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