The honesty and integrity of the British media has come under serious scrutiny in the recent past. Australian Media Tycoon Rupert Murdoch has been compelled to close down his “News of the World” when charged for its unholy methods of tarnishing the image of leading personalities and smear nations. Rupert Murdoch had to appear before a parliamentary probe committee and regret for the scam. Almost at the same time Another British media “The Economist” has published has carried a highly controversial report questioning India- Bangladesh relation, the emergence of Bangladesh, the genocide by Pakistan occupation army in 1971and the trial process of the identified War Criminals of 1971.

The report without any credible evidence has brought out an allegation that Indian Government sponsored the Awami League with money and advice to win the 2008 elections. Congress is in Indian state power, and there is a historic link between the Congrees and Awami League based on good wish or even blessings as both champion democracy. But how can a leading international media mention that Indian Government provided monetary support to Awami League? Do they have any credible evidence? Neutral observers and world media unanimously acclaimed the free, fair and transparent election of 2008 . Even no major objection was raised by any of the opponents. But how after two and half years later “The Ecomonist” could bring up such a serious allegation? This report has definitely undermined and in fact embarrassed both India and Bangladesh. The countries have every right to question validity and authenticity of the report. This is more pertinent at this moment since two friendly SAARC neighbors after years of mistrust and disbelief have started positive actions to resolved several outstanding issues – water sharing , enclave exchange, joint actions against terrorists, boundary disputes resolution, regional connectivity , trade rationalization . Some issues were fundamentally agreed during Bangladesh PMs Visit to India and most of the others are at advanced stage for meeting of minds of the highest level at the upcoming summit of two PMs in Dhaka in September 2011.

In Bangladesh there is a group of people who in everything smells some Indian fish .This group though do not hesitate to use Indian Garments, go for shopping to India or get medical treatment to India when required. They do not object to use dirty polluting Indian coal but they raise hue and cry when Government takes imitative to explore own sweet coal or explore for petroleum in the offshore. This group sure will be encouraged by such yellow journalism of “The Economist.
Economist report questioned visit of Congress Chief Sonia Gandhi’s visit to Dhaka in a satirical manner. Sonia was in Dhaka on invitation of PM Hasina to attend an international seminar on Autistics Children and to receive the highest civilian award [Posthumous] on behalf of Late Indira Gandhi for her motherly contribution during the liberation war. There cannot be any question if the chief of the two ruling political parties share ideas and opinions on the regional politics and government affairs anytime anywhere.

The report also questioned the crackdown of militant groups and terrorists by Bangladesh Government. The section of the report may be quoted here:

Ever since 2008, when the Awami League, helped by bags of Indian cash and advice, triumphed in general elections in Bangladesh, relations with India have blossomed. To Indian delight, Bangladesh has cracked down on extremists with ties to Pakistan or India’s home-grown terrorist group, the Indian Mujahideen, as well as on vociferous Islamist (and anti-Indian) politicians in the country. India feels that bit safer.

We will be extremely pleased if Economist can provide the credible evidence of the bag of cash that it is alleging to have been provided by Indian Government . If not Economist owe an apology to both India and Bangladesh.

From 2002 – 2006 Bangladesh became safe haven of terrorists. Finance Minister SAMS Kibria, popular MP Ahsanullah Master was killed by grenade attacks. Attacks were carried out against British High Commissioner in Bangladesh, Mayor of Sylhet, and MP Suranjit Sen Gupta. Finally terrorist under state sponsorship killed several Awami Leaguers including wife of Bangladesh President in a carnage and mayhem in front of Awami League Central office at the heart of the capital city. The terrorists became so organized that they could carry out simultaneous grenade explosion in 64 places of the country at the same time. People were killed at court buildings, cinema hall. It was alleged that some country’s intelligence agency unfriendly to both Bangladeshi progressive force and India setting up safe training shelter within Bangladesh trained terrorists and provided deadly weapons to carry out subversive activities within Bangladesh and India. A huge arm haul was confiscated at CUFL Jetty of Chittagong which was allegedly transited through Bangladesh for a separatist group of India. Present government very courageously took appropriate actions against the group. Government has also initiated actions to authentically probe all acts of terrorism of the past. Instead of admiring governments efforts Economist report has unfortunately criticized the admirable Bangladesh action.

The saddest part of the report is that it questioned the Bangladeshi initiative of conducting trials of identified war criminals. There can be any or many difference of opinion about the process of conducting the trials. But it is a long term legitimate demand of the Bangladeshis to try and punish the collaborators of Pakistan Army in carrying out genocide, rape, looting and arsening in 1971. Economist has unfortunately advocated for the alleged criminals under custody. The intent and purpose of the report is well understood.

The report also questioned about various outstanding bilateral issues resolution process. It has questioned regional connectivity. We cannot deny our geographical reality. We are surrounded by India from 2.75 sides. Any regional connectivity will benefit all nations. If India can connect its major regions with neglected Nagaland, Mizoram and Tripura through it how it harms Bangladesh? Why we are apprehensive that India will transport Army or Military gazettes through the corridor? This connectivity is for trade and commerce only. However, we are not fully aware about the details of the regional connectivity. It will not be wise to talk about it at this stage.

In conclusion we like to request the editor of “The Economist “ to clarify the issues raised in the report and address the Bangladesh response .If such kind of reports are regulary published who knows some day it may have to embrace the same fate as Rupert Murdoch’s “ The News of the World”.

Thousands of protesters marched in capital Dhaka on Thursday against Bangladesh parliament adopted an Islamic constitution, steering away from a secular political culture, which was enshrined in 1972 constitution.

A half a mile long rally organized by a conglomerate of left parties and pro-secular groups, chanting anti-government slogans and waving red flags marched towards the parliament, where the ruling party and her alliance lawmakers hastily adopted several amendments to the constitution on Thursday noon.

Hundreds of riot police in flak jackets, armed with shot guns and tear gas shells blocked the marchers putting up barbed-wire fences. The protesters in summer heat and intermittent rain stopped at exit of the Dhaka University, where leaders in makeshift dais addressed the crowd and bitterly criticized the government for switching to an Islamic constitution.

In a massive constitutional reform, the non-partisan interim government has been deleted, which was practiced for 15 years to hold credible elections and ensure smooth transition to an incumbent political government. The opposition fears that the ruling party will rig the election, despite denial by the prime minister.

A set of 55 amendment proposals were incorporated in the constitution amendment bill by 289-1 division vote.

Main opposition described the abrogation of neutral caretaker government from the democratic constitution will be written in the history as a “black day”. Opposition leader and former prime minister Khaleda Zia threatened series of street protests and political agitations to undo the constitution reforms.

Prime minister Shiekh Hasina warned the opposition not to create anarchy and instead olive branches to hold parleys with the government and suggest how to hold a credible election scheduled in 2014 and also reduce military interference in state polity.

The prime minister was highly critical of the last military-backed caretaker government (2006-8), which sent the present prime minister and opposition leader to prison for corruption.

The independence war veterans, secularist and left leaning parties have came down heavily on the government for converting a secular political culture to an Islamic one.

Several lawmakers mostly from the left leaning parties have voted against the proposed amendment of the constitution, which has included Bismillah ir-Rahman ir-Rahim (in the name of Allah, most gracious, most merciful), a verse from Koran in the preamble and Islam as state religion.

The ethnic minority leader Mangal Kumar Chakma in a statement protested the new constitution, which has termed the indigenous peoples as “tribals, small nationalities, ethnic groups and communities.”

What angered the indigenous peoples when the discovered that they have been bracketed as “Bangalee”, who are majoritarian Sunni Muslims. The indigenous communities divided in several sub-groups have different languages and are mostly Buddhist, Hindu and animist.

Bangladesh gained independence from Islamic Pakistan after a bloody war on the principle to establish a secular and democratic nation.

Former Justice Golam Rabbany lamented at a seminar on Thursday that from now the nation has lost its secular identity, which was gained after decades of struggle. The sacrifices of thousands of martyrs during the independence war, forty years ago have been insulted, he decried.

The January 2011 invitation conveyed towards Mr. Rapp by the Bangladesh Government reflects its commitment towards conducting the war crimes trials in a manner that is fair and transparent. However, it must nonetheless be mentioned that Mr. Rapp’s recent actions and opinions he expressed with regard to the war crimes trials process in Bangladesh, a purely domestic and an internal process, amounts to a direct violation of Article 41(1) of the Vienna Convention on Diplomatic Relations. It is the responsibility of those enjoying diplomatic immunity, like Mr. Rapp, to be respectful towards the laws and regulations of a receiving state, including a duty not to interfere with the internal affairs of that state. This particular provision has long been a part of customary international law and is included in an international convention that the US is a signatory. These suggestions of Mr. Rapp are undoubtedly a subtle form of diplomatic bullying and amount to a lapse in diplomatic norms because they are designed to interfere in an internal Bangladeshi affair. There is the need, however, for broader civil society engagement that can in effect enhance the quality of the current justice initiative, and ICSF has on this occasion chosen to overlook this diplomatic impropriety and critically focus instead on the content of his observations.

