When it comes to fair elections, a basic criterion is the presence of “jeopardy,” an uncertainty about who will win.Even when legitimate polls show that there will be a landslide in favour of one party, there should still remain the uncertainty about whether the party’s supporters will turn outto vote on the day.
Bangladeshis should have no difficulty in understanding thisasthey experienced no jeopardy in the country’s last three elections - which were either uncontested or systematically rigged. Everyone knew, before a single person had voted, what the election outcome was going to be. A win for the governing party.
This same requirement for“jeopardy”applies to criminal trials.
The most basic characteristic of a fair trial should be uncertainty about whether the person accused will be found guilty or innocent. If one knows the outcome of the trial before it starts, there is no jeopardy, and you can be pretty certain that it is not a fair process.
And as with elections, Bangladeshis should also appreciate this in relation to recent criminal trials that took place under the Awami League government
Was Khaleda Zia ever going to be acquitted of corruption? No. Was Adilur Rahman Khan ever going to be found not guilty for supposedly giving false numbers of dead killed by the security forces following the Hefazet rally? Of course not. Was Mohammed Yunus ever going to escape imprisonment for labour rule violations or corruption? Absolutely not.
And of course, the most notorious examples of trials lacking any kind of jeopardy were those involving the International Crimes Tribunal, where the judges were never going to acquit the accused Jamaat-e-Islami and Bangladesh Nationalist Party leaders of international crimes allegedly committed during the 1971 war, despite the paucity of credible substantive evidence.
Jeopardy – and hence fairness – in trials, is ensured by many different factors, but perhaps two are key. First, having fair rules of procedure which are neither stacked in favour or against the prosecutor or the defence lawyers. And secondly, having independent and competent judges, capable of assessing the evidence and applying the law and procedural rules in a fair manner. They should also be able to decide on guilt or innocence solely on the sufficiency of evidence unimpacted by other biases or interests.
July 2024 trials
So that leads us onto to trials related to the killings committed by law enforcement authorities between 16 July and 5 August.
The government has said that those alleged to have committed the offence of Crimes against Humanity will be prosecuted at the International Crimes Tribunal (ICT).
So, will there be “jeopardy” in these trials – which in the current context means this: can we believe that judges will acquit if the prosecution does not adduce sufficient evidence to prove the offences beyond reasonable doubt?
The government is still in the process of consulting on the necessary amendments to the ICT Act and rules of procedure so for the purposes of this article we shall focus on the three judges whom in recent days the government has appointed to the Tribunal.
The ICT chairman is Golam Mortuza Majumder, a retired district court judge, appointed just 6 days ago as a High Court judge. The second appointee is Mohitul Haque Md Enam Chowdhury, a retired District and Sessions Judge and the third one is the lawyer Shafiul Alam Mahmud, whom like Majumdar, was appointed just a few days ago as a High Court judge.
There are reasons to be concerned about these appointments.
First, none of the judges are likely to have had any experience of applying international law principles in their cases. Since the trials involve the offence of Crimes Against Humanity, and the complex case law that surrounds it, this would seem to be an important competence judges should have.
Whilst it is true that we still do not know how extensively the government will amend the ICT Act and procedures, and these amendments could well significantly improve the standards of the trial, it must nonetheless seriously consider the appointment of international judges to sit alongside Bangladeshi ones, to bring both independence and experience to the process
Secondly, two of the new ICT judges are retired district court judges, who have not dealt with a criminal case of any kind for some years – let alone one dealing with complex matters of international law. Majumdar retired in 2019 so has not been a judge for 5 years. Now as ICT chairman, he suddenly has the rank of an Appellate Division judge.
Thirdly, Shafiul Alam Mahmud is a lawyer with no experience of being a judge, except since his appointment as a High Court Judge, which wasjust six days ago.
In addition, Mahmud is aligned tothe opposition Bangladesh Nationalist Party. In 2019, he was elected a member of Supreme Court Bar Association on a BNP slate and has been an active member of the Bangladesh Nationalist Lawyers Forum which is aligned with the BNP. It is surprising that the government would appoint as an ICT Judge a person who is a member of a political party so strongly antagonistic to the Awami League which many of the accused are likely to be linked to.Even if Mahmud was able to make independent judicial decisions, and of course he has never yet been a judge, the perception of bias is strong.
Fourthly, in the context of Bangladesh, where there are many more qualified High Court judges of many years standing, this is a relatively low status group of judges who have been chosen to deal with such a nationally and internationally significant trial.
And fifthly, they are all Bangladeshi. This is a pertinent matter, as with anti-Awami League emotions running so high in the country, it is a legitimate question to ask whether Bangladeshi judges, particularly the ones selected, would be able to acquit a senior member of the Awami League if there was inadequate evidence. It is difficult to feel confident of that – as it was indeed impossible for judges ten years ago to acquit a Jamaat or BNP leader for crimes allegedly committed during the 1971 war.
For all those who want to see a fair and credible process that brings to account those guilty of serious crimes involving the killings between 16 July and 5 August, these appointments are concerning.
Asif Nazrul, the law adviser has said that Bangladesh law does not allow the appointment of international judges. And he is right. But the law can easily be changed. Indeed his ministry is right now in the midst of drafting amendments to the International Crimes (Tribunal) Act. Moreover, the use of international judges in domestic processes of this kind is not unusual. It happened in Bosnia, Kosova, Senegal, Sierra Leone, and East Timor. And international judges do not need to come from Western countries; what is important is that they are experienced and independent, and the UN can assist with the selection.
Whilst it is true that we still do not know how extensively the government will amend the ICT Act and procedures, and these amendments could well significantly improve the standards of the trial, it must nonetheless seriously consider the appointment of international judges to sit alongside Bangladeshi ones, to bring both independence and experience to the process.
* David Bergman is a journalist who for many years has written on Bangladesh including on the previous ICT trials. He can be followed on Twitter @TheDavidBergman.