide for the detention, prosecution and punishment of persons for the commission of genocide, crimes against humanity and other crimes under the international law and other related and substantially collaborated matters connected therewith.
But one thing should be made clear here is that the Government of Bangladesh as well as the people of Bangladesh has misunderstanding about the definition of war crimes. In fact, the Awami League as a political party has misguided the illiterate and less educated people (around 70% of the total population) of Bangladesh for the last 40 years since the independence of Bangladesh in 1971 about the meaning of war crimes and war criminals with mala fide intention.
According to Barrister Abdur Razzaq, who is a prominent lawyer in the Supreme Court of Bangladesh has recently said on 31st January 2011 that the people of Bangladesh and the Government of Bangladesh have misapprehension about the meaning of war crimes and war criminals. They think that the people in Bangladesh who opposed the separation of Bangladesh from Pakistan or who assisted Pakistani Army to know whereabouts the Freedom Fighters, are war criminals but this understanding of the definition of war crimes is wrong. They also think that killing a few people or raping a few women during the independence movement of a country by an anti-separatist group or Army officers are war crimes. That notion of the people of Bangladesh is erroneous.
To be war crimes, there should have a huge number of killing or a mass rape of women of a targeted group or a race in a country. This thing did not happen in Bangladesh. There was no mass killing or mass rape of women targeting a particular race or group of people in Bangladesh. In fact, the Awami League (AL) Government and its supporters have misguided the young people of Bangladesh about the notion and definition of war crimes with political mala fide motive as stated above. The notorious target of AL is to misguide and to instill misconception about the notion of war crimes in the young people of Bangladesh who are mostly students against a particular religious democratic political party in Bangladesh popularly known as Jamaat to tarnish their strong political reputation and popularity among the people of Bangladesh.
They give them wrong message that all Jamaat leaders and supporters are war criminals, so that the people of Bangladesh can hate them and reject them during national elections. Arresting five Jamaat leaders for war crimes in mid 2010 is a part of this conspiracy because they were not involved in war crimes and the AL Government knows about it very clearly. AL Government also does not have any evidence to prove that Jamaat leaders were war criminals. They have arrested the top Jamaat leaders in mid 2010 but still today could not produce credible evidence and witnesses in the International War Crimes Tribunal in Bangladesh.
II. CONTENTS OF ICTA 1973
This Act contained 26 sections. The Act was further modified in 2009 and 2010 by the Awami League Government following severe criticisms from the U.S., UN, EU Parliament, International Bar Association of UK and prominent lawyers who were nominated to be the judges in the previous War Crimes Tribunal by the United Nations (UN). Section 1 of the Act provides a short title, extent and commencement of the Act. It provides that this Act may be called the 'International Crimes (Tribunals) Act 1973' and lawfully applicable to the whole of Bangladesh and shall come into force at once. Section 2 of the Act provides definitions of some important terms, such as, tribunal, armed forces, auxiliary forces, etc.
Section 3 of the Act provides for the jurisdiction of the tribunal which legally means that the tribunal shall have the power to try and punish any individual or group of individuals, or any member of any armed, defense or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act, any of the crimes, such as, crimes against humanity; crimes against peace; commission of genocide; commission of war crimes; violation of any humanitarian rules applicable in the armed conflicts as laid down in the Geneva Conventions of 1949; any other crimes under the relevant international law; attempt, abutment or conspiracy to commit any such crimes; complicity in or failure to prevent commission of any such crimes.
Section 4 of the Act provides that if the crimes stated in section 3 are committed by several persons, each of such persons is liable for that crime in the same manner as if it were done by him alone. Section 6 provides provision for the establishment of Tribunals; section 7 provides the appointment and power of the prosecutors; section 8 provides provisions for the appointment and power of the investigation agency; section 9 provides provisions for the commencement of the proceedings. The provision also states that the proceedings before a Tribunal shall commence upon the submission by the Chief Prosecutor, or a Prosecutor authorized by the Chief Prosecutor on his behalf, of formal charges of crimes alleged to have been committed by each of the accused persons.
Section 10 provides a provision for the procedure of trial; section 11 provides provisions for the powers of the Tribunal. The provision stipulates that a Tribunal shall have the power; (a) to summon witnesses to the trial and to require their attendance and testimony and to put questions to them; (b) to administer oaths to witnesses; (c) to require the production of document and other evidentiary material; d) to appoint persons for carrying out any task designated by the Tribunal.
Section 12 provides provision for a defense counsel; section 13 provides provision on the restriction of adjournment; section 14 provides provisions for the statement or confession of accused persons; section 15 provides provision for the pardon of an approver. This section states that at any stage of the trial, a Tribunal may with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any of the crimes specified in section 3, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the crime and to every other person concerned, whether as principal or abettor, in the commission thereof.
Section 16 provides for the contents of a charge; section 17 provides provisions for the rights of the accused person during trial; section 18 provides that no witness shall get any excuse from answering any question asked to him; section 19 provides provisions for the rules of evidence; section 20 provides provisions for awarding judgment and sentence against the guilty accused persons; section 21 provides provision for the right of appeal to the Court of Appeal Division of the Supreme Court of Bangladesh; section 22 provides provision for the rules of procedure in the Tribunal; section 23 provides provision stating that certain laws of Bangladesh will not apply in the trial by the Tribunal; section 24 provides provision excluding the fundamental right of an accused to apply for judicial review to the High Court Division; section 25 provides provision for an indemnity to the Government or any other persons; last but not least section 26 provides a provision that the ICTA 1973 will supersede all other laws in Bangladesh. Therefore, no provision of the Act can be declared ultra vires or inconsistent with any other laws in Bangladesh including the Constitution of Bangladesh by a competent court.
IV. EARLIER WAR CRIMES TRIBUNALS ESTABLISHED UNDER THE UNITED NATIONS (UN)
War crimes are also known as international crimes or crimes against humanity, such as, murder, extermination, rape, ill-treatment, arson, looting, etc., during serious armed conflicts. War crimes are serious violations of the international laws which are applicable in all armed conflicts between nations or even political parties within a country. Laws on an international armed conflict are also known as international humanitarian law. A serious armed conflict gives rise to an individual criminal responsibility.
The Geneva Conventions are relevant international laws for the war crimes. In fact, the Geneva Conventions consist of four international treaties made between 1864 and 1949. The Geneva Conventions provide laws and principles with regard to approved conduct during warfare. Thus, the Geneva Conventions can be considered as an international humanitarian law.
Some previous war crimes tribunals and their trial procedures are briefly written as below.
A. Nuremberg War Crimes Tribunals 1945
In the Nuremberg War Crimes Tribunals 1945, the trials were conducted based on the London Charter of the International Military Tribunal which was published on 8 August 1945. The Charter provides detailed provisions on the war crimes and the international standard trial procedures. It defines crimes against peace, war crimes and crimes against humanity in clear terms and words without any judicial ambiguity.
B. International Military Tribunal for the Far East 1946
The International Military Tribunal for the Far East 1946 is known as the Tokyo Trial of war criminals. A tribunal was formed to try the leaders of the Empire of Japan for war crimes. This tribunal is known as the Tokyo War Crimes Tribunal 1946 as stated above. The leaders of the Empire of Japan were tried in this Tribunal for three types of crimes: namely i) crimes against peace, ii) war crimes and, iii) crimes against humanity. These crimes were committed during World War II.
C. International Criminal Court 2002 (ICC 2002).
This court, known as the ICC, was established on July 1, 2002. The ICC is an international treaty based court and it is located in the Hague in Netherlands. The Rome statute is applicable for the trial of war criminals in the ICC. The Former Yugoslav President, Slobodan Milosevic was tried in the ICC for committing serious war crimes in Bosnia and Herzegovina. He died in custody on March 11, 2006 before the trial was finished. Former Bosnian Serb President Radovan Karadzic was arrested in Belgrade on 18 July 2008 for committing serious war crimes in Bosnia and Herzegovina between April 1992 and December 1995. An International Criminal Tribunal for the former Yugoslavia has been established in the Hague, Netherlands. Mr. Karadzic is being tried in this Tribunal for war crimes.
D. Extraordinary Chambers in the Courts of Cambodia (the Khmer Rough Trial)
In 2003, an agreement was made between the UN and the Cambodian Government in establishing the Khmer Rough Trials. It seeks to set up institutions composed of the UN and the Cambodian components in both the judicial and administrative sections. In the judicial section, all legal officers, including judges, investigation officers, pre-trial judges and prosecutors are composed of internationally-selected and locally appointed officers with differing numerical configurations. The Kodama's article reflected upon the principal administrative issues regarding the Khmer Rough Trial that was put into motion in 2007 for judging the Cambodia's former national leaders for alleged genocide and crimes against humanity.
