Perspective

Recently the Government of Bangladesh took a decisive step towards the trial of war crimes and crimes against humanity committed during the Liberation War of 1971. The Government has already constituted a Tribunal and appointed an Investigation Agency and a Prosecution Panel under the provisions of the International Crimes (Tribunal) Act, 1973. The 1973 Act has been criticized by the War Crimes Committee of the International Bar Association (IBA) for having failed to incorporate a number of protections as contained in the International Covenant on Civil and Political Rights and the Rome Statute of the International Criminal Court. Moreover, the 1973 Act has also been condemned by the IBA for failing to make provisions for challenging the constitution of the Tribunal in the event one of the judges appears biased. In fact, by making the hearsay Rule inapplicable, the 1973 Act has introduced ample scope of political victimization. In many aspects, the 1973 Act also falls short of standards applied by the ordinary national and international criminal courts. Questions have been raised regarding the legality and standard of the 1973 Act, though the Government has already started proceeding under this problematic and unlawful Act.

The International Crimes (Tribunal) Act, 1973 is enacted to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law. By analyzing the Act, we find some basic features of it which would seriously impede the holding of a fair trial.

Retroactive application and Violation of Fundamental Rights: International Crimes (Tribunal) Act was framed in 1973 but it applies to the offences alleged to have been committed before it. Such retroactive application of criminal laws is contrary to Article 35(1) of the Constitution of Bangladesh. Article 35(1) states as follows, No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. This Article is an absolute fundamental right and cannot be curtailed or watered down by legislature. Under Article 44, the right to move the High Court Division for enforcement of fundamental rights is itself a fundamental right. However, Article 47A(1) purports to deny such fundamental right to person accused of war crimes. The Constitution has not given parliament to restrict the fundamental right guaranteed under Article 35(1). Retroactive application of criminal laws is also a violation of Article 11(2) of the Universal Declaration of Human Rights and Article 15(1) of the International Covenant on Civil and Political Rights.

Appointment of Judges cannot be challenged on the ground of bias: Under section 6(8) of the International Crimes (Tribunal) Act, 1973, “neither the constitution of a Tribunal nor the appointment of its Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel.” As such in the event that it is discovered that there are circumstances which would suggest that there is a likelihood of bias on the part of the judge, his appointment could not be challenged. It is settled principle of Bangladesh law that no one having any interest or bias in respect of any matter is competent to take part in its decision-making process. It is also an accepted principle of law that justice should not only be done but should manifestly and undoubtedly be seen to be done. The regular courts of Bangladesh adhere strictly to these principles. The position of Bangladesh law is similar to the position in most commonwealth countries including United Kingdom. The rule against bias has been excluded in the case of judges of the Tribunal. Even if circumstances were discovered which would cast serious doubt over a particular judge’s ability to give an impartial judgment, his appointment could not be challenged. The accused would be compelled to defend himself before a judge he believes to be biased.

Provisions of Evidence Act, 1872 have been made inapplicable: Under Bangladesh law, the accused of an criminal offence is presumed to be innocence until guilt is proved beyond any reasonable doubt. According to the provisions of Evidence Act, 1872, the prosecution is required to prove the guilt of the accused. However, section 23 of the 1973 Act has excluded the application of the Evidence Act. Section 23 states, The provision of the Criminal Procedure Code, 1898 (V of 1898) and the Evidence Act, 1872 (I of 1872), shall not apply in any proceeding under this Act. In the absence of presumption of innocence, the fair trial of the accused will be seriously impaired. The removal of the presumption of innocence by section 23 of the Act is contrary to Article 11(1) of the Universal Declaration of Human Rights, Article 14(2) of the International Covenant on Civil and Political Rights and Article 11(1) of the Rome Statute. Under section 19(1) of the Act newspaper and articles will be admitted as evidence. Under the ordinary laws of Bangladesh, a newspaper is not proof of its contents. As such although a newspaper may have reported a murder, the report itself does not prove that the murder had actually occurred. Due to inapplicability of the Evidence Act, the accused are not aware of the Rules of Evidence that will be adopted by the Tribunal. The entire Trial will therefore lack in transparency.