It is a legitimate expectation that a letter issued by the US Ambassador-at-Large for War Crimes Issues to the Bangladesh Government would be of confidential nature. Yet, the letter issued under the official letterhead of the ‘‘United States Department of State Office of War Crimes Issues’’ reached the hands of the press, which surprisingly provided an uncritical reception to the letter’s contents subjecting the current justice process to a great deal of uninformed debate. This also led to the generation of further misleading comments by various quarters on key doctrinal and legal issues surrounding the ICT and its governing statute. The advent of Mr. Rapp’s confidential letter before the press and the ensuing uninformed debates has prompted the ICSF to comment from an independent point of view to examine the merits of his suggestions regarding the ICT and its governing statute. ICSF believes that criticisms of the ongoing war crimes trial process in Bangladesh in the form of suggestions, especially when exposed before the public domain, must be based on correct factual and legal premises. The citizens of the People’s Republic of Bangladesh, as well as the international community at large, deserve to be made aware of the issues that are pertinent to fairness in the justice process. At the same time, criticisms or suggestions from any quarter need to be fair, well-informed, and carefully construed so they are not based consciously or unconsciously upon misconceptions about a justice process that is purely domestic in every sense.

Undoubtedly, it is necessary to ensure that the proceedings against persons alleged to have committed crimes under the jurisdiction of the ICT are carried out in a manner that is free and fair. However, it is also important to ensure that the justice process initiated by the ICTA and the ICT does not become a victim to misconceived and unrealistic demands. What must be remembered is that the objective of the justice process that the Bangladesh Government has decided to carry out has the underlying goal of ensuring justice to the countless victims during the Bangladesh Liberation War of 1971 so much so that the democratic aspirations of the people of Bangladesh are established, a death blow is given to impunity and finally a milestone step is taken towards the establishment of the rule of law.

As an exercise in civil society’s engagement with the current justice process, the objectives of this policy paper are: to evaluate Ambassador Rapp’s suggestions on ICT and ICTA, assesses the conceptual validity of his legal analysis and presents the doctrinal and conceptual positions that should correctly apply to the ICT on the issues raised.

The following paragraphs present a critical evaluation of the major suggestions offered by Mr. Stephen Rapp to the Government of Bangladesh regarding the ICT and its law and process.

Misconceptions, Unrealistic Expectations and International Standards:

In his letter to Bangladesh Government, Mr. Rapp wrote, “my hope is that this paper will further inform the ICT on current international judicial standards … to ensure that its proceedings are independent, fair and uphold international standards so justice can be done, and seen to be done, for the people of Bangladesh”. It is necessary to ensure the fairness and quality of the justice process initiated by the ICT, but attention must also be given so that only the legitimate standards of law are enshrined in the ICTA. A failure to maintain the right balance always leaves scope for bringing an end to impunity and establishing the rule of law of being frustrated.

If read carefully, it can be seen that Mr. Rapp, by urging the Bangladeshi Government to amend the ICTA in order to raise its standard to that of current international norm, has contradicted himself at a number of places and has done so without appreciating the true nature of the ICT operating currently in Bangladesh. Although he has mentioned that the ICT is a “purely domestic court,” in his analysis and comments, Mr. Rapp has effectively ignored the purely domestic nature of the ICT. In fact, the only international element in ICTA is the crimes it defines, which are regarded as matters of international concern because of their grave character. Therefore, other than the specific nature of the crimes, the ICT is purely a domestic tribunal that has been established to try crimes of international nature criminalised by a piece of domestic legislation enacted by the Bangladesh Parliament.

In other words, the legitimacy of the International Crimes (Tribunals) Act, 1973 is dependent not upon any international instrument of law, irrespective of Bangladesh being or not being a party to it, but on an overwhelming decision of the Bangladesh Parliament, a democratically elected body of representatives constitutionally mandated to enact legislation. As such, the ICT can only be interpreted in light of the framework set by ICTA and not any other legal instruments of international nature.

Though Mr. Rapp himself noted at the beginning of his letter that the ICT is a “purely domestic court,” he was oblivious of this observation throughout the remaining parts of his letter. It appears that the moment Mr. Rapp noted that the name of the Tribunal was preceded by the word “international” and possessed jurisdiction over crimes such as Crimes against Humanity, Crimes against Peace, Genocide, and War Crimes, he automatically, but nonetheless, wrongfully assumed that the Tribunal must be treated as an ‘‘International Tribunal’’ at par to the ICTR, ICTY, SCSL, ECCC, ICC and others.

At one point in his letter, Mr. Rapp curiously argued, “many would look to the ICT as a model as to how a purely domestic court can successfully prosecute and hold accountable perpetrators of atrocities and human rights violations that are prohibited by international law” [emphasis added]. It is, however, not clear why Mr. Rapp insists that the ICT has to be a model for other countries where the mandate and priority of the ICT is limited and clearly specified- that is, to restore accountability for the crimes committed in 1971 and providing redress to the victims.

Mr. Rapp repeatedly asserted the essentiality of maintaining “international standards” and “highest international standards for justice” without analysing the standards of justice in Bangladesh, which is what the ICT has been designed to uphold as a tribunal operating under a Bangladeshi law enacted by the Bangladesh Parliament. In fact, by doing so, Mr. Rapp has joined the bandwagon of other experts and organisations that have commented and suggested incorporation of normative and procedural provisions of the ICC Statute into the ICTA. The troubling reality with regard to this particular suggestion is that it fails to point to a single provision in the Rome Statute that asks Bangladesh, as a State Party to the ICC, to copy and paste its provisions and procedures in its purely domestic trials. Suggestions of such nature also fail to consider the impacts of importing these so-called highest international standards, such as how these standards will be reconciled with the prevailing legal order in Bangladesh. Therefore, among others things, Mr. Rapp’s letter does not answer how there can presumably be two separate, distinct, and competing standards in a legal system.

Mr. Rapp also fails to understand that the ICT is not the product of negotiated compromise between States, as other tribunals like he ICTY, ICTR, ICC are, but is rather a justice process for the victims of Bangladesh and for crimes committed in Bangladesh. Accounting for those who committed the most heinous of crimes during 1971 and restoring the rule of law by bringing an end to impunity has been a long-held aspiration of the people of Bangladesh. Therefore, the process initiated to form the ICT through the ICTA was essentially by and for the people of Bangladesh, a standard required by international instruments such as the ICC.

It also must be understood that the ICC has no overriding authority over national jurisdictions; rather, it is a mechanism complimentary to national system, which is activated in the event that a state is unwilling or unable to prosecute these crimes. Clearly, Bangladesh stands opposite to this scenario because it has on its own wisdom and authority undertaken this process even after nearly four decades of the commission of the concerned crimes.

As a State Party to the Rome Statute, Bangladesh has a “general obligation to cooperate” under Article 86, which states that the “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” The other obligation in Article 115, “Funds of the Court and of the Assembly of States Parties,” under which Bangladesh has to pay “assessed contributions” to fund the ICC and the Assembly of States Parties. There are no other positive obligations emanating from the ICC.

Moreover, the ICC Statute is very candid about the limitation of its applicability. This is clearly indicated in its definitions of crimes, which start with the same limiting provision that the definitions given are “For the purpose of this Statute…” [See Article 6, 7(1) and 8(2)]. This means that the definitions of crimes within the Rome Statute are to be applied only for the purposes of the Rome Statute and not beyond it.

Furthermore, Article 10 of the Rome Statute declares, “Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.” It is important to take note of the word “existing” in this Article, which clearly implies that the Rome Statute is not to override, limit, or prejudice rules of international law. Therefore, the Rome Statute does not invalidate or subvert the legal principles enshrined in the Nuremberg Code or the governing statutes of other tribunals like the ICTY and ICTR. Therefore, the Rome Statute cannot negate or subvert the ICTA.

With regard to the statutes of the ICTY and ICTR, these were drafted by the UN Security Council. Bangladesh, as a Member of UN, has an obligation to cooperate with these tribunals; but that is the end of its obligations. The statutes and accompanying Rules of Procedure and Evidence of these tribunals, except in terms of cooperation, have no effect on the laws or the legal system of Bangladesh.

