Untold Facts

Indemnity and Power: Misused and Abused by Both Mujib in 1972-75 and by Hasina in the 15th August 1975 Mutiny Trial in Bangladesh

Sympathy
It is right and highly appreciable that some sane people and humanitarian organizations in the world have taken up some interest and expressed concern on the 15th August Mutiny Trial (Sheikh Mujib Murder) case of Bangladesh that had the Supreme Court (SC) verdict on the 19th November, 2009. The Amnesty International’s public statement made very promptly on the following day, that is, on the 20th, has already been blasted out by some ministers and law officers of the country. Some courageous press, however, was also smart enough to blast the silly remarks made by those inept Bangladesh officials.

Unhappy
So far individuals and organizations unsympathetic to the verdict have voiced their concerns in the matter of the death sentence upheld in the one Justice Bench of the High Court made in April 2001 through rejection of the appeal by the SC. Some sought for forgiveness or Pardon ( Serajur Rahman, Daily Naya Diganta, 24 November, 09) by the President of the country of the 12 put to death sentence and some, the Amnesty International (AI), specifically, for commutation of the death sentence for that is their policy worldwide based on the Universal Declaration of Human Rights. One well informed and courageous commentator in his approach published in the weekly Holiday, Dhaka, 27th November (09) questioned the legitimacy of the trial in valid legal terms bringing in the norms of the Hague Conventions of 1907 and examples of two case reference trials – one of Japanese General Tomoyuki Yamashita and the other US Captain Ernest Medina- the first one was tried by the US Supreme Court and executed and the second one acquitted, both in the last century. The crucial point in those trials was that they involved failure of ‘Command Responsibility’.

Command Responsibility
In the Mujib ‘murder’ trial failure of command responsibility involving the then Army Chief General Safiullah and also Air Chief A K Khondoker, a cabinet member of the present government, remained lawfully relevant. That is why as the 2001 April court justice had then remarked in his verdict that General Safiullah must have been the accused, not a witness as amazingly was made. Possibly one judge in the SC Bench rebuked him as the ‘coward’ or spineless General. How could the crucial legal point overlooked for Safiullah’s being witness and not accused in the case?

Former SC Justice
On the same Safiullah’s relevance, there was a report in at least two Bengali dailies of Dhaka, Naya Diganta and Amardesh on the 16th August 2008 wherein one remark of a senior retired SC Justice was, ‘JARA FAROOKER FANSHIR DABI KORE TER AGAE SAFIULLAHR FANSI CHAITE HOBE’ ( Those asking for Farook’s hanging must ask first Safiullah’s hanging). I understood that he meant and referred about the failure of command responsibility.

Former Chief Justice
The other observation I right now recall is that made by one retired Chief Justice of the Bangladesh SC in an interview with the BBC Bengali Service item aired on the 26th March 2001 that the 15th August ‘murder trial’ was not just only a matter of killing but politics was with that. I took that as he meant to be the lawful transfer of power and inherent indemnity of the operators of victorious coup or mutiny.

Indemnity
Now coming back to the other important legal points, first, that the Indemnity was formally granted to the mutineers on the 26th September 1975, though superfluously as successful mutiny enjoys its inherent indemnity, that was thrown off not through full legal basis by the same genre of the government in November 1996 as is now in power through violating the legal basis of the Indemnity. For it is known that indemnity once given can not be taken back afterwards as it happened in the case of the first Indemnity Mujib himself granted to many including the notorious and unconstitutional RAKHSMI BAHINI’s extra-judicial killings of thousands (about 35,000 according to one estimate) effective from the 1st February 1972 up until his fall in mid August 1975. Then afterwards though the Rakhsmi Bahini was disbanded by the post 15th August government, the indemnity was not taken away by any successive governments.

Not Permissible
Retrospective effect of any legal instrument is not permissible in legal jurisprudence that was clearly done in the case by repealing the 1975 Indemnity in 1996 and then was given retrospective effect of 21 years for the 15th August 1975 case.

5th Amendment
The Indemnity ordinance of 1976 constituted part of the 5th Amendment of the Constitution of 1979 by way of the relevant order of the Martial Law Authority that took over the administration immediately after the 15th August change of political government with the Martial Law Government enforced. Being thus part of 5th Amendment, the repeal of the Indemnity Act needed two third majorities that the government had not had; they disregarded the provision of two third majorities and so unconstitutionally and arbitrarily did the annulment of the Indemnity Act of September 26 1975 through simple majority that clearly violated the 5th Amendment of the Constitution existing still today. That is how they started the trial in 1996 with the first serious lacuna of illegality.

Two standards
One must not forget that the Indemnity they repealed in 1996 was rather arbitrarily, because the other Indemnity, particularly, for the Rakhsmi Bahini’s extra-judicial killings of unaccounted thousands including that of one noted underground party leader of the Purba Bangla Sarbahara Party Seraj Sikder on the1st January 1975, and all of such killings from 1st February 1972 to 1975 mid August during the most oppressive Mujib rule were silently forgotten. Why the two set of standards for two the Indemnities? Could that be anything else but only to put the theatre of trial action for reprisal against some escape goats leaving the big ones like Safiullah out of the net?

Interference
Those who are aware of the earlier versions of the trials during 1996 to 2001, there was little doubt in sensible minds that those were either executively managed or pressurized openly for particular verdict. According to a Dhaka daily The Independent of the 26th March 2002, the honorable Justice of the April 2001 one judge Bench had some remarks published that stated, one, ‘After one hundred years people will say that it was not a judgment at all’, two, ‘Safiulah should have been an accused and not a witness’. Clearly the case was framed up one to punish some escape goats and left unaccounted the big fishes. The same heinous mode was seen in the October-November conducting of the appeal in the visible siege like environment and scenario created by the party hoodlums and even law enforcing agencies for all out intimidation of the judges of the Bench and for all sympathetic to the cause of the mutineers, and hence there was no scope to give fair judgment in the ‘climate of fear and intimidation’ as one renowned journalist had his observation headlined in a Dhaka weekly on the 13th November (09).

