Even if we call the 1972 constitution a fruit of our national unity it gets better flavour, no doubt. Thanks for that. The great liberation war breaking all the class barriers in the society created great opportunity for a great national unity, but unfortunately country’s political luck was never great.
The concept I had in bringing the topic out on board was to highlight the fact that the 1972 constitution has been changed over the years in a manner that the Great National Unity and the Secular standard, we are talking about, in my view, no more exist.
We have even changed the Preamble of the constitution by which Secularism, one of the four fundamental principles of the constitution was omitted.
It was the first paragraph of the Preamble of the 1972 constitution: We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March 1971 and through [a historic struggle for national liberation], established the independent, sovereign People’s Republic Bangladesh. Later the words “a historic war for national independence” were substituted.
‘Pleading that the high ideals of Nationalism, Socialism, Democracy and Secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the historic struggle for national liberation, shall be the fundamental principles of our constitution’ – This was the second paragraph of the Preamble in [original] 1972 constitution.
The substituted second paragraph which is the present paragraph doesn’t have ‘secularism’, and instead ‘absolute trust and faith in the Almighty Allah’ was later incorporated.
Part II of the constitution which states the fundamental principles of state policy was changed as well. A new clause 1A in Article 8 was inserted which reads – ‘absolute trust and faith in the Almighty Allah shall be the basis of all actions’.
Articles 9 and 10 were substituted for the former articles 9 and 10.
Article 12 – ‘Secularism and freedom of religion’ as fundamental principles of state policy, in the 1972 constitution, was also omitted from the constitution. But was not replaced by a new article.Now we don’t have any Article 12 in our constitution. We have 11 and 13.
Article 12 of the constitution of 1972 contained provisions which strictly prohibited political party based on religion and banned the use of religion for materisalising any political interest. Unfortunately, these provisions were omitted from the constitution during the post 1975 period and the religion based politics started in the country.
Article 12 of the constitution stated that the principle of secularism shall be realized by the elimination of: Communalism in all forms; the granting by the state of political status in favour of any religion; the abuse of religion for political purposes; and any discrimination against, or persecution of persons practicing a particular religion.
Article 38, paragraph 2 of the 1972 constitution was also deleted, which stated: No person shall have the right to form or be a member or otherwise take part in the activities of, any communal or other association or union, which in the name or on the basis of any religion has for its object, or pursues a political purpose.
Further, we have inserted a new Article 2A, which reads – ‘the state religion of the Republic is Islam, but other religions may be practised in peace and harmony in the Republic’.
From language movement to the great liberation war, even in earlier movements against British colonial rule, Bengali people struggled as one nation, irrespective of their race, cast, sex and religion. Many of our people sacrificed their lives for the mother land and mother tongue. There were Muslims, Hindus, Buddhists and others.
The word secularism is more or less confusing to most of the people of Bangladesh. In fact, is there any universal notion of secularism? Now the question is whether the western notion of secularism is applicable to our country or not.
No doubt Bangladesh was born out of the fundamental principles of democracy, socialism, Bengali nationalism and secularism.
In defining secularism we must consider Bangladesh as a pluralist society in both religious and cultural aspects. So, implementing secularism in Bangladesh is relatively an easier task compared with other Muslim countries. Most of Bangladeshi, we keep liberal outlook and traditionally believe in the principle of peaceful coexistence with other religious communities.
While defining secularism in 1972 constitution, Bangabandhu had crystal clear conception of secularism of the land. To him secularism was not to discard religion. Rather he was eager to promote all religions and bring religious harmony in the country.
There have been extensive militant networks operating world wide for years, and they kept growing under the government’s nose. Not surprisingly Bangladesh is no exception.
It is now also clear that there are some foreign investments that patronise militant activities round the globe. Testimonies of some arrested militants suggest that they are well-equipped and well-funded to carry out so-called ‘revolution’ in Bangladesh.
I pray to all that you keep your eyes open.
It is important to note here that one of our sector commanders in our great liberation war 1971 was Mr. C.R. Dutta. He said: ‘We didn’t fight for liberation in 1971 for making Islam state religion. The spirit of war of liberation was to establish a nation free from communalism.’
Now, my question - under the pesent constitution what class of Citizen Mr. Dutta is? It is really matter of sadness. Is it not the repeat of pre-liberation treatment to us by Pakistani junta, when we could not have our mother-tongue as of our right, when we were not allowed to take higher posts and positions in the then administration and so on? Are we not treating our own people differently? Are we secular liberal Bangladeshi? Are we not discriminating? If our constitution fails to guarantee the true equal Rights of our people, that constitution can not be called a fruit of our national UNITY. That fruit is bound to be a rotten fruit, not a ripen fruit.