In his letter, Mr. Rapp also did not adequately explain as to why Bangladesh has to maintain highest international standards for Crimes against Humanity, Genocide, and War Crimes, and not for other crimes. Furthermore, he also did not mention which international instrument in particular obligates the ICT, or for that matter Bangladesh, to uphold the highest international standards. Bangladesh already has a well-developed and time-tested legal system and respect for rule of law. These abilities are internationally recognised. In December 2009, ICC President Mr. Justice Sang-Hyun Song expressed his full confidence in the ability of the Bangladeshi legal system to address crimes identified under ICTA. Justice Song stated, “the ICC has no room to intervene in war crimes committed in 1971.’’ Furthermore, he reiterated that the ICC’s jurisdiction covers crimes committed after the institution’s establishment in 2002. Justice Song maintained that the ICC did not override national jurisdiction. It is therefore evident in this particular case that the provisions of the ICC shall not override the jurisdiction of the Bangladesh legal system.

Thus, there is no obligation on the part of the Bangladesh Government to amend the ICTA with the purpose of incorporating international standards. The ICT is and will remain a purely domestic court, as has been rightly identified by Mr. Rapp. The ICT as a tribunal belonging to the independent and sovereign state of the People’s Republic of Bangladesh should be allowed to function as per the domestic standards determined by the Bangladesh Parliament.

Regarding Retroactivity, Adherence to the ICCPR, and the Death Penalty:

In his letter, Mr. Rapp referred to Article 15(1) of the International Covenant on Civil and Political Rights (ICCPR) and wrote, “The creation of a Tribunal in 2010 with jurisdiction to try certain specified crimes committed in 1971 based on a law passed in 1973 does raise a number of questions as to the permissibility of retroactive application of the law.” Mr. Rapp has also called for the Bangladesh Government to determine if whether the ICTA is ultra vires to the Bangladesh Constitution: “the question of whether a retroactive statute may be given effect must also be determined under the constitutional law of Bangladesh. A party to a proceeding before the ICT should be able to raise questions as to whether provisions of the 1973 Act and the 2009 amendments violate international or domestic law as to retroactivity as well as other jurisdictional matters.”

Mr. Rapp’s attempts to question the permissibility of the retroactive ICTA are fundamentally misconstrued as far as international crimes and their adjudications are concerned. When it comes to trying crimes of heinous nature such as Genocide and War Crimes – that is, crimes deemed to have been committed against all mankind – enacting legislation to retroactively try these crimes is a widely accepted legal practice. Mr. Rapp effectively calls for amending the ICTA to a standard that is international, but then questions the permissibility of the ICTA adopting the internationally accepted standard of retroactively trying crimes such as Genocide and War Crimes. Despite Mr. Rapp’s evident comfort with the retroactive legislation that constituted tribunals like the ICTY and ICTR, he, for some reason that is yet to be identified, questions the permissibility of retroactivity in the ICTA. It must be noted that the ICTY was formed in 1993, two years after the commission of crimes, and the SCSL was formed in 2002, eight years after the commission of the concerned crimes. It is hard to see the reasoning behind Mr. Rapp’s criticism in questioning the permissibility of the ICTA, a law that was enacted by the Bangladesh Parliament within a year and half of the commission of the concerned crimes. Not only is the retroactive justice process of crimes a widely practiced legal norm, Article 15(2) of the ICCPR makes a clear exception to non-retroactivity: “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.” The ICTA is entirely consistent with ICCPR Article 15(2).

The ICC is the only institution which possesses prospective jurisdiction, meaning that it can only deal with crimes committed after its governing statute came into force. Thus, the ICC is rendered incapable of exercising jurisdiction over the crimes committed in Bangladesh in 1971. This is another reason as to why Bangladesh had to, despite being a signatory to the Rome Statute, initiate its own process to try the crimes committed in 1971.

One of the unique characteristics of prospective laws such as the Rome Statute is that they have the scope and ability of incorporating extensive provisions like the Elements of Crimes. This is due to the prospective nature of such laws. Hence, retroactive laws such as the ICTY or ICTR Statutes do not contain any Elements of Crimes. It is contradictory of Mr. Rapp to, on one hand, question the retroactivity of the ICTA and, on the other hand, urge its amendment by calling for the incorporation of provisions like Elements of Crimes. The contents of Mr. Rapp’s letter do not answer these contradictions.

Constitutional safeguards against retroactive legislation are generally not applicable for laws passed with the purpose of prosecuting and punishing crimes of heinous nature, such as the crimes under the jurisdiction of the ICTA. For instance, the permissibility of retroactivity was cemented by the Australian High Court when it upheld the retroactivity of the Australian War Crimes Act of 1988 (amendment of the 1945 Act). In the case of Polyukhovich v. The Commonwealth, the High Court held, “The retrospective operation of the Australian War Crimes Act was authorized by the constitution since that operation was a matter incidental to the execution of a power vested by the constitution in the parliament.’’ The High Court went on to hold that the War Crimes Act of 1988 was in fact retroactive because it only criminalised acts which were crimes under international law as well as ordinary crimes under Australian law at the time they were committed. Enacting a law like the War Crimes Act of 1988 was therefore an exercise of universal jurisdiction by the Australian Parliament. In the judgment of that case, Justice Dawson observed, “[T]he ex post facto creation of war crimes may be seen as justifiable in a way that is not possible with other ex post facto criminal laws … [T]his justification for a different approach with respect to war crimes is reflected in [Article 15(1)] the International Covenant on Civil and Political Rights to which Australia became signatory on December 18.’’ Therefore, the retroactivity of the ICTA enacted by Bangladesh is the same as the Australian War Crimes Act of 1988. Both simply embody crimes existing then during their respective enactments; questioning the ICTA’s retroactivity amounts to overlooking standard practice in international criminal law. Offences such as Genocide, War Crimes, and Crimes against Humanity were not unheard of in 1971. In fact, the Pakistan Government was one of the first countries to sign the Genocide Convention and the Geneva Conventions were already a part of the international legal order existing in 1971. Therefore, by enacting the ICTA, the Bangladesh Parliament was merely recognising and acknowledging prevailing norms of international criminal law.

In his letter, Mr. Rapp wrote, “we suggest that the Government of Bangladesh incorporate the provisions of the ICCPR relating to fair judicial process and the statutes, elements of crimes and rules of procedure of the ICC and international tribunals among the rules and practices applicable to proceedings before the ICT.” It is evident that Mr. Rapp has placed a great deal of emphasis on the importance of the ICCPR and the ICC Statute as international legal instruments. With regard to provisions of the ICCPR, it is interesting to note that the United States has itself issued blanket reservations for Articles 1-27 of the ICCPR. One of the most influential contemporary scholars of international law, Professor Louis Henkin, has commented on the imposition of such blanket reservations and noted:

Some see such declarations as another sign that the United States is resistant to international human rights agreements, setting up obstacles to their implementation and refusing to treat human rights conventions as treaties dealing with a subject of national interest and international concern.

Likewise, Mr. Jordan Paust, Professor of Law at the University of Houston commented, “rarely has a formal attempt at adherence to a treaty been so blatantly meaningless and so openly defiant of its terms.”

Similar concern was expressed in 1994 by the United Nations Human Rights Committee which stated:

Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed.

It is also worth noting that the United States is not even a member of the ICC. It has also entered into over 80 Bilateral Impunity Agreements (BIAs) with other nations, obliging these nations not to subject current or former government officials, military, and other personnel from the United States to the jurisdiction of the ICC. The US Government has itself expressed severe reservations regarding the ICCPR and has not ratified the ICC Statute, while the Bangladesh Government is a signatory to and has ratified the ICCPR, along with its Optional Protocol. Furthermore, unlike the US, Bangladesh is a State Party to the Rome Statute of the ICC.

In conclusion, it is necessary to state that the provisions of the ICTA are compatible with the rights of the accused enshrined under Article 14 of the ICCPR. The following account identifies some of the main rights and also points out the corresponding Sections in the ICTA which acknowledges those rights:

*Article 14(3)(a) of the ICCPR states, “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” This provision is reflected in Section 10(3) of the ICTA which states, “Any accused person or witness who is unable to express himself in, or does not understand, English may be provided the assistance of an interpreter.”

*Article 14(3)(b) of the ICCPR states, “To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.” This provision is reflected in Section 16(2) of the ICTA which states, “A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial; and in case of any difficulty in furnishing copies of the documents, reasonable opportunity for inspection shall be given to the accused person in such manner as the Tribunal may decide.”

*Article 14(3)(c) of the ICCPR states, “To be tried without undue delay.” This provision is reflected in Section 11(3) of the ICTA, which states that a Tribunal shall, “(a) confine the trial to an expeditious hearing of the issues raised by the charges” and “(b) take measures to prevent any action which may cause unreasonable delay, and rule out irrelevant issues and statements.”

