Untold Facts

Foreign Minister Ms Moni did not speak the Whole Truth

Bangladesh’s Foreign Minister Ms Moni, in an interaction with a foreign media on the 4th February night (Dhaka Time) utterly misled the listeners through her rhetoric of half truth that need be straightened for the whole truth.

She stated that in Bangladesh a culture of impunity of killers has developed over the past. She had her example in verbatim, ‘JATIR JANAK ER HATYAR BICHAR HOI NAI ’, that in English version is, ‘The killer of the father of the nation was not put to trial and was given impunity’.

She was right in her observation that a culture of impunity for killers has developed in the country, but she would be speaking the whole truth if she would be honest to admit that the culture had its seed sown soon after the leader made his maiden voyage in early 1972 that she wished to hide truths and facts but others would know very well.

First, there is nobody in the history of Bangladesh accepted by all, much less constitutionally, as the so-called ‘JATIR JANAK’ or the father of the nation. This is a term used by a particular group and not by all. In fact, many in the country have deep despises for the person in question.

The other point of truth is that none killed the ‘father’ but in fact, a much despised autocrat and dictator was toppled from the State power through a successful coup d’etat on the early morning of the 15th August 1975.

The other truth in the matter was that the coup was overwhelmingly rejoiced by the people not for fun but for among many valid reasons, one being that extra-judicial killings had been the order not merely incidental since he took to run the country in early January 1972. He had many private hoodlum groups including one led by his eldest son Kamal, another by his close nephew Moni and another by S.P. Mahbub, in addition to the unconstitutional killer para- military force called RAKHI BAHINI. All of these hoodlums had been engaged not only for annihilation of the political opponents but also would kill many at random, if they would so feel to do, and enjoyed all impunity. That the leader had his prior nod to many such killings could be guessed from one instance of killing among thousands of right, left etc. during his rule of three and a half years.

A renowned left leader and a brilliant Engineer Seraj Sikder was not only killed in police custody but the news was boastfully made public in the otherwise sacred floor of the Parliament on the 02 January 1975 by the topmost leader and the President of the country in his verbatim, ‘KOTHAI AJ SERAJ SIKDER’, that in English version may be like this, ‘Where is Seraj Sikder today, he is no more, he has already been killed.’. In fact, extra-judicial killings had been initiated by the leader under his rule in Bangladesh in early 1972 that remained the order and norm, not merely incidental. But for his tragic end in mid 1975, Bangladesh would in all likely continue to remain an extra-judicial killing ground in his life time, for how long no body would know for certain. Fortunately for the people of Bangladesh, his life was shortened and so his stay in power.

If one would view the issue in another way, that is, putting the heroes of the 15th August to trial as ordinary ‘murders’ by Sheikh Hasina beginning in August 1996, any sensible person would certainly discover that the case was a made up one due to shear vengeance. Nowhere in the history of nations and in international law, victorious coup makers are condemned as ordinary killers and instead worshiped as national heroes of the country concerned. That the coup was a victorious one not a failed one had been proved by the facts that all state organs gave due allegiance to the government that followed the coup and well accepted at the international level by all countries as a welcome change from autocracy of the lone party BAKSAL to likely pluralism and democracy.

In addition, the notoriously framed up case by the then most powerful Prime Minster in August 1996 turned out in the process to be clear miscarriage of justice and then pending for years in the Appeal Division of the Supreme Court. Whether the miscarriage would find its due remedy is to be seen in days to come.

– Dr. M.T. Hussain

‘War Crimes of 1971’: Asking for a Valid and Reliable Definition

Retired Judge’s asking for a Definition:
On the 1st February morning an octogenarian and a retired Judge of the High Court on the phone asked me for a definition of the subject ‘war crime’. I got stuck and retorted that it was not I but he should better know that as he spent his life in the subject area of law and administration of justice.
We are very friendly as retired persons though he is little older than me. Previously we met on many occasions and discussed matters of interests, but now over two years we converse only on the phone as both are partially immobile due to old age.
This time he further illuminated me about fineness of legal matters in that no legal issue can be meaningfully handled unless and until one could be precise about definition of the core subject matter. Exact definition in legal terms is as such the starting point for disposal of any case in the due process of law. He further impressed upon me that the current razzmatazz in the country in regard to the war crime issue in all likely is doomed to fail in the court for it would be impossible, not merely difficult, to get a precise and lawfully acceptable definition of the subject, war crime of 1971.