Friday, 24 April 2009
Wednesday, 22 April 2009
Homage to William A S Ouderland (Bir Pratik) (1917-2001)
Dutch-Australian William A S Ouderland was honoured with the state insignia of 'Bir Pratik ', the fourth highest gallantry award by the government of Bangladesh for his very active participation in and heroic contribution, to the WAR OF LIBERATION in 1971. He is the only foreigner to receive this honorary award by the government of Bangladesh. An Australian national Ouderland was born at Amsterdam in Netherland on 6 December 1917. At the age of seventeen he took a job in the Bata Shoe Company as Shoe-shiner (1934). After two years he left the job and joined National Service and was a Sergeant in the Royal Signal Corps (1936). He left the service in 1940 and then participated in the Second World War (1939-1945) as a guerilla commando of the Dutch army.
Ouderland first came to Dhaka in late 1970 with an assignment as the Production Manager of Bata Shoe Company. Within a few months he was promoted to the post of Company Manager. With the beginning of the War of Liberation the company-manager Ouderland discovered in him the ex-soldier Ouderland facing a new war. At the initial stage he engaged himself in communicating secret intelligence on the plans and actions of the occupation army to the freedom fighters.
As a foreigner he had the access to Pak-army and thereby the opportunity to move in the army headquarters and often attend meetings of the army officers in the cantonment. He helped the freedom fighters in every possible way by supplying provisions and financial support. With his experience in the Second World War as a guerilla commando and himself being an active member of a guerilla branch of the freedom fighters of Sector 2, he imparted regular training to the freedom fighters in guerilla warfare at different secret camps in Tongi including the Bata Shoe Factory premises.
On 25 March 1971, rising political discontent and cultural nationalism in East Pakistan was met by brutal suppressive force from the ruling elite of the West Pakistan establishment in what came to be termed Operation Searchlight. He was moved by the killings of the Pakistan Army on 25 March and took photos which he sent to the international media. A war between the West Pakistan Army and guerrilla force, the Mukti Bahini, started immediately. Guerrilla operations, which slacked during the training phase, picked up after August. Economic and Military targets in Dhaka were attacked. Ouderland organized the guerrilla warfare in Dhaka. He built a friendly relationship with 22nd Baluch Regiment captain Sultan Newaz and penetrated into Dhaka cantonment. Subsequently he created close relation with Governor General Tikka Khan and Adviser Civil Affairs Major General Rao Forman Ali. He became a "Distinguished Friend" of A. A. K. Niazi at the headquarters of Eastern Command and managed a security pass to contact with them frequently. Besides Ouderland continued gathering information for the Mukti Bahini and sent it to Major ATM Haider of Sector-2 and Ziaur Rahman.
Inside his office of the Bata Company in Tongi, Ouderland organized and trained the guerrilla fighters of Mukti Bahini. He planned and directed a number of guerrilla operations in Dhaka and nearby areas. He provided the fighters with food and medicine and often gave them shelter. Simultaneously, he gave a tremendous service at the initial stage of the Liberation War by collecting photographs on the inhuman torture and genocide by the occupation army in East Pakistan, and sending them to the world news media thereby creating public opinion in favour of Liberation War. On this point he wrote, "I recollected and resumed in myself the experiences of my youth in Europe, and I felt that I should get the world informed of what was happening in Bangladesh".
William AS Ouderland continued his service in the Bata Shoe Company with his later elevated position as Managing Director till 1978 when he retired and returned back to Australia and settled there for the rest of his life. He died on 18 May 2001 in a hospital at Perth in West Australia leaving behind him his wife Maria and his only daughter. In his last days he was often found telling his wife and daughter, "Bangladesh mon amor (Bangladesh is our love). Maintain this flow of emotion for the generation to come". In 1998, he was invited by the Prime Minister of Bangladesh, Sheikh Hasina, to receive the award and certificate but was unable to attend due to illness.
Courtesy: en.wikipedia.org/banglapedia.net/
Ouderland first came to Dhaka in late 1970 with an assignment as the Production Manager of Bata Shoe Company. Within a few months he was promoted to the post of Company Manager. With the beginning of the War of Liberation the company-manager Ouderland discovered in him the ex-soldier Ouderland facing a new war. At the initial stage he engaged himself in communicating secret intelligence on the plans and actions of the occupation army to the freedom fighters.