*Article 14(3)(d) of the ICCPR states, “To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” This provision is reflected in Section 17(2) of the ICTA which states, “An accused person shall have the right to conduct his own defence before the Tribunal or to have the assistance of counsel.”

*Article 14(3)(e) of the ICCPR states, “To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” This provision is reflected in Section 17(3) of the ICTA which states, “An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.”

*Article 14(3)(f) of the ICCPR states, ‘‘To have the free assistance of an interpreter if he cannot understand or speak the language used in court.” This provision is reflected in Section 10(3) of ICTA which states, “Any accused person or witness who is unable to express himself in, or does not understand, English may be provided the assistance of an interpreter.”

*Article 14(5) of the ICCPR states, “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” This provision is reflected in Section 21 of the ICTA which states, “A person convicted of any crime specified in Section 3 and sentenced by a Tribunal shall have the right of appeal to the Appellate Division of the Supreme Court of Bangladesh against such conviction and sentence: Provided that such appeal may be preferred within sixty days of the date of order of conviction and sentence.”

It is therefore evident from the above comparative account that the ICTA does indeed adhere to most of the rights of the accused enshrined under Article 14 of the ICCPR. Furthermore, it must be understood that the purpose of Article 14 of the ICCPR is to provide some general guidelines applicable to ordinary criminal proceedings. Instead, Article 15 of the ICCPR is meant to apply to the other special domestic proceedings related to international crimes, that is, through special tribunals like the ICT.

Since there is no consensus in international law prohibiting death penalty and because it is a form of punishment permissible under the laws of Bangladesh, the provision of death penalty in the ICTA is not inconsistent either with Bangladeshi or international laws. It is pertinent to reiterate the fact that there currently exists no universal consensus on the issue of death penalty. Therefore, at present, no such international obligation exists requiring states to abolish the death penalty on the grounds of an international standard. Notably, in February 2009, in response to a UN “Moratorium on the Use of Death Penalty,” the Government of Bangladesh along with 52 other governments made its position clear through a document that was submitted before the UN. The position adopted by these 53 governments is:

(e) Every State has an inalienable right to choose its political, economic, social, cultural and legal justice systems, without interference in any form by another State. Furthermore, the purposes and principles of the Charter of the United Nations, in particular Article 2, paragraph 7, clearly stipulates that nothing in the Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State. Accordingly, the question of whether to retain or abolish the death penalty should be carefully studied by each State, taking fully into account the sentiments of its own people, state of crime and criminal policy.

These 53 retentionist states form a significant part of the international community, whose opinions must not be ignored. Furthermore, there is a broader perspective which deserves attention while discussing the issue of death penalty in the context of the ICT operating in Bangladesh. The provision for the death penalty is an integral part of Bangladesh’s criminal justice framework, not only of the ICTA. The death penalty is a valid form of punishment under The Penal Code, as well as a whole range of other existing special criminal legislation in Bangladesh. Thus, it would not be practicable, legally or politically, to simply abolish the death penalty with regard to one piece of legislation and retain it in case of others. It is not that any legal reform as fundamental as abolishing the death penalty has to be synchronised across the board. However, any asymmetric reform is more likely to be viewed as irrational if the criminal justice system allows death penalty for a single murder, as per ordinary penal law, and prohibits it for mass murders. What Mr. Rapp failed to realise is that if Bangladesh takes the abolitionist path, it has to first go through a total review and overhaul of its entire criminal justice system, which can take years, if not decades. It is neither prudent nor realistic for Mr. Rapp to expect the current trials in the ICT to be a testing ground for the abolition of death penalty. Oddly enough, a US Ambassador prescribing the abolition of the death penalty is the ultimate contradiction because US courts routinely sentence guilty parties to death.

Regarding Amending the Rules of Procedure:

The other issues raised by Mr. Rapp include the rights of the accused, pre-trial detention, provisional release, disclosure, interlocutory appeals, presumption of innocence, burden of proof, and the protection of witnesses. These are all valid in the sense that the tribunal’s process can benefit from express stipulations in terms of predictability of law for both the Prosecution and the Defence. There is room to improve coverage of these procedural issues by amending the ICT’s Rules of Procedure. Such issues can be addressed, and in this regard, concerned stakeholders could, and in fact should, prepare and submit concrete suggestions to the Tribunal. However, any such proposal should take into account the problems of justice administration particular to Bangladesh’s legal sphere, which would include the context of the domestic legal order, existing professional standards, likelihood of abuse of process, time, costs, and viable protection of witnesses and victims.

a) Appeal from Interlocutory Orders

One of the procedural issues raised by Mr. Rapp, the provision of appeal from interlocutory orders, unfortunately demonstrates his lack of understanding of the challenges particular to the Bangladesh legal system. Given the legal context of the ICT, the justice process can equally and effectively benefit from Reviews, instead of Appeals. In Bangladesh, appeals are generally understood as a right with regard to verdicts passed by the Court, but appeals against procedural matters, such as appeals against Interlocutory Orders, cannot be considered as a right, in the absence of which injustice is bound to occur. Section 21 of the ICTA already provides for appeals “against conviction and sentence,” which can be filed as a matter of right. In fact, a final verdict by the ICT would only result following completion of all available procedures including Section 21 appeals, under which all procedural and other irregularities could be raised. In other words, Section 21 allows for an aggrieved appellant to raise all issues that has aggrieved him or her in the form of an appeal before the ultimate appellate authority in the Bangladesh legal system, the Appellate Division of the Supreme Court. The provision of appeal from verdicts in ICTA is in itself a progressive initiative considering some international tribunals, like Nuremberg, did not afford defendants such a right.

Furthermore, the presumption that the absence of appeals against interlocutory orders will automatically result in an unfair trial or the denial of justice has no basis. There is no evidence, legal or whatsoever, to suggest this, nor are there any causal links to demonstrate that the absence of the provision of an interlocutory appeal bears a greater likelihood of injustice for the defendant. The ICTA, through its newly incorporated Section 6(2)(A) has pledged greater commitment towards independence, thus rendering Mr. Rapp’s concerns baseless.

Even if it is assumed the absence of the right to appeal against interlocutory orders bears greater likelihood of disadvantage for the parties, it must be noted that such absence prevails for both the Prosecution and Defence. If there is at all any disadvantage, it is equally applicable to both sides, as a manifestation of the principle of the equality of arms. Moreover, the very purpose of appeal from interlocutory orders is to invoke a superior court’s supervisory jurisdiction so as to remedy a judicial error in the course of proceedings that has aggrieved the appellant. The absence of appeal from interlocutory orders does not automatically rule out remedial interventions by the Court viewing the process as a whole. In the case of ICTA, it is not such that the accused will never be accorded the opportunity to invoke remedial measures. If the accused thinks that he or she would not have been convicted except for a judicial error, there is always the ability to raise that concern in the final appeal from conviction before the Appellate Division under Section 21 of the ICTA. It is in this manner that ICTA adequately ensures that the accused is not without any recourse, even in the absence of any provision for appeal against interlocutory orders.

The ICT is a court of first instance, and the current ICT bench is comprised of three members, all of whom are required by the ICTA to be eligible to qualify as a Judge of the Supreme Court (High Court Division) of Bangladesh. It is worth mentioning that no other Tribunal of first instance in Bangladesh provides for such a senior panel of Judges.

There are also important practical and contextual aspects to take into consideration, all of which Mr. Rapp failed to do. In the Bangladesh legal context, the history and track record of interlocutory appeals is not a very promising one, having been notorious for their susceptibility to abuse of process as unscrupulous parties commonly use this otherwise useful device to drag legal disputes indefinitely. In all types of cases, ranging from custody disputes to land matters, Bangladesh’s legal system struggles with the consequences of such abuses. The risk of indefinite delay is not something the ICT can afford to face as the ongoing trials itself have commenced after 40 years. If this Tribunal, given its delayed start, is allowed to be riddled with endless motions and applications, justice will suffer and ultimately impunity will prevail. The ICT has already reviewed one of its earlier decisions recently; it reviewed and reversed one of the decisions on venue of interrogation.

b) Preliminary objections to jurisdiction and constitutional challenges to ICTA:

Mr. Rapp in his letter suggested the ICTA should be amended in order to allow for a provision to challenge the jurisdiction, as well as various provisions of the ICT. The preliminary objections to the jurisdiction of the ICT or constitutional challenges to provisions of the ICTA are not possible because the ICTA is protected by Articles 47(3) and 47A(2) of the Constitution of the People’s Republic of Bangladesh.24 Providing laws with such form of constitutional protection is not uncommon in the legal arena. For example, the neighboring Indian Constitution currently has a total of two hundred and eighty four Acts listed under the Ninth Schedule of the Indian Constitution which have been given constitutional protection under Article 31B.25 Therefore, construing the protection given to the ICTA by the Bangladesh Constitution is not at all a legal anomaly.