The above War Crimes Tribunals were formed under the supervision of the United Nations (UN) and they followed the international standard law and procedure in the trial proceedings of the accused. They offered fundamental rights to the accused persons provided in their Constitutions. Appendix 1 provides the composition of judges for the four international crimes tribunals which were formed in partnership with the UN. All these four War Crimes Tribunals followed the international standard war crimes trial procedure and the rules of evidence. It is crucial to apply the international standard procedural and evidential rules in any war crimes trial to ensure that justice is never denied to the accused. The International Court of Justice (ICJ) of the United Nations also follows the international standard procedure and the rule of evidence in the trial of cases referred to it by the countries involved to get a fair and impartial judgment in the ICJ.
The fundamental rights provided in the Constitution of a country cannot be curtailed in any way even by inserting an Article in the Constitution with a mala fide intention of the Government. Other laws enacted by the Parliament also cannot negate the fundamental rights provided in the Constitution and the standard rule of evidence in the civil and criminal trial. However, either through ignorance of the implication of the law or through lustful political vengeance on its rival political party, the Awami League (AL) Government of Bangladesh has blatantly and successfully executed the grossly illegitimate amendment in the ICTA 1973 by enacting sections 19, 23, 24 and 26 to suit its own taste. These sections have literally robbed and raped the fundamental, inalienable and inherent rights of the citizens who have been accused of war crimes. These sections have also deprived an accused citizen from a fair and impartial trial procedure and the international standard rule of evidence.
Justice Jackson in the court of the US in the West Virginia in State Board of Education v Bernette observed that the fundamental rights enshrined in the Constitution cannot be curtailed in any way. He also observed that "One's fundamental rights may not be submitted to vote, they do not depend on the outcome of any election also."
Similarly, in Golak Nath v State of Punjab, the Supreme Court of India observed that "The declaration of the fundamental rights of citizens is the inalienable rights of the people. The Constitution enables an individual to oppose successfully the whole community and the state to claim his rights." Such rights are available even to war criminals as long as they are the citizens of the country where they are tried.
As stated earlier the previous war crimes tribunals formed under the supervision of the UN have all followed the international standard procedure and the fundamental rights that were given to them in their Constitution. Article 47(3) of the Constitution of Bangladesh which was inserted in the Constitution by the First Amendment Act 1973 has summarily deprived the fundamental rights of war criminals in Bangladesh although they are the citizens of Bangladesh.
In this case, Article 47(3) of the Constitution of Bangladesh has brazenly infringed the basic structure of the Constitution by curtailing the paramount fundamental rights of its citizens. Hence, this Article has been ultra vires of other Articles of the Constitution. This Article should be struck out from the Constitution of Bangladesh for the interest of justice of the people of Bangladesh as it is highly unsuitable for application on civilized human society.
V. CRITICAL EVALUATION OF ICTA 1973
In this sub-topic we will critically evaluate some of the sensitive provisions of the ICTA 1973 which violate the human rights and the democratic rights of an accused person under the Act and they are contradictory with the Constitution of Bangladesh and other laws in Bangladesh; and international conventions, such as, i.) Universal Declaration of Human Rights (UN); ii.) International Covenant on the Civil and Political Rights (UN).
According to Khan, The International War Crimes (Tribunal) Act, 1973 (IWCTA 1973) was enacted by the Parliament of Bangladesh in 1973 to try and adjudicate the offences of genocide, crimes against humanity, war crimes and other crimes under the International law as disclosed in the preamble. To understand any statute in its proper sense a close study as well as a scrutiny of the preamble and diverse sections of the statute is very much needed. A conscious study of the whole Act reveals that it was enacted to try the members of the Armed Forces to whom the Army Act 1952, the Air Force Act, 1953 and the Navy Ordinance, 1961 can be applied and the Auxiliary Forces who committed the offences mentioned in section 3(2) of the International Crimes (Tribunal) Act, 1973 (Bangladesh) (ICTA 1973 as amended in 2010). Due to the presence of different provisions in the Act which take away the fundamental procedural rights and the international standard rules of evidence which is applicable in the crimes against humanity, it is absolutely impossible to be liberated from punishment on ordinary civilians especially who possess the citizenship of Bangladesh. Thus, the IWCTA 1973 or the ICTA 1973 cannot be applicable on any Bangladeshi citizen who has been accused of the international crimes or the war crimes as both Acts are ultra vires of the Constitution of Bangladesh and other procedural and evidential laws applicable in Bangladesh. These Acts are also contradictory with the international conventions on war crimes including the Geneva Conventions on war crimes and the Rome statute of International Criminal Court (ICC).
According to Gary D. Solish on section 3(d) of ICTA 1973 Bangladesh, war crimes are serious violations of the laws applicable in an armed conflict (also known as the international humanitarian law) which gives rise to an individual criminal responsibility. Examples of such conduct includes "murder, extermination, rape, ill-treatment or deportation of civilian residents of an occupied territory to slave labour camps", "the murder or ill-treatment of prisoners of war", "the killing of hostages", "the wanton destruction of cities, towns and villages, and any devastation not justified by military, or civilian necessity".
A. Jurisdiction of the Tribunal
Section 3 of the ICTA 1973 states the jurisdiction of the tribunal, which may be established under section 6(1) of the Act by the Government through a notification in the official Gazette. Such Tribunal has already been firmly and irrevocably established by the Awami League Government in the middle of 2010 of which Sub-section (1) of Section 3 of the above Act provides, "A tribunal shall have the power to try and punish any person irrespective of his nationality who, being a member of any armed, defense or auxiliary forces commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act...." A plain reading of this sub-section reveals that the tribunal shall have the authority to exercise jurisdiction over any person belonging to the armed, defense or auxiliary forces only. The nationality of the accused has been disregarded. A person who never belonged to the said forces cannot be tried and punished by any tribunal established under the ICTA 1973. The definition of auxiliary forces given in the Act is vague also. Section 2(a) of the Act provides " 'auxiliary forces' includes forces placed under the control of the Armed Forces for operational, administrative, static or other purposes."
The top Jamaat leaders of Bangladesh who have been arrested with political malice and vendetta in July 2010 to be tried under the Act for international crimes did not belong to any armed or auxiliary forces as defined under section 2(a) of the Act. The arrested Jamaat leaders have been denying this allegation for the last 40 years that they had never been involved in any armed or auxiliary forces and there was no criminal case that had ever been filed against them in any police station in Bangladesh for war crimes or international crimes for the last 40 years. Their statements were published in different newspapers in Bangladesh, such as, the Daily Sangram, The Daily Star, The Daily New Nation, The Daily Nayadiganta, The Daily Amar Desh, the weekly Sonar Bangla, just to name a few, and the people of Bangladesh have all along been aware of this dastardly anomaly. It seems that some phenomenal judicial blindness has taken place right to the very core of the high judicature of Bangladeshi courts of law, the existence of which has always been manifestly proven by the fact that as the ICTA 1973 does not have fair procedural and evidential rule and excludes certain fundamental laws of Bangladesh from application in the Tribunal, not a single Bangladeshi citizen can be tried under the Act unless the above mentioned serious faults are amended in the Act first as mentioned by the US Senator and Member of the Congress Mr. Boozman in his pertinent letter to the Prime Minister of Bangladesh, Sheikh Hasina (Please see Appendix 2). One begins to wonder whether the legal officials in the Bangladeshi judicature or the judiciary department have ever undergone any formal legal courses during their law schooling periods because they seem to be very highly inclined towards the miscarriage of justice while reframing the amendments.
The rule of law, the internationally recognized rule of evidence, the international standard of burden of proof by the prosecution, the proper procedure in the criminal court, etc., form part of the basic structure of the Constitution and it cannot be changed by enacting any law as said by the Appellate Division of the Supreme Court of Bangladesh in the historic Eight Amendment case which has been reported in 1989 BLD (SPL) 1. In the Kesavananda case, the Chief Justice of the Supreme Court of India, Chandrachud, said that the fundamental rights, being an essential part of the Constitution of India could not be abrogated or emasculated by the Parliament. Hence judicially, the ICTA 1973 has been an illegal and black law as they brazenly, unmercifully and lawlessly rob the fundamental rights of the citizens of Bangladesh just to quench their political revenge on their political rivals.
