Mr. Abdul Qader Mollah is probably the most
talked about Bangladeshi these days. The highest court in our country had
ordered him to be executed through a questionable legal[1] process and in violation
of international [2]and human rights [3]laws. Worrying yet is the
huge pressure on the government, both from within and outside, to carry out the
execution at the earliest date possible. Even the attorney general of
Bangladesh has called for immediate implementation [4]of this judicial
execution.
In this short note, we provide three
damning arguments proving why the sentence by the Supreme-court of Bangladesh
is in and of itself fundamentally flawed.
1. Retroactively
sentenced: The death sentence against Mr. Mollah was handed down
based on retroactively amended legislation. The International Covenant on Civil
and Political Rights (ICCPR), to which Bangladesh is a state party, prohibits
the retroactive application of criminal law1; and as such
retroactively amended legislation is not valid in Bangladesh itself and clearly
violates international fair trial standards.
One may question, what is wrong with it, as
long as it serves a noble purpose – namely bringing the perpetrators of 1971
to justice. Well, first of all, the perpetrators of 1971 is a long story
that is beyond our scope here; but suffice it to say, the whole International
Crimes Tribunal (ICT) fiasco is far from bringing the perpetrators of 1971 to
justice. More importantly, the end cannot justify the means in a legal context;
and the practice of retroactive legislation can end up in very murky waters.
For example, suppose a staunchly anti-shahbag government comes to power with
two-third majority in the future, and passes a retroactive legislation making
all activities related to the shahbag protest tantamount to treason! Then there
would be no legal barrier to executing all those involved in shahbag movement.
2. Innocence
proven beyond doubt, yet found guilty: Although
Mr. Mollah’s defense team was only allowed 6 defense witnesses; they were able
to prove beyond reasonable doubt[5], that Mr. Mollah was not
involved whatsoever with the horrendous allegations against him. In fact, he
had trained to participate in the liberation war, and was awaiting his turn in
Faridpur to join the battle. He resumed his studies at Dhaka University
immediately after 1971, and had later become a teacher at the Udayan school and
the Rifles school in the center of Dhaka. He was also a member of the Chatra
Union (Matia group) and an ex-comrade of Matia Chowdhury and Nurul Islam Nahid
during his student days[6]. It seems his only
crime is to have taken a principled stand in the politics of Bangladesh rather
than being one of the many opportunists all around us.
3. Sentence
for execution on the basis of lies and deceit: Momena Begum was about
12 or 13 when her immediate family members were brutally massacred in Mirpur,
Dhaka by unknown assailants on March 26, 1971. Up until 2007, Momena Begum, a
class five graduate, had neither filed any complaints to any court of law, nor
brought up the issue of her family member’s massacre to any media. Then, on 28
September 2007, she gave a statement in relation to her family’s massacre to a
researcher at Jallad Khana, the annex of the Liberation War Museum officer, in
which she blamed her Bihari neighbours for her family’s brutal murder[7]. Of all her family
members, only she survived as she had left for her father-in-law’s place two
days prior to the fatal incident. Fast forward five years, and this Momena
Begum reappears in the ICT testifying that she had heard Mr. Mollah was an
associate of one Akter Gunda who had killed people in Mirpur (Note: sill no
allegation of Mr. Mollah’s involvement in her family’s killing). Surprisingly
such a contradictory and inconclusive statement[8] was sufficient to find
Mr. Mollah guilty and ‘deserving’ the death sentence!!
Worse still is the recent revelation of the
fact that the Momena Begum who testified at the ICT in 2012 is not the real
Momena Begum, daughter of Hazrat Ali. It was ‘someone else’ – possibly an
associate of the state prosecutors – pretending to be her[9]. It has been further
reported, though could not be independently confirmed, that the actual Moment
Begum has been kidnapped and is being held at an unknown location by the state
security forces.
The judiciary in Bangladesh does not have
an exemplary record of being just and fair, especially in recent times.
However, executing Mr. Mollah through such a flawed process would definitely be
a new (all-time) abyss, and a disgrace to any process of law anywhere in the
world. We must stand up and voice out against such a violation of the
fundamental rights of a fellow Bangladeshi for the sake of Truth, Justice and
our Bangladesh herself.
------------------------------
for detailed proceedings.
6 Confirmed by a BAL MP in one of his
writings (I can’t find the reference at the moment).
8 Justice Abdul Wahhab commented in
the judgment of Mr. Mollah “PW3 (Momena Begum) in her statements made to the
Investigation Officer during investigation did not implicate the accused with
the horrific incident which took place on 26.03.1973 and specifically stated
that the Biharis and the Pakisan army committed the crime” - http://tinyurl.com/pfyrp7g,
pg.473
Note: The writer wishes to remain anonymous and would like the article to be shared widely on social media.
