THE gallows, not jail, had always seemed like the more likely destination for Abdul Quader Mollah. On September 17th the Supreme Court of Bangladesh made it so. In revising Mr Mollah’s sentence, the Supreme Court also taught a stern lesson to the International Crimes Tribunal (ICT), a flawed but popular war-crimes court. When it comes to the determination of guilt and punishment of war criminals, the Supreme Court will not be gainsaid
A bench comprised of five Supreme Court judges had to deal with two appeals in the case of Mr Mollah, a leading member of the Jamaat-e-Islami, Bangladesh’s biggest Islamic party. Mr Mollah’s lawyers had appealed against their client’s conviction by the ICT on February 5th on five crimes against humanity committed during Bangladesh’s war of secession from Pakistan in 1971. The judges dismissed the appeal. In addition, they had to decide whether there was merit to the prosecution’s call for a death penalty. Here, the court reversed an earlier acquittal on one charge (the killing of hundreds of villagers) and ruled that on another (the murder of a family) the sentence should be changed: from life imprisonment to death by hanging.
On February 5th2013 Mr Mollah became the first defendant not tried in absentia to be sentenced by the ICT, which is a domestic court set up by prime minister Sheikh Hasina’s ruling Awami League (AL) in 2010. The initial sentence, which would have spared his life, was seen by many Bangladeshis as being too lenient. It triggered mass demonstrations calling for the death sentence to be handed down to all war-crimes defendants and, for good measure, that the Jamaat be banned as a political party. (Another court has since ruled that the party is unfit to contest national polls because its charter puts God above democratic process.) The opposition soon framed the trials as a struggle between anti-Islamist forces and the pious. That paved the way for another kind of march on Dhaka, the capital, by Hefazat-e-Islam, an Islamic splinter group with fundamentalist demands, in May. Then security forces killed as many as 50 of those demonstrators. The effect on the government’s popularity has been devastating.
Three of the charges against Mr Mollah relied on hearsay evidence. The charge for which Mr Mollah will hang was based on the testimony of a single witness, who was an 13-year-old at the time, and no corroborating evidence whatsoever. Mr Mollah was convicted nonetheless, but his guilt proved far harder to establish than his nickname, the “Butcher of Mirpur”, would have suggested.
Bangladesh’s attorney-general, Mahbubey Alam, has said that the verdict is final and there is no room for judicial review. The defence rubbished Mr Alam’s claim and said that it will file a review petition within 30 days of receiving the full verdict. The death penalty cannot be applied before the Supreme Court comes up with a written judgment, and that can take months. Even then Mr Mollah would have the right to seek clemency from the president. It now seems inconceivable that more than two or three of the accused will be sentenced and executed before the elections, which must be held by January 24th.
Mr Mollah is likely to be joined in his predicament by another defendant who is fast running out of legal options. Delwar Hossain Sayedee began his appeals process before the Supreme Court on September 17th. Mr Sayedee is a firebrand preacher, who was sentenced to death by the ICT on February 28th. That ruling resulted in the worst single day of political violence in the history of modern Bangladesh. Just maybe, according to observers of the trial, two other cases might progress to the stage where executions become possible. They are the cases of Ghulam Azam, the Jamaat-e-Islami’s leader in 1971, and of Salauddin Quader Chowdhury, a prominent member of the main opposition party, the Bangladesh Nationalist Party (BNP), and one of the closest advisers of its leader, Khaleda Zia.
Mr Chowdhury’s party might someday soon be in a position to have some influence over Bangladesh’s war-crimes trials. The BNP has been silent on what it intends to do with the trials if it wins the election. It fears that the stain of 1971 which still sticks to the Jamaat-e-Islami, its main electoral ally, may cost it votes. But it has a commanding lead in opinion polls and no party has ever won a second term. A BNP victory has come to seem very plausible indeed. That a BNP government would try bringing the trials to an end is a foregone conclusion.
Even with a government minded to do so, however, it would be tricky for anyone to halt the trials; they are still incredibly popular. An opinion poll by AC Nielsen in April 2013 showed that though nearly two thirds of respondents said the trials were “unfair” or “very unfair”, a whopping 86% wanted them to proceed regardless. The public view of the ICT is curious, but not self-contradictory. Annual opinion polls show that the war-crimes trials ranked among the top three “positive steps that the government has taken”, but they consistently fail to make the top-ten list of "issues that need the greatest attention of the government". Fair or unfair, the trials pale in comparison before such matters of concern as inflation, education, power supply and food security.
Helpfully, from the BNP’s point of view, if it does decide to scotch the trials it need not fiddle with the judiciary or the constitution. According to the constitution the president has the “power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority”.
For now, the conversation as Bangladesh heads towards its elections is focused on whether the BNP will boycott. The party says it won’t run unless the AL agrees to hold polls under a neutral caretaker. But the BNP is desperate to contest. It only persists in griping about the electoral procedures as an insurance policy, in case it fails to secure the victory it expects. The chances of an actual breakdown of the democratic process at or around election time seem (relatively) low at this point. Both parties are keen to contest, the army has no further appetite to intervene, having tried installing a technocratic government, which ruled from 2007 to 2008, already.
The more worrying prospect must be that of a political backlash and perhaps even the rehabilitation of the BNP’s Islamic allies; a less secular Bangladesh; and millions of AL supporters incensed by their government’s utter failure to deliver credible war-crimes trials.Courtesy Joyo News
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