Section 6(8) of the 1973 Act states that the accused or his counsels cannot challenge the constitution of the international crimes Tribunal set up in Bangladesh under the 1973 Act and the appointment of its Chairman or members.
This section gives a license to the AL Government to administer the abuse of power. At present the AL Government is abusing its power by illegally arresting renowned opposition political leaders on false and prefabricated cases; beating and mentally oppressing them seriously during periods of brainwashing and relentless indoctrination and disrupting the victims' sleeping periods with intermittent loud blaring music as well as throwing bucketful of icy cold water on them while sound asleep. Recently, Salahuddin Qader Chowdhury, the present popular MP of Bangladesh Parliament and a strong standing committee member of the Bangladesh Nationalist Party (BNP) was arrested on the night of 16 December and on that night he was seriously beaten by the police who faithfully executed the order of the AL Government to the letter. The AL Government and the police have, as is usually the case, later denied the beating although the doctor who had earlier treated him in the morning had found that his whole body was bloody black and blue while his shirt was torn and tattered, as if had been run through a potato skin peeling mill, as a result of some form of unmerciful severe assault from a band of political hooligans of the lowest order.
As a matter of well substantiated fact, the people of Bangladesh are afraid of the Awami League party as it has conducted its political affairs in the form of an oppressive political party in Bangladesh since the independence of Bangladesh in 1973 and earlier in order to gain the public consent. Under section 6(8) of the 1973 Act as mentioned above, the aggrieved party cannot obtain a remedy even if the Tribunal is legally constituted as there exists a rampant bias in the constitution of the Tribunal and the questionable appointment of its judges and prosecutors with questionable legal background, if any. Hence, section 6(8) of the 1973 Act is unrepentantly violating the fundamental rights and the fair trial procedure in the criminal court which aims to ensure that no innocent person is wrongly or politically persecuted by the court or the Government unless justifiably proven guilty in the unbiased court of law.
B. Appointment of prosecutors
Section 7(1) of the 1973 Act provides that "The Government may appoint one or more persons to conduct the prosecution before a Tribunal on such terms and conditions as may be determined by the Government and every such person shall be deemed to be a Prosecutor for the purposes of this Act. Subsection 7(2) provides that the Government may designate one of such person as the Chief Prosecutor."
The important point here is that the Prosecutors appointed by the Government must be impartial persons. They must not be members or supporters of the ruling political party. This is to insure that the Prosecutors act fairly and impartially against the accused.
Unfortunately the fact that the prosecutors and investigation agency established under the 1973 Act are hardcore supporters of the Awami League Government (otherwise these so called prosecutors would, in the first place, never have passed their job interviews with flying colours) and the AL Government has planned to find the accused guilty by any fair or foul means, especially, with implication of concocted notorious political motives to destroy a prominent democratic political party in Bangladesh. Such plan of the AL Government has been published in different newspapers in Bangladesh in different times, especially, in 2009 and 2010, but no sane citizen would dare to lift a finger to comment, much less to protest. A few Ministers of the present Government gave open statement in the press that Jamaat leaders will be arrested and hanged for war crimes prior to their arrest and trial in the Tribunal. Such Ministers are the Law Minister (who may not even understand the term 'ultra vires'), Law Deputy Minister, Minister of State Affairs, etc. Therefore, free, fair and impartial investigation and trial of the accused are not possible and would not even have the shadow of a hope neither the ghost of a chance to be free under the Awami League regime.
C. Investigation agency's power
The Bangladesh Government may establish an Investigation Agency to assist prosecutors appointed under the 1973 Act in which Section 8 of the Act provides that the Government may establish an agency for the purposes of investigation into the crimes and any officer belonging to the Agency shall have the right to assist the prosecution during the trial. Any person appointed as a Prosecutor is competent to act as an Investigation Officer and the provisions relating to investigation shall apply to such Prosecutor.
Section 8(2) of the 1973 Act allows a prosecutor to act as an investigation officer and is not fair in any civilized judicial inquiry as the same person cannot be a prosecutor and an investigation officer at the same time. It is a total violation of one of the fundamental principles of natural justice which is known as the 'rule against bias' in which it is prominently stated that the investigation officer will investigate the offences levied against the accused and will accordingly provide an unbiased written report on the investigation to the prosecutor. The function of the prosecutor is to prosecute the accused based on the investigation report. He can prosecute an offender only when there is adequate evidence against him. A prosecutor cannot perform two functions at the same time as a prosecutor and as an investigation officer, while it is universally acknowledged by the competent legal circles that an investigation officer can never simultaneously act as a prosecuting officer, unless he is endlessly hallucinating while performing his duty. A conflict of interest is thus created and the element of bias is always the basis of conclusion arrived at. This has always been the true case of an act of perpetration of bias, especially, when the criminal case is glaringly politically motivated as far as the present trial of the top Jamaat leaders in Bangladesh are concerned, and as fully convinced by the impartial different international human rights organizations, international personalities and the international legal fraternity, to name a few.
In fact it is beyond a shadow of doubt that the Awami League (AL) Government has appointed prosecutors and investigation officers who are hardcore supporters of the AL Government as it is well known to the people of Bangladesh about this lopsided anomaly and comments on this bias and political appointment were duly reported in different daily newspapers all over Bangladesh. Hence, it is crystal clear that the prosecutors and investigation officers appointed by the AL Government are not impartial and obliquely one-sided primarily because an impartial and a fair investigation report is not the order of the day of the ruling party. This legal discrepancy has been further luridly enhanced by reports in the newspapers that the investigation officers are offering bribes to AL supporters to collect mindless witnesses as they even resort to acts of threat to some people that those who do not want to be witnesses against the accused, the prosecutors will in turn sue them on concocted false cases in the court as means of harassment. One begins to wonder whether these highly trained or untrained officers can be the most suitable candidates for the posts of compatible cellmates of a lunatic asylum.
Section 8 of the International Crimes (Tribunal) Act, 1973 deals with investigation by investigation officers and by virtue of this section the investigation officers are authorized to examine any person who appears to be acquainted with the facts and circumstances of the case. Under Section 8(5) of the Act such person shall be bound to answer all questions put to him by an Investigation Officer and shall not be excused from answering any question on the ground that the answer to such question will incriminate or may tend directly or indirectly to incriminate him. Although no such answer which a person shall be compelled to give, shall subject him to any arrest or prosecution, or be proven against him in any criminal proceeding, but it should not be ignored that section 8(5) of the 1973 Act is ultra vires of the provision of article 35(4) of the Constitution of Bangladesh and the Code of Criminal Procedure of Bangladesh. A person including an accused has the legal right to be silent on questions asked to them if the answer may incriminate him. This is a fundamental criminal right given to the accused or a witness, but section 8 of the 1973 Act has blatantly denied the accused this fundamental right.
In view of the foregoing untenable situational circumstances arising therefrom, many people are afraid of the present Government which can be appropriately and concisely described as an oppressive and terrorist Government as amply stated earlier which manifestly reflect their inherent fear and respect of the Jamaat Party with its charismatic objective which will one day be the truly peaceful and responsible Government that the AL Party has all along been hallucinating to achieve. This is further reinforced by the fact that the supporters of the present Government together with the police force have already killed countless opposition leaders in broad day light in public on the street by beating them with sticks and rods and have wantonly bodily injured thousands of the opposition party members during peaceful gathering and human chain demonstrations. The Police and the AL Government supporters are working together, hand-in-hand, no, hand-in-glove, to beat those who criticize and oppose this Government's negative acts which go against the national interest and the inherent sanctity of independence of the country. The people of Bangladesh are endlessly counting their number of days when Allah (God) will remove this domineeringly insane and sadistic Government from the political power of the nation.
D. Fair trial in the Tribunal
Section 10 of the 1973 Act requires the Tribunal to adhere to specific procedures. This section provides certain procedures which the Tribunal must follow. Section 10 of the Act provides fair procedures for the trial of the accused, but the fact that the three judges already appointed for the Tribunal are not impartial, defeats the very provision as their political philosophy of fair is foul and foul is fair is being generously implemented. They are hardcore supporters of the present Awami League (AL) Government and in such a very one-sided case, a legally fair and impartial judgment is not possible against the accused persons although section 10 provides fair procedures for trial of the accused. It is rightly inferred here that as mostly mentioned above that the AL Party leaders have previously seen the performance of the charismatic Jamaat Party leaders and found their rival political philosophy was so magnanimous that the AL Party leaders began to realize that their AL Party would soon be eclipsed and be swept away into oblivion. There is no other rational way to explain the AL Party's erratic mode of administering the Government in such an uncivilized manner.