No Benefit of Doubt
There were five weighty and valid legal points in the admission of the appeal in August 2007. How come that not a single point or even a part had been duly considered in depth by the Bench in the final appeal hearing? How about giving no consideration in the question of the failure of command responsibility? How about the benefit of doubts as there were many in all those five points, particularly, in the subtle matter of if the mutineers were there to kill or to make a successful mutiny that should have been for relief in the matter of life and death of all the accused? Was it at all required for the Bench to ask for evidence in the shape of ‘legal document’ (Ref: The New Nation, Dhaka, 20 November, 09) in support of the mutiny? Mutiny as the incident implies that the action programs are by themselves secret and somewhat spontaneous. Mutiny also meant and always means toppling the existing government and replacement by new one. That was done immediately as soon as the mutiny was finished having had no resistance whatsoever and having due allegiance by the three units of the military forces of the country. That meant that through the mutiny the military power completed the take over of the country that they had planned. Whatever killings were unfortunately done were the result of encounter of both sides and the mutineers won, in fact, in the brief engagements in the morning hour of the 15th August 1975 for only few minutes, not for hours that also meant that the army men went there for taking over the State power from the inefficient, corrupt and oppressive government through the mutiny. None, much less the mutineers had any personal enmity with the fallen President but only great national cause appreciated both inside the country as was proved by almost all countries accepting the change and provided recognitions. Even countries like China and Saudi Arabia who had not had recognized Bangladesh in over three and a half years time came up in support of the post mutiny Government and accorded recognition to Bangladesh as an independent and sovereign country. Should not one take these serious legal lapses of the Bench as matters of puzzle for that the time differed, then for admission of the appeal during the non-political care-taker government in 2007 and in 2009 of completely different scenario of the same genre of political government of the 1996-2001 and of their well known egoistic drive for persuasion for reprisal and vengeance? Had there been any government other than of Hasina’s, the verdict would have been different and certainly not death penalty. That is why possibly even the Economist (27 November, 09) has termed the SC‘s ‘short order’ as ‘Political Trial’ of Hasina.

Not an End in Itself
The political government got on with the case with abuse of the Indemnity and the misuse of power continued through out that obviously made the miscarriage of justice up until now. Only the Almighty knows where the issue would lead to not only in the execution matter of the case but also of the country vulnerable to big neighbor’s already threatened interference for the particular idol and not for the common people.

Author: M.T. Hussain

Post-mortem of Mujib killing trial vis-�-vis AI’s appeal

History may be written by the victors, but the rules of law can and should offer differing interpretations of history when needed. Unless that becomes evident, any meaningful debate on as historic and sensational a matter as the Sheikh Mujib killing trial is likely to remain less convincing to observers at home and abroad.

Besides, various sections of the government having rejected on November 23 the Amnesty International’s (AI) appeal against the execution of the five former army officers convicted for the murder of Sheikh Mujibur Rahman on August 15, 1975, such utterances could prove prejudicial to the discretion the Honourable President of the country does possess in exercising his Constitutional obligations.

AI’s argumen
The AI made the appeal on November 20 in a public statement, calling on the Bangladesh authorities not to carry out death sentences against the five convicted accused whose prayer for judicial review got denied on November 19.

The AI statement embodied a principled stand of the organization that reads: “Amnesty International opposes the death penalty in all cases regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner. The death penalty violates the right to life as proclaimed in the Universal Declaration of Human Rights. It is the ultimate cruel, inhuman and degrading punishment.”

The statement added, “President Zillur Rahman should commute the death sentences as a matter of urgency. All other death sentences should also be commuted.”

Post-mortem of the verdict
Meanwhile, since the verdict at the nation’s apex court, speculations have marred the exact legal interpretations of the laws that would govern the timing and the modalities of the penalties imposed on the accused, the pre-emptive and the prejudicial utterances of various government mouthpieces not to commute the death sentence by the President notwithstanding.

As the countdown to hanging advances (the convicted accused are all decorated Freedom Fighters), many observers question how the leave to appeal application got accepted by the court for a review hearing in the first place, if there was no discernible error in law, facts or natural justice, as the final verdict seems to have shown.

Army chief’s blunder ignored
The collective fault argument is a double-edged sword, although the prosecution and the judges chose to use it as a mere tool of political convenience instead of according it the legal relevance and weight it lawfully deserved.

The verdict has overlooked that the argument of collective fault of the military command does shift the onus of the crime on the highest command of the armed forces and makes it an offence of rebellion, or a coup d etat, which can only be tried by military courts under corresponding laws and regulations.

Besides, the fact that two of the three incumbent chiefs of the services of the time — Maj. Gen. K M Shafiullah and Air Vice Marshal A K Khandoker — are high officials, and incumbent minister (AK Khandoker) of the AL-led government, unearthing a distinct military-political nexus in the crime’s commission was necessary, especially one of Sheikh Mujib’s trusted ministers, Khondaker Mustaque Ahmed, having sworn in as the country’s new President after the coup, as did many other cabinet members from Mujib’s government.

Command responsibility
Now that the verdict has been rendered, the argument on command responsibility does not cease to vanish, and, it remains a very serious one, with ample ramifications for the Constitutional and the military history of the nation. Often referred to in the legal parlance as the Yamashita standard or the Medina standard, the ‘command responsibility’ is an established doctrine of law that deals with hierarchical accountability in cases involving crime committed by military personnel who are under command, breaking the chain of command from the top.

