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Unprecedented life-to-death penalty change for convicted Jamaat official sparks violence and controversy
Dhaka, Bangladesh - Abdul Quader Molla's life sentence
handed down in February for crimes against humanity during Bangladesh's
war of Liberation in 1971 didn't go down well among various sections of
Bangladeshi society.
Now
that Molla's been sentenced instead to hang, even more anger and
division have gripped this South Asian country of 150 million people.
February's verdict was one of several handed down by a war crimes tribunal
established in 2010 to punish individuals found guilty of colluding
with the Pakistani army in 1971 in its attempt to throttle the country
at birth.
Many
members of Jamaat-e-Islami - Bangladesh's largest Islamic party - have
been accused of the severest of crimes including rape, torture and mass
murder, and of helping the Pakistani army find and eliminate resistance
fighters, minorities and intellectuals during the eight-month conflict
laden with racial and religious overtones.
"The
collaborators are a cancer, a tumour and must be cut out. There need
not be any sympathy for the likes of them," said Anwarul Huq, a bus
driver and father of two, whose father was a freedom fighter during the
1971 war.
The
Awami League, which came to power in 2007 on a mandate that included,
among other things, a promise to right historical wrongs and heal the
wounds of a bloodstained past that turned the dream of democratic
self-determination into a martial nightmare, claiming as many as three
million lives, though that figure is disputed. More than 250,000 Bengali
women were also raped during the period, according to some scholars.
But far from healing wounds, the war crimes trials have picked at old scabs and opened new wounds.
Controversial trials
Molla,
assistant secretary general of Jamaat-e-Islami, was given a life
sentence, having been found guilty of five of the six charges against
him, a verdict that was seen as too lenient, and resulted in a popular
movement that converged at Shahbagh Square, a major intersection in the capital, Dhaka.
Demands
for the death penalty for all war criminals became a rallying cry,
contrasting sharply with Jamaat-e-Islami's reaction to the verdict,
which was to dismiss the trials as rigged and politically motivated. The
party maintains that Molla is innocent, and the tribunal is a
government ploy to discredit Jamaat-e-Islami ahead of upcoming general
elections.
"Jamaat-e-Islam
has never denied that war crimes took place in 1971, nor have they
denied that justice should be done. But justice cannot be done if
innocent people are convicted for crimes they haven't committed by a
tribunal that makes a mockery of the legal process," said Tajul Islam,
Molla's lawyer.
"All of these men are innocent and have been targeted for political capital."
Since
February, events have morphed into something much more sinister, and
have exposed rifts in Bangladeshi society that may prove too large to
bridge by any political party. However, this hasn't prevented various
interests from capitalising on the trial process.
The
movement at Shahbagh was spearheaded by a collection of bloggers, some
of whom professed to be atheists, a fact that has been used by religious
zealots to attack it, often literally, resulting in the killing of a
blogger, as well as violent assaults on others. What began as a trial of
war criminals has become a conflict between secular Bangladesh and an
Islamist one, creating camps that were previously far less defined,
though not altogether absent.
Jamaat-e-Islam
has used this to frame the trials as an attack on Islam, and the people
who support it as enemies of the faith. The government, for its part,
has labelled the Jamaat a party of war criminals and terrorists, and has
moved to try and outlaw it. Several clashes have ensued, resulting in
many deaths.
New groups such as Hefazat-e-Islam have also entered the arena, determined to defend Islam against what it sees as an anti-Islamic government.
The
main opposition party, the Bangladesh Nationalist Party, has endorsed
this group and already supports the Jamaat-e-Islami, hoping to position
itself as the religious answer to the Awami League's nationalistic
platform.
The war crimes tribunal has since handed down six more verdicts, five of which were death sentences.
Legal chicanery?
Molla
has now also been given the death penalty, after the Supreme Court
enhanced his sentence, the first time in the history of Bangladesh such a
move has occurred. Questions have been raised about the way this was
done, which included retrofitting a law to allow the prosecutor to
appeal the sentence, something that was not available before the
protests at Shahbagh demanded the death penalty in February.
Some groups have challenged the legality of the sentence change under international law.
"The
amendments are a clear violation of the International Covenant on Civil
and Political Rights (ICCPR), to which Bangladesh is a state party,"
Human Rights Watch said in a statement. "Article 14 of the ICCPR states
that ‘no one shall be liable to be tried or punished again for an
offence for which he has already been finally convicted or acquitted in
accordance with the law and penal procedure of each country.'
