Role in the Formation of ICT | A BROKEN DREAM | Status of Rule of Law, Human Rights and Democracy

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Among the agendas of the Bangladesh Awami League in the 2008 parliamentary elections was that if it came to power the government would bring the offenders of war crimes, crimes against humanity and genocide to justice. Ultimately, the Awami League managed to form the government and in the process of implementation of its agenda, it wanted to set up a tribunal in the old High Court building. Shafique Ahmed, Justice Abdur Rashid and I were working on the matter, because Shafique Ahmed wanted our help in the selection process of the prosecutors and judges. I suggested Rana Das Gupta, a prominent lawyer of Chittagong, to be included as a member of the tribunal. Mohammad Nizamul Haque was selected as Chairman of the tribunal as he was involved in the process of “Gonoadalat” (people’s court) in a symbolic trial of perpetrators of war crimes.

After getting the green signal, I requested Rana Das Gupta to come to Dhaka as soon as possible. I took him to Abdur Rashid’s residence and we had several discussions. Rana Das Gupta was reluctant to give up his lucrative practice he had developed in Chittagong. We convinced him to sacrifice his profession for the cause of the nation. Unwillingly he consented to our proposal. It was communicated to the Law Minister. Subsequently, for reasons not known to us we learnt that Rana Das Gupta was dropped from the list of possible members of the tribunal. Then we suggested his name as chief prosecutor. But Tipu Sultan was picked for the job because he had close relations with the Law Minister and other high ups, although he was already very senior in age. I subsequently noticed that even in the list of prosecutors Rana Das Gupta’s name was not included.

It may be mentioned that I was requested to convince Rana Das Gupta and accordingly I requested him to come to Dhaka. Nizamul Haque along with two members ATM Fazle Kabir and AKM Zahir Ahmed, a retired District Judge, were chosen for the constitution of the tribunal. In place of Rana Das Gupta, Zahir Ahmed was selected. It was a bad selection which the government realized later. But in the meantime, a lot of misgivings were generated. The work of the tribunal was not progressing properly. Md Nizamul Haque was unnecessarily wasting time by writing lengthy orders– even at the time of disposal of petty applications. Naturally, the accused would try to delay the trial of the cases. It is the task of the Chairman of the tribunal to ensure the administration of the tribunal and he must have appropriate knowledge on case management system.

Generally, it was expected that Nizamul Haque produce favorable results in the handling of the cases mainly because he had knowledge on criminal law as he had worked with late Aminul Haque for a considerable period. Everybody thought that he was a good choice. But instead the selection produced negative results. He could not conclude the trial even one case in a year. He was pursuing me, off and on, for his elevation to the Appellate Division and simultaneously he was lobbying for giving him a position like the Chief Justice, or at least close to that position.

Whenever he came to meet me I advised him to expedite the trial process and at least dispose of one or two cases. His name cannot be considered for elevation to the Appellate Division unless he disposes of at least one case. Ultimately, the Law Minister, Air Commodore (retired) AK Khandker, the Planning Minister and the Chairman of the Sector Commanders’ Forum, also the Deputy Chief of the Liberation Forces, wanted to constitute another tribunal as the trial did not get momentum. Though the country was functioning under a parliamentary form of government, it was so only on paper. Even after the amendment to the Constitution in 1991 changing the form of government, the country was being run as in a presidential form by setting up the Prime Minister’s Secretariat and strengthening the Prime Minister’s Office. All decisions were being made by the Prime Minister’s Office irrespective of whether it was an Awami League or BNP government. The Law Minister therefore had little power to exercise discretion in any policy matter. Shafique Ahmed and AK Khandaker met the Prime Minister with a proposal to set up another tribunal. The Prime Minister outright rejected their proposal saying that the tribunal was constituted as a political decision with a view to fulfil the election pledge. But there was little scope of success and have any result in the process. Later, I came to know that the two senior ministers did not utter a single word when the Prime Minister refused their proposal and returned with broken hearts.

Shafique Ahmed then contacted me with a request to persuade the Prime Minister for setting up another tribunal. According to him, if I lobbied with the Prime Minister, I would be able to convince her. I was reluctant to interfere in the matter because I was thinking that as a sitting judge it was not fair for me to talk with the Prime Minister over an executive matter and I told the Law Minister that after two Senior Ministers’ proposal had been turned down by the Prime Minister, I would not like to get involved in the matter again lest she refused again, which would put me in an awkward position. He repeated that it was his firm conviction that if I requested the Prime Minister, the idea could be implemented. Shafique Ahmed is a very sound, polite gentleman. We regard him as a gentleman par excellence. His firm belief left me in a dilemma. I told him that I would think over the matter again.

Then I decided that it was the demand of most people who knew that the people had suffered during the war of liberation. We sacrificed three million lives and more than 100,000 people had lost their limbs, some of them were maimed forever and 200,000 females had lost their chastity. As a citizen of this country, besides being a judge, I have an obligation to the nation. I also realized that if the country had not been liberated at the call of Bangabandhu Sheikh Mujibur Rahman, I would have ended up as a teacher of a school or at best as a lawyer of the sub-divisional court. Independence not only gave a flag to the nation, it gave new life to the thinking of persons who had survived and could lead the country better than who had been ruling our country in the past. I became the judge of the highest court because of the country’s independence and I could not deserve more power or prestige from the country other than by showing respect to the souls of the martyrs. If it is my belief, it was an obligation on my part to try to persuade the Prime Minister once again and if any favorable result could be achieved from my endeavor, it would be a great honor and respect for the sacrifice made by our courageous freedom loving people. So, I decided to approach the Prime Minister. Accordingly, I requested a meeting with the Prime Minister at a secret place. I got a favorable reply within few hours. This emboldened me in my belief that I would be able to convince the Prime Minister.