The Hague Conventions IV (1907) and X (1907) established the doctrine of “command responsibility” and it was applied for the first time by the German Supreme Court in Leipzig, following World War I, in the trial of Emil Muller.

The ‘Yamashita standard’, on the other hand, is based on the precedent set by the US Supreme Court in the case of Japanese General Tomoyuki Yamashita. Gen. Yamashita was prosecuted, in a similarly controversial trial, for atrocities committed by troops under his command in the Philippines. The charge against him included “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command.”

Finally, the ‘Medina standard’ is based upon the prosecution of the US Army Captain Ernest Medina in connection with the “My Lai Massacre” during Vietnam War. Although Captain Medina was eventually acquitted of all charges, the precedent holds that a commanding officer, being aware of a human rights violation or a war crime, remains criminally liable if he does not take action against those who commit such crimes. The same doctrine has been used in many countries to implicate senior commanders of armed forces in trials relating to mutiny and insubordination.

Fake state of denial
All these show that the verdict could and should have been more exhaustive and insightful in its deliberations in order to make a lasting imprint on the posterity.

Let’s not forget that the AI does whatever it is mandated to do. And, the matter of granting an amnesty not being dependent on any particular minister or prosecutor of the government, it was surprising that Home Minister Sahara Khatun rejected the AI appeal that simply insisted that “one human rights violation (the killings) should not be followed by another of hanging the convicts.” This state of denial does infringe into the Presidential prerogatives that is yet to unfold.

Worst still, the chief state counsel Anisul Huq’s cautioning of the AI that it ’should refrain from making such request’ constituted an act of deplorable folly. The AI works independent of governments to ensure common good of entire mankind.

Author: M. Shahidul Islam
Source: Weekly Holiday

Kashmir without a soul

It is unbelievable but Srinagar has changed beyond recognition in the past four years since I was there last. Right from the swanky new airport to the hotel, a distance of about 10 km, there is modern construction.

However, trees have been cut down mercilessly to accommodate fancy thoroughfares. Walls running along the road have been demolished and the rubble is there for all to see. As I covered the journey to my hotel, I missed the old Kashmiri houses from where women with long trinkets would peer out.

Shops are well stocked and full of customers. Too much money is flowing in and the guess is that it is from Saudi Arabia, Pakistan and India in that order. The number of cars on the road is many times more than before. There are traffic jams and one has to keep the snarls in mind when one plans a trip. People move freely. I saw many women on the road without burka or headwear.

Militancy is by and large over. Some terrorists strike once in a while. They attacked the police at Lal Chowk recently. But I get the feeling that the media magnifies stray incidents. When attacks were a regular feature, there was curfew after sunset. Now the people are on the road even at 11 pm.

I did not see a single policeman on the road from the airport. Bunkers are mostly gone. I found one at Lal Chowk where some policemen stood with their fingers on the trigger. Papa One and Papa Two, the interrogation centres, have been closed. But detentions still take place. The biggest worry is the occasional disappearance of youth. Incidents like the rape of two women at Shopian are rare. But whenever they take place, they infuriate the people to the extent that they come out on the streets.

The mode of search, whether of a vehicle or a person, has changed. Policemen are more polite and less intrusive. Still a member of a very respected family told me how he and his wife were stopped on the road. A policeman wanted to search the woman but on his insistence a female officer did so.

The anti-India feeling is there beneath the surface. People are not afraid of saying so. However, pro-Pakistan sentiments have practically disappeared, more because of the Kashmiris’ perception of the mess in which the country is.

I found the Hurriyat leaders sober. One leader told me that they had vibes from Delhi that something positive would emerge. They are looking forward to talks with Prime Minister Manmohan Singh. There is an effort to have a consensus among the different parties, including the Hurriyat, before the prime minister’s arrival. Chief Minister Omar Abdullah wants New Delhi to talk to all political parties but has also emphasised that India should have a dialogue with Pakistan to resolve the Kashmir problem.

It was an interesting talk which I heard when I was sitting with the Hurriyat leaders. A young Pakistani American told them that what had surprised him after the span of three years since his last visit was that Kashmir was ‘being assimilated by India quickly’. They were embarrassed but did not want to reply to him in my presence.

Born in Kashmir, this young man is a member of a think tank in Washington. He told them that free state elections, watched by a large number of Americans on televisions, had made a great impression. He said they were beginning to believe that the problem was ‘more or less over’.

Former chief minister Farooq Abdullah is more candid than his son, Omar, who is losing his popularity fast. Farooq says there are ‘paid lobbies’ in the state to keep the problem alive. He accuses security forces, politicians and bureaucrats of having ‘a vested interest in the Kashmir crisis’. He has a point when he says that New Delhi has failed to make headway in resolving the problem. Not many solutions are hawked about now.

There is a suggestion that both Kashmirs should be demilitarised, India withdrawing its forces from the valley and stationing them on its border and Pakistan doing likewise and pulling out its forces from Azad Kashmir. But this depends on India and Pakistan reaching a settlement, supported by the Kashmiris.

The problem of Jammu and Ladakh has become ticklish. They do not want to stay with the valley. Jammu wants to join India and Ladakh wants a union territory status. True, the Hurriyat has never tried to woo Jammu and has seldom cared for the Kashmiri Pandits languishing there. Still both Jammu and Ladakh can be brought around if they were to be given an autonomous status by the valley within the state.

I have no doubt that the Kashmir problem will be solved sooner or later. But too much has happened in the state in the past. This makes it difficult for the old Kashmir to come back to life. Familiar symbols are dying. Sufism has been replaced by assertive teachings. Kashmiri music is dying out because society has been forced to acquire a religious edge. Old crafts attract fewer artisans because there is a race to earn a quick buck. The wazwan, a string of Kashmiri dishes served at one sitting, is still there but new cooks are hard to get.

