Committed to PEOPLE'S RIGHT TO KNOW
Vol. 5 Num 793 Sat. August 19, 2006  
   
Point-Counterpoint


Bangabandhu and Nelson Mandela
Their decisions regarding amnesty and Truth Commission


After a long bloody war of nine months Bangladesh became independent throwing the yoke of Pakistani colonialism in 1971. After independence the most pertinent question cropped up: How could, and/or should, a nation deal with war criminals and their collaborators? There can be two options--(1) holding a trial for all criminals and collaborators or (2) letting the small fish go but holding a trial for the policy makers, and others, directly involved in the heinous crimes of rape, arson and premeditated killings. The government, led by Bangabandhu, opted for the latter.

With the advantage of hindsight many a decision that the Father of the Nation Bangabandhu Sheikh Mujibur Rahman made, and/or had to make, have been analyzed, questioned and often criticized. It is understandable that not all the decisions of a leader, even a great leader such as Bangabandhu, can be made without being scrutinised, criticised or questioned. But perhaps the most misinterpreted, and misunderstood, political decision that Bangabandhu had ever made has never been questioned so much as his decision of granting "amnesty" to the collaborators of the 1971 war.

The importance of understanding the nature, background and purpose of the said amnesty lies in the fact that it is considered to be one of the most misunderstood, and misinterpreted, decisions that created confusion even among Bangabandhu's own bona fide followers, let alone the general mass. Even many of the followers of Bangabandhu who think, and very rightly so, that Bangabandhu was right in deciding in favour of the amnesty, are not clear in this regard. Many of them support or, at least, try to understand that the action of Bangabandhu, though true in spirit, cannot be detrimental to the interest of the nation, but without knowing the reason why. But a vast majority of the supporters and general public seem to buy the propaganda theory. And thus, we have been committing an historical injustice to the political acumen, and philosophical spirit, behind the decision of the great leader.

This article will clarify what that amnesty declaration really meant, who were covered by the said declaration and who were not. How did the misconception spread, and for whose benefit; and what was the purpose of such a propaganda campaign. Also, this article will defend the decision Bangabandhu took in the light of present day achievements in different countries, particularly in South Africa by its great leader, Nelson Mandela. The comparison will shed light on the depth, and far-sightedness, of the decision Bangabandhu took even before many others had done, or could comprehend.

This writing will try to dispel the doubt so successfully, and intentionally, created by the anti-liberation forces, and maybe unintentionally, but sincerely, subscribed to by many of pro-liberation camp. This writing is meant to clarify the matter for the followers of Bangabandhu, and for the next generation, who have the right to know the unfabricated, and undistorted, history of the nation, and the politics and policies of its founding father.

The promulgation of amnesty
The so-called general amnesty was promulgated on November 30, 1973. The amnesty declared by the administration of Bangabandhu exempted all who were accused, and/or sentenced, under the Collaborators' Act except those who were accused, and/or sentenced, for committing rape, arson and premeditated murders. Thus, the declaration of amnesty exempted, very categorically, the persons accused, and/or sentenced, under the sections 302 (murder), 304 (attempt to murder), 376 (rape), 4435 (arson), 436 (arson to destroy homestead) and 438 (arson in the ship or vessels).This article mentions it as "so-called general amnesty" to press home the argument that the nature of the amnesty was not that general in character; rather it was a qualified amnesty with significant reservations. The language of the amnesty is very clear; that the master minds of rape, arson and premeditated murder, and the actual executors would not be spared from being tried, while the "foot-soldiers," and mere supporters, would be pardoned. Now that it is clear who was supposed to be tried, and who was not, this article intends to find out why the decision was misinterpreted, and how.

Objective, modalities and effect of the propaganda
The misinterpretation of the amnesty, and its language, was done in a way that gives the impression that it was Bangabandhu who was to blame for pardoning the collaborators; and had he not done so the perpetrators of war crimes would not have been able to come to the forefront of political life. The propagandists, often in the guise of pro-liberation forces, tried to sell the idea that it was Bangabandhu who sowed the seed of anti-liberation forces through the decision of granting amnesty.

This is a double-edged criticism. First, it succeeded in creating confusion. It even created confusion among many bonafide followers of Bangabandhu. And secondly, it has been used to justify the steps taken by the subsequent regimes in rehabilitating those war criminals, and in downplaying the criminal intentions, and actual motivations, of those regimes by passing the buck on to Bangabandhu.