When we met I told the Prime Minister the purpose of my meeting. The moment I raised the point, I felt she reacted sharply. Then she became emotional and explained to me the suffering she had undergone in getting justice for the trial of those who had murdered her parents and younger brothers. She told me how much money she spent for collecting and safeguarding witnesses and said the mental pressure she withstood was beyond comprehension. She was intensely interested in putting the offenders to justice, but she had to cross a lot of hurdles. Given that backdrop she straightaway rejected the proposal of the Ministers. She frankly conceded that corruption was rampant, and since the offenders were powerful persons having money and muscle, and they could influence any official or witness
and this could not be tackled by the administration all the time. Moreover, forty years had elapsed in the meantime, and it was extremely difficult to collect witnesses as most of them are not alive now. She had set up the tribunal chiefly to meet her election pledge and there was nothing more than that she was prepared to do. She was still in a highly emotional state even after she had spoken for 15/20 minutes while I heard her without any interruption. I realized if I inserted any comment she would take exception. After she had completed expressing her opinion I noticed she relaxed a bit. I then started to submit my plea. I told her that I was a judge of her father’s case and knew everything upon conclusion of the hearing of the case. I found many loopholes in the trial, but these were because of the lapse of time and changes in the political scenario in the country.

But the war crimes trial was completely different from her parents killing case, I explained. Bangabandhu’s murder case was tried under the general law and it was an obsolete law for which she had to undergo a lot of troubles. But in respect of offences of crimes against humanity, the procedure is totally different. The prosecution or for that purpose the government need not take so much pain in collecting evidence to prove a charge in the manner she had collected evidence in her father’s assassination trial. I further explained to her in brief the process of trial of the cases, mode of recording evidence and the admissibility of evidence which are totally distinct from the earlier trial. Under the new system, affidavit evidence is admissible, newspaper reports are available, video reports and photographs are also admissible, no matter from where it was collected. Most of the evidence can be collected from the national archives and some of them can be collected from freedom fighters’ possession. The process can be expedited if the government provided enough money and right persons were selected for the purpose. I told her that the selection of the First tribunal was not proper and there were errors.

After hearing me out on the differences between trials under general and special laws, I noticed a change in the Prime Minister’s demeanor. Then she took out her diary and wanted to know what the requirements were for setting up another tribunal and how the trial process could be expedited. I told her that the first thing was to give some resources like laptops to the investigation agency, prosecutors and judges. Then I talked about the selection of prosecutors. I told her that only four prosecutors would be required to be appointed. I added, if another tribunal was set up she would get results within six months. She assured me of that if the list of prosecutors was sent to her she would arrange for their appointment and take steps for setting up the second tribunal. Subsequently, within fifteen days the Prime Minister fulfilled her commitment.

I informed the Law Minister about the result of the talk. He was very happy and was keen to initiate the process. But he could not arrange for the lawyers I had suggested to him. In the meantime, the Skype controversy involving Nizamul Haque became public. In the conversation he had taken my name three to four times. On behalf of the offenders, recusal petition was filed against me when the appeals hearing began. I declared that I was not feeling embarrassed because I did not speak to Nizamul Haque regarding the trial of the cases or touched on the merit of the cases or even anything about trial process. Whenever he came to me for elevation to the higher bench, I told him that he had to conclude trial of at least one or two cases before his name could be considered for elevation.

On behalf of the convicted accused, it was pointed out that I had directed Nizamul Haque to hang one or two accused. Nizamul Haque had said, “I told Sinha Babu to take me in the Appellate Division, but he told me to dispose of one or two cases.” The accused misinterpreted his version claiming that I had directed him to hand down capital punishment to one or two accused. Moreover, since he could not conclude any of the trials, the appeals were not on any verdict of Justice Nizamul Haque. There was thus no legal bar for me to sit in the Bench to hear the appeals. Nizamul Haque was compelled to resign after publication of the Skype conversation in the newspapers. Then the question arose about the selection of chairmen of the two tribunals. I talked with Obaidul Hasan and M Enayetur Rahim. Obaidul Hasan responded that if he was given any responsibility, he was ready to take charge. But Enayetur Rahim was reluctant claiming his father was an MP and his brother is also an MP. If he is appointed as the chairman of a tribunal, objections might arise. Ultimately Fazle Kabir was appointed Chairman of Tribunal-1 and Obaidul Hasan was made Chairman of Tribunal-2. After the retirement of Fazle Kabir, Enayetur Rahim became the Chairman of Tribuanl-1. The trial of the cases gained some momentum after the constitution of two tribunals. The first judgment was delivered in Abdul Quader Mollah’s case.

1. The Constitution of Bangladesh (XXII) Amendment Act, 1991
2. Criminal Appeal Nos. 24 and 25 of 2013

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