Besides, section 6 is contradictory with section 10 of the ICTA 1973 whereby Section 6 of the ICTA governs the establishment and general structure of the Tribunal. The particular concern to the War Crimes Committee (WCC) of International Bar Association (IBA) of the UK, are certain provisions within this section that compromise the fairness and impartiality of the Tribunal, as they are inconsistent with good international practice. The WCC of IBA gave many adverse opinions against the ICTA 1973 when this agency was requested by the UK Parliament Human Rights Group to conduct a legislative review of the International Crimes Tribunals Act 1973 (Bangladesh) and provided an opinion it was not consistent with the current international criminal law standards. Similarly, Her Excellency the US Secretary of State Hillary Clinton has also expression her concern to the Prime Minister of Bangladesh Sheikh Hasina by Tele-Talk on 15 January where she urged that the Government of Bangladesh must make sure that the war crimes Tribunal is fair and impartial and it is not politically motivated. Her Excellency also observed that the Tribunal must follow international standard war crimes law. Therefore, it is necessary to amend the ICTA 1973 further to fully conform it to the international standard. Subsection 6(5) of the 1973 Act states:
"If, in the course of a trial, any one of the members of a Tribunal is, for any reason, unable to attend any sitting thereof, the trial may continue before the other members."This section is contrary to the international practice, which would provide that if any one of the members of the Tribunal was unable to attend a hearing, the trial would be adjourned. The concern is that if a trial continued without all Tribunal members present, it could affect the authority and trustworthiness of the process resulting in a miscarriage of justice.
Honorable US Special Ambassador for War Crimes, Stephen
Rapp: 'The ICTA 1973 is not of international standard'.
13 January 2011, Press Conference in Dhaka, Bangladesh.
Source: The Daily Amar Desh, 14 January, 2011.
Subsection 6(8) of the 1973 Act is also problematic because of its potential to compromise the fairness of the Tribunal. It states:
"Neither the constitution of a Tribunal nor the appointment of its Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel."
The special US Ambassador for War Crimes to Bangladesh in a press conference on 13 January 2011 in the American Club at Dhaka, Bangladesh, said that the International Crimes Tribunals Act 1973 (Bangladesh) (ICTA 1973) must be amended to make it in conformity with the International Criminal Court (ICC) of law and legal procedure. The trial of the accused for war crimes must be impartial and of international standard to be credible. His Excellency had said that the 1973 Act was not of an international standard. He emphasized that the trial of the accused for war crimes must be fair and impartial and it should not be politically motivated. He met the Prime Minister of Bangladesh, Sheikh Hasina to discuss about war crimes trial issues and observed the Government must make sure that no innocent person is wrongly punished for war crimes.
Similarly, the honourable US Senator Mr. Boozman had expressed a great concern to the Prime Minister of Bangladesh, Sheikh Hasina on December 2010 in a personal letter to her (please see Appendix 2) that the ICTA 1973 does not meet the international standards of war crimes law provided in the Geneva Conventions and Rome Statute of ICC laws. In his letter to the Prime Minister, the honourable US Senator Boozman has observed that:
"I am concerned that unless the law is updated to be consistent with international law, it will be impossible to adequately protect human rights of the accused. In addition, the law as it currently stands undermines your country's efforts to eliminate impunity and create the impression among the international community that the process could be used as a tool for political revenge or retribution. It has been noted through media reports that several prominent members of Jamaat-e-Islami have been arrested and detained on the lesser charge of offending religious sentiment. Once these persons were in police custody they were then questioned about war crimes. Again, the Tribunal's procedures call into question the political impact of the Act. Since Jamaat is closely aligned to your Government's main opposition party, the perception exists that one of the Tribunal's primary roles is to reduce support for the opposition. By updating the Act and guaranteeing fairness and neutrality of the process for the accused, your Government will demonstrate its commitment to guard against impunity and promote justice."
As usual, this historically sarcastic letter from the honourable US Senator Boozman did not deliver any impact on the ruling party as most of the party members have begun to grow thick skin since being in power. To begin with, it is highly essential to ensure fairness of the Tribunal in that the accused must have the right to challenge either the constitution of the Tribunal or the appointment of certain of its members, otherwise prejudice secretly creeps up during trial. As a result, the WCC of IBA recommended that (i) subsection 6(5) of the 1973 Act should be amended so that if any one of the Tribunal members is unable to attend a hearing, the trial is adjourned. (ii) A provision should be added allowing for challenges to the constitution of the Tribunal or appointment of its Chairman or members based on impartiality. A different chamber (preferably a Chamber of appeal) should adjudicate challenges to Tribunal members within a limited and fixed time frame to ensure a speedy recommencement of the trial itself.
E. The High Court Division has been Made Dependent upon the Tribunal
Section 13 of the ICTA 1973 states that "No trial before a Tribunal shall be adjourned for any purpose unless the Tribunal is of the opinion that the adjournment is in the interest of justice."
In fact, section 13 makes the High Court Division (HCD) dependent upon the tribunal. It is up to the discretion of the HCD to decide whether a proceeding should be adjourned or not after applying its sense and conscience to facts as well as circumstances of each case in hand. That is why section 13 is curtailing the discretionary power of the High Court Division that is not tenable in law. This section also infringes upon the rule of 'natural justice' by empowering the Tribunal (formed under ICTA 1973) to decide in de facto manner in its own cause. Therefore, section 13 is violating the principle of natural justice, i.e., 'no one shall be judged in its own cause' and that is why, this section should be declared null and void.
F. Rules of evidence
It is a well-established jurisprudential principle that in criminal cases, the prosecution has to prove the case 'beyond a reasonable doubt' with adequate primary and secondary evidence. If the case is not proven beyond a reasonable doubt, the Tribunal must acquit the accused. The problem is that some of the provisions of the 1973 Act contradict with the solemn Constitution of Bangladesh and other laws and with the doctrine of 'Basic Structure of Constitution', which has already been established in India and recognized in Bangladesh by the Appellate Division of the Supreme Court of Bangladesh in the historic Eight Amendment case reported in 1989 BLD (SPL) 1. The doctrine was primarily established in India by the decision of the Indian Supreme Court in the Kesavananda and Indira Gandhi case popularly known as the Election case reported in AIR 1973 SC 1461 and AIR 1975 SC 2299 respectively. In these two cases the court held that the fundamental rights provided in the Constitution cannot be taken away in any manner. All citizens have the right to claim those fundamental rights even though they are tried for criminal offences.
Section 19(1) of the 1973 Act provides that "A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value."
The above section is defective and contradictory with the Evidence Act of Bangladesh and international war crimes conventions. It provides that the Tribunal formed under the 1973 Act shall not be bound by technical rules of evidence and it can adopt a non-technical procedure. Such provision is clearly bias and against the concept of fair trial and justice. In such a case, it is evidently clear that the above section should be deleted from the Act. It makes the 1973 Act ultra vires of other relevant laws in Bangladesh including the Constitution of Bangladesh and the international conventions.
An international crimes Tribunal cannot pass a death sentence on any accused purely based on only secondary evidence, such as, reports and photographs published in the newspapers, periodicals and magazines which are managed and controlled by the hardcore Awami League (present Government) supporters and the news presented therein are politically motivated and false as the photographs can be easily manipulated to suit the whim and fancy of the manipulator. The above section also provides that the Tribunal can admit films and tape-recordings which might be falsely made against Jamaat leaders. This is clearly against the jurisprudential principles of a fair and impartial trial and justice in all cases. The above section also goes against the well known jurisprudential principle that 'justice should not only be done but it must manifestly be seen to be done.'
Section 19(2) provides that "A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable."
The above subsection allows the Tribunal to admit statements made on behalf of a dead person and statement of a person who is unable to attend the court because he is very old and sick. Hence, this section might be misused against the accused as the trial is politically motivated against the Jamaat leaders. Under this subsection, the Tribunal may admit false and concocted statements presented on behalf of a dead person or a person who is unable to attend the Tribunal for age and sickness reasons.