The reintegration of Muslims and Pandits appears difficult. An Islamic identity has taken shape, reportedly more in the countryside. Kashmiriyat, a secular ethos, is beyond repair. The animosity among the three regions Kashmir, Jammu and Ladakh, may dilute but will remain. It may still remain the state of Jammu and Kashmir. But its soul would be missing.

By Kuldip Nayar
The writer is a leading journalist based in Delhi.

Where’s the idea of India?

IT is happening too often. Parochialism is rearing its ugly head in Mumbai too frequently. The Shiv Sena is threatening to throw out ‘outsiders’ from Mumbai and the rest of Maharashtra.

Self-centred party chief Bal Thackeray has created a ruckus once again, this time dragging into controversy Sachin Tendulkar, the world’s best batsman, who said that he was proud to be a Maharashtrian but that he was Indian first. How should this remark irritate anybody?

I think it is time that Mumbai was made a Union Territory. Industrially and commercially, it is the hub of India’s financial activity. Delhi is a Union Territory because it is the centre of the country’s political activity. Why should Mumbai, which is India’s financial capital, have a different status?

People from various parts of the country have settled in Mumbai making large investments and contributing to business life their labour and entrepreneurship for decades. More money has come from others, not the Maharashtrians. Even population-wise, my impression is that the non-Maharashtrians are a bit up.

If nothing else, the contribution by ‘outsiders’ should shut up the Shiv Sena and its ilk, the Maharashtra Navnirman Sena, that they are a burden on Mumbai or that the jobs in the state should be given to Maharashtrians alone. This pernicious thesis, the son-of-the-soil articulation, was advanced by many states, including Maharashtra, before the Fazl Ali States Reorganisation Commission in 1955. It firmly rejected the various claims and held: “It is the Union of India that is the basis of our nationality.” In its report, the Commission said that “it (Bombay) has acquired its present commanding position by the joint endeavour of the different language groups”.

The proposal that Bombay should be constituted as a separate unit was first mooted by the Dar Commission when the constituent assembly was debating in 1949 the formation of linguistic states. The then ruling Congress party accepted the proposal for the reorganisation of states.

Prime Minister Jawaharlal Nehru took a fancy to the idea of keeping Bombay apart. He pushed it when Maharashtra and Gujarat were agitating against the commission’s recommendation to integrate them into one bilingual state. Nehru presented before the cabinet a proposal to have three units: Maharashtra, Gujarat and the city of Bombay. The then finance minister, C.D. Deshmukh, agreed to the formula in the cabinet. But he changed his stand following the furore in Maharashtra and submitted his resignation. Bombay was made part of Maharashtra.

Nevertheless, the linguistic states have not been of much help to the country. They are increasingly becoming ‘islands of chauvinism’. This was the danger to which Nehru drew attention after new boundaries were drawn on the basis of language. The BJP-run Madhya Pradesh is the latest one to announce that it does not want Bihari labour.

Unfortunately, the manner in which certain administrations have conducted their affairs has partly contributed to the growth of parochial sentiments. The rulers have an eye on elections, not realising that the idea of India gets defeated if people prioritise domicile considerations.

After the formation of states, it was understood that the regional language could be learnt after the recruitment. But now its knowledge has been made compulsory before a person is eligible for the job. This is making state services an exclusive preserve of the majority language group of the state.

The prosperity of some states like Maharashtra, Gujarat, Tamil Nadu and Karnataka has raised questions in UP, Bihar and Orissa, the economically backward areas, that they were not getting their due. Relations between the centre and the states have become strained on this count.

The country’s unity has been uppermost in the mind of policymakers. There have been a few movements here and there, raising the standard of autonomy. But the democratic system with a federal structure, established firmly after the introduction of the constitution in 1950, has taken the wind out of the separatists’ sail. Except for a few militants’ organisations in the northeast, the people’s heart is in the country’s unity.

In the late 1950s, the southern states felt that they were not getting their share. There were agitations and public rallies. Nehru was quick to convenethe National Integration Conference to discuss the various grievances. The conference appointed many committees to give their recommendations on how to bring about national integration.

Before they could submit the reports, China attacked India in 1962. All committees made just one comment: The Chinese invasion had united the entire country. Indeed, this was true because all dissenting voices died in no time.

The country had a jolt in the 1980s. The Akalis in Punjab revolted. The state was in the midst of militancy for about a decade. The Sikhs themselves turned against the militants who had made their life hell. Punjab is today a peaceful state.

The odd voice of linguistic chauvinism, the fallout of the reorganisation of the states in 1955, has been heard in some areas off and on. The real purpose has been to gain votes in the name of the ‘stepmotherly treatment’ meted out to a particular community. It must be admitted that slogans in the name of language or caste has helped.

The only state where parochialism has been constantly fostered by the Shiv Sena is Maharashtra. The group even won an election with the support of the BJP, on the slogan ‘throw out outsiders from Maharashtra’. Bihari labourers were beaten up, something which Raj Thackeray, nephew of Bal Thackeray, repeated after breaking away from the Shiv Sena.

No doubt, the basis of nationality is the Union of India. The states are but the limbs of the union. Yet the limbs must be healthy and strong. Some states have too many poor people concentrated in their territory. Yet what keeps India together is its diversity. By dividing the country into linguistic spheres or by injuring the rights of those who are in a minority, the parochial elements are posing a danger to the very idea of India. It is better that organisations like the Shiv Sena understand this.

Author:Kuldip Nayar
Friday, 20 Nov, 2009
(The writer is a senior journalist based in Delhi.)

Palestine Federation? Why not?

