On 2 November 2014, the Bangladesh International Crimes Tribunal convicted and condemned Mir Quasem Ali to "be hanged by the neck till he is dead, under section 20(2) of the International Crimes (Tribunals) Act, 1973". I say that he was convicted and sentenced omitting intentionally that he was 'tried' as the process is far removed from any notion of a 'trial'.
Mr. Ali was not the first person to be convicted by this Tribunal - and he's unlikely to be the last. A year before, on the night of 12 December 2013, Abdul Quader Molla was executed in a Dhaka jail. He became the first but sadly not the last member of the Bangladeshi opposition hanged as a result of an inherently unfair judicial process before the Tribunal.
Although the international community initially applauded Bangladesh with the establishment of the Tribunal to bring a process of justice and accountability for the international crimes committed during the 1971 War of Liberation, the hopes for justice quickly transformed into outrage for the grave and persistent violations of due process being committed before the Tribunal.
The crimes in the Statute were ill defined, the accused were deprived from their most basic human rights guaranteed by the Constitution, and scandals of political interference and governmental manipulation of the judicial activity tarnished the credibility of the Tribunal.
The Government continues to laud itself on having created the most transparent war crimes tribunal, but regrettably it is in a minority of one. It is not to be lauded. It is to be be confined to the history books as a miserable attempt and a missed opportunity.
The judgments and sentences handed down by the Tribunal, and rubber stamped by the Appellate Division of the Supreme Court, riddled with mistakes, legal inaccuracies and an inquisitorial narrative, fall woefully short of international standards of justice, and stay far from the level of legal expertise, impartiality and fairness expected from a modern judicial process.
A simple reading of Mir Quasem Ali's sentence demonstrates the gravity of the numerous violations of due process rights during his trial. He was sentenced to death on a single count, but the Tribunal failed to specify the particular conduct that justified Mr. Ali's severe punishment. The Tribunal mentioned, first, that he had "planned and instigated" the crime; later in the text, it declared that he had "abetted and facilitated", and finally the tribunal convicted him for his "complicity". Therefore, it is not possible to determine what was the purported role of the accused in relevant legal terms, and consequently, it is therefore not possible to positively determine whether the Tribunal applied the correct definition of the conduct, of the standards of evidence and punishment.
Additionally, and more worryingly, the Tribunal reversed the burden of proof, concluding that "the plea of alibi has to be proven with absolute certainty so as to completely exclude the possibility of the presence of the accused elsewhere. This statement reversed a very basic and fundamental rule of criminal law and placed an insurmountable obligation on the accused, in which he had to prove his innocence "with absolute certainty".
In the famous case of of Woolmington v Director of Public Prosecutions [1935] AC 462 the House of Lords, as per Viscount Sankey, the Lord Chancellor, delivered the famous 'golden thread' speech in which the Court confirmed that "...it is the duty of the prosecution to prove the prisoner's guilt..." and that "No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
Further, in Attorney-General's Reference (No. 4 of 2002) [2005] 1 AC 264, Lord Bingham said - "...it is repugnant to ordinary notions of fairness for a prosecutor to accuse an accused of a crime and for the accused then to be required to disprove the accusation on pain of conviction and punishment if he fails to do so."
These and other injustices and errors led Mir Quasem Ali to appeal his conviction before the Appellate Division of the Supreme Court of Bangladesh. The Court will deliver its verdict in the coming days.
It has been obsewrved in earlier appeals that the Honourable Justices of the Supreme Court have confirmed the decisions taken by the Tribunal without sufficiently enquiring into the safeness of the convictions on fair trial considerations. Nonetheless, during the appellate process of Mir Quasem Ali, the public gallery and the assembled media observed an unprecedented discussion between the Chief Justice and the Attorney General, appearing on behalf of the Prosecution.
The Chief Justice declared to feel "really ashamed" and frustrated about the manner in which the Prosecution had conducted the proceedings and carried out its investigations. He claimed that the Prosecution had been incompetent in its functions and in its responsibility to prove the case; as, despite its access to abundant resources and the full support of the Government, the evidence presented was worryingly insufficient to support a conviction.
Only one witness's testimony was being provided to prove a charge of an international crime, which was manifestly inadequate and excluded any possibility of corroboration. The Attorney General attempted to justify these shortcomings alleging that the accused may have intimidated the witnesses or paid lobbyists, an accusation that was quickly rejected by the Court.
Moreover, the Court noticed that the evidence of a number of victims and witnesses had been confused in the material provided to the Court, and that the Attorney General had not provided any documentary evidence that could prove that the Appellant was in Chittagong, the scene of the crime relating to charge 3, at the time the offence allegedly took place. In contrast, according to newspapers the Attorney himself submitted, the Appellant was delivering a speech in Dhaka on the same date. Therefore, it is quite evident, as the defence argued, that Mir Quasem Ali could not have committed the offence.
Furthermore, the Attorney General made superfluous and unfounded assumptions when presenting his case, for example, assuming that two citizens were acquaintances simply because they shared ideological beliefs.
At the same time, the Attorney denied having knowledge that "there was a tribunal sat up in 1971 to try the local collaborator"; however, interestingly, a prosecutor from the 1971 proceeding testified that "the appellants' names were not there" at the time of the initial prosecution and agreed that the accusation against the Appellant "was a creation of this government out of political benefit".
During the discussion with the Attorney General, the Chief Justice acknowledged that the trials "are being used for political interests" and that the Prosecution manipulates the "sentiments" in the media and television, thus mocking and ostracizing the judicial process. He complained that no actions were taken against corrupt prosecutors signalled in previous proceedings and held that it hurt them "to hear this kind of appeals".
The Attorney General, echoing the Government's narrative of blind arbitrary vengeance, only responded calling upon the Court not to "give any benefit to the Appellant" that may allow him to "escape punishment".
Several voices in the International Community have already condemned the 'judicial' process in Bangladesh. Highly reputable organisations such as Amnesty International, Human Rights Watch and International Commission of Jurists have expressed grave concern about the legality and justice of the trials. In the United States, former U.S. Ambassador for Glpba; Criminal Justice, Stephen J. Rapp, issued a strong statement at the end of last year criticizing the serious flaws in the proceedings. The United Nations and the European Union and has consistently opposed the imposition of the death penalty by the Tribunal and condemned the executions, which also were the focus of widespread attention in the UK House of Parliament and U.S. Congress, where several of its members promoted motions condemning the executions and questioned the Government's commitment to justice. However, these statements have proved to be insufficient to halt the irregularities and abuses of due process.
Justice must be done in Bangladesh, but not at the price of arbitrariness and political interference, which will only lead to deeper division.
The Chief Justice has now acknowledged the political manipulation of the trials, their systematic shortage of evidence, and their grave errors of fact and law. He even declared to be shocked by the gravity of the trials' deficiencies and injustices. Consequently, to confirm and execute the death sentence under these extreme and exposed conditions can only constitute an arbitrary killing. We will now have to wait to see how the Supreme Court rules. We must place our trust in a judicial process led by a Chief Justice who has highlighted such serious flaws in the prosecution case that, following the golden thread, can only result in an acquittal.