Subsection 19(3) provides that "A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof." This section is very objectionable, dangerous and unacceptable in an international crimes Tribunal, because justice demands that the Tribunal must follow the well-established criminal jurisprudential principle that 'a criminal offence must be proved beyond a reasonable doubt, but this subsection is acting contrary to this well-established criminal jurisprudential principle and it is not legally acceptable for the interest of administering justice to the accused under the 1973 Act. This section talks about admitting 'common knowledge' of people without any proof. It is well-known to the people of Bangladesh that there is a false 'common knowledge' among the anti-Jamaat people in Bangladesh that only top Jamaat leaders committed international crimes during the liberation struggle in 1971. This 'common knowledge' was established in Bangladesh by anti-Jamaat newspapers and electronic media but it is clearly false. If the Tribunal adopts this false and fabricated 'common knowledge' without any proof, then it will be doing injustice to the accused who are in fact innocent but being summarily accused on non-corroborative grounds .
I refer again to subsection 19(1) of the ICTA 1973 as this section can be potentially misused by the AL Government to execute their notorious policy to hang the top Jamaat leaders in Bangladesh who are democratic and very much popular to the people of Bangladesh. This section of the Act states:
"A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value."
The above section states that a Tribunal shall not be bound by "technical" rules of evidence. The use of the word "technical" is potentially prejudicial, implying that the rules of evidence are details and of little importance or value. In addition, the provision allows the Tribunal to admit evidence it deems to have "probative value", notwithstanding the "technical" rules of evidence. This probative value test appears to override the standard hearsay rule and it is questionable whether this would be consistent with the rules of other United Nations ad hoc tribunals. A probative value if not supported by the technical rules of evidence is just like a car without wheels, which is fit only for demonstration but its roadworthiness is glaringly absent.
It is advisable to include some special evidentiary provisions to assist in establishing the historical facts related to the events that occurred over 40 years ago. In the interest of justice, it is recommended that (i) subsection 19(1) should be deleted from the 1973 Act. (ii) Special evidentiary provisions regarding proof of historical facts should be added to the legislation.
G. Self-Incrimination
Section 8 of the ICTA 1973 concerns processes of investigation under the Act. Subsection 4 and 5 of section 8 states: "(4) Any Investigation Officer making an investigation under this Act may examine orally any person who appears to be acquainted with the facts and circumstances of the case. (5) Such person shall be bound to answer all questions put to him by any Investigation Officer and shall not be excused from answering any question on the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such person: Provided that no such answer, which a person shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding."
Sub-section 8(7) states: "Any person who fails to appear before an Investigation Officer for the purpose of examination or refuses to answer the questions put to him by such Investigation Officer shall be punished with simple imprisonment which may extend to six months, or with fine which may extend to Taka two thousand or with both."
According to the WCC of IBA, subsection 8(5) and (7) of the 1973 Act are complicated and would be difficult to use in practice. Subsection 8(5) stipulates that a person is bound to answer questions from Investigation Officers and may not be excused from answering on the grounds of self-incrimination, provided such answer does not subject that person to arrest or prosecution or be used against him in any criminal proceeding. Subsection 8(7) mentioned above provides that any person who fails to answer questions posed by an Investigation Officer shall be punished with imprisonment of up to six months or by a fine. The combination of these two provisions is confusing. Therefore, in the interest of justice and to ensure fair procedure during investigation of accused persons and witnesses, it is recommended that these two sections should be removed not only as unnecessary and redundant, but also grossly illegitimate.
Section 11(2) of the 1973 Act also addresses self-incrimination. This section states that:
"For the purpose of enabling any accused person to explain any circumstances appearing in the evidence against him, a Tribunal may, at any stage of the trial without previously warning the accused person, put such questions to him as the Tribunal considers necessary, provided that the accused person shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the Tribunal may draw such inference from such refusal or answers as it thinks just."
Sub-section 11(2) of the 1973 Act allows the Tribunal to draw an inference from an accused person's refusal to answer questions or answers as it considers just. This section must be amended as it permits the Tribunal to draw a negative conclusion from an accused person's silence. Because, such negative conclusion would nullify the right of an accused person against self-incrimination. It might be cautioned that Pakistan has never apologized for possible war crimes and this provision might force the accused to make a statement that would open him/her up to persecution or prosecution in Pakistan.
Similarly, self-incriminatory provision has been incorporated in section 18 of the 1973 Act. This section raises concerns about the rights of witnesses to protection from self-incrimination. Section 18 of the Act provides:
"A witness shall not be excused from answering any question put to him on the ground that the answer to such question will criminate or may tend directly or indirectly to criminate such witness, or that it will expose or tend directly or indirectly to expose such witness to a penalty or forfeiture of any kind: Provided that no such answer which a witness shall be compelled to give shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding, except a prosecution for giving false evidence."
The WCC of IBA in the interest of a fair procedure during an investigation or a trial of the accused or of the witnesses recommends that (i) subsection 8(5) and (7) of the 1973 Act should be removed on the basis that they are unworkable and unnecessary. (ii) Subsection 11(2) should be amended so as not to allow the Tribunal to draw a negative inference from an accused person's silence. (iii) Section 18 should be removed. (iv) Protection against self-incrimination for accused persons should be made explicit. Similar protection should be provided for witnesses as well.
H. Right of Appeal to the Appellate Division of the Supreme Court of Bangladesh
The Tribunal which has been formed under the 1973 Act is equivalent to the High Court Division of the Supreme Court of Bangladesh. As a matter of fact, in Bangladesh there is no Supreme Court as found in other countries, for example, India, Malaysia and Pakistan. In Bangladesh, the Supreme Court has two divisions: i. High Court Division; and ii. Court of Appellate Division. As the Tribunal will exercise the power of the High Court Division, the accused has only the right of appeal to the Court of Appellate Division. If the Court of Appellate Division affirms the decision of the High Court Division, then the fate of the accused would be very tragic as the case is completely politically motivated and designed for. The people of Bangladesh know that none of the top Jamaat leaders who have been arrested for war crimes, in fact, was ever involved in any war crimes. They are good people in the society; they undertake welfare social activities among poor Bangladeshi people. Two of them were Ministers (Mr. Nizami and Mr. Mujahid) during the rule of the Bangladesh Nationalist Party (BNP) from 2001 to 2006 and none of them ever committed even a one-dollar corruption. The caretaker Government during 2007 to 2008 investigated extensively to find their financial or other corruption activities but ultimately they could not find any corruption allegation against them.
In fact, most of the judges in both Divisions of the Supreme Court of Bangladesh are pro-Government. Besides, the Attorney-General frequently interferes in the decision of both the High Court Division and the Court of Appellate Division. Hence, the accused has no chance of getting a fair and impartial judgment in the Court of Appeal as the case against the accused is really a political vendetta.
According to section 21 of the 1973 Act a person convicted by a tribunal shall have the right of appeal, within sixty days of the date of order of conviction and sentence, to the Appellate Division of the Supreme Court.
This section bars the accused to appeal to the High Court Division against the decision given by the Tribunal. It is pertinent to make it clear about the status of the Tribunal. Is the Tribunal superior to the High Court Division or inferior to the High Court Division (HCD)? It is now a settled law that all lower courts and tribunals are inferior to the HCD. If this is the case, then an appeal against any order or judgment of the Tribunal should go to the High Court Division first; not directly to the Appellate Division as has been provided in section 21 of the 1973 Act. Hence, we can say that section 21 has been ultra vires of the Constitution of Bangladesh as Article 111 of the Constitution of Bangladesh provides that "The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it." Hence, the decision given by the High Court Division is binding on all courts and tribunals subordinate to it and as such is the legal ruling, a Tribunal is not superior to the High Court Division.
Another important point was raised by the WCC of IBA and the Honourable US Senator Mr. Boozman (see in Appendix 2) that there should have two Chambers of the war crimes Tribunal in Bangladesh. Similarly the War Crimes Committee (WCC) of the International Bar Association (IBA) of the UK suggested that there should have been two chambers in the war crimes Tribunal in Bangladesh as practiced in other international war crimes Tribunals in the world, such as, Cambodia, Sierra Leone, etc. This was suggested to ensure fair and impartial trial of the war crimes accused in Bangladesh.
I. Rules of Trial Procedure in the ICTA 1973
Steven Kay QC has recently observed that The International Crimes Tribunal Act 1973 (Bangladesh) (known as ICTA 1973) does not provide the international standard procedure and the rules of evidence in the trial of top Jamaat leaders. This law is contradictory with the criminal procedure laws of Bangladesh as well as the laws of England and Wales related to criminal procedure and rules of evidence. Section 22 of the 1973 Act provides that: "A Tribunal may regulate its own procedure". Thus, the Tribunal is given freedom to follow its own procedure it deems fit. Hence, it may not follow the proper procedure as it can even be bias and can favour the prosecution at the cost of the accused as the case is heavily politically motivated, being a high profile case.