Mr. Rapp has also written suggestions on other miscellaneous provisions of the ICTA and its Rules of Procedure. These provisions and the Rules of Procedure should be amended and improved with the goal to further enhance the quality of the ongoing justice process. In fact, this process is facilitated by the fact that ICT Judges have the power to draft Rules if they deem it necessary. Earlier in April, the ICT Judges reviewed its own decision regarding the venue of interrogation of an accused following the filing of an application in that regard.

While Mr. Rapp is much appreciated for his concern, his suggestions need to reflect the particular, individualised, and special situation of the ICT and of Bangladesh’s justice system. Blanket statements espousing the need to amend the ICTA to the highest of international standards does not take into account the purely domestic nature of the tribunal, a fact conceded by Mr. Rapp himself. Likewise, comments about the ICTA’s retroactivity and Rules of Procedure fail to acknowledge the situation as specific to Bangladesh’s nor do they reflect past international practice.

As an act of civic engagement, this piece has sought to explore Mr. Rapp’s suggestions regarding the ICT and its governing statute. There is no argument against ensuring fairness and quality of the justice process initiated by the ICT. Attention, however, must also be given to the fundamental principles enshrined in the ICTA; any failure to maintain the right balance will allow impunity to continue and rule of law to be frustrated.

—
International Crimes Strategy Forum (ICSF) is a global coalition of independent activists and organisations committed to the cause of bringing to justice the perpetrators of war crimes during the Bangladesh Liberation War in 1971.

Children Park – a type of real social business

(example of MOON PARK & MOON HOUSE)

This was also published in The News Today 09 Dec 2010 and other blogs

http://www.newstoday.com.bd/index.php?option=details&news_id=14376&date=2010-12-09

http://www.bdcomcn.com/English-Articles/children-park-a-type-of-real-social-business-of-moon-park-a-moon-house.html

 http://bangladesh-web.com/view.php?hidRecord=343086  



Prime Minister, Sheikh Hasina, of Bangladesh while addressing the prize giving ceremony of a painting competition at Dhaka Osmani Smriti Auditorium on October 18, 2010, has directed the authorities concerned to take immediate steps to recover all the children’s parks in the capital. The prime minister, according to UNB Dhaka, vowed to establish a safe and prosperous Bangladesh for every child.

Yes, there is no doubt that concerned authorities would try their best to recover all government children parks, no matter how successful they would be to maintain and keep the campaign according to given directives from the highest executive of the government. But I, like many others, am little wondered as to how much those local influential illegal occupants have gone regarding places like Children parks too. There is no need to emphasize the requirement of children parks for the over all development of a total Children. Considering their importance’s, government did their parts and hopefully would continue doing the best in this regard always. But we being the brothers and sisters, parents and relatives, teachers and lovers of every child also got to think and do exactly in the same way as our Prime Minister thought and gave directives.

Because the government can not establish more and more children parks all of a sudden, and because we all also have the morale and social responsibilities too for all the children, so, we got to also do some thing, either individually or being in a group. We may think of taking following measures to ensure so that more and more children get the facilities of Children parks:

1. Authorities of schools and other educational institutions may consider establishing children parks at their own premises, no matter how small or big those could be. They should also ensure the proper maintenances of all existing children parks.

2. Those who, specially at rural area, can effort to make few items of children park at their own premises may also make such facilities available for their own and local children. There are few such items directly related to physical exercises which don’t need lot of space, cost or electricity. Besides, such can be made with collective efforts too. Some one may also think of making the same at their roof top at city location too. The idea is so that every child gets the minimum facilities of Children Park.

3. Many rich people of our society already have hundreds and thousands of “Farm Houses” (bagan bari in bengali pronunciation) of their own. Those are indeed their spare houses out side the city areas mostly for their personal leisure and pleasure. Of course I am not trying to say any thing against their farm houses, however, would like to humbly suggest so that they could also think of making those, whole or part of those, in to some thing like children park for the local children and thus allow local children to play there either free of cost or with little ticket money. We always talk about social responsibilities and social businesses. Arranging such facilities for the children could be one of the best social responsibilities. Again the concepts of social businesses often emphasized by our Noble Laureate Dr. Muhammad Yunus are known to the whole world and also widely discussed. So, from that point of view too, some token ticket money may also be charged from incoming children, however, the ticket fee got to be within affordable limit of those rural parents too.

Frankly speaking, I won’t suggest any of above if I won’t believe on those totally. I use to always think in the past about these children park facilities for our rural poor children. That is the reason I tried to establish two such children park at my own according to my personal interest, planning, limited economic capabilities and efforts. Spending my pension money, I have established one Children park named Moon Park at village PIRUJALI in General Area Hotapara, Gazipur. The area is near writer Humayun Ahmed’s Nuhash Polli and really green and comfortable in all seasons.

Well, for this case, I tried to establish and experiences by myself first and then now trying to suggest some thing for others too. It is said in the religion also that you try to do the same first before you suggest the same to others. When ever, I heard or read about the social businesses expressed by noble laureate Dr. Yunus, tried to think and identify as to how many types of social businesses could there be, specially for a country like Bangladesh? I also tried to think always as to what maximum social benefits can be offered with what minimum charges from different types of social businesses. Well, there can be many different types, but, for me, I have desired to do some thing related to children’s health, enjoyment, excitement, mental growth, physical exercise etc, and so thought of establishing one children park for them as part of so-well-discussed social business.

Now at this stage, being little encouraged by the noble directives of honorable prime minister of Bangladesh, I have only one aim of mentioning this as an example and that is, so that others who are interested may also establish such children parks at different parts of our country. Besides, those who are already having their Farm Houses (bagan bari) may also become interested as well as feel responsible to tern their those farm houses, part or whole, into children park for the local rural children and allow them to play either free of charge or with little token ticket money.

“Moon Park” is a small eco friendly green garden which is also used for picnic or outing spot for those city people who may afford to rent it and be interested to enjoy the green nature as part of their rest and refreshment. However, the focus is always given to the local children’s playing and that is why the word “park” is associated with it’s name. Any one may be wondered to know that a local child may visit and play at Moon Park with only taka ten ($ US 10 cents only) per person. The Moon Park was inaugurated on 14 April 2010 (pohela boishak) through arrangement of boishakhi mela (local fair organized on the bengali new year) where all the incoming children along with their parents, friends and relatives were allowed to go inside and play with free of charge. Surprisingly the total presence on that very single day crossed the figure 2500 (almost 100% children of that general area) which really proved in my mind that, yes, our children really need such facilities. I also felt very comfortable inside for being able to make one such park for our rural children. The smiling faces of our rural deprived children are still in my memories, pictures of which can also be shared by readers from below web link:

http://picasaweb.google.com/113734232071731875096/MoonPark#

“Moon House” is also another such place, same eco friendly garden with children park facilities where children can not only play but also see life birds and fishes. No matter how many facilities children are enjoying inside but only taka 30 ($ US 40 cents only) is charged per person. It is designed to be a real safe house for the playing of children and that is why the word “house” is associated with it’s name.

It may be mention that the eco friendly green gardens of both Moon Park and Moon House are also attracting foreigners and as such contributing to the tourism in Bangladesh too. Hope the scope of tourism in this sector would also increase in future.

I hope both Moon Park and Moon House would be able to contribute for children’s playing in the long run as part of social businesses in real sense. I also hope that many other persons having similar feelings like me would also try to do some thing better for our children which are so necessary for their total development. Children would carry us forward, they are our future hopes and so we must do our best to do best for them.

For those who may be interested to know about Moon House and Moon Park for their picnic or outing purposes may also brows below web link:

http://www.moonhousemoonpark.com/

 email: moonhouse.moonpark@gmail.com,

Musa and Bangladesh

Guest: Musa Ibrahim, First ever Mount Everest Winner from Bangladesh – Part ONE

For Musa Ibrahim the fact that no one from Bangladesh had ever been able to conquer Mount Everest was just another reason to go for this daunting experience. Even with his heart set on bringing glory to his motherland, the quest involved tedious training and heartbreaking struggle to raise funds for the expedition. He received financial assistance from a few organizations but the major share came from his sister. Musa’s desperation to achieve his target by 2010 took him on a trail fraught with risks and danger. Here’s the first episode of Musa Ibrahim’s exclusive chat with Maskwaith Ahsan, Editor of e–Bangladesh.org, in which he has narrated his adventurous flight.