Bangladesh’s coming into being:
It is a fact of history that Bangladesh had a bad time in 1971 but termed by corners in labels of many genre. But the fact remained that Bangladesh got her independence from Pakistan in 1971, and a war also took place for the historic event.

Legitimacy of Bangladesh
Despite all these truths and facts, the other side of the picture is that the 1971 war remained embedded in confusion as to Bangladesh’s independent state identity for it had not only been a province of Pakistan for over two decades but also for that the war of 1971 though ended in de facto Bangladesh, it lacked de jure legitimacy until February 1974, i e, the day Pakistan had recognized Bangladesh as an independent country. In regard to the start of the independent Bangladesh, there had been three separate claimants for its declarations; none had legitimacy in strict sense. Major Zia’s one had been an army rebel, the Mujibnagar one had no clear legal strength for it was done by few of the people’s representatives elected under the LFO of Pakistan, and the leader Mujib did not do the UDI (Unilateral Declaration of Independence) at all as all documents had proved beyond any shadow of doubt. Be the facts as they are, the war of 1971 presumed for Bangladesh had been a civil war all through out but ending in actual engagement for about two weeks in December 1971 between Indian army and the Pakistan army. Now if at all the issue of war crime is brought in for legal action, it could be for the period during the actual war and involving combatant forces of the two warring parties of the specific period. And such criminals, in fact, had been listed, no matter rightly or wrongly, 195 of the Pakistan army.

The Episode of 195 War Criminals
Now that the 195 were set free in mid 1974 without any due process of law, who else could be indicted? The Razakars, Al Badars etc., the voluntary groups who provided bits of help to the Pakistan army? How could one on moral ground indict the little fries when the big fishes set free without any indictment? Was that anything bad or even illegal for them to work for preserving the integrity of Pakistan of which all had been the lawful citizens? Was there any wrong not to toe line with the three groups in 1971?

Aftermath of 16th December 1971
Well after 16th December when de facto Bangladesh became a reality in the aftermath of the surrender of the Pakistan army to the India army Bangladesh in Dhaka, question of allegiance to the new State surfaced; some refused to take it and remained loyal to Pakistan, not only among the ethnic non-Bengalis but also some Bengalis. Thus many Bengalis opted to stay back in post 1971 Pakistan (West Pakistan) whose next generation figure now stands at nearly 150,0000 ethnic Bengalis mainly concentrated in Karachi and around. Many professionals and upper middle class ethnically Bengali families have permanently settled there, as well for they wished to be loyal to Pakistan rather than to the independent state of Bangladesh. That is how they uphold their liberty and freedom that none can rebuke them for not being Bangladeshis.

The Illegality of the 1972 Collaborators Act
That the Collaborators Act of 1972 failed to do justice and had been rescinded long ago, and that the 1973 Special Tribunal Act could indict in fact none, much less punish anybody for war crime of 1971, there is hardly any merit to pick up for witch hunting at this stage after 38 years of the actual occurrence of the war obviously in withering away of any evidence whatsoever except that may be well done for witch hunting of the political opponents of the present ruling party as they did in 1972- 75.

The Civil War of 1971
Though many proponents are all for the use of terms like ‘liberation war’, ‘independence struggle’, etc, all international standard documents term the period as civil war and nothing but civil war, and in fact, that had been a period of civil war that in dictionary meaning internecine fighting between two opposing groups of the same nationalities. In fact during the whole period of 1971 and even after the December war was over annihilations and killings of the vanquished continued even with more ferocity. Both the groups thus had misused their upper hand whenever one or the other could take advantage even for personal scores of. If the ‘victors’ now after over five decades start to settle past scores, this would not be taking recourse to due process of law in the absence of precise definition of war crime but only to make a hype of razzmatazz, possibly for some temporary political gain hardly that would be sustainable in the long run.

Conclusion
I would have thought that the Octogenarian judge rightly had his amazement at the silly razzmatazz being orchestrated for trial of the ‘war criminals’ now on by the ruling party of Bangladesh in 2009.