I recall my last conversation with Yasser Arafat in his Ramallah compound a few weeks before his death. It was he who brought up the idea of a threefold federation - Israel, Palestine and Jordan. “And perhaps Lebanon, too. Why not?” Lately, the term “federation” has come into fashion again. Some people believe that it can serve as a kind of compromise between the “two-state solution”, now a worldwide consensus, and the “one-state solution” that is popular in some radical circles. “Federation” sounds like a miracle: There will be both “two states for two peoples” and a single entity. Two in one, one in two.

The word “federation” does not frighten me. On the contrary, I was already using it in this context 52 years ago. On June 2, 1957, my magazine, Haolam Hazeh, published the first detailed plan for an independent Palestinian state that would come into being next to Israel. The West Bank was then under Jordanian and the Gaza Strip under Egyptian occupation. I proposed helping the Palestinians to get rid of the occupiers. According to the plan, the two states, the Israeli and the Palestinian, would then establish a federation. I thought that its proper name should be “the Jordan Union”.

A year later, on Sept. 1, 1958, there appeared a document called “the Hebrew Manifesto”. I am proud of my part in its composition. It was a comprehensive plan for a fundamental change of the State of Israel in all its aspects - a kind of complete overhaul. Among its authors were Nathan Yellin-Mor, the ex-chief of the Stern Group, Boaz Evron, Amos Kenan and several others.

I was responsible for the chapter on Israeli-Arab peace. It proposed that a sovereign Palestinian state would be set up next to Israel, and that the two states would establish a federation, which would gradually assume more and more jurisdiction. On the morrow of the Six-Day War, after which the entire country between the Mediterranean and the Jordan was under the control of the Israeli Army, a new political movement called “Israel-Palestine Federation” called for the immediate creation of a Palestinian state next to Israel. The founders were, more or less, the same people who had composed the “Hebrew Manifesto”.

When this historic opportunity was missed and with the occupation becoming gradually more and more oppressive, I abandoned the use of the term federation. I sensed that it frightened both parties.

It should be remembered that the original partition plan adopted by the UN General Assembly on Nov. 29, 1947, did envision a kind of federation, without using the term. It provided for the establishment of a Jewish state and an Arab state, and a separate entity of Jerusalem, administered by the UN. All these entities were to be parts of an economic union that would cover customs, the currency, railways, post, ports, airports and more. This would have, in practice, amounted to a federation.

Basically, a federation is a pact between different states, which decide to unite on agreed terms. The United States is, theoretically, a voluntary association of states. The states have many rights, but the federation is headed by a single president with immense powers. In practice, this is one state. Russia, too, is officially a federation, but its use of the term has a very different content. Moscow appoints the governors of the provinces, and Vladimir Putin rules the country as a personal fief. When Chechnya tried to secede from the “Russian Federation”, it was crushed even more brutally than the confederacy in the American Civil War.

Germany defines itself as a “federal republic (”Bundesrepublik”). It is composed of “L?nder” that enjoy a large measure of autonomy. Switzerland calls itself a confederation in French and Italian (”Eidgenossenschaft” or “Oath Association” in German) and its cantons enjoy their autonomy. But it is also a very unified country.

It is generally supposed that a “federation” is a tighter association, while a “confederacy” is a looser one. But in reality, these differences are very blurred. It seems that Americans and Russians, Germans and Swiss, identify themselves first of all with their united state, not with their own particular province. (Except for the Bavarians, of course.)

THE new Europe is for all practical purposes a confederacy, but its founders did not name it thus. They chose the less definite “European Union”. Why? Perhaps they thought that terms like “federation” and “confederacy” were outdated. Perhaps they considered such terms too binding.

It makes no sense, therefore, to discuss the idea of an Israeli-Palestinian “federation” in general terms, without defining right from the beginning what is meant by this. I recently saw a plan for a federation here in which every person would have the right to settle anywhere in either state while holding the citizenship of one of them. I can hardly imagine that many Israelis or Palestinians would embrace that. The Israelis would be afraid that the Arabs would soon constitute the majority within Israel, and the Palestinians would worry that Israeli settlers would take possession of every hilltop between the sea and the Jordan.

In any discussion of federation, the matter of immigration looms large as an ominous bone of contention. Would millions of Palestinian refugees be allowed to return to Israeli territory? Would millions of Jewish immigrants be allowed to submerge the State of Palestine? The same is true for the matter of residence. Could a citizen of Palestine settle in Haifa? Each one of us who considers the idea of federation must decide what he or she wants. In practice, a federation can come about only on the basis of a free agreement between the two parties. This means that it can be realized only if both - Israelis and Palestinians - consider it as advantageous to themselves and compatible with their national aspirations. In my opinion, a practical way to realize the idea could look like this:

Stage 1: A sovereign Palestinian state must come into being. The occupation must end and Israel must withdraw to the Green Line (with possible mutually agreed swaps of territory.) That goes for Jerusalem, too.

Stage 2: The two states establish a pattern of fair relations between them and get used to living side by side. There will be a need for real steps toward reconciliation and the healing of the wounds of the past.

Stage 3: The two states start negotiations for the establishment of joint institutions. For example: the opening of the border between them for the free movement of people and goods, an economic union, a joint currency, a customs envelope, the use of ports and airports, coordination of foreign relations, and so on. There will be no automatic right for citizens of one state to settle in the other. Each state will decide for itself on its immigration policy. The two parties can jointly decide whether to invite Jordan as a third partner to the proposed treaty. Such a negotiation can succeed only if the population in each of the partner states is convinced that the partnership will bring it positive benefits. Since Israel is the stronger economically and technologically, it must be ready to make generous proposals.

Stage 4: The more trust between the parties develops, the easier it will be to deepen the partnership and to widen the powers of the joint institutions.