As a foreigner he had the access to Pak-army and thereby the opportunity to move in the army headquarters and often attend meetings of the army officers in the cantonment. He helped the freedom fighters in every possible way by supplying provisions and financial support. With his experience in the Second World War as a guerilla commando and himself being an active member of a guerilla branch of the freedom fighters of Sector 2, he imparted regular training to the freedom fighters in guerilla warfare at different secret camps in Tongi including the Bata Shoe Factory premises.
On 25 March 1971, rising political discontent and cultural nationalism in East Pakistan was met by brutal suppressive force from the ruling elite of the West Pakistan establishment in what came to be termed Operation Searchlight. He was moved by the killings of the Pakistan Army on 25 March and took photos which he sent to the international media. A war between the West Pakistan Army and guerrilla force, the Mukti Bahini, started immediately. Guerrilla operations, which slacked during the training phase, picked up after August. Economic and Military targets in Dhaka were attacked. Ouderland organized the guerrilla warfare in Dhaka. He built a friendly relationship with 22nd Baluch Regiment captain Sultan Newaz and penetrated into Dhaka cantonment. Subsequently he created close relation with Governor General Tikka Khan and Adviser Civil Affairs Major General Rao Forman Ali. He became a "Distinguished Friend" of A. A. K. Niazi at the headquarters of Eastern Command and managed a security pass to contact with them frequently. Besides Ouderland continued gathering information for the Mukti Bahini and sent it to Major ATM Haider of Sector-2 and Ziaur Rahman.
Inside his office of the Bata Company in Tongi, Ouderland organized and trained the guerrilla fighters of Mukti Bahini. He planned and directed a number of guerrilla operations in Dhaka and nearby areas. He provided the fighters with food and medicine and often gave them shelter. Simultaneously, he gave a tremendous service at the initial stage of the Liberation War by collecting photographs on the inhuman torture and genocide by the occupation army in East Pakistan, and sending them to the world news media thereby creating public opinion in favour of Liberation War. On this point he wrote, "I recollected and resumed in myself the experiences of my youth in Europe, and I felt that I should get the world informed of what was happening in Bangladesh".
William AS Ouderland continued his service in the Bata Shoe Company with his later elevated position as Managing Director till 1978 when he retired and returned back to Australia and settled there for the rest of his life. He died on 18 May 2001 in a hospital at Perth in West Australia leaving behind him his wife Maria and his only daughter. In his last days he was often found telling his wife and daughter, "Bangladesh mon amor (Bangladesh is our love). Maintain this flow of emotion for the generation to come". In 1998, he was invited by the Prime Minister of Bangladesh, Sheikh Hasina, to receive the award and certificate but was unable to attend due to illness.
Courtesy: en.wikipedia.org/banglapedia.net/
Mr Ouderland’s Letter
Dear Mr Faridi
Thank you for your letter of January 24, 1997 advising your effort to
gather and preserve for the future generations of
relevant and vital information and facts about the struggle of the Bengali
people for Freedom and independence commencing in 1971.
As one who was intimately involved in this struggle. I am writing to
give you the information you requested. Firstly concerning my self
and then to share with you some recollections of the 1971 struggle.
I was born on December 1917 in
in the grip of the third year of the First World War. I was
conscripted for National service in 1936 shortly after I had commenced my employment with the Bata Shoe Company. Shortly before my mother land was
invaded by
Signals Corp. IN the face of the might of Adolf Hitlar's German Junta,
equipped with sophisticated Tank and other massive weapons my platoon
of 36 men then were simply armed with short rifles and twelve rounds of
ammunitions each. As we went out to face this enemy, flying overhead
was the huge fleet of Germen warplanes headed for
space of half an hour, 30,000 innocent Dutch citizen died as result of their
massive air attack. Following this blitzkrieg of
issued and ultimatum to the other cities of
Within week the Dutch,
domination of Germen Junta.
Having escape form the POW camp after short internment, I joined the
Dutch underground assistance movement. As I spoke fluent Germen and
several Dutch dialects. I befriended the germen high command and was
thus able to help the Dutch underground movement as well as the allied
forces with the vital information. Therefore, when the even of March 1971
started with Tanks of Pakistani forces rolling in to
experience of my younger days in
and predicament of the Bengali people and this motivated me to spring in
to action on their behalf. As a result of indiscriminate and cruel actions of this invading
Pakistani Junta, thousands of Bangali died in the ensuing week.
I felt that
I was able to
Pakistanis against the innocent people which including young children. I was
able to pass these photos to the world press to high light the plight of the
Bengali people.