In this way the propagandists have been trying to establish an historical untruth that granting amnesty was a political blunder made by Bangabandhu, and that the subsequent regimes, valid or invalid, merely continued that process. But that was not, is not and will not be true. A pardon is a pardon. It does not absolve one of his guilt, or criminal liability, but only reduces, or condones, the punishment. Those who have been granted amnesty are still criminals, and other than spending time in prison, or being executed, they can only live their lives but they cannot take part in the political life of the country, or its policy-making.

The motives of this propaganda are--first, to cover up, and gloss over, the different steps taken by subsequent regimes who successfully rehabilitated those razakars, and secondly, this propaganda, at least, served the purpose of apportioning the sin equally between Bangabandhu, and those subsequent rulers, in rehabilitating those razakars. Thus, this theory imposed the burden of original sin on Bangabandhu, successfully creating the confusion that the subsequent usurpers of power only followed the suit of Bangabandhu. But all these theories are blatantly untrue. Bangabandhu did what he, as a great politician and philosopher, like Nelson Mandela, could ever do to lead a nation towards prosperity, and to heal the wounds of the millions.

The subsequent part of the writing will attempt to find out the historical significance and impact on the society of Bangladesh.

Reason behind the decision of amnesty
We can begin with the question, what could Bangabandhu do? In other words, what alternatives and options were there after a war that left a nation divided--both nationally and internationally, and devastated--both infrastructurally and emotionally. I venture to answer this question first with a view to using the process of elimination to reach a conclusion.

Practical aspect of the decision of amnesty: First, after the war, when the barbaric army of Pakistan surrendered, all the prisoners of war (POWs) were in the hands of India. Though it is not relevant to this writing this opportunity can be used to remind the readers that even a leader like Indira Gandhi could not set up a war crime tribunal to try the war criminals of Pakistan. With the benefit of hindsight, this international political dimension might help to answer some of the questions that might cross one's mind. But that factor does not come within the purview of this writing, and the author will mostly keep himself confined only to the national aspect of the granting of amnesty. A comparison with South Africa, under the great leader Nelson Mandela, can be of some use.

South Africa did not suffer from economic and infrastructural incapacity as did Bangladesh. The end of apartheid came with the end of the cold war, whereas the birth of Bangladesh was right at the worst moment of the cold war. Moreover, years of international condemnation, and resolutions against apartheid were favourable for the blacks of South Africa. The events of Bangladesh did not come to the forefront in the international media until the outbreak of total war, in other words, until it was nearer to the end than the beginning. When the national internal conditions, and international human rights and political situation, both, could have played a greater role in holding trial of the perpetrators of the apartheid regime in South Africa, the national, and international, conditions were against the holding of such a trial in Bangladesh. Even South Africa did not go for a straightforward trial--but chose a more passive way, through the Truth and Reconciliation Commission.

This argument does not answer whether, in case of favourable conditions-- both national and international-- the holding of a trial was justifiable, and/or feasible. A hasty answer to this question might mean that the decision of amnesty was only a pragmatic one rather than being the result of philosophical farsightedness. If so, a danger of making a mistake lurks here. How? Being a charismatic leader, and having such a command over the populace, it was not at all impossible for Bangabandhu to hold a trial of the collaborators, even ignoring the sentiments of some of the countries supporting Pakistan-- communist China, dictatorial Arab states and, to some extent, Nixon's USA (when I say Nixon's USA I mean only the attitude Nixon had personally, having no bearing on the attitudes of the American people and the administration).

While those external situations could influence the decision up to a certain point they were not the sole basis of the decision. This way we can ask the question finally. Under those circumstances--setting aside international situations--could we hold a credible trial without taking the perilous risk of travesty of justice? Was it possible to get over emotion, and the taking of the opportunity, by some quarters, to get even with their enemies at the cost of national interest?

Let us take an example of the recent trial of war criminals in Rwanda. The trial of the Rwandan perpetrators took so much time and money, and yet so little has been done, that the future of such trials seems very bleak; and alternatives are being sought.

The challenge for post-genocidal Rwanda has been how to cope with this mass atrocity, and the huge numbers of perpetrators, in order to achieve some measure of justice, reconciliation and peace for Rwandans. Yet, seven years later, the two retributive responses adopted have made very little progress towards achieving these objectives. The international Criminal Tribunal for Rwanda (ICTR) has secured fewer than nine convictions in five-and-half years of operation, despite an annual budget of approximately $80 million (in US currency) and over 800 staff members. While the domestic genocide trials have made greater progress with their dockets, having cleared an estimated 5,000 cases since 1996, this pace has occurred at the expense of due process granted to the accused. But even if this pace were maintained, it would still take upwards of 120 years to prosecute the estimated 110,000 to 130,000 alleged genocidaires who continue to be held in overcrowded prisons and community lock-up cells throughout the country.