Article 54 and 55 of the Rome statute of the International Criminal Court (ICC), respectively, set out duties and powers of the prosecution and rights of a suspect during the investigation stage. These duties and powers of the prosecution provide fair trial protections which would answer a number of potential criticisms to the ICTA 1973 procedure. Hence, it is recommended that (i) the duties and powers of the prosecution set out in Article 54 of the Rome statute should be added to the 1973 Act. (ii) The rights of a suspect during the investigation stage set out in Article 55 of the Rome statute should be added to the 1973 Act.
Section 10 of the 1973 Act governs the procedure of a trial before a tribunal. Subsection 10(1)(d) states that the prosecution shall make an opening statement, but there is no similar provision to allow defense counsels to do the same in which case it is rightfully recommended that a provision should be added to section 10 to allow defense counsels to make an opening statement.
J. Certain Important Statutes will be Inapplicable in the Trial Proceedings
Section 23 of the 1973 Act clearly provides that "The provisions of the Criminal Procedure Code 1898 and Evidence Act 1972 shall not apply in proceedings under the (1973) Act."
A fair procedure in the trial court and primary evidence to prove the alleged offences in the Tribunal are fundamental rights of every citizen of Bangladesh even if they are tried for international crimes. The fundamental rights are guaranteed under i) The constitution of Bangladesh, ii) Universal Declaration of Human Rights (UN); and iii) International Covenant on Civil and Political Rights (UN). Therefore, the 1973 Act is ultra vires and illegal and as a consequence, the Tribunal formed under the Act is also illegal as it cannot continue hearing the charges to be framed against the accused.
K. Exclusion of Judicial Review Power of High Court Division
Section 24 of the 1973 Act clearly provides "No order, judgment or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any court or other authority in any legal proceedings whatsoever except in the manner provided in section 21 (of the 1973 Act)".
The above section is politically motivated and vicious. It clearly ousts one of the fundamental jurisdictions of the High Court Division that is "Judicial review power". The proper legal version of Section 24 above is that if the Tribunal makes any error of law or it acts bias or it does not follow the international standard evidence and procedure, the accused in the Tribunal has the fundamental right to move to the High Court Division under the constitution of Bangladesh with a writ petition for "Judicial review" of the decision of the Tribunal.
This shows that the 1973 Act is inconsistent with the Constitution of Bangladesh and other evidential and procedural laws and it is also inconsistent with various international conventions in which Bangladesh is a signatory, e.g., the Rome statute for International Criminal Court. As such, the 1973 Act is an illegal law and the accused cannot be tried under this law.
L. The ICTA 1973 Can Override all Other Laws Including the Constitution of Bangladesh.
Selection 26 of the 1973 Act clearly provides that "The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other laws for the time being in force".
This section clearly outlaws the 'Constitution of Bangladesh' which is the sacred and supreme law of the country. This makes the 1973 Act a bad and black law to try international crimes in the legal history of the world and this law is not accepted in the world community as it being politically motivated and it is clearly an illegal law which is not enforceable against the accused. If this 1973 Act is applied to try the accused, the accused will not get justice done.
M. Death Penalty Provision in ICTA 1973
Section 20(2) of the ICTA 1973 provides:
"Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper."
This section creates a great concern for the world community because of its provision which provides death sentence. In the modern world, death sentence is considered as inhuman and cruel. The United Nations resolutions have consistently opposed death penalty for many years. All international courts or tribunals supported by the United Nations have rejected the notion of including a death penalty as punishment for war crimes. Similarly, the War Crimes Committee (WCC) of IBA strongly contends that the ICTA 1973 (Bangladesh) should not retain death punishment for war crimes or crimes against humanity. The WCC recommends that section 20(2) of the 1973 Act which allows death penalty to be used against a convicted accused person should be removed from the legislation. Unfortunately, the AL Government of Bangladesh did not heed the recommendation of the WCC of IBA in the UK.
VI. CONCLUSION AND SUGGESTIONS
There were six parties which opposed the separation of Bangladesh in 1971. Some neutral people and even many Freedom Fighters also committed war crimes. As such is the case, members from all those six parties, the neutral people and the Freedom Fighters who committed the 'international crimes' must be arrested and brought to the Tribunal for trial. There are people in the AL Party who also committed international crimes. However, only the top Jamaat leaders have been arrested and accused under the 1973 Act with notorious political motive. It becomes very ludicrous when one of the accused arrested for the international crimes trial from the Jamaat Party was found to be only 8 years old in 1971. How could such a young person commit international crimes at the age of 8. This person happened to be very lucky as he could prove his birth date through his birth certificate which happened to convince his interrogator, but what would be the likely result if his interrogator happened to be hallucinating at his post?
Such facts clearly prove that the AL Government has a mala fide political motive in the discriminatory arrest and trial of top Jamaat leaders under the 1973 Act. Therefore, the whole process of investigation and trial of the accused under the 1973 Act in the so called bias Tribunal is travesty of justice and must be stopped in the interest of a fair judgment in favour of the accused.
It is important and crucial to try the 'international criminals' under the 1973 Act but the 1973 law is defective, not of international standard and ultra vires to the Constitution of Bangladesh and other relevant procedural laws. Therefore my suggestions are:
1. To rewrite the 1973 Act so that it meets the international standard of trying 'international offences'. Usually war crimes or international crimes are not tried by a country alone. Previous war crimes tribunals were formed by some countries in the world, for example, in Cambodia, Yugoslavia, etc., by making the United Nations (UN) as a partner. Any war crimes or international crimes tribunal must be formed by making the UN as a partner so that the trial process becomes impartial and fair and the accused is not persecuted for political reason. Unfortunately, in Bangladesh the AL Government is trying the accused (who have already been arrested and detained in mid 2010) for international crimes without making the UN a partner in the trial process and consequently, there is a doubt in the mind of the people of Bangladesh that the AL Government will not hold a fair and impartial trial.
As an international disgrace, in fact, the UN flatly refused to be a partner because the AL Government in Bangladesh is trying some selected political leaders for international crimes in the war crimes Tribunal after 40 years of its commission with cruel political motive. The Government took the accused for remand for more than 25 days at a time which is inhuman as many of the accused are very old and suffering from several types of complicated diseases. The police also oppressed them physically and mentally to tell a lie that they were involved in genocide and other international crimes during the liberation war between the Pakistani Government and the Freedom Fighters of Bangladesh in 1971. The present AL Government is also collecting false witnesses by offering bribes to its supporters and by threatening some people to be false witnesses against the top Jamaat leaders. This has been published in some newspapers in Bangladesh, such as, the Daily Star, The Daily Sangram, and other printed media all over the country.
Renata Lok Dessallien, the Head of the United Nations in Bangladesh said they would not be a partner with the Bangladesh Government to try the alleged war criminals but they would like to assist the Bangladesh Government by providing names of the international war crimes experts so that Bangladesh may conduct the war crimes trial fairly and impartially and does not make any mistake. She said:
"There are some countries where mistakes were made and we do not want Bangladesh to repeat those mistakes." She said, UN wants that the law under which the accused will be tried should be fair and of international standard. It must have provisions for appeal from the trial court to the higher courts. She also said, the UN would look into the Bangladeshi law to see whether it complied with the international war crimes legislation.
2. The criminal Procedure code, The Evidence Act and the Constitution of Bangladesh must be applied in the trial of the accused under the 1973 Act from which sections 19, 22, 23, 24 and 25 will be struck out from the 1973 Act. The fundamental procedural and evidential rights guaranteed in these Acts must be applied in the trial proceedings of the Tribunal.
3. The 1973 Act provides provisions for the Trial of 'international crimes' and the trial process under the Act must be supervised by legal experts of the 'international crimes' law who are appointed for this purpose by the UN.
4. It is recommended that there should have two Chambers in the War Crimes Tribunal in Bangladesh: i) Trial Chamber; and ii) Appeals Chamber by following the constitution of war crimes Tribunal in Sierra Leone. In the Trial Chamber, there must have at least 3 judges; 2 of them should be appointed by the United Nations and the other 1 might be appointed by the AL Government. For the Appeals Chamber, there must have at least 5 judges; 3 of whom must be appointed by the United Nations and 2 of them might be appointed by the AL Government. These judges must have the necessary expertise in the 'international crimes' law and they will sit as judges in the Tribunal under the full supervision of the UN. Such a recommended construction of the War Crimes Tribunal in Bangladesh will surely remove the doubt and suspicion of people about bias and injustice which might be caused to the accused.