Perhaps, at this stage, conditions may be ripe for the founding of a wider association of the entire region, on the lines of the European Union. Such an association may include the Arab states, Israel, Turkey and Iran. This is a vision for the future, and it can be realized. To paraphrase Barack Obama’s slogan, even if it has lost some of its luster: Yes, we can!

Author: Uri Avnery
(Source: Arab News. Uri Avnery can be contacted at avnery@actcom.co.il )

Historic Need for Magnanimity for Averting Evil Burden in Future Bangladesh

1. There is no favorable appreciation by the right minded people about the 19th November verdict of the Supreme Court in the 15th August (1975) bloodletting case except among the diehards of the Awami League Government party concerned for the fact that the simple case of army mutiny had been adjudged in the ‘short order’ as the simple ‘murder’ of the President of the country, Sheikh Mujib, by summarily rejecting the Appeal, not seen to be real justice done, obviously under the present political government with partisan stake.
2. The Court heard the Leave to Appeal accepted by another Bench about two years ago during non-political Care Taker Government wherein there were five valid law points: the question of jurisdiction of the previous one judge Bench, scope of the civil court to try military men, if the incident involving some bloodlettings were of simple murder or as adjunct of mutiny, whether there was any conspiracy to kill or not, and delay in filing the case after 21 years.
3. Of the five points, the crucial one was that if the incident of bloodletting was the result of army mutiny or nothing of mutiny but just only to kill the President, the Appeal Bench took the whole matter as a conspiracy to kill the President. The judges though decided that the army men came to kill the President and they did kill, and there was no motive of any mutiny for the change of the government, many evidences left out of consideration that clearly showed that the incident was a clear case of mutiny. One was and as mentioned by the previous one judge Bench of the High Court in April 2001, on which the whole appeal had banked on for 12 convicted to death sentence, that the then Army Chief amazingly made a ‘witness’ whereas he must have been an accused in the case .In an interview published in the Dhaka daily, The Independent on the 26th March 2002, the same judge is reported to have remarked, ‘After one hundred years people will say that it was not a judgment at all’. The other important items left out of consideration were that the Army, Navy and Air Force all gave allegiance to the mutiny and the change of Government formed immediately after the coup. So also all other Government organs and units of administration of the State gave allegiance to the post mutiny government and thus provided clear nod to the successful coup. The Chief Justice of Bangladesh offered oath of office to the post coup Government of Khondoker Moustaque as the President. All these points kept unresolved that showed that the judges were not only unfairly biased but also were eagerly ready to sign on the dotted lines. That they had enough of benefit of doubts in favor of the accused were all given damn to. In other words, the judgment was clearly a sort of miscarriage of justice. The miscarriage of justice in the case was also clearly advanced by one retired Chief Justice in an interview with the BBC Bengali Service on the 26th March 2001; similar comments were also made by another retired Supreme Court Justice in a public forum discussion session held at the National Press Club on the 15th August 2008 and news published in many Dhaka dailies on the 16th August 2008 (Daily Nayadiganta, Daily Amardesh, etc.).
4. The five member bench judges of the Supreme Court Appeal Division, no doubt, made their judicial verdict as they considered fit not only out of their judicial mind but also quite visibly in the near siege fearful environment of the Supreme Court Campus by not only the law enforcing agencies but also by huge angry party workers, even including the law officers showing their fists. The judges were common human beings as they were all subjected to pressures and intimidation all throughout the 29 days hearing of the appeal by the Awami League party cadres of the most militant kind. Being employees of the government for life and living, perks and favors and wholly dependent on subsistence from the pay and allowances paid from the treasury, how could they make verdict different from the one to please the top boss both of ruling political party and of the government of the country? The judges knew well ahead what the boss, in particular, in the Government wished for verdict in the case and so they possibly complied with safely, despite unfortunately creating problems of legitimacy and continuity of the State for 34 years since August 1975 that legally came up with the verdict of simple ‘killing’ and not ‘mutiny’ passed by the honorable Bench members. It’s pity that they are hardly like the independent judiciary judges of the UK, for example, in terms of all forms of social and economic security.
5. Death penalty or capital punishment has already been abolished in 94 countries as
of June 2009, and there are many international humanitarian organizations like the Amnesty International, Human Rights Watch, World Coalition Against the Death penalty, European Union, etc have been working for abolition of capital punishment in the rest of all countries.
6. Although Bangladesh has the penalty in the age old colonial British Cr.P.C. that provides here still today whereas, in Britain that inhuman penalty has already been abolished long ago. By immoral use of the same Cr.P.C. the colonial rulers sentenced many to death sentences, say for example, Khudiram who afterwards in free India being praised as the martyr. Bangladesh being a Muslim country should have had for the Muslims the sort of penalty provided in the holy Quran: alternatives to death penalty either Qisas or forgiveness of the victim or victim’s family members or Diyah means compensation money payable by the accused to the members of the victim’s family.
7. Even if one may not see eye to eye of the miscarriage of justice as advanced here in the case so far ended, commutation of death sentence at the lawful Review stage still left may well be done.
8. There is a serious anti feeling about the verdict in the society and outside since the very announcement of the verdict on the 19th November that may well be eased greatly by commuting the death sentence now. The Amnesty’s appeal of the 20th November may well be taken as a good ground for the commutation. Otherwise, it will certainly continue not only to hurt the future social scenario of the country but also the political divide not for any good but for many evils to come.
9. It is, as such, I feel as a senior citizen very much incumbent on the present government (the President and the Prime Minister) to take a magnanimous look into the matter. Or else, they would harm the country beyond repair and face all risks of political divide and reprisal, I am afraid, in history.

Author: M.T. Hussain

AI’s Call for Commutation of Death Sentence: Let us Appreciate

The Amnesty International (AI), the world famous humanitarian organization, as reports published in Dhaka in some dailies both English and Bengali on the 21 November, 2009, has requested the Bangladesh President and the Prime Minister to commute the death sentences passed in the SC of Bangladesh on the 19th November verdict in the matter of the case of the 15th August 1975 unfortunate bloodletting in Dhaka.