Inapplicability of the provisions of CrPC: The Code of Criminal Procedure, 1898 has developed number of safeguards for the accused. It also lays down clear procedure which is known both to prosecution and defence. Section 23 of the Act has removed the applicability of CrPC in respect of proceedings under the Act. Two provisions of the CrPC are of importance to the accused. Sections 265C and 561A. Both these sections are important provisions which prevent an abuse of the process of the courts. Section 265C states, if, upon consideration of the record of the case and document submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused and record the reasons for so doing. This provision saves the accused from the harassment and humiliation of going through a long trial, where documents on record fail to disclose any criminal offence. Similarly, the accused may make an application under section 561A of the CrPC where the proceedings against him constitute an abuse of the process of the Court. But full Code of Criminal Procedure is made inapplicable. The maximum penalty under the Act is death. Under the ordinary laws of Bangladesh, a sentence of death cannot be executed unless it is confirmed by the High Court Division. This protection is contained in section 374 of the CrPC. By making the Code inapplicable, the sentence of death may be executed directly.

The Denial of Judicial Review: Under Article 102 of the Constitution, the High Court Division of the Supreme Court is empowered to judicially review the legislation passed by the legislature and also to decide upon the constitutionality of any executive action or legislation. Over the years the Supreme Court have struck down a number of laws as being unconstitutional. The power of judicial review has been taken away by the Constitution (First Amendment) Act, 1973. This Amendment introduced two new Articles into the Constitution. Article 47(3) provides as follows: Notwithstanding anything contained in this Constitution, no law nor any provisions thereof providing for detention, prosecution and punishment of any person, who is a member of any armed forces, or who is a prisoner of war, for genocide, crimes against humanity or war crimes, and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law, is inconsistent with, or repugnant to, any provisions of this Constitution. Judicial Review is a basic structure of the constitution. It is an important feature of the separation of powers. The Legislature will legislate and the Court will determine whether the legislation has been passed in accordance with the provisions of the Constitution. One organ of the state cannot encroach upon the territory of other. By framing Articles 47(3) and 47A the legislature has prevented judicial review and has thereby encroached upon the exclusive domain of the Courts. As such Articles are unconstitutional.

Executive Summary of the opinion of the International Bar Association:
The area of the greatest concern of the International Bar Association was with respect to the rights protecting the interests of individuals on trial. In its opinion there were some significance omissions of the accepted international standards. The most basic account of those standards is set out in the Article 14 of the International Covenant on Civil and Political Rights. Although a number of those standards are included within the 1973 Act, there are others which are not, and would therefore leave the Tribunal formed under the 1973 Act open to criticism.
The IBA recommended inter alia that:-
Subsection 6(5) of the 1973 Act should be amended so that if one of the Tribunal members is unable to attend a hearing, the trial is adjourned.
A provision should be added allowing for challenges to the constitution of the tribunal or appointment of its Chairman or members based on impartiality.
Subsection 8(5) and (7) of the 1973 Act should be removed on the basis that they are unworkable and unnecessary.
Subsection 11(2) should be amended so as not to allow the Tribunal to draw a negative inference from an accused person’s silence.
Section 18 should be removed.
Protection against self-incrimination for accused persons and witnesses should be made explicit.
A provision should be added to section 10 to allow defence counsel to make an opening statement.
Section 12 of the 1973 Act should be amended as follows: Where an accused person is not represented by counsel, the Tribunal shall, at any stage of the case, direct that a counsel shall be engaged…..
The provision in the 1973 Act allowing for the death penalty to be used against a convicted person should be removed from the legislation.
The legislation should be amended so that convicted persons are provided the right to appeal to an appellate court apart from the regular judicial structure.
Subsection 19(1) should be deleted from the 1973 Act.
Special evidentiary provisions regarding proof of historical facts should be added to the legislation.
The duties and powers of the prosecution set out in Article 54 of the Rome Statute should be added to 1973 Act.
The rights of a suspect during the investigation stage set out in Article 55 of the Rome Statute should be added to the 1973 Act.

The Act is clearly unconstitutional. It has introduced criminal liability with retrospective effect in violation of Article 35 of the Constitution. Moreover, the Act only seeks to try persons on the on side of the conflict in violation of Article 27 of the Constitution. The judges of the Tribunal will not have any security of tenure, thereby further affecting their impartiality and neutrality. The Act is also inconsistent with major International Conventions and Treaties. 

Writer: Adnan Wasim

(The writer can be reached : adnan.wasim@ymail.com)