5. All the judges in the Tribunal should be totally impartial persons and should not have any link or interest with the AL Government.
6. All prosecutors and investigation agency members must be impartial and fair in dealing with the investigation process. They should not be members or should not have any interest with the present Government that can make them bias persons.
7. The International Crimes Tribunal Act 1973 is an illegal law and the 'international crimes' which have been alleged and charged against the accused are available in the Penal Code of Bangladesh in which case the AL Government may try the accused under the Penal Code of Bangladesh instead of the 1973 Act and the trial under the Penal Code of Bangladesh, I am sure, will gain credibility and will be acceptable by the people of Bangladesh as well as the international community.
8. International criminals from all the six parties and the Freedom Fighters who committed the war crimes (as mentioned above) should be arrested and tried in the normal court under the Penal Code of Bangladesh. The 'international criminals' who are members and supporters of the present AL Government will also be arrested and tried in the court without any bias and discriminatio
APPENDIX 1
Comparative Characteristics of Some Past Ad Hoc International Criminal Courts
International War Crimes Tribunals Personnel (Composition of Judges) Financing Responsibilities Applicable Laws
International Criminal Tribunal for the Former Yugoslavia (ICTY) (Statute) 14 permanent judges elected by the UN General Assembly from a list made by the Security Council. (Article 13 bis) Borne by the regular budget of the United Nation (Article 32). The Geneva Conventions, laws and customs of war. (Articles 2 and 3) Rules of procedure and evidence adopted by the judges. (Article 15)
International Criminal Tribunal for Rwanda (ICTR) (Statute) 11 permanent judges elected by the UN General Assembly from a list made by the Security Council. (Article 12). Borne by the regular budget of the United Nations (Article 30) International humanitarian law, the Geneva Conventions. (Articles 1 & 4) Rules adopted by the judges. (Article 14).
Special Court for Sierra Leone (SCSL) (Statute) Trial Chamber: 2 international and 1 local judges. Appeals Chamber: 3 international and 2 local judges. (Article 12) International assistance (voluntary contributions), based upon UN Secretary-General's recommendations. (Security General Resolution 1315 (2000), para. 8; UN/Sierra Leone Agreement, Article 6) International humanitarian law and Sierra Leonean law. (Article 1, 4 and 5) ICTR Rules of procedure and evidence applied mutatis mutandis. (Article 14).
Extraordinary Chambers in the Courts of Cambodia (ECCC) (UN-Cambodia Agreement) Trial Chamber: 2 international and 3 local judges. Supreme Court Chamber: 3 international and 4 local judges. (article 3). Local Government responsible for premises, local personnel. (Articles 14 & 15) UN responsible for international personnel, defense counsel, utilities/services, safety/security, investigation, etc. (Articles 16 & 17). Cambodian penal law, international humanitarian law and custom, international conventions recognized by Cambodia. (Article 1) Cambodian law. Guidance sought in internationally established procedural rules. (Article 12).
Source: Yoshi Kodama, "For Judicial Justice and Reconciliation in Cambodia: Reflections upon the Establishment of the Khmer Rough Trials and the Trials' Procedural Rules 2007". The Law and Practice of International Courts and Tribunals, (2010), 9(1): 37-113.
APPENDIX 2
Honourable Senator John Boozman's Letter to the Prime Minister of Bangladesh, Sheikh Hasina.
JOHN BOOZMAN
SE NATOR ELECT
ARKANSAS
UNITED STATES SENATE
WASHINGTON, DC 20510
December 7, 2010
Her Excellency Sheikh Hasina
Prime Minister
The Republic of Bangladesh
Prime Minister's Office
Old Sangsad Bhaban
Tejgaon, Dhaka-1215
Bangladesh
Dear Excellency,
It is with appropriate honor and respect for you and the Republic of Bangladesh that I write to you regarding the International Crimes (Tribunals) Act of 1973. I empathize with Bangladesh's efforts to prosecute war criminals in connection with crimes committed during the war of 1971. I recognize the importance of your Government's decision to establish a precedent to create a special tribunal and a prosecution team, and that some potentially controversial amendments to the International Crimes Tribunals Act of 1973 have been repealed to make the law "fair and neutral."
As you may know, several International organizations have raised concerns that the Act does not meet internationally recognized fair trial standards. Some of the gravest concerns have been expressed by Human Rights Watch's Asian Division, the War Crimes Commission of the International Bar Association, the War Crimes Project and Amnesty International. As it stands now, the Act prohibits persons "charged with genocide, crimes against humanity, war crimes or other crimes under international law…to challenge any law providing for their prosecution and punishment on the grounds that it is inconsistent with any provisions of the Constitution of Bangladesh."
Thus, the Act cannot be challenged because it violates Constitutional rights that apply to other criminal proceedings. This renders the Act fundamentally at odds with the rule of law that ensures equal treatment of persons before the law. It is therefore vital that the Act be updated to make the process compatible with international standards. Among the provisions of the Act which fail to meet international fair trial standards is the ban on Constitutional challenges and the lack of disclosure obligations on the part of the prosecution. There is no mention of the right to silence, the presumption of innocence, nor the standard of the onus of proof. Since the Act was drafted prior to the Yugoslav and Rwanda Tribunals (whose rulings have clarified and expanded international criminal law), the Act should be amended to update the provisions to comply with the Rome statute of the International Criminal Court, ratified in 2002, of which Bangladesh is a signatory.
Without the necessary updates, the Bangladesh Tribunal will continue to be politically volatile and controversial. For example, the Act currently allows a person who is qualified to be a member of a general court martial to be appointed to chair or serve as a member of a general court martial to be appointed to chair to serve as a member of the Tribunal. However, according to international law, military judges should only preside over cases that are strictly military in nature. Additionally, judges are appointed at the discretion of the Government and cannot be challenged, and those accused may not challenge any of the provisions of the Tribunal. I am concerned that unless the law is updated to be consistent with international law, it will be impossible to adequately protect the human rights of the accused. In addition, the law as it currently stands undermines your country's efforts to eliminate impunity and create the impression among the international community that the process could be used as a tool for political revenge or retribution.
It has been noted through media reports that several prominent members of Jamaat-e-Islami have been arrested and detained on the lesser charge of offending religious sentiment. Once these persons were in custody they were then questioned about war crimes. Again, the Tribunal's procedures call into question the political impact of the Act. Since Jamaat is closely aligned to your Government's main opposition party, the perception exist that one of the Tribunal's primary roles is to reduce support for the opposition. By updating the Act and guaranteeing fairness and neutrality of the process for the accused, your Government will demonstrate its commitment to guard against impunity and promote justice.
Many in the international justice movement commend the country's precedent setting efforts to create a war crimes tribunal, but wish to remove the strong suspicion that the Tribunal is being used as a tool for political revenge because of its denial of fair trial standards to the accused. I encourage your Government to make the necessary changes to the Act in order to comply with international standards as ratified in the Rome statute of the International Criminal Court.
Thank you very much for your consideration and for the opportunity to express my view. I look forward to assisting your Government as you work to update the Act and to properly bring those truly responsible for war crimes to justice. If there is any way my office can be of assistance in this process, please do not hesitate to reach out to us.
Sincerely,
John Boozman
Member of Congress
APPENDIX 3
Hillary Wikileak on 16 January 2011 at 10:28 am in the Facebook in the US
Below is the transcript of the US Secretary of State Hillary Clinton's Telephone Conversation with Bangladesh Prime Minister Sheikh Hasina Which was Published in Facebook on 16 January 2011 at 10:28 am in the US by Hidden Truth. This Tele-Talk is better known as Hillaryleak.
One: After preliminary exchange of greetings the US Secretary of State honourable Hillary Clinton said, Madame Prime Minister I have been updated by Ambassador-at-Large Stephen Rapp about his visit to Dhaka. Honestly, at the request of New Delhi, we sent him there and tried our best to help you better organise the trial. After listening from Amb. Rapp and our Ambassador Moriarty, I felt obligated to inform you that both I and President Obama take the issue of human rights in its proper spirit. It is on this context, I called you to inform you that United States does not support the trial in its form and content. Bangladesh has to reform the whole process in a way so that it doesn't become a conduit of punishing opposition.
Comment: On 13 January 2011, in a press briefing in Dhaka Ambassador Rapp said that US attaches importance on a fair and transparent war crimes trial and on amending the law regarding International War Crimes Tribunals Act 1973 (Bangladesh). So, nothing new came out here. The new information is Ambassador Rapp was sent to Dhaka at the request of New Delhi.