Deeply touched and move by the almost unbearable sufferings and atrocities I
witness of the cruel and oppressive occupying force. I secretly began Guerrilla movement
with the brave Bengalis at Bata Tongi and all around sectors 1 and 2. In addition, and as an
expatriate CEO of an international company, I had the company of the occupying Pakistani
high command. This enables me to help the Bengali freedom fighters. I trained and worked
with in relation to their Guerilla activities. All these
love and affection I felt for the Bengali
There is much more I could say in details but it is near impossible
because I am now retired and almost blind.
I have enclosed an album of Photograph cataloguing the atrocities of
the occupying Pakistani army and the untold suffering of the Bengali
people. Also include are photos of some of the brave freedom fighters
whom I consider as my sons.
I hope this will be some help to your worth while endeavour and I
wish you every success.
Your sincerely
W. A
22 February 1997
Note:
This letter was send by Mr Ouderland to one of our freedom fighters Mr
Faridi in 1997 and later it was publish in a magazine in
with Photograph.
Courtesy: banglaweb.com
Friday, 17 April 2009
DID BANGABANDHU ACTUALLY PARDON ALL WAR CRIMINALS?
Contrary to the misconception that all the war criminals have been pardoned
If a society that allows the war criminals to roam around free for so many years, it is not at all surprising that such a society will become a breeding ground for criminals. The trial of those who actively opposed Bangladesh's liberation by taking up arms to fight for the occupying Pakistani army has been one of the unfinished legacies of our history.
The process of trial of the war criminals was originally began in 1972 and stopped abruptly after the assignation of the country’s founding president Sheikh Mujibur Rahman in August 1975.
A total of 37,000 war criminals were arrested between 1972 and 1975.
Twenty-six thousands (26,000) of the detainees with records of minor offence, were pardoned under a general amnesty announced by Mujib government, in which the accused against whom there was no clear evidence of killing, rape, arson and looting were given clemency. There was this clause that even those who were pardoned if new allegations of killing, rape, arson and looting turned up against them they could be tried.
But the trial process of 11,000 others, against whom there was clear evidence of killing, rape, arson and looting was on. Among them 752 were handed down with sentences after the trial under the Collaborators Act 1972. By December 31, the trials of these 752 war criminals were finished, even death penalties were handed down, and one war criminal walked the gallows.
Notably, the first death penalty executed in the history of Bangladesh was in fact that of a war criminal.
But, unfortunately, after the assassination of Bangabandhu (Sheikh Mujibur Rahman) the ruling general Ziaur Rahman halted the process of trial of the war criminals by scrapping the Collaborators Act, resulting in rehabilitation of the hated criminals in the society.
Around 11,000 were behind bars when the government of Justice Sayem and General Zia repealed the Collaborators’ Act on December 31, 1975. They in fact stopped the trial and investigation process. Even those who had been punished were then freed.
sources: online
If a society that allows the war criminals to roam around free for so many years, it is not at all surprising that such a society will become a breeding ground for criminals. The trial of those who actively opposed Bangladesh's liberation by taking up arms to fight for the occupying Pakistani army has been one of the unfinished legacies of our history.
The process of trial of the war criminals was originally began in 1972 and stopped abruptly after the assignation of the country’s founding president Sheikh Mujibur Rahman in August 1975.
A total of 37,000 war criminals were arrested between 1972 and 1975.
Twenty-six thousands (26,000) of the detainees with records of minor offence, were pardoned under a general amnesty announced by Mujib government, in which the accused against whom there was no clear evidence of killing, rape, arson and looting were given clemency. There was this clause that even those who were pardoned if new allegations of killing, rape, arson and looting turned up against them they could be tried.
But the trial process of 11,000 others, against whom there was clear evidence of killing, rape, arson and looting was on. Among them 752 were handed down with sentences after the trial under the Collaborators Act 1972. By December 31, the trials of these 752 war criminals were finished, even death penalties were handed down, and one war criminal walked the gallows.
Notably, the first death penalty executed in the history of Bangladesh was in fact that of a war criminal.
But, unfortunately, after the assassination of Bangabandhu (Sheikh Mujibur Rahman) the ruling general Ziaur Rahman halted the process of trial of the war criminals by scrapping the Collaborators Act, resulting in rehabilitation of the hated criminals in the society.
Around 11,000 were behind bars when the government of Justice Sayem and General Zia repealed the Collaborators’ Act on December 31, 1975. They in fact stopped the trial and investigation process. Even those who had been punished were then freed.
sources: online
NO WAY JAMAAT-E-ISLAMI DENY THEIR ROLE AS WAR CRIMINALS
Jamaat-e-Islami, which yesterday once again denied its anti-liberation role during the 1971 War of Independence, had many of its top leaders among the Razakar members surrendering along with the Pakistan occupation forces on December 16, 1971.
