David Bergman questions having same state defence lawyer for Hasina and Asaduzzaman

The formal trial of ousted Prime Minister Sheikh Hasina has begun in a case concerning crimes against humanity committed during the July mass uprising. In her absence, the trial commenced yesterday, Sunday, at International Crimes Tribunal-1 with the presentation of the opening statement and the beginning of witness testimony.

British journalist David Bergman, who has written extensively for many years on the proceedings of the International Crimes Tribunal (ICT) and on Bangladesh, posted about the development on his Facebook account yesterday.

Bergman wrote that he has some concerns regarding Sheikh Hasina's in-absentia trial for Crimes against Humanity case. His status is as follows:

“One state defence lawyer. Two clients

1. The lawyer chosen by the Tribunal to represent Sheikh Hasina is not only representing the former prime minister but also her co-accused, the former Home Minister, Asadazzman Khan, who is also absconding. That creates significant potential conflict of interest problems preventing them each having a proper defence, as the two accused could clearly have very different interests at the trial, with for example the home minister blaming the prime minister for certain actions or vice-versa.

Each absconding accused must surely have a separate lawyer representing him. This is a decision that the Tribunal has to make.

2. Time to prepare defence

The state lawyer for the two accused only received all the evidence relied on by the prosecution on 25 June 2025, that is five weeks before the first day of the trial. I would suggest that it is impossible for any lawyer to be able to undertake the research and other work necessary to devise a proper defence for both clients, particularly when the lawyer has no contact with the client.

What is also surprising is that Hasina and Khan's state defence lawyer had not even applied to the Tribunal for more time to prepare his defence. When I asked the lawyer why he had not applied today for an adjournment he said, that "He would seek an adjournment when he needed one" and that "he was ready today to cross examine the first witness."

I think we can be certain that if Hasina had her own lawyer present, they would have sought an adjournment. And the fact that the current state appointed lawyer did not make that application is notable.

3. Prosecutors/Tribunal prevent cross-examination relating to "contradictions" in evidence

The prosecutors used a 2013 Appellate Division judgment in the Quader Mollah war crimes case (which held that he should be executed, and was decided during the time of the Sheikh Hasina government) to stop the state defence lawyer from cross examining the first witness on the basis of contradictions between what he had previously said to the investigation officer and what he said today in court. This kind of cross examination is a standard practice in ordinary Bangladesh criminal courts.

The irony - there may well be a much stronger word to describe this! - of the prosecution lawyers doing this is very notable. During the previous set of trials a decade ago about the 1971 war, involving the prosecution of mainly Jamaat-e-Islami leaders, the then prosecutors also sought to stop the defence lawyers, from highlighting contradictions between the two sets of statements. At the time the Jamaat lawyers - which included Tajul Islam and others who are part of the prosecutors team - argued strongly against the prosecution, pointing out that this was very unfair as this prevented them from raising issues about credibility of the witness. When the matter came before the Appellate Division, in the Mollah case, Chief Justice Sinha in his judgment sided with the prosecution stating that the ICT law and rules did not allow this.

So now we have a situation of Tajul Islam, now chief prosecutor, using this same appellate division judgment - that resulted in the execution of one of the men he was involved in defending - seeking to enforce the same rule he had considered so unfair in the past on the defence lawyers today, and the Tribunal judges conceded.

When I asked Tajul Islam about this he said, "This is the direction of the Appellate Division, until the law is changed."

At the end of the cross examination there was a rather odd comment from the Tribunal chairman congratulating the defence lawyer on doing a "good cross examination". Not quite sure how he could make that out when his ability to undertake cross examination had been significantly reduced.

If the Tribunal is going to follow Appellate Division rulings that are now generally considered highly contentious and unjust, the government should change the law to allow defence lawyers to cross examine witnesses on the basis of contradictions between what they said to an investigation officer and what they stated in court.