Reviewing The Views
Our judicial legacy of 1971
S. M. Masum Billah
How does the judiciary of Bangladesh respond to our liberation war? In the juncture of trial of crimes against humanity, genocide and the like, it is proper to examine the attitude of our highest judiciary towards the spirit of liberation war 1971. We need to understand that Bangladesh is the first country in the world which is trying the perpetrators of 'international crimes' in a domestic tribunal. The Kader Mollah verdict gave a massive wave of criticism and consequently, a social transformation is taking place in our motherland. Mollah's verdict was a surprise on the face of the record. But it also should be viewed from a judicial history perspective, where the responsibility of the judiciary as an equal, coordinate organ of the state should be studied and evaluated. Before the inception of International Crimes Tribunal Bangladesh (ICT-BD), the war crimes issue came indirectly (or somehow directly) for the consideration of our apex court in several cases. In the following paragraphs I'm trying to sketch the mindset of the judiciary in cases involving 1971 issues. At first the constitutional basis of Bangladesh should be grasped very minutely.
The Constitution of Bangladesh is an impression of sweat, tears and blood, the words used in it are not merely black and white letters. Therefore, in our constitutional dispensation we need to revert to this root always when we interpret and understand the constitution. A judge also should keep this historical fact in mind while dealing with the issues of our came into being as a nation. Why did we become a separate nation, why did the people of this land decide to form a state is sacredly embodied in the Proclamation of Independence. As a response to unprecedented savagery, treacherous war levied upon us by the Pakistani authoritarian regime -- as a retort to crude contempt of human rights, Bangladesh declared the independence on 26th March 1971 in order to ensure for its people equality, social justice and human dignity. This Proclamation is the beaconing light of our spirit of liberation war and judicially has been settled as: 'The genesis of Bangladesh Constitution' (Per J. B. H. Chowdhury in 8th Amendment Case). So, the widely hailed rule of interpretation i.e. the purposive interpretation should be understood in Bangladesh context to signify the spirit of liberation war. Anything repugnant to this journey should be discarded and thrown away.
The first saga to our spirit of liberation war was given by Justice A S M Sayem, when he conceded martial law subjugating the constitution. The irony of fate is that this Justice Sayem formulated the footholds of public interest litigation in Berubari Case, in 1974 when the concept was still unknown in the Indian subcontinent and was maturing in England in the hand of Lord Denning. The second saga on the constitutional supremacy (note that I'm taking martial law as opposed to mockery to our emergence as a nation and as a manipulation and tailoring to restore the anti-liberation elements like rehabilitation of Golam Azams in the socio-politic corpus of Bangladesh) was done by J. Ruhul Islam in Halima Khatun Case(1978). Here is a para from the judgment: “It may be true that whenever there would be any conflict between the Constitution and the [Martial Law] Proclamation ... it does not seem to concede such superiority to the Constitution. It has lost its character as the supreme law of the country…..It was the duty to the judges to administer a 'harsh' or even an unjust law.” Indeed this was a stigma bearing an impression of decadent jurisprudence which knocked down the backbone of our judicial thought.
A very important case bearing the genocidal and crimes against humanity issue came before the Appellate Division in 1982 in Dr. Sazzad Hossaen v. Registrar, Dhaka University, where the apex court declared the termination of the petitioner from Vice-Chancellorship of Dhaka University on the allegation of his involvement in abetment to intellectual killings in 1971, void. In this case the spirit of liberation war was thwarted in the face of grammar of law. Ordinance 67 of 1972, designed to purge out the razakars from the administration came before the Appellate Division for examination. The relevant section 5(b) can be reproduced here for the understanding of the readers: “The Board shall upon reference made to it by the government agencies or an information received in writing from any source, examine the case of a government servant with reference to his activities, records and such reports or allegations made against him in respect of- (b) Conduct or activity in exercise of powers or in the discharge of duties manifesting ardour or zeal amounting to collaboration, that is aid, assistance or support to any activity directed against the liberation struggle or the creation of Bangladesh or conduct exhibiting faith in and support to the ideology of Pakistan or conduct in support of the elements inimical to the liberation struggle or to the creation of Bangladesh including in particular, the occupation forces of Pakistan”.