Part-1:

FOR MILLIONS of people in impoverished Bangladesh, it seems to have ushered a political blessing. The nation which fought a bloody war of independence in 1971 against Islamic Pakistan to establish secularism and democracy was obliterated by military juntas and autocratic governments.

Bangladesh’s first constitution included secularism, democracy, socialism and nationalism as key political philosophy which reflects the spirit of independence war, when the eastern province severed from Pakistan in 1971.

After the assassination of the “founding father” Shiekh Mujibur Rahman in a military putsch in 1975, the military-backed government of General Ziaur Rahman doctored the constitution’s guiding principle and scribbled “Bismillah’ir Rahman’ir Rahim (Faith in Allah)” in 1979.

The Bangladesh Supreme Court in its landmark verdict forbids political parties which advocates Islamic philosophy. The apex court also asked to reinstate the four key principles in the constitution which existed 38 years ago.

In the 184-page judgement released recently, the court discarded most of the Fifth Amendment of 1979, including provisions that allowed religious based politics, which was legitimised by tyrannical rules of military generals during the period of August 15, 1975 to April 9, 1979.

Law Minister Shafique Ahmed claimed that there is no hindrance to reinstate “secularism in the constitution” as advised in the Supreme Court’s ruling. “The amendments that were enforced by military orders during the four years of misrule have been declared illegal and repealed by the Supreme Court.”

Another military junta leader General Husain Muhammad Ershad, a key ally of the ruling party dared to rewrite the constitution which determines “Islam as state religion” of once secular Bangladesh. Ahmed explained that the amendment made by third military ruler will not be affected by the court verdict.

Excited Shahriar Kabir, a secularist writer and staunch advocate for the trial of the war criminals is extremely busy in appearing on prime-time talk-shows in vibrant electronic media on the landmark judgement. He said the people’s mandate in the last general election for restoration of secularism and trial of perpetrators responsible for crime against humanity in 1971.

In an election strategy Mujib’s daughter Shiekh Hasina led Awami League swept to power in 2008. Her party’s electoral promises were restoration of secularism and trial of war criminals.

“Religious based politics was banned after brutal birth of Bangladesh. We have seen youths belonging to Jamaat-e-Islami were engaged as henchmen of marauding Pakistan’s occupational forces. They raised Al-Badr, a death squad to kidnap and murder hundreds of intellectuals who could not escape for their safety and security,” he explained.

The journalist and film-maker Kabir said General Zia, after the assassination of President Mujibur Rahman in a bid to gain political support for his legitimacy of usurping power to the surprise of all, withdrew the ban on religious politics and allowed Islamic parties to regain grounds.

Most of his hand-picked cabinet ministers were drawn from Muslim League, Maoist and other rogue Islamic groups. Kabir said, incidentally most were blamed for their alleged involvement in crime against humanity.

General Zia despite being a Mukti Bahini (guerrilla force) commanding officer and took military assistance from India to liberate the country from the repressive rule of Pakistan, he did not hesitate to restore two-nation theory of independent Islamic states in Indian sub-continent. He also got rid of secularism and inserted Bismillah’ir Rahman’ir Rahim (Faith in Allah) in the constitution.

The court recommends “suitable punishment” to “extra constitutional adventurers”, the predators of democracy who ushered military regimes and sanctioned martial laws. Well the military leaders are either assassinated, hanged or are fugitives, except for the third military leader General Ershad, who founded Jatiya Party.

The Bangladesh Nationalists Party founded by assassinated President General Zia, led by his widow, Begum Khaleda Zia appealed the apex court’s first ruling on the Fifth Amendment in last January and apparently lost her legal battle in a crucial political path of her party, which was in power three times.

Author of Bangladesh constitution Dr. Kamal Hossain, an international jurist said the court verdict could be translated into reality by a government order for changes in fundamental principles.

The judgement which did not come as a surprise, is a major threat to Islamic parties. The Islamic parties which propagates strict Sharia law for 158 million secular and moderate Muslim majority nation. The Islamic radicals also advocate Qur’an and Sunnah to over-ride the people’s constitution. Secularist, however argue that Sharia targets women to subjugate them and force them to wear purdah (veil).

Tormented by Fatwa’s (Islamic edicts) and confrontation with Mullahs, the rural women entrepreneurs engaged in micro-credit with support of Grameen Bank, micro-finance institutions and NGOs, the women population in the rejected the Islamic parties. The empowered rural women topped the list in national elections held anywhere in the world, according to Carter Institute. The women and 20 million new registered voters played a crucial factor in the last general election which caused landslide victory for Awami League and its allies.

According to independent Bangladesh Election Commission there are eleven registered Islamic parties. Reacting to comments by ruling party politicians regarding the unprecedented judgement, Chief Election Commissioner Dr. ATM Shamsul Huda made it clear that the Election Commission is not authorised to ban any political party and that the authority lies with the government only.

“The Commission will not impose any ban on any party. It is the responsibility of the government. If the government bans any registered political party, the Commission would cancel the registration as per ‘The Representation of the People Order (RPO) Act’,” he said, as journalists asked if the EC would go for outlawing religion-based political parties.

Recently five senior leaders of the Islamist party Jamaat-e-Islami were arrested and are waiting to stand trials for crime against humanity at the International War Crimes Tribunal. The special court has been set up, as an election pledge by the present government.

In the wake of judgement, Bangladesh Jamaat-e-Islami accused the government of conspiracy to push the country into anarchy by reverting to 1972 constitution.

“People want to move the country forward. The government stand against the people is an impediment to the country’s progress and development,” Acting Amir (chief) Makbul Ahmad of Islamist party.

The party leader called upon all Islamic, patriotic parties and the Muslims to stand against what it described the government’s anti-Islam mindset.

Whether the Islamic parties will be banned or restricted is still not clear. At the Jatiya Sangsad (parliament) Prime Minister Shiekh Hasina remarks frustrated many political observers and her party’s secular advocates.

She said that Islamic parties will not be banned, while “Bismillah’ir Rahman’ir Rahim” and state religion Islam will remain in the constitution. Possibly her government does not wish to jeopardise Awami League and allies for another term in the election scheduled in three years.

Earlier Hasina in a rare gesture asked her ministers to keep quite on constitutional issue and religious based political parties as crucial changes in the fundamental principles of state policy are now under a close scrutiny. Her prolific party leaders were busy in deliberation in half-a-dozen TV talk-shows every late night.

She mentioning that constitutional amendment is a sensitive issue and formed a 15 member bi-partisan special committee for recommendation to the parliament.

Social justice activist Kabir is upset. He said the prime minister’s statement in parliament has confused the nation and it somewhat contradicts the verdict of the superior court. It seems that the war criminals and their defenders have nothing to fear anymore. The Islamic parties would continue to function and overtly campaign against the war crimes trial, which began in United States and Britain.

Whenever the issue of trial of war-crimes is raised, the killers and collaborators now turned politicians are seen to treat Bangabandhu with great respect. The Al-Badar leaders say, ‘it was he who resolved the issue by declaring general mercy, so it is meaningless to discuss this issue and give much importance now. Their political allies and intellectuals sing the same song, in addition to this more horrible and fabricated stories are added. Their absurdities know no bounds. Across generations they have spread rumors like: Bangabandhu enjoying a meal (Khichuri) with top-collaborator Shah Azizur Rahman at Comilla Cantonment, he went to the Jail with his own car and received Khan A Sabur at the Jail-gate. These are the stories which have been used to wash the brains of our generation. Common people treat these with their utmost ignorance and we are habituated to listen to them.

For my personal interest, I have studied the issue of the controversial General Mercy. To start with the only document I could find was a old paper-cutting of New York Times, where in a few sentences it was said that some 30 thousand collaborators had been freed including the imprisoned Governor Malik along with some of his helpers.

Such a big incidence, what an important decision! Would not there be an official document at least? After searching for it long, I could not recover anything from the known persons working on trial of war-crimes issue or from collectors, who have been documenting our freedom-fight. The general mercy was a Presidential order; so it should be included in the government Gazette. It must be in the Annual Lawyers’ guide. I could not find it in any of the records. The authorities do not archive many documents of 1973/74 anymore. Files and documents are vanished. A Lawyer of the Supreme Court accuses ex president Ziaur Rahman directly as he himself had built the Shishu Park (children’s park) to hide the memorial of surrender of Pakistan Forces. Similarly he himself had given the order of burning all the records of war-criminals into ashes. There is nothing in the Bar council Library now.