"The
prohibition on retroactive penalties is one of the fundamental
protections of the rights of the accused in both international law, and
for that matter in Bangladeshi law as well."
Defence counsel Tajul Islam also said there were numerous irregularities in the way the sentence had been carried out.
"Firstly,
for a constitutional court to pronounce a sentence in a case being
conducted by a special tribunal, after the tribunal has already ruled on
it, is absurd, as it undermines the tribunal's judgement. But it did so
without giving the defendant a further hearing, which, if a new
sentence is being pronounced, is in keeping with the spirit of the law,"
Islam said.
"Secondly,
the verdict of one of the charges was changed from life imprisonment to
death based on the testimony of a single witness, a witness who, when
produced before the tribunal for the original verdict, didn't identify
Quader Molla as the perpetrator of the crimes. This is highly suspicious
as it suggests that the prosecution has tampered with the witness."
Sam
Zarifi, International Commission of Jurists' Asia-Pacific director,
said "The prosecution's appeal to impose the death sentence on Abdul
Quader Molla was based on a law that was not in force when he was first
convicted, and applying that law retroactively, especially for the death
penalty, violates international law."
Not unprecedented
However,
situations such as Molla's case are not entirely without precedence. At
Nuremberg, the right to appeal was denied to defendants entirely, a
feature that exists in the Bangladeshi edition. The German legal system
also tried Nazi war criminals under laws that were not in place at the
time they committed their crimes. But while this is an example to
retroactive laws being used, it differs considerably from the situation
in Bangladesh, in which the law was changed while the trial was ongoing.
Moin Ghani, an Advocate of the Supreme Court disagreed with critics of the ruling.
"The
Supreme Court as the highest court in the land has the power to issue
any order and direction it may deem necessary for doing complete
justice. "In addition, it has jurisdiction over all matters conducted in
the subordinate courts, including special tribunals," Ghani said.
"The
Supreme Court is certainly authorised to uphold the existing guilty
verdict, which they have done, and deliver an appropriate and
commensurate sentence. This is not a retrial and does not require a new
hearing … There is nothing untoward in the way this has played out."
Further
confusion exists as to whether the sentence can be reviewed. The
Attorney General stated that it can't be under the law, while the
defence says there are provisions for a review. It's unlikely to make
much difference however, since Supreme Court sentences are usually the
last word, but it adds to doubts about the soundness of the war crimes
tribunal, which has, since its inception, been dogged by allegations of
misconduct and political bias.
Applauding the move
Not everyone feels the process that led to Molla's death sentence is a worrying development.
"Shahbag
is a good case study of public opinion informing public policy, a case
study of activism playing a role in legislative change," said Nadine
Murshid, a PhD in social work and a student of public policy.
"When
we talk about political actors, we talk about politicians, lobbyists,
and campaign financers as primary decision-makers; it is rare for
protesters to have enough clout to bring about any change in government
action. That it did is a very interesting phenomenon for students of
public policy and researchers interested in understanding policymaking
in the developing world."
As
with previous sentences, Jamaat-e-Islami called a two-day general
strike following the new sentencing, resulting in violence that has left
at least one person dead and several injured, including police
officers. With more sentences to be handed down next week, the tension
is likely to rise, as is the death toll.
But
for most ordinary people the clash between the government and Jamaat is
not about the tribunal, or about war crimes anymore. Just as the
Pakistani army in 1971 successfully associated fighting the state with
fighting Islam, the religious right in the country has been able to
repackage the issue as a conflict between Islamic and anti-Islamic
forces, with "atheist" bloggers on the one side and "pious, persecuted"
clerics on the other.
Siddiqur
Rahman, a young tea-vendor in the heart of the city, said he believes
the tribunal is just a cover to implement an Indian plan to erase Islam
from Bangladesh.
"This
government is made up of Hindus pretending to be Muslims. This is why
they are trying to remove scholars like Sayeedi [another Jamaat member
convicted of war crimes], who is an obstacle to their plan to drive
Islam out of here. But we will drive the atheists out of here instead."
Regardless
of how well it plays the courts, on the streets at least the government
could lose the PR campaign to views such as these.
SOURCE: AJ JAZEERA
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Wednesday, 25 September 2013
Critics denounce Bangladesh death sentence
