Bangladesh can set itself free by giving a fair trial to Salauddin

Salauddin Quader Chowdhury, a distinguished opposition leader in Bangladesh, is on death row. Arrested and brutally tortured for a supposed bomb attack in 2010, the War Crimes Tribunal (WCT) then indicted him for "crimes against humanity" during the 1971 Bangladesh liberation war for 35 incidents, later reduced to 23.

The WCT, Bangladesh's star chamber, used and abused for the regime revenge by bizarre procedures, is unworthy to try war crimes. After Nuremberg, such tribunals were characterised as a "victor's justice". But given genocide in the last 50 years, they are now set up for justice with fairness even though many have got away with it - Augusto Pinochet, Idi Amin, Robert Mugabe, Pol Pot, Khemer Rouge and others.

Post-1971 Prime Minister Mujibur Rahman explained the rationale behind having such a tribunal, "Three million people were cold-bloodedly murdered. Two hundred thousand have been raped by the Pakistan army. Ten million... migrate(d) to India, 15 million (internally displaced) out of fear. The world should know what has happened".

Tribunal

The Pakistani soldiers went scot free as a result of prisoner exchange. This should not have prevented their trial. The International Crimes (Tribunal) Act of 1973 (ICTA) lay dormant even after Mujibur's assassination in 1975. Ironically, after her victory in 2008, it was his daughter, Sheikh Hasina who resurrected the Tribunal in 2010 and through another enactment in 2012. In 2013, many Jamaat-e-Islami were targeted for death sentence.

What kind of Tribunal was this? Post-World War II Nuremberg or Tokyo? An Eichmanite trial in Israel? War Tribunals in Yugoslavia (1993), Rwanda (1994), Sierra Leone (2002) Cambodia, the International Criminal Court (2002)?

Nothing of the sort. The Tribunal is not international. Designed against Pakistan soldiers, it is convicting opposition politicians in Bangladesh. It lacks fairness and due process - inspired by regime revenge, fired by mobocracy. Trials are permitted in absentia (Section 10A) which could be drawn against those in Pakistan. Instead it is used against Bangladeshis.

Section 20(2) declares that on conviction, "... The Tribunal shall award sentence of death or such other punishment" (emphasis added). Hardly international, trial judges and their replacements are chosen by the government. Section 47A read with constitutional amendments deprive the accused of constitutional protections, including the Right to Fair Trial despite a declaratory provision stressing this [Section 6(2)(A)]. Evidence before the police can be compelled [Section 8)(5)]. The court can, without warning, put question to the accused to incriminate him which Geoff Robertson's report calls "trial by ambush".

The tribunal is not bound by "technical rules of evidence". So "hearsay" does not invite cross-examination. Corroborative evidence can simply be denial. Bail is a chimera. ICT (1 and 2) of 2010 and 2012 were manned by judges who were self-protected from allegations of bias because there was no legal provision to recuse! The ICT decided nine cases (all against opposition politicians): seven to be hung, two for life imprisonment because they were old or ill. Mercy amidst mercilessness after 40 years since the war of 1971.

On December 15, 2012, the Economist revealed that the judges of the ICT were being assisted by foreign lawyers in secret, pressurised by the law minister; and promised promotion by the Chief Justice if Salauddin was convicted.

Salauddin's case was decided on October 1, 2013, with 11 prosecuting counsels, an official state defence counsel and three others. Contact between defence counsel and accused was minimal. A defence counsel, which is appointed by the very state that wants to prosecute suspects, subverts one's right to have their own choice of counsel. The prosecution was allowed 41 witnesses as against four for the defence - not even one for each incident on 23 charges.

No defence

Salauddin's defence was that he was not in the country. Defence witnesses gave their affidavits which if believed would have absolved Salauddin. Even though the affidavits were admitted to the record, they were ignored on the ground of being late.

Surely a fundamental issue was: Can a person in New York have committed crimes in Bangladesh? In the appeal, further newspaper articles were produced to ensure conviction without permitting Salauddin to challenge the authenticity and truth of the newspaper clippings produced.

Prosecution

Is it not part of the rule of law that the prosecution must prove the case beyond reasonable doubt? Or for the defence to challenge the prosecution case with cross-examination and for the defence to produce their witnesses?

Robertson rightly calls this "trial by affidavit". The asymmetries can be seen from the judgment of October 1, 2013, of 172 pages, based on prosecution evidence alone. When the matter went on appeal, the Supreme Court gave obscure reasons for not looking at the defence documents - pronouncing them to be fake! The result, Salauddin is to die by death penalty.

There is a small window of possibility. On November 2, 2015, the defence witnesses demand to give evidence which will give Salauddin an alibi. To the Bangladeshi Supreme Court we say "Render justice. Let the defence witnesses speak". To the Bangla people we ask: "Stand up for justice. A polity consumed by hate, infecting the courts of justice, can only degenerate democracy and the rule of law, and governance itself."