Monday, April 24, 2017
   
Text Size

Site Search powered by Ajax

The Appellate Division of the Supreme Court of Bangladesh

STATEMENT CONCERNING THE REJECTION OF THE REVIEW PETITION BY THE APPELLATE DIVISION OF THE SUPREME COURT OF BANGLADESH

The decision to reject the ‘Review Petition’ by the Appellate Division of the Supreme Court of Bangladesh is deeply concerning.  It is important that an accused person facing such serious allegations in a capital case is given a full opportunity to put forward his case, as it is of equal important that the court considers the matter when appraised of all of the facts.

The Appellate Division of the Supreme Court of Bangladesh has failed to uphold its duty to consider the very serious allegations of prosecutorial and judicial misconduct as well as numerous instances of procedural irregularities that render the conviction and sentence of Muhammad Kamaruzzaman a flagrant denial of justice.

Muhammad Kamaruzzaman now faces imminent execution.  The Government of Bangladesh is urged not to carry out the sentence in circumstances that will constitute an unlawful execution.

On 9 May 2013, Muhammad Kamaruzzaman was convicted and sentenced to death, by the International Crimes Tribunal (ICT) on five counts of crimes against humanity.  Given the significant flaws throughout the trial process, including the lack of respect for the presumption of innocence, and the complete derogation from fair trial principles, the convictions and sentence were challenged on appeal.

The Appellate Division upheld the convictions and sentence imposed, ignoring that the demonstrable errors in law and fact were so fundamental that they invalidated the entire judgment and process at large.

Further, criticism has been levied at the Tribunal by reputable international groups and individuals, including Ambassador Stephen J. Rapp, the U.S. Ambassador for Global Criminal Justice, numerous members of the UK House of Lords, Human Rights Watch, Amnesty International, No Peace Without Justice, International Center for Transitional Justice, the UN Office of the High Commissioner for Human Rights and the United Nations Working Group on Arbitrary Detention.

The defendant was convicted on five counts of crimes against humanity.  He was acquitted on two counts.  It is important to note that the majority of the evidence against the defendant was uncorroborated hearsay and in the most part – rumour.  The Prosecution did not adduce any physical evidence nor did it establish that the defendant held a position of command over those that carried out the crimes with which the defendant was convicted.  The Tribunal further failed to establish the legal requirement for crimes against humanity such as part of a state or organizational policy; widespread or systematic; attack on the civilian population.  The Tribunal and the Appellate Division of the Supreme Court inappropriately applied the principle of judicial notice to fill in the very large gaps where there was no credible evidence.

It was argued before the Appellate Division that having heard a full review petition the previous decisions should be reversed in that the convictions and death sentence should be stayed to allow a re-trial to take place. 

On any consideration of the facts of this matter, it is abundantly clear that there have been catastrophic errors in the manner in which the original case proceeded, and thereafter, the decision at the various levels of the appellate courts.

The original proceedings before the ICT-2 infringed both domestic and internationally accepted principles of justice and therefore it was appropriate that the Supreme Court should accede to the review petition and in doing so, should have immediately ordered a re-trial seeking to rectify the clear catastrophic errors before a freshly constituted panel of judges. 

As with all other cases before the ICT (1 and 2), there was clear evidence of collusion between the Tribunal, the prosecution, and members of an anti-Jamaat organization during the trial process.  The prosecutor and judges would meet regularly in secret, deciding which cases would be heard and when, and what witnesses would give evidence.

This was revealed in the ‘Skype-gate’ scandal, as leaked to the press in December 2012, and yet no action was taken other than a change of judge.

In a properly constituted court, properly seized of the matter, and with the principle of an independent judiciary upheld, this issue alone would have resulted in a ‘mistrial’ being declared and all proceedings stopped.  This has not been the case in Bangladesh therefore, and this instance alone shows the political bias demonstrated by ruling Awami League, and the justice system, against any and all defendants that have appeared before the ICT.

Further, attention is drawn to the fact that throughout the original trial process, and thereafter at the appellate stage, there has been:

  1. No transparency or scrutiny;
  2. Regular statements by the Judiciary, Prosecution Counsel, and members of the Bangladeshi Government that are contrary to the presumption of innocence;
  3. Clear examples of demonstrable bias against the defendant both personally and on a political basis;
  4. An inadequate opportunity to put forward a defence;
  5. An over reliance on hearsay evidence;
  6. An inappropriate application of the principle of ‘Judicial Notice’; and
  7. Complete derogation from fair trial principles.

All of the above result in a tribunal that is hopelessly flawed and without credibility.

It is therefore staggering that the Supreme Court have felt it appropriate to effectively ignore all of the above issues and reject this latest petition.

To execute the defendant in such circumstances would amount to nothing other than state sponsored murder.

The Judges of the Appellate Division of the Supreme Court were given an opportunity both on appeal and review to note these errors and acknowledge that the original proceedings were so fundamentally flawed that the defendant was not afforded a fair trial, and therefore the convictions and sentence were to be quashed to allow a re-trial to take place.  They have clearly failed in their duty and to now execute Kamaruzzaman in the face of such fundamental problems will be nothing more than state sponsored murder.

The legacy of the ICT will be one of injustice, and will serve as a blueprint of how not to approach such trials in the future, a model to be avoided at all costs.

The international community is now called upon to take all proper and necessary steps to prevent the execution from taking place.

Respectfully,
Toby Cadman  

Barrister-at-law
London
6 April 2015

 


blog comments powered by Disqus

Subscribe via RSS or Email:

Donation

Thanks to all of our supporters for your generosity and your encouragement of an independent press!

Enter Amount:

Featured_Author

Login






Login reminder Forgot login?

Comments

Subscribe to MWC News Alert

Email Address

Subscribe in a reader Facebok page Twitter page

Week in Pictures

North Korea marks

Europe's late spring freeze