My only support was a few lines. Bangabandhu declared general mercy, this is right; but he did not forgive the killers, rapists and plunderers. the question now is where is my proof? Those who raise this question do not provide anything; even those accused as war-criminals exonerated by this general mercy do not provide any document too; then? On November 30 in 1973 Bangabandhu made this declaration. A press-note was supposed to be published in the newspapers on the following day. I started searching for those papers. And Jisan emerged as my rescuer.

I started working with some dedicated youths after I had joined Daily Adhinayak (yet to be published). These youths have the ability to play any serious role in the field of literature and cultural activism – Jisan is one of them. I gave the responsibility to two persons to collect the news in archived newspapers published after this declaration had been made. When Ajit Das entered the National Archive, he was deterred with a new requirement, an approval from Home Ministry to get to the documents. At Bangla Academy, Jisan faced the same sort of hindrance. Prior to this, he had failed to enter PIB archives too.

What follows here supersedes any Spy thriller-story. With an expired Library Card, Jisan entered the Underground Archive of Dhaka University. He found the expected newspapers with the help of some known staffs enduring the mosquito bites. However, some student leaders got interested in Jisan’s adventurous works. They even took his interview (read cross-examination). These student-leaders have only memorized their respected leaders’ names and lack knowledge about their leader’s history and deeds. So they became feeble before the smartness of Jisan. With trembling hands, he shot photos of the newspaper articles with his Samsung Mobile. He could take the required snaps just before the charge of the battery depleted. When he had handed me over the photos from his mobile via blue-tooth, he said: “Pial vai, give me another four days. I will transcribe each line and come back”.

I suppressed my utmost wish of hugging him in pleasure. With a subdued excitement I came back home. With the photos and clippings I started my works and could not bear waiting for another two days. I zoomed the photos in and out to understand what was written; and then transcribed that myself. The decision of uploading the clippings in You-tube was taken much earlier. I selected the photos finally, made AVI files using converter and then gave it a complete shape by making it a bit slow using the movie-maker and adjusting its brightness.

Achieving this would have been impossible if Jisan was not with me. In this age of free flow of Information, I will forever remember his active role in finding the historical data for a Bangla Blog with my gratitude. Let us see now what it was in the Declaration of General Mercy; what it was written in its coverage; who they released.

—————————————————————————————-
Report on General Mercy Declaration: The Doinik Bangla, December 01, 1973

Heading: General Mercy Declaration on Punished Prisoners under Collaborator Act

Sub-heading: Bangabandhu’s urge to the persons received mercy for the engagement of Country’s Betterment: No Mercy for the Killers and Rapists.
—————————————————————————————-
Government of the People’s Republic of Bangladesh has declared a general mercy for the convicted and punished prisoners under the Collaborator Act. Persons who have been imprisoned under the Collaborator Ordinance (Special Tribunal) 1972, against whom there is a warrant or those who are wanted and those who have been punished will be imposed this general mercy and soon they will be freed. Yet those who have killed people, raped and set fire or caused to damage people’s homestead with explosives or convicted for damaging water-transport whatsoever will not be considered under this act. A Governmental press-note issued on Friday night last says this General Mercy.

Prime Minister Shaikh Mujibur Rahman says, Government has declared this general mercy for the people arrested and convicted under Collaborator Act so that people from all corners can enjoy the Victory Day 16th December together indiscriminately and take oath to build our country. Bangabandhu has ordered the Home Ministry to take necessary steps so that these persons can get released from Jail soon and join the victory festival coming on 16th December. The persons freed are urged to be united with spirit of victory and are requested to take the responsibility of working as a safe-guard for our independence.

While speaking in the declaration ceremony, Bangabandhu says, all will forget their bitter past and leave their previous activity and start working in unison and establish an unequal instance of patriotism, he believes and hopes.

Bangabandhu says, through much blood, sorrows and sufferings, tears and tortures we have achieved our independence. At any cost we have to preserve this independence.’ He hopes that this Independence Day will open a new horizon of peace, happiness, prosperity and welfare.

Prime Minister says, some people, in association with invaded force, opposed against our freedom fight. They were arrested under the Collaborator Act. Among them many are familiar persons. As they were associated with Pakistani Force and helped them technically, people of Bangladesh suffered an indescribable miseries.

Bangabandhu says, these people have been arrested and imprisoned for long. He thinks that they are repented deeply. They are certainly remorseful for their pas activities. He hopes, after they have been freed, they will forget their past misdeeds, work with a new oath for building our nation and establish a new instance of patriotism. Yesterday the press-note issued from the Home Ministry is as follows:
—————————————————————————————-

Press-note: Prior to this, Government has considered the matter of Mercy of those who have been arrested under Collaborator Ordinance 1972(Special Tribunal) PO No-8, 1972, or have been convicted and paid their sufferings; government is making the new declaration in this regard:

1. Except the fields of crimes and persons described in the article no: 2

a) The persons arrested and convicted under the Criminal Act Section 401 of 1898 are being given released and, if there is no complain under any rule or act, except this order, under the general mercy, they will be freed from jail soon.

b) According to this order all cases under trial in any special tribunal or in special magistrate will be withdrawn. If there are no other cases against them pending, they will be freed from jail under this general mercy.

c) According to this Act, all cases filed against any person and the inquiry will be withdrawn and if he is not convicted otherwise under any acts whatsoever will be freed from jail. According to this act all warrants, summons or any notice served against him to crock his assets will be withdrawn. In that case the persons have to be free from other cases. If any proceedings are completed in absence of the persons and if he remains still absent, he will be freed from jail only when he surrenders and beg mercy and declares his loyalty, only then this general mercy will be eligible for him.

2. Persons convicted under the section 302(Killing), section 304, 376(rape), 435(cause damage by using bullet or explosives), Section 436(Burn Homesteads), and Section 448(set fire in water transport or explosion), According to the Criminal Act will not be considered under this act.

Banglar Bani or Ittefaq are equally same at their reports which will be seen in the video footage. There is other surprising news in the Donik Bangla on the same issue: regarding of being set free of Shah Azizur Rahman who later would be the Prime Minister of Bangladesh in the hand of Zia and of Sarsina’s Peer Shaheb who would be given the Independence Medal during Ershad regime. It said: According to an especial order made by the Bangladesh government, PDP Leader Shah Azizur Rahman and Sarsina’s Peer Shaheb have been released. Due to the cause of collaborating with Pakistani invaded forces they were arrested. .

It has been cleared that high profile collaborator like Governor Malik and Shah Aziz were not handed outside the Dhaka Central Jail. After they had been arrested, they had been there before they were freed. So there is no way to believe this story that Bangabandhu called him from jail and together he ate khichuri with him. This is altogether false.

On December3, in the Daily Ittefaq came the follow-up of the news of the decision of General Mercy where all people welcomed the decision. There was an important news. Home Minister Advocate Abdul Malek Ukil clarified the about the persons had been arrested under Collaborator Act. Under the Heading: Total Number of People arrested under Collaborator Act were 37 thousand 4hundred and 71 seventy-one, it had been written that on the perspective of declaring the mercy,

Yesterday while conversing with journalists, Home Minister Mr. Malek Ukil says this. He says, after the list of the persons arrested under Collaborator act verified with the order of general mercy, he has given approval to free all persons arrested under its jurisdiction. He says, according to the Collaborator Act number of total convicted persons is 37 thousand 4 hundred and 71 among which. Among these people, cases against 2,848 persons have been settled of 752 persons have been convicted and 2096 have been released. He says, in a newspaper the number of arrestees under collaborator act is 86 thousand which is not true; rather it is exaggerated. Home Minister says, many student leaders arrested and convicted under this act will get released. He says, life-imprisonment awarded former Governor East Pakistan M A Malek will get released along with his cabinet members. The persons among others will get released are Dr. Kazi Din Mohammad, Dr. Hasan Jaman, Dr. Sazzad Hossain, Dr. Mohor Ali(All are Collaborators and University Teachers) and Khan A Sabur. Home Minister says, persons freed will get back their properties and enjoy all facilities given to a citizen. The story that Bangabandhu himself went to receive Khan A Sabur has been solved through this news.

Finally, I am quoting the speech given by Bangabandhu broadcast and telecast on Radio and Television on 15December: after the revolution we did not kill those who were arrested and convicted as the enemies of liberation; rather we have forgiven them. We do not believe in the policy of jealousy and revenge. Consequently, those who were arrested and convicted under the Collaborator act have been shown a general mercy. They have been given all sorts of civic facilities as they would have enjoyed before. I believe, if persons misguided by others and followed the path of jealousy are repented will also be given same opportunity to build this nation.