The AI for some years past is opposed to any death sentence, just as other organizations like the Human Rights Watch, the European Union, the UNO since after the 18th December 2008 resolution, etc. for their just stand for Right to Life of human being.

94 countries of the world as of June 2009 have already abolished capital punishment.

Bangladesh still has the age old British Cr.P.C. and death penalty, but in Britain the capital punishment is long abandoned.

Bangladesh is a Muslim country and for Muslims Islamic laws should be applicable. Islam provides though death sentence but provides alternatively in the holy Quran at the same time for Qisas or forgiveness by the victim or the victim’s family members and Diyah or agreed compensation money from the accused payable to the victim’s family.

Let us appreciate the AI in the matter and also urge upon the Bangladesh authorities to commute the death sentence of the 12 accused passed on the 19th November verdict of the Supreme Court for showing respect not only to the international opinion and also for internal understanding.

Author: dr.M.T. Hussain

Moral Bankruptcy: Way Out from Despairing

An expatriate and retired Octogenarian journalist had an article published in a Bengali daily in Dhaka on the 17th November having therein all his despairs for moral bankruptcy, as I understood, of the present government of Bangladesh running the country for the last ten months. He cited many examples of moral bankruptcy, the one being that involved the President of the country, Mr. Zillur Rahman, who used his power of pardon provided in the Constitution of the country, in the case mentioned for the son of the Deputy Leader of the House Sajeda Chowdhury. Her son Shahadar, still at large for corruption charges and sentenced to rigorous imprisonment for eighteen years and fine of over 10 million Taka passed by the court during the Emergency of 2007-08, was granted pardon by the country’s President just two days ago.

Listening to the BBC Bengali Service Radio on the day at the 7:30 evening program, there was a news item that the Home Minister Sahara Khatun responded very angrily there in the program that there had been no ‘CROSS FIRE’ deaths during the last ten months of the Awami League rule. In the same program, the other part of the relevant news was that the High Court on the day issued a Suo Muto Rule to the Government to reply within 48 hours as to one incident of Cross Fire Deaths of two brothers (Khalashis) that took place at Madaripur the previous day and published as news item in some daily on the day. One Khalahi‘s son’s weeping voice seeking life security was also aired in the BBC program. The BBC was smart enough to put one spokesman of the AIN O SALISH KENRO, a NGO, who put a figure of 111 deaths in Cross Fire during the last ten months!

To me the matter is tragic but amazing though that the party had clearly promised in the Election Manifesto in 2008, among many such promised but now being hardly cared for, that they in power would stop cross fire deaths in Bangladesh.

Promises made to the electorates and then forgotten in power are nothing new in this country. But the Awami League is unfortunately the most notorious in the matter of broken promises not only at this term but also in earlier terms, as well. The manifestly notoriety has many reasons, the one most crucial is their very poor in moral standards that in turn goes into the mind set up of sham ‘secularism’ or I feel to state secularism misperceived.

Western secularists, at heart, hold on to secularism at political level with high regards to basic Christian values. That is how they maintain morality at high level. Muslims are in general averse to secularism at any level except for tolerance of other religious people in religious matters. Muslims moral values are in no way independent of Islamic beliefs, norms and values. That is why when any Muslim tends to go for secularism, he or she hardly can sustain high Islamic moral standard. That is what the basic and first problem for moral bankruptcy of the Awami League in Bangladesh.

The honorable High Court’s issue of the Rule to the government in the matter of the latest killings of two brothers in cross fire as mentioned by one law enforcing agency men could be a right moral boosting for the peace loving citizens of the country. But that is not enough; people themselves have to rise and fight back against the morally bankrupt now in power to firmly reestablish in this nation and in the country high moral values based on our proud Islamic heritage.

