Wednesday, March 20, 2019
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A Beacon of Justice?

Mir Quasem Ali

On 8 March 2016, the Appellate Division of the Supreme Court of Bangladesh, dismissed an appeal brought by Mir Quasem Ali, a member of the Bangladesh Jamaat-e-Islami.

In dismissing the appeal, the Court upheld the death sentence imposed by the highly controversial Bangladesh International Crimes Tribunal (Tribunal). The decision is highly important and further demonstrates the level to which this process has descended amid serious and credible allegations of political interference, gross misconduct and a wholesale abandon of fundamental rights of due process.

The Tribunal was established to bring an end to impunity and to hold accountable those persons responsible for having committed ‘international crimes’, namely war crimes, crimes against humanity and genocide, during the nine-month war of liberation that is properly characterised as one of the worst conflicts in modern history. It is clear that crimes were committed on a truly massive scale by all parties to the conflict and it is a natural demand of the people that there is a credible process of justice and accountability. It is also an appropriate demand of the people that there is a process of reconciliation so that Bangladesh’s broken society can move forward after decades of impunity and politicisation of the process.

As Bangladesh enters its 45th year of independence it is only right that these issues are properly addressed.

In the immediate aftermath of conflict there were calls for justice. However, the parties to the conflict, namely India, Pakistan and the newly created independent state of Bangladesh opted for a ‘forgive and forget approach’ rather than a mechanism establishing accountability. That, in my view, was patently wrong. What should have followed was an international tribunal and the failure to do so will remain a stain on the reputation of the United Nations.

I have been involved in the Tribunal and wider political issues in Bangladesh for more than five years. I first visited Bangladesh in October 2010 and was engaged to represent a number of the defendants in January 2011. During the course of the past 5 years I have observed numerous breaches of basic fair trial standards, flagrant violations of the presumption of innocence and repeated attempts by political figures to manipulate the process and influence the outcome of the trials.

There have been instances of senior judges being directed by third parties, instructing those judges on what orders and decisions to make and what to allow and not allow the defence to argue. I have observed clear and compelling accounts of witness coercion and intimidation and clear instances of judges, prosecutors and politicians colluding to ensure that those persons charged are convicted and subsequently executed.

In one case, the law was amended retroactively to ensure that a defendant was executed. This was brought about by an impassioned, albeit entirely inappropriate, speech by the Prime Minister in Parliament in which she declared that she would speak to the judges to ensure that they understood the ‘will of the people’ – a confusing position to adopt considering judges are required to hear the evidence and apply the law.

There have been repeated instances of parliamentarians and government ministers calling for executions before the trial process was completed – the most blatant breach of the presumption of innocence.

These instances of concern are too numerous to list. However, one could be forgiven for believing that having seen such compelling, and deeply disturbing, evidence of misconduct over the past five years, the process could not descend any further. Regrettably, observers to this process have been proved, over the recent past, palpably wrong. If there remained any lingering doubt that this process was aimed at justice, those thoughts have effectively been cast out with the recent decision of the Supreme Court.

It must be stated, in the interest of transparency, that I represent Mr. Ali. Therefore, I am neither impartial nor independent in this process. I am not required to be. One might reasonably suggest that if I were to present myself as an independent and impartial observer then I would be acting either disingenuously or failing to properly represent my client. On the other hand, the judges and prosecutors are required to act independently and impartially. It is also incumbent upon the Government to refrain from violating the presumption of innocence and to refrain from interfering with the independence of the judiciary.

On 5 March 2016, a meeting was held in Dhaka, under the umbrella of a civil society movement, in which statements were made by two members of the Prosecution, a former Supreme Court justice, two Government Ministers and two former prosecution witnesses, that took the prejudicial and nonsensical approach to a whole new level. All those persons present spoke of their outrage at the suggestion that Mr. Ali might not receive the death penalty, clearly demonstrating that there is no suggestion that justice has any part to play in this process.

The reason for this outrage focused on an alleged discussion between the Chief Justice, Surendra Kumar Sinha, and the Attorney General, Mahbubey Alam, during the appeal in the Supreme Court. Much has, and continues to be made of the exchanges between the Chief Justice and the Attorney General during the hearing of the appeal. The Chief Justice is reported to have referred to the prosecution as being ‘incompetent and unskilled’, and further, accused them of ‘politicising the process’.

During the meeting of 5 March, two Government ministers, Quamrul Islam and AKM Mozammel Huq, both lawyers by profession, criticized the Chief Justice and called for the appeal to be reheard before a fresh panel of judges excluding the Chief Justice and also barring the Attorney General from the fresh appeal.

The defence case is that the prosecution failed to prove the charges for which Mr. Ali has been convicted. It is quite clear that the Chief Justice, and for that matter, the Supreme Court, shared some of these concerns. The Chief Justice quite rightly pointed out that the burden is on the prosecution to prove the charges beyond reasonable doubt. It is quite clear that if the Prosecution failed to meet its legal burden the court was obliged to overturn the convictions and at the very least order a retrial.

Regrettably, despite what glimmer of hope there was that the Supreme Court may have been prepared to acknowledge that trial had not been fair, that they have been prejudicial and that they have been subject to a malign political influence, was cast away with its decision upholding the death sentence.

It is evident however, that there are those, including those in ministerial positions who could not countenance such an occurrence, and somehow believed that it was quite appropriate to interfere further in an already highly controversial process.

The Minister for Food stated that “…accusing the prosecution of doing politics means that he accuses the government and the state too…such statements by the chief justice are embarrassing the government and the civil society and cause harm to people’s trust in judiciary.”. Such a call was being made presumably on the basis that there was a risk that the verdict of the Supreme Court was not one which the Government could accept. This is political interference and prejudice against the defendant on a new level to that which we have seen previously.
Prior to reading out the decision on appeal, the Supreme Court cited the two ministers with contempt for a “flagrant interference with the administration of justice, questioning the independence of judiciary”. The issue, however, is that it would now appear that the Supreme Court has succumbed to the most cynical form of intimidation and delivered a verdict that has nothing to do with the case at hand, but would appear to have been decided on the basis of political interference.

The Chief Justice, in recent weeks, has spoken of the level of political interference with the judiciary. These are calls that the international community has failed to take seriously, but considering that a man’s life now hangs in the balance can no longer afford to ignore.

It is quite unacceptable for a government minister to suggest that there should be direct interference in the judicial process because the verdict is not acceptable to him. Presumably the minister has not seen the irony in his own comment and how he is suggesting a course of action that is precisely akin to that of which he complains.

In light of the calls from a government minister for there to be direct interference in what is purported to be a fair and independent process, I challenge any individual to maintain that the process is fair and free from political influence.

For the sake of clarity, I take absolutely no pleasure in criticising a judicial process that is aimed at addressing impunity – impunity that should have been addressed more than 40 years earlier. However, fair criticism is warranted where those persons sitting in judicial office fail to apply the law and fail to properly consider the evidence placed before them as they are legally required to do. Criticism is also justified where judges are unable to properly discharge their duties due to the political interference.

The attacks that the Chief Justice has been forced to endure over the last last few weeks are inappropriate and impact upon the highest judicial institution over which he presides. He has spoken of political prosecutions, weak evidence and government interference. The Chief Justice has spoken of the increasing political interference of the judiciary. The Chief Justice was quite right to raise such a concern.

The attack on the Chief Justice is an attack on the entire judiciary.

In light of this most recent development the international community can now no longer remain silent, it cannot continue to choose its words carefully, words that stop short of condemnation for fear of causing offence.

Individuals’ lives are being put into question, the stakes cannot be any higher, and action must be taken immediately before it is too late.

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