– Dr. M.T. Hussain

War Crimes and the Razzmatazz

1. War Crimes of 1971 takes on New Move
That having had passed by voice vote on the 29th January in the on going parliament session of Bangladesh a resolution for trial of the 1971 war criminals, some razzmatazz has been on. The lady Home Minister, a lawyer by vocation but a politician by profession, has added some filler to the razzmatazz, as reported verbatim, ‘All relevant information about the war criminals has already been sent to the respective places’, in a Dhaka English daily on the 31 January, for none of the accused could escape Bangladesh territory from being apprehended by her police force. The message is clear. The Bangladesh Government of 2009 is going to put all accused to trial for the alleged crime in 1971, 38 years ago.

2. Ideological Complicacies Involved
There is no denying the fact that the government has every right to try not only the accused in the matter but also of any accused for any offence whatsoever. The matter however is not of exercising power at the disposal, but if the alleged accused in the 1971 case would be that simple and straight forward for the government, in particular, for the Home Ministry, Law Ministry and the judiciary.

3. Whose Liabilities
The first to me is how to sort out the question of subtlety of ideology, the opposite stance of Bangladesh and Pakistan. In 1971 the two stances surfaced as reconcilable, no matter which group was larger or not compared to the opposite group, the fact remained that they remained apart and irreconcilable until the end of 1971, and even after. Both had good many historic reasons dear to the both parties concerned. That is why they stood for their own belief and ideology. No doubt that the vanquished had been overpowered and so overtaken by the victors but unfortunately with loss of properties and valuable lives on both sides. Those who are now being summarily dubbed as the ‘war criminals’ are all of the vanquished and none of the victors. Could that be true that in 1971 only the subsequent victors had been perpetrated by the vanquished and none by the victors? No, not in any credible way. In other words, both had been both perpetrators and victims of perpetration just as Sharmila Bose had her findings made latest in 2005 A.D., not to mention of other earlier sources (1982, Small and Singer; 1990 Sisson and Rose; 1996, A. M. Chowdhury; etc).

4. The Victors and the Vanquished
Well, it is historically true that the victors try the vanquished. That is what the Bangladesh government in 2009 have taken on to try the vanquished ‘criminals’ now alive after 38 years. The dead are gone, and so nothing doing for them.

5. The Trial Fiascos
In 1972, the victors forming the government took up the trial of the living vanquished. That is what they started to pursue not amazingly in normal or existing criminal justice system but by enacting a special order titled Collaborators Act of 1972 promulgated on the 24th January. The act had many flaws. The first inconsistency was that it was given retrospective effect that by itself grossly violated the basic principles of legal jurisprudence. Even so, in the legal and administrative void, trial of many collaborators were conducted and punished. One Chikon Ali was sentenced to death and executed in Kustia, some two hundred miles north west of the capital city Dhaka in late 1972. The octogenarian political populist leader Maolana Bhashani who continued to oppose the collaborators act from the very beginning in early 1972, despite being interned by the government, secretly made his protest public in the matter of death sentence executed in his verbatim, ‘CHIKON ALIR FANSHI HOLO EKHON MOTA ALIDER KI HOBE”, that in English version may be’ the poor fellow got hanged, what to happen to the big shots for the same offence of collaboration in 1971’? In fact there were grumbling and silent protests against the misuse of the act in rather witch hunting of the political opponents of ruling party.

6. The 1972 Constitution Exploded Myths of holding the Trial
As soon as the first Constitution of Bangladesh was framed and made effective by end 1972, the act became automatically void as the basic principles enshrined in the document contradicted with the collaborators act of 1972. To take care of the conflict and complicacy, the constitution was amended and for trial of the ‘collaborators’ a special tribunal was constituted not for ‘offence’ of ‘collaboration’ but for specifics facts of ‘murder’, ‘arson’, ‘rape of women’ and ‘hugger’ or looting of others property, a ‘special tribunal’ was formed in mid 1973. Incidentally, such offences are prosecutable in ordinary criminal courts Bangladesh inherited from the colonial past. There was as such no need for the special tribunal.

7. The Famous Collaborator Appointed Special Envoy
However, the tribunal remained inoperative for reasons better known to the then government. Instead, the government initiated to release from detention many among 100,000 of the political opponents giving them label as ‘collaborators’. One such big political personality Khawja Khairuddin of the Nawab Family of Dhaka, a veteran Muslim Leaguer in continuing family tradition, was not only freed from imprisonment and detention but also made an special emissary of the Bangladesh Prime Minister Sheikh Mujib to Pakistan’s Prime Minister Zulfiquer Ali Bhutto. One could guess easily in the fact the fiasco of the label of collaboration and of the notorious collaborators act.

