Sheikh Hasina trial: Poor defence lawyering and flawed judicial reasoning

There are two particularly serious problems with the Sheikh Hasina trial.

The first is that the court-appointed defence lawyer failed to raise even the most basic questions about key pieces of prosecution evidence.

The second—made even more troubling by the obvious weakness of the defence—is that the judges themselves failed, at least at times, to independently interrogate the evidence. Instead, they appeared to adopt wholesale the prosecution’s narrative of what the evidence supposedly demonstrated.

An example of how these two problems produced flawed judicial reasoning concerns the intercepted phone call between Sheikh Hasina and the Vice-Chancellor of Dhaka University on the evening of 14 July. This took place hours after Hasina’s infamous comment implying that the protesting students were “Razakars”—a remark that inflamed the students and escalated the protests.

The prosecution argued that this call proved Hasina had ordered the killing of students. In fact, this assertion forms a material part of two of the three charges against her – charges 1 and 2 - as read out in court. In its judgement, the Tribunal accepted that this allegation was true. Yet that interpretation is highly questionable

In the part of the judgment, read out in court on Monday, Justice Shofiul Alam said: “We find that in the conversation with the Dhaka University vice chancellor ASM Maksud Kamal, the accused Hasina mentioned that she already ordered to hang the students, as Razakers have been hanged”

But this interpretation appears wrong.

To substantiate the Tribunal’s claim, the Judge read out three portions of the conversation:

First, “I’ve hanged Razakars; now I’ll do the same to them. I won’t spare a single one, I have told [them].”

Second: “What kind of country do we live in? Haven’t you seen what happened to the Razakars — I had them all executed; now I won’t spare you either.”

And Third: “All of these people must be kicked out… I’m giving the order. Let today pass and then I will arrest them, detain them and take whatever action is necessary.”

The first two statements clearly reflect venting—violent rhetoric, undoubtedly—but the subject is judicial punishment, not extrajudicial killing. Hasina is comparing the students to Jamaat leaders executed after ICT convictions, suggesting she would like to see the protesters similarly punished through the courts. Offensive as this may be she is not saying she wants to kill protesters on the streets.

Even if, for the sake of argument, we assume Hasina was using “hanging” as shorthand for “killing,” nowhere in the conversation does she say she has already issued such an order, contrary to the judge’s assertion.

The Tribunal’s interpretation could come from Hasina’s use of the words,  “I have told [them]”. But this remark is ambiguous and surely can’t be interpreted as meaning Hasina had “ordered” the killings.

Alternatively, the Tribunal’s reasoning could be because it mistakenly spliced together two unrelated parts of the call. The final quote—“I’m giving the order”—comes only after the Vice-Chancellor says: “Yes — let this trouble pass for now. After that I will personally round up and expel from the university the main people who are creating this unrest.”

In context, Hasina’s “order” refers to removing students from the university, and detaining them—something she subsequently did—not to hanging or executing or killing anyone.

Thus, the prosecution’s claim, and the Tribunal’s ruling, that this 14 July conversation proves Hasina had “already” ordered killings is on very weak ground.

What other evidence does show is that four days later, on 18 July, Hasina issued an explicit order to use lethal force. In her conversation with former Mayor Taposh, she states: “I’ve already given the instruction. This is an open directive now. They’re to use lethal weapons. Wherever they’re found, shoot on sight.” That Hasina had given such an order was corroborated by the Inspector General of Police.

Recognising that no lethal-force order was given until 18 July has major implications.

First, it particularly undermines Charge 1 against Hasina — the charge for which she was sentenced to life imprisonment - alleging that the attacks on university students on 15–16 , July, including the killing of  Abu Sayeed, formed part of a crime against humanity. That charge appears to rely heavily on the false interpretation of the 14 July conversation with the Vice-Chancellor.

Second, with wider implications, it raises serious doubts about the ongoing ICT prosecutions and investigations concerning killings in Rangpur and Chittagong on 16 July.

These include the trial over the killing of Abu Sayeed at Rangpur University and the investigation into the killings of three men in Chittagong City (which has resulted, inter alia, in the ICT detaining Fazle Karim Chowdhury, a former MP from another constituency, for nine months)

These particular cases, as alleged crimes against humanity, were already questionable, as it is difficult to argue that the events of 16 July or before constituted a “widespread or systematic attack on a civilian population,” a key criteria of the offence of crime against humanity. But without the fabricated claim that Hasina had already ordered killings on 14 July, it becomes even harder for the prosecution to argue that the 16 July deaths were carried out “pursuant to state policy,” another element in the offence required to be proved.

An interesting question is whether Tribunal-2, the court dealing with the Abu Sayeed trial, has to follow the legal and factual reasoning of Tribunal-1, which gave the order in the Hasina trial, or whether  it can break from it.

Had Tribunal-1 appointed appropriately competent and experienced defence lawyers willing to actually do a proper defence, they would almost certainly have interrogated the prosecution’s understanding of the 14 July conversation, and made the points set out above. Instead, the defence lawyer simply claimed that the phone conversations were AI created, without even having organised any independent tests.

The performance of the defence lawyer however does not let the Judges off the hook. The judges themselves should have put their mind independently and impartially to the evidence, which it appears, certainly in the case of the 14 July conversation, they have not done.

It will be interesting to see if the full judgment, when published, provides more detailed judicial reasoning on the Tribunal’s view of the 14 July conversation.

#David Bergman is a journalist. He has been writing about the ICT trial proceedings and Bangladesh for many years. He can be contacted on Facebook here: david.bergman.77377