Two: In reply, Prime Minister said, Madame Secretary, I understand your concern and I already asked my Law Minister to take note of what Amb. Rapp suggested. This is a trial we undertook with active support and assistance of New Delhi. I am sure Indian Ambassador in Washington DC will brief you further on that.
Comment: It was generally regarded that the Prime Minister had begun the trial with active support and assistance of New Delhi. So, here too nothing new has come out. The new information is, the role of Indian Ambassador in Washington is significant.
Three: The US Secretary of State then said, Prime Minister, United States stands for a certain values and policies which may or may not be the likes of New Delhi. Of course, we have been attentive to New Delhi's most of the suggestions but this one I thought I should forewarn you.
Prime Minister Sheikh Hasina replied, Madame Secretary we noted your concerns and can tell you this much that this was in our manifesto and our people would like to see the trial should go on.
Comment: There is no new revelation. Prime Minister Hasina has always been saying, people would like to see this trial to go on.
Four: Secretary then said, absolutely, but that has to be done in a way so that it is accepted internationally. I am sure, even people who voted for your party, may not accept the trial in its form and format which is, to our view, flawed and politically motivated. President Obama working hard to bring peace to your part of the world, Madam Prime Minister. Therefore, United States would not allow any action that may only help some legitimate political forces going underground to create more problem for you and thereby, for us as well.
Prime Minister Hasina replied, I understand, I understand. Don't worry we will fix it. Don't take it that seriously. We are doing it as we have to do and there are some culprits who we need to straighten up.
Comment: Recently, US foreign policy has been changing to some extent. You can understand that when you see Secretary of State Hillary Clinton is apparently supportive of the Egyptian people who are demonstrating against President Mubarak. The US does not want punishing religion-based parties on the pretext of weeding out terrorists. US now knows, such repressive measures against religion based political parties may drive party activists into underground and in this jet age, revengeful terrorists may arrive in US and pursue terrorism there. So, the US wants politics to remain open where religion based parties may participate without fear. But note, Prime Minister Hasina said, the matter should not be taken seriously. Can the Prime Minister say this in public? Of course, she is serious. That is why all the top leaders of Jamaat are in jail.
Five: The US Secretary of State then said, Ambassador Rapp also informed me about your government's influence on the judiciary and I was told how judiciary is giving verdict the way you want. This is not good at the end. You have to be watchful.
Prime Minister Hasina replied, thank you, thank you. I always value suggestion from yourself and President Clinton.
Comment: Everybody knows that a tame judiciary has been set up by the Awami League Government. The US also knows it. That is why the US Secretary is forewarning that such a judiciary may be bad for the country at the end.
Six: US Secretary of State then said, Madam Prime Minister, let me come to the core point for which I called you. As you have seen even Washington Post picked up your treatment to Dr. Yunus and Grameen Bank. I thought it is about time to tell you how upset we are in Washington DC. I am personally upset because Dr. Yunus has been a family friend to the Clintons long before his wining of Nobel Prize. President Clinton is equally upset. Hope you are aware how hard he worked to see Dr. Yunus gets this award. I know people may have personal issues, but when it comes to national icon like Dr. Yunus, I thought Bangladesh shouldn't demonise country's only Nobel Laureate.
Prime Minister Hasina tried to stop her. Madame Secretary, please listen, please listen …
But Secretary continued, Madame Prime Minister, please let me finish first. I hope you are aware that President Obama is a big fan of micro-credit. He is a fan of microfinance since his mother had her thesis on this subject. So, I am making this call to let you know how upset both of us — President Obama and I — at your continued effort to demonise Dr. Yunus.
Prime Minister replied, Madame Secretary, I hope you are aware that it is not us who brought up this issue. Norway is the first to complain about Dr. Yunus' misplaced fund. After all, this is our domestic issue and Madame Secretary we will do it as per our own rules and regulations.
Comment: It is well known that Dr Yunus has a close relationship with Clinton family. Also known to some is that Bill Clinton had put his efforts to secure a Nobel Prize for Dr Yunus. What has now been revealed by this tele-talk is current President Obama is also a fan of Dr Yunus and Obama's mother had written a thesis on micro-credit finance. Note that, Prime Minister blamed Norway's initiative. But she did not say Norway had investigated and cleared Dr Yunus before awarding him Nobel Prize. Neither did the Prime Minister say that the prime drive of the documentary telecast in a Norwegian television was to criticise the concept of micro-credit. Although, Prime Minister did not mention these, clearly Secretary was aware of the real position. *
Seven: After this, The US Secretary of State said, Madam Prime Minister, I thought I would not have to go that far. But, unfortunately, I was wrong. I hope you know as much we know, how your government came to power. Don't forget that we helped you by congratulating you after the election terming it as a free and fair. You know Prime Minister, how this election result was pre-arranged at the behest of our good friends in New Delhi. We acted the way they suggested us. And please don't forget that Gen. Moeen, who brought you to power, now in the USA and perhaps, we now know, more than you could possibly imagine. Prime Minister, I am not saying that we will disown you so soon. I am just trying to place issues in the order of history demands it.
At this point, Prime Minister tried to change the subject and said, Madam Secretary we are aware of your support and assistance. We will do all we can to keep you happy. Don't worry. We noted your point. Now let me know when you are coming to visit my country.
The US Secretary replied, Thanks for the invitation, Madam Prime Minister. I thank you for your time.
Prime Minister Sheikh Hasina said, Madame Secretary, please bring President Clinton and your daughter and son in law.
Honourable Secretary Hilary Clinton hangs up on the other side …
Comment: It was generally understood that Awami League had won the last election (December 2008) with the pre-arrangement help of General Moeen and India. The US Government fully supported such pre-arrangement of General Moeen and Indian Government to cause Awami League win in the general election held in December 2008. But, it was unknown how much support was given by the US Administration to Awami League to win in the election at that time.
The two most significant information to emerge from Hillaryleak are:
a. the results of the elections were pre-arranged, and
b. US had supported this pre-arranged election which was held in December 2008.
So, this then was the main points of Hillaryleak. Those who are saying that this is not reliable are arguing that the full identity of the source is not known and the language of the Secretary is not befitting.
First, consider the source. It was published in Facebook on 16 January 2011 at 10:28 am by Hidden Truth. Obviously, people behind Hidden Truth did not wish to take risks like that of Julian Assange and refrained from publishing their real identity.
Note the date and time of the publication.
Prime Minister's Press Secretary Abul Kalam Azad in a press statement said, the US Secretary of State had telephoned Prime Minister on Saturday 15 January 2011 at 9:30 am (BST). It was then 8:30 pm in Washington DC on Friday 14 January 2011, After this tele-talk, the transcript was published in US on Sunday 16 January at 10:28 am Washington DC time. In other words, in US, people concerned, had 36 hours to take action on Mr Azad's statement. The people in the US were deeply annoyed because something quite opposite regarding the tele-talk had been stated by Mr Azad, Prime Minister Hasina's Press Secretary. He claimed the US Secretary of State had praised the Prime Minister Hasina and had promised to act jointly on different issues.
Perhaps that is why, someone in US, who was informed and concerned, disclosed the text of tele-talk in the Facebook.
Regarding the Secretary's language, anybody who had been listening to her regularly, will know, terms such as, absolutely, honestly, conduit, demonise, let me come to the core point, are typically hers. She also called Clinton as President Clinton. Because, once elected President of US, he is always called President. The Secretary knows this. She also knows that President Obama's mother had written a thesis on micro-credit financing. Not many people (American or Bangladeshi) would have known this.
And, Prime Minister Sheikh Hasina's language is also typically hers. Note that how she repeats, I understand, I understand, thank you, thank you, please listen, please listen.
Actually, Bangladeshis already know about the close relationship of Awami League with India and that India has been assisting the government on many issues.
Hillaryleak has merely confirmed what was widely known. So, why hesitate to accept it as true? Why be reluctant to accept that the 2008 election results were pre-arranged?
We should understand that, that is why Sheikh Hasina after returning from US in November 2008, decided to contest in the December election, but did hardly do any election campaign. Whilst her rival, BNP Chairperson criss-crossed some 10,000 km in two weeks, Sheikh Hasina stayed back in Dhaka conducting video conferencing. Sheikh Hasina knew strenuous campaign was unnecessary, a pre-arranged win was waiting.
People will judge whether Hillaryleak is true. It is curious that so far US has not given any rejoinder on this.
http://www.sonarbangladesh.com/articles/AbuUmarFaruq
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