8. Khawja Khairuddin’s Story of his Trial
There is one interesting fact I heard from Khawja Khairuddin and confirmed from Professor Dr. Syed Sajjad Husain (V.C. of Rajshahi and Dhaka Universities). They both had been in prison as collaborators. When the case for trial of Khawja saheb came up, he made his submission all b himself wherein he went on defending his position as a Pakistani in 1971 and opposing Bangladesh cause having had a very spirited defense giving long background of the family and the Muslim League in early 20th century in Dhaka. He could hardly finish reading through his prepared statement when the presiding judge stopped him reading through and postponed hearing and adjourned the court for good. That was the end of the case and he was right then released from detention in prison. The fallacy of the collaborators act was clearly exposed.

9. The Collaborators Act and the Special Tribunal both Faced Ignominy
Thus both the collaborators act and the special tribunal remained inoperative for other compulsions both at home and abroad, particularly in putting up normal relations with the Muslims countries. Mujib’s fall from power in August 1975 radically changed many issues including cancellation of the collaborators act, non-operation of the special tribunal and instead rebuilding relations with many countries like Saudi Arab, China etc that had remained ruptured since after the 1971 war.

10. Why not the 1996-2001 government of Sheikh Hasina Started the Trial?
It may be mentioned here, since then many shades of government came and went, none took the case including the 1996-2001 of the Sheikh Hasina, none bothered to even mention the issue of war criminal much less their trial. How come the dead issue found its place now in 2009?

11. New wave of Witch -Hunting in 2009!
Well, could this be done at home? Past experience only suggest that the home courts could not do anything about it. Interference and witch hunting would be the only mode. Or miscarriage of justice would only be the outcome.

12. ICC has no Jurisdiction in Retrospective Effect
Could then it be done at the International Criminal Court (ICC) at The Hague? The ICC statute provides that it could do only cases after 2002, July 1, not of any issue earlier than 2002. Retrospective effect of any such case is not only against legal jurisprudence but also outside the jurisdiction of the ICC.

13. Bangladesh will be drawn into new Tensions with the OIC Members
Thus it would be a futile exercise only at huge financial cost of the Bangladesh exchequer. The razzmatazz would also be very costly in terms of internal social cohesion; no less important would be negative externalities in Muslim countries and the OIC. These perceptions of negative fall outs, in addition to the 1971 hero’s psychological attachments to the memories of creation of Pakistan, if one would ignore his factual vacillations about the integrity of the independent State of Pakistan, might have been other compulsions not to pursue anything further both in regard to the collaborators act and the special tribunal in his life time ending tragically and immaturely at only 55 years in August 1975.

14. Conclusion
The razzmatazz now on in a sort of frenzy, I would sincerely feel, may be misdirected to national injury and so need be considered in some depth with caution for securing greater good of the nation.

- Dr. M.T. Hussain

AL heading for impending crisis

Now that several weeks have passed since the national elections there are several clear trends in the AL agenda that could ignite serious opposition and which should be considered in the wider context of national interest and security (see my article `A Nationalist Agenda for Bangladesh’. The following list is the most serious and obvious
provocations of the AL thus far –

1. Creation of a regional taskforce with tactical operations capabilities and extra-territorial functions could threaten the internal stability of the country and make it a target for insurgents and terrorists who had until now posed no threat to Bangladesh’s
interests. The notion of foreign forces (particularly Indian) on Bangladesh soil will be viewed with intense aversion by the public and could give rise to strong and violent opposition. This proposal will also be viewed with intense suspicion around the region and increase tensions in South Asia.

2. Massive vote rigging, violence and intimidation during Upazilla elections demonstrating an undemocratic state of mind and a deliberate attempt to weaken local government.

3. Transit facilities without any prospect for wider regional involvement and cooperation (i.e. China, Nepal and Bhutan) or proper safeguards of our sovereignty and independence.

