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    South Asia
     Sep 20, '13


SPEAKING FREELY
A travesty of justice in Bangladesh
By Mohammad Hossain

Speaking Freely is an Asia Times Online feature that allows guest writers to have their say. Please click here if you are interested in contributing.

It was a feat unprecedented in the history of the judiciary in Bangladesh that a prisoner sentenced to death during an appeal to the highest court was then stripped of his right to appeal the very same sentence. But defying logic and all manner of common sense, the country's Supreme Court on Wednesday increased the sentence on Abdul Quader Mollah, a senior member of the biggest Islamic party in the country, the Jamaat-e-Islami, to the death penalty for committing crimes against humanity during the nation's 1971 independence war against Pakistan.

The Bangladeshi International Crimes Tribunal (ICT) (dubbed "international" but in fact a domestic court) had sentenced the



veteran politician to life imprisonment on February 5, 2013, for crimes against humanity.

Following due course of the law, both the defense and prosecution appealed that sentence to the Supreme Court. The appellate division dismissed appeals from Mollah's lawyers against his conviction on five counts of crimes against humanity, and in an unusual move increased the punishment to the death penalty - in line with the prosecution's appeal.

Mollah's lawyer Abdur Razzak said the defense would file a petition for a review, but Attorney General Mahbube Alam said a review was not an option under the constitution. "This decision over which the accused now has no further right of appeal or review is in clear breach of international law," Mollah's international legal team said in a statement.

Reactions to the death sentence have been mixed but showcase a widening rift between supporters of the incumbent Awami League government led by Prime Minister Sheikh Hasina and those of the opposition led by ex-prime minister Khaleda Zia. This comes at a time when both camps gear up for national elections that the present government says will be held by the beginning of next year.



Elections have been a subject of controversy since the present government abolished the caretaker system, by which an interim government holds power during the course of the elections, through a comfortable parliamentary majority in June 2011. Since then, the opposition has regularly taken to the streets to press their demands for the reinstatement of the caretaker system. Many in the opposition see the war crimes trials as a tool being used to divert the public attention from the election issue.

Coupled with the glaring flaws in the trial of Abdul Quader Mollah and the other accused at the ICT trials, and the fact that the almost all defendants are members of the opposition parties Jamaat and Bangladesh Nationalist Party (BNP), the conviction that the trials are politically motivated is only bound to get stronger.

Controversy over the Mollah trial at the International Crimes Tribunal, a domestic court set up to try the war criminals of 1971, started as early back in mid-December 2012, when the disgraced chairman of the tribunal resigned in lieu of his connection with the "Skypegate" scandal, exposed by the Economist and involving private e-mails and telephone conversations that cast doubt upon his role and upon the court proceedings. [1] The defense was prevented from calling more than six witnesses and the case was promptly rushed towards judgment in February this year.

The verdict of life imprisonment for Abdul Quader Mollah resulted in an uproar of public sentiment, a result of a barrage of the emotional hype that had been fueled by the government and media since the incumbent government had come to power.

Emotion prevailed over reason, as thousands came out onto the streets of Dhaka, particularly in the central area of Shahbag, enraged at what they perceived to be a compromise on rightful justice, oblivious to the merit or lack thereof of a trial that was more than 40 years behind schedule.

The law as it stood at the time of conviction did not permit any prosecution appeal for a higher sentence. In an unprecedented move, the ruling party made the move to amend the associated law to allow the prosecution to appeal.

The amendment was passed following Prime Minister Sheikh Hasina's remarkable statement in parliament, as a result of mass demonstrations on the streets of Dhaka, that the tribunal judges should listen to "the sentiment of the people".

As experts noted in regard to the final judgement, the appellate division focused on building on previous convictions, as the court upheld unanimously that his acquittal on one charge (charge No. 4) should be reversed and should stand as a conviction, and most significantly that, by a majority, the sentence on charge No. 6 (the murder of a family), should be changed from life imprisonment to the death penalty.

The case as it stood in front of the appellate division was an extremely weak one. Three of the five charges against Mollah relied totally on hearsay evidence. The charge for which Mollah was sentenced by the appellate division to hang was based on the testimony of a single witness, who was a 13-year-old at the time and against whose testimony there was no corroborating evidence whatsoever. At the end of the day, it stood out that those who had labeled Abdul Quader Mollah the "Butcher of Mirpur" all these years ago simply had a lone hearsay account to prove it.

Final nail in coffin of justice
Abbas Faiz, Amnesty International's Bangladesh Researcher, was telling in his concern when he said, "This is the first known case of a prisoner sentenced to death directly by the highest court in Bangladesh. It is also the first known death sentence in Bangladesh with no right of appeal."

Amnesty International's concerns are genuine. The imposition of the death sentence without the possibility of appeal is incompatible with Bangladesh's obligations under international human rights law. Not only does such a sentence defy human rights laws, but it also needs to be taken into cognizance that one human rights violation does not cancel out another.

The grounds for conviction of such nature were weak from the very moment clear evidence emerged of the government meddling in the matters of the tribunal back in 2012. In retrospect, few can turn back and say they witnessed a fair trial. Few can say that they witnessed anything more than a political vendetta.

Note:
1. The trial of the birth of a nation, The Economist, December 15, 2012.

Speaking Freely is an Asia Times Online feature that allows guest writers to have their say. Please click here if you are interested in contributing. Articles submitted for this section allow our readers to express their opinions and do not necessarily meet the same editorial standards of Asia Times Online's regular contributors.

Mohammad Hossain is a Bangladesh-based blogger who is a commentator on social and political affairs of Bangladesh. He can be reached at m.hossain.reply@gmail.com

Copyright 2013 Mohammad Hossain)






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