The para was preceded by the expression 'official capacity' which posed the question that whether all the conducts in the above para should be done in 'official capacity or the word 'official capacity' should only be applicable in case of the first 'conduct'. Justice Kemaluddin Hossain divided the para by three 'conducts' and was of the opinion that only first conduct should be done in 'official capacity' to be punished but other two conducts may be punished even if it is committed in an individual capacity. To quote Justice Kemaluddin Hossain: “I am re-informed in reading these clauses disjunctively, because these three clauses are separated, first by the word 'or' and 2ndly by the word 'conduct' at the beginning of each of the three clauses. If they are read conjunctively then the word 'conduct' in second and third clause becomes either tautologous or superfluous. But if they are read disjunctively all the three clauses fits in grammatically and semantically for the purpose of the Act.” Through this observation he found Dr. Hossaen guilty of Pakistani zeal. Unfortunately, other majority judges led by J. B H Chowdhury read the para conjunctively and found Dr. Hossaen not guilty. They also questioned the validity of the Ordinance on the ground of violating the 'retroactivity' principle. Thus, through this majority decision, an ardent advocate of intellectual killings Dr Sazzad Hossaen, was again judicially rehabilitated paving the way for others. This literal approach of the majority judges produced wholly an unreasonable result. For reader's interest, it will be relevant to quote one English legal mind, Lord Reid, “to apply the words literally is to defeat the obvious intention of the legislature and to produce a wholly unreasonable result. To achieve the obvious intention and to produce a reasonable result we must do some violence to the words ...... the principle is well settled.”
Then came the black chapter of our judicial acumen in Golam Azam's citizenship Case (1994). In this battle, judicial giants like J. M Habibur Rahman, J. Mustafa Kamal, J. ATM Afzal and J. Latifur Rahman confirmed Azam's citizenship terming his involvement in 1971 atrocities as 'irrelevant' and 'political'. To quote from a paragraph of the judgment: “In considering a matter before it the Court will only consider whether the aggrieved person has got the legal entitlement to the relief claimed. Any consideration of his political antecedents having no bearing on the questions of law involved in the matter will be irrelevant. Equally, it will be irrelevant to consider to what probable political consequences will follow if the citizenship is granted.” Irony is that a Zimbabwe case was referred to deny Azam's role saying: “Political antecedents to an aggrieved person, otherwise notorious for his anti-people role” should be rejected. The Appellate Division unfortunately failed to appreciate its political legitimacy (source of power) and the origin of the constitution under which it was dispensing justice. And the decision has been the cause of national catastrophe in the days to come.
Then in a fine political revolution in 2009, the government constituted the ICT-BD to try the perpetrators of 'international crimes' within Bangladesh's Jurisdiction. For this time these were defined cases of war atrocities. The first three verdicts of ICT-BD ( Abul Kalam Azad Case, Kader Mollah Case and Sayedee Case) are rather based on the above enfeebled judicial mindset which we were carrying. It should be admitted that the verdicts are definite breakthroughs from the court's previous legacy, though the Mollah verdict failed to go at par with the people's expectation. What may be the factors that enticed the judiciary to give 'less than people's expectation' verdict? One may be the 'play portia role' of international criminal law and other one is definitely, political dwindle-ness on the issue. Our political culture suggests that we have always learnt to criticise the government for the court's verdict and failed to draw a bottom line between the organs of the state. This phenomenon has encouraged the judiciary to be lenient on the 1971 issue. In the claptrap of past-mindset, the domestic prosecution of 'international crimes' by the apex judiciary of Bangladesh (including the ICT-BD) is set in fine tune. In the past cases, the people's reaction did not reach in an orchestra to make the judiciary accountable for its findings. The Shabagh renaissance may touch the judiciary for a transformation. It appears to be true in Sayedee verdict.
The writer is Assistant Professor of Law, Jagannath University, Dhaka.