ICT to regain confidence

In the aftermath of the leaks of Skype conversations, one of the sticking points is whether the trials at Tribunal No.1, of which the now-resigned Justice Md. Nizaml Huq was the Chairman, should be held afresh. Keeping with the norm, the politicians and civil society members are divided into two opposing camps on this issue.
Some commentators have taken a very straightforward line mainly based on a provision of the ICT Act, 1973. Section 6 of the Act provides, among other things, that a Tribunal, merely by reason of any change in its membership or the absence of any member from any sitting, is not bound to recall and re-hear any witness who has already given any evidence and the Tribunal may act on the evidence already given or produced before it.
On a strictly technical interpretation of this provision, there is no scope to argue that any of the four trials now pending in Tribunal No.1 or any part of these trials needs to be conducted anew. However, it seems, a narrow technical adherence to this legal provision may not serve the greater interest of justice, transparency and uprightness on this occasion.
Even the strongest supporters of the war crimes trails are genuinely concerned about the recent turn of events involving the ICT. Some of these supporters have been speaking about their discontent with the handing of the trials by the government almost since the inception of the first Tribunal. In the course of these trials, which started in March 2010, it has become increasingly clear that the party in power is more interested to score political points by reference to these trials than seeing the trials trough in the normal course. Unsurprisingly, when this party was in power from 1996 to 2001, it was not at all interested to put Jamaat leaders on the dock, perhaps because it would be too awkward to make enemies of those who had been their strategic allies just days before. Petty party-politics has never been far away from the issue of war crimes trial.
There is no denying that the leaks of Skype conversations have considerably damaged the confidence of the public in the already weakened trial process. Assuming that the conversations that have been leaked are not fake (no one involved has claimed them to be so), they demonstrate the interference of the government in the trials and also the weakness of character of the now-resigned presiding judge of Tribunal No.1. The judge was being pressurised by the government to hasten one of the trials so that the judgment could come out before a certain date, and yet he chose not to take a robust position and asset his independence. On the contrary, he seemed helpless and feeble. More worrying is the nature of his conversation with the Brussels based lawyer which gives the impression that the charge-sheet in the Golam Azam case and the structure of the judgment in the Saidee cases was prepared by persons not officially involved in the ICT trial process.
This nation has waited too long to see these trials happen. The last thing this nation deserves is an allegation that the infamous war criminals were punished through a murky process of so-called trials. There are strong grounds to apprehend that the government appears destined to achieve just that.
The ministers and party spokespersons appear to be trumpeting in favour of continuation of the trials in Tribunal No.1 as if nothing had happened. While the Tribunal is still considering an application filed by defence counsels praying for fresh trials, the government officials are heralding a conclusion strictly in terms of Section 6 of the ICT Act. Arguably, such a course will not help the cause of these trials.
David Bergman, a close observer of the war crimes trials, has made an objective analysis of what could be the next course in the trials in Tribunal No.1. In his blog (bangladeshwarcrimes.blogspot.com), he has made certain notable points. He argues that the Act could never have envisioned a situation in which the Tribunal No.1 is now in, which is: "One of the judges has heard no evidence, another judge has not heard any of the prosecution evidence, and a third judge has heard a very small part of the prosecution evidence." Therefore, the provisions of Section 6 should not be applied mechanically in this instance.
The Code of Criminal Procedure has a provision (Section 349A) which allows the judge to re-summon the witnesses and recommence the trial in the interest of justice. Although the ICT Act has a provision excluding the application of the Criminal Procedure Code to the trials under the Act, Bergman further argues that in circumstances where the Tribunal is now faced with an extraordinary situation, it may draw on the spirit of the provision of the Criminal Procedure Code and allow whole or part of these trials, as appropriate, to be re-conducted.
The ICT needs to regain confidence of the public and the stature of an independent judicial functionary. The ICT also need to put the episode of Skype leaks behind and rise above the controversy, and that is a tall order in the current state of affairs. To show that the judges are not prepared to succumb to pressure from the government for a gift in the form of a quick judgment, the Tribunal can afford to spend some extra days or even weeks for rehearing some of the oral evidence presented earlier. This will only bolster the image of the Tribunal in public estimation.
The families of the martyrs and victims of persecution in 1971 have chosen at great price the honourable means of redressing their grievance, by holding trials of the perpetrators. They deserve to see that the trials are free from allegations of bias or misconduct, and are not conducted callously. The judges and the prosecution must keep up to that expectation, and the ministers and party spokespersons must keep to a safe distance from the ICT.

The writer is Barrister-at-Law and Advocate of the Supreme Court.