Abu Taher and the Supreme Court of Bangladesh (PART 1)
Thirty-five years ago a man who many of us knew, respected and admired was executed at Dhaka Central Jail. As in years past we have gathered -- some for the first time and others who have previously attended memorials -- so that we can remember Abu Taher, his principles and how the rule of law was turned into a set of arbitrary and ad hoc procedures by a regime determined to rule by illegal methods.
Yet, this year we commemorate not only the anniversary of Taher's death but also the fulfillment of a life long goal held by a determined group of people. Their purpose was to pursue justice, in the elusive hope that one day, justice could be achieved. We all live with dreams and hopes. It is truly a rare day when the "dream of justice" is realised in a way that one thought was simply beyond reach.
This year on March 22, such a dream became a reality. It was an historic moment for the country and a highly emotional one for Taher's family who never thought this day would come. In my view, what happened also has great significance for Bangladesh as a society. In a world and a society filled with injustice a step towards justice is a step towards hope.
It is rare in any country when the highest court in the land takes a stand commensurate with the principles that it is actually expected to uphold. So often do the courts fail us, given the threats and constant political pressures, designed to subvert justice at every turn.
This time was different. The Supreme Court bench, with responsibility for reviewing the Taher case, under the guidance of Justice Shamsuddin Chowdhury and Justice Zakir Hossain, declared Abu Taher's trial illegal and unconstitutional. Justice Chowdhury observed that the so-called Special Military Tribunal No. 1 and the trial it purported to hold inside Dhaka Central Jail was not in accord with any law in existence.
It was a lawless procedure held not in a court but in jail with the newspapers of this country forbidden to mention one word about the proceedings. The one editor, Anwar Hossain Manju of Ittefaq who published a brief mention of Taher's trial was immediately threatened with dire consequences if one more word on the case appeared in his newspaper.
Indeed, Abu Taher in his statement to the Tribunal in July 1976 was prescient when he stated: "The ordinance promulgated on June 15th 1976 is a black law. It was promulgated merely to suit the designs of the government. The ordinance is illegal. So, this tribunal ceases to have any right legally or morally to try me…The act of this Tribunal has put to shame what good things human civilizstion achieved through constant endeavour from the beginning of time until today."
Thirty-five years later the Supreme Court of Bangladesh agreed with Taher. The Court declared Taher's trial and that of his colleagues to have been "a hoax, a sham and a fiction." The sentence passed by the "fake tribunal" was "set aside and quashed…as if…such a farcical trial never took place."
The Court described Taher as a martyr and patriot. It also said that General Ziaur Rahman would have faced a "murder trial" for Taher's death were he alive today. The Court went further and declared: "The so-called trial and execution of Colonel Abu Taher was a cold blooded assassination which was masterminded by a person no other than Ziaur Rahman."
Several days before the Supreme Court's verdict I sat in the Court and listened to Shahdeen Malik, the attorney for Taher's family, recount the events of July 1976. He described a time when it was hard to believe how low Bangladeshi society had sunk. It was a country where assassinations were followed by secret military tribunals with pre-determined death sentences.
And soon, thereafter, mass executions would take hold of the country in the autumn of 1977 without even the pretense of special military tribunals being staged in the jails. Instead, in violation of all lawful military procedures soldiers and airmen were forcibly taken in groups to the gallows or lined up in front of firing squads.
Shaheen Malik eloquently called upon the Court to rescue the "rule of law" by overturning Taher's verdict as a logical consequence of the Court's earlier decisions in the 5th and 7th Amendment cases. On March 22nd of this year, Justice Chowdhury and Justice Hossain, showed great courage, and rescued the "rule of law." By doing so, they have profoundly assisted Bangladeshi society to return to that path of modern civilisation which Taher referred to in his own statement.
Taher noted that Zia's "Special Military Tribunal No. 1" had "put to shame what good things human civilisation had achieved through constant endeavour." By denouncing Zia's Tribunal as unlawful and criminal, the Supreme Court has taken a major step in undoing the shame this country has lived with for the crime its generals committed 35 years ago. Justices Chowdhury and Hossain are to be commended. Their great task, however, remains unfinished.
The injustice done to Abu Taher has been remedied to the degree it could. Even this much was a dream until March 22nd. It is very difficult to truly correct a crime that has happened in the past. Whatever is done will always be insufficient. A life can never be brought back. There is no way "to set right" the experience of three small children growing up without the daily presence of their father or a young woman losing her husband in the prime of life. In matters of the heart like this there can be no repair adequate to the event. No court can touch this realm.
If democracy is to triumph over dictatorship, the "rule of law" must be secured against attempts by ambitious military men to supersede civilian rule. This country was born out of Pakistan's denial of the outcome of the 1970 election. On March 25, 1971, after weeks of non-violent civil disobedience demanding the implementation of the election, a terrible massacre began on the grounds of Dhaka University. It marked the beginning of the War of Liberation.
On August 15, 1975, a group within the army aligned itself with a complex set of forces and set this country back. It appeared that the Pakistan model was being restored in an independent Bangladesh. Years of military dictatorship or quasai dictatorship prevailed where the assassins of Mujib lived as "protected persons" under the regimes of Zia and Ershad. In August 2007, after soldiers and students clashed at Dhaka University, the country moved dangerously close to yet another period of military dictatorship. The DGFI once again became a feared organisation as it picked up professors, students and other civilians. Torture in secret interrogation cells was back on the agenda.
With great maturity and discipline, the faculty and students of this and other universities, demanded in non-violent demonstrations and candle light vigils, the restoration of democratic institutions and the release of political prisoners. The courage that was shown was impressive. A divided rmy and caretaker government backed away from the precipice.
Prominent friends of Bangladesh such as Senator Edward Kennedy called upon the caretaker government and the army to release its prisoners and to end the cruel torture of its detainees. For months many of us had feared that for the first time since March 25, 1971, the Dhaka University campus might become the scene of a grim massacre of innocents. Where that would have ended one could only imagine.
Thus, the questions we explore here are not merely academic. They are critical to the lives and security of the people of this country. If a civilian democracy is to endure, its legitimacy must be grounded in programmes that achieve economic and social justice for a population that is struggling against poverty and underdevelopment.
Whether the path is social democratic, socialist or capitalist, the "rule of law" and the right to habeaus corpus and a fair trial can only be institutionalised if the state and its judiciary can become a guarantor of a just society. The French philosopher and mathematician, Blaise Pascal, once wrote: "Justice and power must be brought together, so that whatever is just may be powerful and whatever is powerful may be just."
This is the challenge ahead. In my view, the March 22nd decision by Justices Chowdhury and Hossain was a watershed. Although the Court's decision was a major step forward, there are still matters of great importance that must be addressed if democratic institutions are to endure, and not be attacked again by those elements that still harbour ambitions of dictatorship.