Author: M.T. Hussain

Climate of fear and intimidation

Some eminent members of the Bar appeared as special counsels for the state before the Special Bench of the Supreme Court in the hearing of the appeal against conviction of prisoners in the death row for the murder of late President Sheikh Mujibur Rahman. The appellants have been arguing that a mistrial took place, since their acknowledged involvement in what was essentially a coup leading to the assassination of the-then President could not be tried as an act of murder (One appellant pleaded innocence of any direct part in the act of assassination and prayed for mitigation of sentence for presence and involvement in the scene of the crime).
The learned special counsels for the state argued that the appeal should be dismissed since there was no scope of retrial in the long-delayed case, and indeed the Bench, by upholding the High Court confirmation of the verdict of the trial judge, would do its duty to absolve the Supreme Court hierarchy of the sin of failing to uphold the Constitution. The Supreme Court was obliged to move suo moto against the perpetrators of the crime of the-then President’s assassination and other unconstitutional acts in August 1975, and their failure to do so has rendered the regimes that followed (till date?) unconstitutional. It was argued that the-then chiefs of armed services, the judiciary, the civil administration, the members of the police force, all “from top to bottom” broke their constitutional oaths and continued to do so all these years by failing to bring the perpetrators of the assassination to justice.
Newspaper coverage of the ongoing hearing has been at variance and sometimes contradictory. The layman reaction to the reports overall has been that the special counsels for the state were in effect substantiating the appellants’ position that the state machinery “from top to bottom” abandoned the assassinated President and accepted the change of state power resulting from the act of assassination. In other words, it was a coup d’etat. The act itself was post facto condoned by the-then commanders of the armed forces, in effect recognising the incident as an army mutiny, albeit under circumstances of command failure. It is up to the appellate court to decide on the relevance and merit of the arguments on both sides. But what surprised many was the orchestrated reminders by the counsels of the state to the Bench, as a successor body of ’sinning’ predecessors who allegedly failed their constitutional oath. The Bench, therefore, has to do the right thing by condemning the appellants. To many lay readers, the tenor of such arguments sounds more like threats than submission of law points, and an attempt to obliterate 34 years of the historical continuity of the nation-state.
Outside the courtroom too, an intimidating climate has been created by the arrests and long remands of brother, daughter, sons and nephews of the appellants or their absconding co-defendants in the trial-court case, on suspicion of their involvement in a street explosion that on October 21 hit the car of Barrister Fazle Noor Taposh, MP, a state counsel in the Supreme Court hearing and also the son of the assassinated President’s nephew who was killed too during the coup d’etat. The investigators of the attempted murder case instituted by Barrister Fazle Noor Taposh have released to the press stories of scandals involving the daughter of an absconding coup leader and one of the army intelligence officers, now overstaying abroad, who was powerful during the last caretaker regime. Little progress has been made, or made known to the media, about apprehending the real culprits or their masterminds in the case of alleged attempt on the life of Barrister Taposh. Elaborate leaks were then made to newsmen by the investigating team that some “junior” members of the army, angered by the Peelkhana massacre, were suspected to be involved in the attack by a remote-controlled bomb. The reason for their anger is that Barrister Taposh was named by some BDR mutineers as the public representative they had contacted for their grievances before the BDR mutiny.
The superintendent and co-ordinator of the investigating team of Dhaka Metropolitan Police has since denied that some army officers are in custody for interrogation in relation to the case. The Home Minister has in the mean time taken it upon herself to comment on the ongoing investigations, saying that if any armyman is found involved in the case, he will not be spared. Without ascertaining whether proof of any such involvement was found, she went on to say that misguided armymen have been involved in such activities from time to time since 1975, but repetition of such acts of indiscipline will cease once the verdict of the murder of Bangabandhu Sheikh Mujibur Rahman is implemented.
The image of the armed forces is clearly under attack from a section of the establishment, orchestrated by media embellishments. The spectre of the Peelkhana massacre, on the other hand, is also continuing to haunt our defence services. The inhabitants in our border regions are living in fear under sporadic attacks from trigger-happy Indian Border Security Forces, across their barbed-wire fences along our land boundaries. Discerning citizens cannot but be concerned that appropriate initiatives are yet to be undertaken to reduce internal tensions and to strengthen security against external transgressions.

Author: Sadeq Khan
Source: Weekly Holiday

No 15th August 1975: Yes BAKSAL: No Multi-Party Democracy

Bangladesh enjoys plural and multi-party democratic Parliament just as of to day going on uninterrupted for the last three decades; could that be so, had there been no 15th August 1975 change? No, not, at all. Why then among many beneficiaries and lovers of democracy the present government of multi-party beneficiary, as well, and not of the notorious BAKSAL, has been unduly chasing the heroes who killed BAKSAL and reintroduced multi-party democracy in the country? Was it for any good reason or foolishness of the epical Kalidas or for ego of the beastly vengeance?

It was certainly true that Bangladesh won her independence, one fundamental commitment being to adhere to plural democracy. Somehow it worked for about three years during 1972 to 1974. In 1975 January the veil of multiparty democracy was removed and imposed then on caring little for the aspiration of the people the one party dictatorship of the BAKSAL. Ironically, the person and the ‘charismatic’ leader who rose to peak of ‘popularity’ for the trumpeted bandwagon of democracy did unceremoniously put the last nail in the coffin of the multi-party concept and instead imposed lone party in the country turning himself into the absolute leader of the party and of the country for running dictatorship, hardly of benevolent but of malevolent nature.

The excuse given for the unwelcome dictatorship was for greater welfare of the common people that had become already by that time incredible for all the shades of the party cadres’ illegal and immoral robbing of public properties through all possible known and crafty foul means. They enjoyed lives mainly through illegal and immoral means but the majority suffered.

The dictatorship from early 1972 internally suppressed all genuine grievances of the people, on the one hand, and on the other, played subservient roles to Delhi. The internal repression had the ferocity of the private hoodlum forces and the Indian R&AW (Intelligence) engineered and unconstitutional Para military force euphemistically called the JATIYA RAKHSMI BAHINI that perpetrated all forms of inhuman tortures on unaccounted thousands and killed with impunity, according to some estimate, 40,000 or so patriotic youths in those three and a half years of the Faraohni rule. The term FARAOH for Sheikh Mujib was used by the one time Awami League leader and Speaker of the Parliament (now late) Abdul Malek Ukil soon after the 15th August successful coup he went on for the first visit to Europe. One must realize the deep despise Mujib very rightly had among his colleagues in the party for all undemocratic approaches. That is what many termed the post 15th August coup President Khondoker Moustaque government comparable to the role prophet Moses played in facing up to the most notorious Egyptian King Faraoh of the pre historic period. The 15th August 1975 change was thus rightly the Day of Deliverance or the historic NAJAT DIBASH.

The immediate beneficiary of the 15th August coup was the country for that abandoned the one party BAKSAL and paved ways for transition back to multi-party democracy and civility once again for Bangladesh.

Unfortunately, the present government of Bangladesh run by the revengeful offspring of the FARAOH has gone on with all offensive propaganda to wrongly project him a god of the land and so in a way the BAKSAL, as well. The judiciary is known to be intimidated by not only the party cadres but also by some ministers of the cabinet for securing a verdict of the Supreme Court in the particular case in favor of and eulogizing the fallen god, just only to decry multiparty democracy.

Only the Almighty Allah can save rule of law for democracy, at this stage, particularly, the threatened integrity and independence of the judiciary from the evil clutches of the neo BAKSALites.

Author: Dr. M.T. Hussain