Nazir Ahmed* Mr Chairman, the honourable Chief Guest, special guests, learned friends and colleagues, ladies and

gentlemen. I am privileged and honoured to be able to share some of my thoughts and experience of the much talked International Crimes Tribunal (ICT). I have had the chance of visiting the International Crimes Tribunal twice. First time I visited at the beginning of the last year when the trial did not commence. Second time I visited at the begging of this year [In fact, at the beginning of last month] where the trial of Allama Delwar Hussain Saydee was going on. I believe that had I been a British trained lawyer alone, I wouldnt probably have access to the Tribunal. Because I happen to be an Advocate of the Supreme Court of Bangladesh, they could not probably restrict me. Let me share some of my thoughts and experience of the 1973 Act and the trial being conducted under the Act: Firstly: International Crimes Tribunal was set up and the trial is being conducted under the International Crimes (Tribunal) Act 1973 and the rules made under that Act. The 1973 Act was passed to try offences committed during 1971. That means the law was given retrospective effect. The Supreme Court, on unanimous opinion on the BDR massacre matter when the President referred it to them for opinion, ACC V Tareq Rahman case and other matters, clearly said that the laws in Bangladesh could not take retrospective effect. This unfair law of the 1973 cannot be challenged in the High Court due to constitutional bar. Secondly: Atrocities and crimes in 1971 were mainly committed by the Pakistan armed forces under the orders of their commanders and political masters and conspirators. So the real war crime suspects would be: as military commanders General Tikka Khan, General Niazi, as a political master President Yehya Khan and probably as a conspirator Mr Bhutto. In the operational level, 195 armed forces member of Pakistani army identified through intense investigation. Then the question of auxiliary forces or abettors would come. Water flows from the top of the mountain not the vice versa. 1, 2, 3: these are the sequences. The government seems to have started from the opposite direction for probably political reasons. If the government is really sincere and honest in the trial of suspected war criminals and if they want to end the culture of impunity, then they should have started from the rank and file mentioned earlier. Thirdly: The 1973 Act was passed mainly to try 195 identified members of the Pakistan armed forces who were released through a tripartite agreement. If the parliamentary proceedings of 1973 were revisited, the real intention of the then Parliament would clearly be found. The 1973 Act denied the fundamental rights guaranteed by the countrys Constitution.

Not only this, the 1973 Act made the Evidence Act and Code of Criminal Procedure (CrPC) inapplicable to these proceedings. These were done thinking and bearing in mind that the accused were all foreign nationals and as such domestic fundamental rights under the domestic Constitution and Evidence Act and CrPC were not needed to be given or applied. Now that law is being used against its own nationals. It is awkward and beyond conscious that the law was passed for one purpose but it is being now used for completely different purpose. Had there been no constitutional bar this could have been challenged in the High Court. Fourthly: International Crimes Tribunal seems to be neither international tribunal nor fully domestic tribunal. If it was an International Tribunal it should have followed and applied all relevant customary international laws and conventions. If it was a proper domestic tribunal, it would have applied all regular domestic law and followed its constitutional provisions. In my view, the Tribunal is a special domestic tribunal set up with special purposes. Some purposes are visible which are not difficult to realise. Others will be clear with the passage of time. Fifthly: There is an established principle in criminal law that everyone is innocent until proved otherwise. It would appear from the conduct of the prosecution and political and apparent biased media atmosphere in Bangladesh that those who were arrested are considered to be guilty until the Tribunal finds the opposite. The accused who were arrested are not even convicted yet. Yet almost all print and electronic media and participants in the various talk shows regularly and routinely call the accused as war criminals. They do not even have slightest courtesy to call them suspected war criminals. Sixthly: Another principle of the criminal trial is that the benefit of doubt should be given to the accused. But in the trial process of the International Crimes Tribunal, the benefit of doubt seems to be given to the prosecution. The Tribunal routinely returns documents including the charge sheet to the prosecution with a direction or suggestion of resubmitting in structured way, concise way and better way. Why would this happen? If there was any ambiguity and unclearness in evidence and charge sheet, the accused would get the benefit of those ambiguity and unclearness. Seventhly: In Anwar Hossain Chowdhury V Bangladesh, 1989 BLD (commonly known as the Eighth Amendment case), the Supreme Court of Bangladesh held, inter alia, that the judicial review is one of the pillars/structures of the Constitution. The Supreme Court is considered as the guardian of the Constitution. Its High Court Division has original, appellate and special jurisdiction (Art. 101 of the Constitution). The High Court Division has superintendence and control over all courts subordinate to it (Art. 109 of the Constitution). Despite all these

provisions, no judicial review can be invoked or no appeal can be lodged to the High Court against any interim order of the International Crimes Tribunal, no matter how unjust or unfair the order is. The only appeal can be lodged to the Appellate Division of the Supreme Court and again only after conviction and against the conviction alone! Eighthly: In relation to the witnesses, giving/taking evidences and other relevant matters, I will say three points: (1) During the days I was in Tribunal, total nine witnesses gave their evidence. Defence inquiry/investigation and intense cross examination brought into light that out of those nine witnesses seven had previous conviction of theft, burglary, deception and wife beating/torturing for dowry etc. Would that be safe to convict someone based on the evidence of those witnesses whose honesty and credibility are greatly at stake? That remains to be seen. A witness was charged with an offence. He would have been convicted if the trail went ahead. But the matter was settled through mediation in which the witness paid compensation and expressed deep apology. Cross examining the witness in relation to this matter was not allowed by the Tribunal. The Tribunal did not even allow the defence to bring this vital matter into light by saying that that the witness was not convicted even though paying compensation and expressing apology put question into his integrity and credibility. (2) During the cross examination, the prosecution was found routinely interrupting the defence lawyer. When the witnesses are about to give some vital answers or disclose some vital information which would go in favour of the accused, the prosecution lawyers start making noise or shout in such a way so that the witness can get clue. For example, a witness says something, but the prosecution would shout and say no no the witness says that thing. In that way witnesses get alerted or at least get tips on what to say. The Tribunals conduct and action seemed to be mysterious. (3) Even in a civil hearing in England while a witness is giving evidence, the other witnesses are not allowed to be in the court room. A funny thing I have seen and I am sure many observers have seen that while witnesses are giving evidence, the Investigating Officer (IO), who is also a witness, is allowed to be in the court room. Often witnesses from the witness box can have eye contact with the IO. Conclusion As a lawyer I would want a fair trial under a competent and impartial Tribunal. In order to ensure fairness, impartiality and credibility, the Tribunal should be either International Tribunal following all relevant international laws and conventions, or it should be purely domestic Tribunal following all domestic laws and fundamental rights guaranteed by the Constitution. Fitting a cars tyre into a cycle can neither serve the

purpose of a cycle nor a car. It can probably be put into a museum. Similarly, the trial process of the widely publicised international crimes under the 1973 Act law can neither get international credibility nor can it domestically settle the issue and end the culture of impunity. Rather, I suspect it can further create divisions, mistrust and vengeance among the citizens of Bangladesh from decades to decades. **This Paper was presented as a Keynote Paper at an International Seminar on 13 February 2012 held in London , UK . *Nazir Ahmed FRSA FCMI FCIArb LLB Hons ( London ), LLM ( London ), Barrister-at-Law ( Lincoln s Inn ), Advocate, Supreme Court of Bangladesh