4. Reversion to the 1972 constitution with removal of Islam and a return to `Bengali’ as our national identity. This last had originally sparked the CHT insurgency which was only countered after President Ziaur Rahman amended the constitution and made us Bangladeshis which is a concept based on territoriality rather than ethnicity clearly separating us culturally and politically from West Bengal and India.

5. Attempts to repeal the 5th Amendment of the constitution which had removed the highly unpopular BKSAL governance system established by Sheikh Mujibur Rahman. The 5th amendment had also legitimized the proclamations and proclamations orders issued during the martial law regime of President Ziaur Rahman and which also ratified all actions of the Martial Law authorities during that period.

6. Failure to fulfill election pledges of Tk. 10 per kilogram rice, free fertilizer and employment for a member of every family in Bangladesh. This will become harder to achieve as another global food crisis is predicted for end of 2009 and which will extend well into 2010.

7. Reopening of events during the 2 year interim government of Dr. Fakhruddin Ahmed especially possible investigation of the role of DGFI and the armed forces. There is also likelihood of interference in the military rendering it politicized, weak and dysfunctional. This process appears to have already begun under Gen. Moin U. Ahmed and will probably increase if he is granted a further extension for `services rendered’.

8. Increase in criminality and particularly extortion of business enterprises. There has also been intimidation and brow-beating of business organizations and bodies to follow the government line on policy matters which indicates a move away from free-markets and capitalism. While restraining the natural inclination of business to pursue increased profits in time of national emergency or economic crisis can be justified this could under the AL government ultimately take the form of scapegoating the entire business community for the failures of government. This will probably become inevitable if the global financial crisis takes a heavy toll in Bangladesh without proper and effective measures and safety-nets being put in place due to an incompetent and insensitive administration.

9 Campus violence that will gradually hamper our educational and future potential to compete on a global scale.

10. Sidelining of opposition in parliament through controversial seating arrangements and censoring of debates as broadcast on BTV. Harassment of opposition party workers has already begun on a massive scale.

11. Return to dynastic politics as members of the Sheikh’s family are exerting immense influence but without the responsibility or accountability associated with their power which is exercised in a largely unofficial capacity.

11. War Crimes Trials which is probably a ruse to distract from the above failures and policies as any case will have to overcome the amnesty given by Sheikh Mujibur Rahman and the tripartite agreement between India, Pakistan and Bangladesh on the exchange of prisoners. This is also an attempt in conjunction with points 4 and 5 to undermine religion based politics in Bangladesh. This will probably have the effect of promoting extremism and radicalism by pushing Islamic parties underground and could pose a threat to democracy and also the stability of the country.

While many of the above proposals and acts are not official policy of the AL government the party being largely a monolithic entity and also ideologically quite rigid it is entirely unlikely any initiative could proceed without the tacit approval of the leadership hierarchy. While individually the above proposals and acts may appear innocuous when taken together they signal a reassertion of the undemocratic and autocratic nature of the Awami League and an overweening dependence on India. Some of the proposals and policy initiatives listed above have the potential to spark a hostile and violent reaction without combination with other issues and these should be identified and firmly opposed at the outset.

The question remains as to whether the BNP alliance can capitalize on AL difficulties and its glaring failures. While the BNP has taken steps to reorganize itself from the grassroots level the same stale leaders and advisors remain in their positions. Those who brought the BNP to its present debacle in the national elections still hold positions of influence within the party and unless they are removed with utmost ruthlessness and haste the party is likely to become another Muslim League with ever decreasing returns in elections. It is important that if the nationalist agenda is to survive in Bangladesh the BNP has to remodel and refashion itself and become more democratized and responsive to the needs of the people and country.

The only other alternative is for a completely new party to emerge but this seems very unlikely under present conditions and circumstances. This is not to say that this could not happen especially if the BNP continues to advocate meaningless policies such as impeachment of the president or some such similar nonsense. The main problem for the BNP is that it is a party without an ideology and in its place opportunism and greed has become qualifications for party membership. It is no longer enough that it is the party that stands against the AL it must be the party that stands for something. Unfortunately the party lacks the intellectual depth or analytical skills to carry out the necessary internal restructuring. To rectify this deficiency the party has to push forward an aggressive agenda to weed out the useless and incompetent from amongst its ranks and to establish a new dynamic leadership structure that can meet the challenges of the 21st century.

Author: Barrister MBI Munshi