Many things have come in consequence of the perspective of general mercy declaration. Those issues have been discussed and published. But the main thing I have not gotten as reference in any winterers’ writing. If this writing meets up that deficiency, my endeavor will be fruitful. Mine personal notion is, after the General Mercy Declaration had been made, Collaborator Ordinance was a bit mended, which is called amendment. But even after this, why it is not present in the gazette will always be an illusion.

Source: Doinik Bangla, Doinik Ittefaq, Doinik Banglar Bani and Bangladesh Observer. News Clippings have been used in the footage.

Courtesy: Ikram Neoaz Faraji Jisan

Further Reading: 1. A blog post written in Bengali.

NOTE: The whole write-up is a translation of a blog post written in www.amarblog.com.

Translation: Mr Safaet Hossain and his team translated the content from the Bengali blog post into English (edited by Rezwan).

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Omi Rahman Pial [http://omipial.amarblog.com] is a well-known figure in Bengali Blogsphere.He is also an historian of Bangladesh Liberation War and an activist demanding the trial of war criminals.

Any political analysts will agree that Bangladesh politics in recent years has been unfortunately influenced by rivalry between these two ladies. They individually have almost exclusive control over their party and alliance. It is only during the two year terms of Army backed Care Taker Government that there were attempts to eliminate the ladies in the name of “Minus Two” formula which ultimately failed due to massive popularity of the these leaders. But there is a genuine feeling that both failed to lead the country with patriotism, prudence and proper vision .As such the country is in serious crisis. People are suffering from serious crisis of all utility services –Gas, power and electricity. Law and order situation is deteriorating. Utility service crisis is impacting upon economy. Trade, commerce and business are coming to a stand still. Investment from both foreign and local sources has become almost zero. Present government no doubt inherited a highly undisciplined energy sector after 5 years of corruption-ridden Four-party-alliance-misrule and two years of Care-Taker-Government inactions. But during the 15 months of the 60-month tenure, present government also failed to improve the situation or give any confidence to the suffering people to improve the situation in the near future.

BNP-led-4-party-alliance stayed away from parliament for the most part of 2009 and early 2010. But when they returned, parliament became the place for slandering. None of citizens’ problems were discussed. Parliamentary democracy demands responsible behaviour from both treasury bench and the opposition. In all national issues, opinion of leader of the house and leader of the opposition merit great value. But in our political culture, the two feuding ladies never have the meeting of minds on any matter of national interest.

Leader of the oppositions has started addressing grand rallies in divisional head quarters. In the series of lectures, she addressed a grand rally at Port City Khulna on 18th April. She earlier addressed similar rally in Chittagong. On 5th May she will address a rally in Rajshahi.

Khulna and Barisal are the neglected regions of Bangladesh. These regions are deprived from Gas supply, stable power supply and other civic amenities of life compared to Dhaka, Chittagong and Sylhet region. A very potential Mongla port is grossly under utilized. The airport in Khulna is not built for several years. Many industries in Khulna region were shut down over the last 6-7 years. In absence of employment opportunities, educated youth have indulged in unsocial activities. Terrorism and anarchy are dominant in the region. Some leading journalists and political leaders were killed in recent years.

When Khaleda Zia was there in Khulna on 18th April people should have asked her

• Why in her time she did not take initiative to modernise Mongla port?
• Why her government did not arrange to supply gas to Khulna?
• Why her government stopped the construction of Khulna Airport?
• Why her Government shut down several industries causing job loss of thousands of workers?
• Why she could not conduct proper enquiry into killings of noted journalists Manik Saha and Humayun Kabir Balu?

Leader of the opposition vilified PM Hasina as corrupt leader and called all minsters corrupt. If she has genuine evidence of corruption why she is not placing this to the parliament? She shed crocodile tears for Amar Desh, New Age Editor and One Journalist Sawkat Mahmood. These persons are abetting war criminals, noted corrupt persons. Affected people have sued against them. But during her time terrorists and war criminals killed journalists in Khulna. Her government took no action to nab them.

Leader of the opposition termed BDR Carnage in 2009 as premeditated killings. This is a serious allegation. She must be asked to produce evidence. Her role at that time must be investigated.

Leader of the opposition is talking about Energy Famine. Yes there is Energy Famine. Her Government is 90% responsible for it. She must be ashamed to talk about it. The damage her government did to energy sector can not be recovered in less than 10 years. Present government is struggling to recover it. If she is smart enough she will keep silent on this issue.

She blames Army for manipulating the election to bring the Mahajote government to power. Still she demands deployment of army to Bhola bi-election. She almost abandoned Major Hafiz for his role post 1/11. Now she is shedding tears for him. Her politics is full of contradiction and confusion. People know what she is aiming at. She has to create cloud and smoke now to create barriers for war criminals trails. If her long term allies, the war criminals, get punished BNP politics will get a severe blow. So she is busy creating new front to resist trails of War criminals.

Other than vengeance and bitter criticism, she has had nothing constructive to say. She should have apologized to the people of Khulna and Southern region for her previous disinterest in the progression of such regions. She should have said sorry for shutting down several industries and accusing job loss of many families. She must have apologized to the families of Manik and Balu for failing to try their killers. She should have apologized to the people for her failure to complete pipeline supply of gas, make mongla port active and to finish works of Khulna Airport.

People of Bangladesh are much smarter than 1990s and 2001. If Khaleda Zia has to earn confidence of people again she has to take clear stance in favour of War Criminals trails. She has to clean her party from corrupt elements and terrorists. She and her son must face all corruption charges in the court of law and come clean.

Leader of the opposition must tell the nation how she would have handled Energy situation if she were in power. She should also say why in her time she failed to address the situation properly. She must not do politics with this. She must tell people how PM Hasina deals will India and China will harm the nation.

http://tweetgrid.com/grid?l=2&q1=dhaka&q2=bdr&q3=bangladesh

On 11th of September Sanlu first defended that “their milk powder has no problem” then announced a recall of its products. Global Voices reports:

“By estimation, the tainted formula amount to 700 tons. Not until this moment were millions of babies protected from the deadly dairy products. There are over 30 thousand potential victims (in china) predicted from Sanlu’s influence in domestic market.”

Three children already died till yesterday and the number of sick children has risen to 6200. Chinese state-run media announced that 21 more companies were found producing milk powder tainted with melamine.

A New Zealand media reveals that:

“SanLu knew six months ago that babies were becoming sick as a result of drinking infant formula containing melamine – a chemical banned from food.

A New Zealand dairy Giant Fonterra, which owns 43 per cent of SanLu and has three directors on its board, also knew of the contamination for six weeks before a public recall, which began only after the New Zealand Government blew the whistle.”

Global Voices quoted a Taiwanese blogger:

“Before the Olympic Games, China government gave orders to cover all the reports that might destroy the image of China. The Sanlu Group discovered the contamination just before the Olympic Games, and we can see the China government chose to let their people die so that they can keep the positive image of China.”

“The Sanlu Group claimed that the melamine found in their powdered milk was added by the dairy farmers and milk dealers to meet the nitrogen standard after they added water to dilute the milk. However, not everyone believes their claim.“

25 tons of powered milk products manufactured by the Sanlu Group were exported to Taiwan this August and it created a lot of panic in the country.

And Bangladesh should also worry because AP reveals that:

State broadcaster CCTV reported on its Tuesday evening newscast that One company, based in the southern province of Guangdong, exported its products abroad — to Bangladesh, Yemen, and Burma.

The Bangkok post informs:

“Two Chinese firms where tests found tainted milk products had exported baby formula milk powder to five countries including Bangladesh and Burma

The Suokang and Yashili companies had started to recall their exported milk powder products, which were also sent to Yemen, Burundi and Gabon, said Li Changjiang, the head of the State Administration of Quality Supervision, Inspection and Quarantine (AQSIQ).”

We are yet to see any Bangladeshi media asking questions about this import. The Chinese milk powder imports may be hard to locate if they were imported loose and later packed in another label. Some months ago a milk powder consignment of Abul Khair group was detained because their expiry date overrun. We have seen in TV reports that the consignment was packed in large sacks to be repacked in local brands.

Arup reveals that the popular brands of Fronterra, the major shareholders of Sanlu are:

Anchor and Anlene are famous brands in Bangladesh. So there should be a nationwide awareness campaign to demand from the sellers the origin of the milk and to stop consuming non-trusted baby milk.

I hope the Bangladesh Government will take immediate action to withdraw the milks imported from China from the market and ban future imports until everything is sorted out.

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Rezwan [http://rezwanul.blogspot.com] is often referred as “the dean of Bangladeshi bloggers” for his authoritative contributions towards setting the blogging agenda in Bangladesh. Blogging since 2003 on Bangladesh and the world. Portrays Bangladesh and Bangladeshis beyond the typical headlines published in Western Media.