We did have lack of prisons, lack of judicial infrastructure and so on so forth--with so many lacks how can it be possible to hold a fair trial? Did we have enough instrumentalities to sift through the genuine allegations from locally biased ones? When one could be killed for being a mere Muslim Leaguer, or Jammat supporter, during wartime could we, or should we, try anyone only for his belief in the absence of evidence of criminal activity? We did not have the judicial mechanism to hold such a huge trial, without risking a great historical miscarriage of justice.

The case of Bangladesh can be considered in the light of this scenario. We did not have money, but we did have very influential enemies. We did not have any infrastructure. It was the time for the leader of the nation to set the priorities--building the nation from the ashes of war and devastation.

Did this practical impossibility of holding a trial propel, and/or compel, the great leader to decide for an amnesty? Perhaps, concluding that would only mean injustice done to the Father of the Nation. We should not shy away from the philosophical perspective of the decision of the amnesty.

Philosophical aspect of the decision: Should these practical impediments mean that the real culprits can go with impunity, and the victims, and their families, must go without a remedy? This should be a very logical and relevant question. According to legal principles, if there is a right there is a remedy for its breach. And a wrong should not go unpunished. If that be true then what remedy the nation, those families and the victims are getting by an amnesty.

South Africa, under Nelson Mandela, did not take a direct confrontation strategy after the end of apartheid. Was it not possible, particularly in view of the fact of duration of discrimination, gravity of atrocity and international support, to bring the oppressors to justice, directly, without adopting other mechanism? It was more likely in comparison with the situation Bangladesh faced at that time. By this time the international human rights monitoring mechanism had developed to a great extent. South Africa had more international political support, a sine qua non for such a trial, in comparison with Bangladesh during 1971, so that it was not impossible to hold a trial.

But Nelson Mandela, a philosopher and a statesman much like Bangabandhu, knew the true interest of the nation, the practical possibility, and impossibility, of the things and viewed them from a perspective of the future, not being overpowered by emotion of the happenings of the time, and in the broader perspective of history. Let me cite great leader Nelson Mandela from his address to the Interfaith Commissioning Service for the Truth and Reconciliation Commission in Cape Town on 13 February, 1996:

"All South Africans face the challenge of coming to terms with the past in ways which will enable us to face the future as a united nation at peace with itself. To you has been entrusted the particular task of dealing with gross violations of human rights in a manner that ensures that the painful truth is laid bare and that justice is done to the victims within the capacity of our society and within the framework of the constitution and the law. By doing so, and by means of amnesty, your goal is to ensure lasting reconciliation.

Conclusion: What should the nation do now?
Bangabandhu was far ahead of his time and history. He ventured to do something his contemporaries would not have dared to do. This was obviously an unpopular, but courageous, decision. Only a leader with heart full of love for his/her nation and the confidence of doing the right thing can decide so. That goes beyond pragmatism. So did great Nelson Mandela.

History will prove the correctness of his decision. Socrates was punished for thinking ahead of his time, and so was Galileo, then why not Bangabandhu? Most of the great personalities had to suffer for being ahead of their time. And history would recognise that Bangabandhu was one of the victims of history, and one who would be rewarded by history ultimately. Now it depends on us, and how soon we can understand that.

Thus, Bangabandhu's decision survives the acid test of history. Therefore, it is time to bring those unrepentant, and ungrateful, souls to trial who professedly have chosen not to be covered by that amnesty. It is so because amnesty is for those who could not recognise the gravity of their actions at the time of committing those crimes. But a person takes himself, or herself, out of that when he, or she, recognises the fact that he or she, was not out of his, or her, mind at the time of committing those heinous crimes. Someone's ungrateful attitude, and the defending of past actions are proof of their intention. And, thus, they voluntarily take themselves out of the amnesty. Therefore, those who are boasting of their past criminal activities have virtually broken the implied conditions of the terms of their probation and, thus, are liable to be tried.

If we read between the lines of the decision of amnesty, it was subject to an implied condition that placed the wrongdoers on probationary terms of good behaviour, not to repeat their past activities. But as they failed to comply with those terms they are now liable to enhanced punishments. But those who complied with those terms still should benefit from the decision of our great leader, real statesman and political philosopher Bangabandhu Sheikh Mujibur Rahman.

The author is a practicing attorney in New York, USA. He expresses gratitude to Prof. Frank P Grad and Louis Henkin of Columbia University Law School for their inspiration and also remembers the contribution of Prof. Abu Sayeed, Meeka Bhattacharya and Selim Omrao Khan. He can be reached at legalquery@myway.com or 212 714 3599 (Tel).
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