Present Jamaat chief Motiur Rahman Nizami was the chief of Al-Badr, one of the two wings of the Army of Razakars that worked for the Pakistan armed forces to eliminate freedom fighters. The Al Badr is thought to be behind the massacre of the intellectuals on December 14, 1971 when a hundred intellectuals were picked up to be slaughtered.
Lt Gen Niazi’s account:
According to the account of events chronicled by Lt Gen AAK Niazi, who led the Pakistan occupation forces as the chief of Eastern Command of the Pakistan Army in 1971, render the Jamaat’s claim untrue, whom the Jamaat wholeheartedly supported in eliminating freedom fighters in 1971.
Niazi in his book ''The Betrayal of East Pakistan" has categorically said the Army of Razakars was formed by the Pakistan government to fight against the liberation forces. Niazi also describes the formation of the Razakars, training and procurement of weapons and other logistics for them and deployment of the paramilitary vigilante force.
In his book, he says Jamaat-e-Islami, Nizam-i-Islam Party and several factions of Muslim League were known as rightist political parties at the time and the Army of Razakars was formed with the men recruited from these parties.
"Seventy percent of the target ceiling, of 50,000 Razakars spread over all the districts of the province, was achieved. Battle schools were established to train Razakar platoon and company commanders. To provide an effective command structure to this organisation, about sixty young officers were selected to be appointed as Razakar Group Commanders," Niazi says.
Pleased with their performance, Niazi dedicated his book to the Razakars and Mujahids of East Pakistan along with the members of the armed forces, civil armed forces, civilian officers and the West Pakistan police, saying they "strove hard, made supreme sacrifices and suffered humiliation to keep Pakistan united".
Maj Siddiq Salik’s account:
In fact, Jamaat's dominance in the paramilitary force annoyed other parties.
Maj Siddiq Salik, who was the public relations officer of the then Eastern Command of Pakistan Army and worked closely with Niazi in 1971, in his book "Witness to Surrender" says in September 1971 a political delegation from West Pakistan complained to Niazi that he had raised an army dominated by Jamaat men.
"The General called me to his office and said: From now on, you will call the Razakars--Al-Badr and Al-Shams--to give the impression that they do not belong to one single party," Salik writes.
He observes that the Jamaat leaders collaborated with the Pakistan army "not only to advance their ideals of Pakistan as an Islamic state, but also to wreak vengeance on people they were at enmity with".
There are Historic Documents:
According to the historic document of surrender, the Razakars also conceded defeat in the country's Liberation War along with the Pakistan armed forces. "...This surrender includes all Pakistan land, air, and naval forces as also all paramilitary forces and civil armed forces," says the instrument of surrender signed between the chiefs of the Pakistan occupation forces and the Indian and Bangladesh liberation forces.
Military schools were set up to train the Razakars and a separate Razakars Directorate was established. The Razakars were provided with machine guns, sten guns and intelligence against Bangalee freedom fighters, their supporters and sympathisers.
Jamaat leaders Golam Azam, Abbas Ali Khan, Motiur Rahman Nizami and Ali Ahsan Mohammad Mojahid launched a countrywide campaign urging youths to join the Razakars, Al-Badr, and the Al-Shams to resist the liberation forces of Bangladesh. The then home ministry also sent reports to West Pakistan about the activities of these forces in favour of the Pakistan occupation forces.
As the newspapers suggest, the top leadership of the Jamaat has been involved in the rape and killing during the war of liberation. Due to their involvement in the anti-liberation activities, Jamaat was constitutionally banned after the country's independence and many Jamaat leaders had to face trial on charges of war crimes.
Source: Online
Present Jamaat chief Motiur Rahman Nizami was the chief of Al-Badr, one of the two wings of the Army of Razakars that worked for the Pakistan armed forces to eliminate freedom fighters. The Al Badr is thought to be behind the massacre of the intellectuals on December 14, 1971 when a hundred intellectuals were picked up to be slaughtered.
Lt Gen Niazi’s account:
According to the account of events chronicled by Lt Gen AAK Niazi, who led the Pakistan occupation forces as the chief of Eastern Command of the Pakistan Army in 1971, render the Jamaat’s claim untrue, whom the Jamaat wholeheartedly supported in eliminating freedom fighters in 1971.
Niazi in his book ''The Betrayal of East Pakistan" has categorically said the Army of Razakars was formed by the Pakistan government to fight against the liberation forces. Niazi also describes the formation of the Razakars, training and procurement of weapons and other logistics for them and deployment of the paramilitary vigilante force.
In his book, he says Jamaat-e-Islami, Nizam-i-Islam Party and several factions of Muslim League were known as rightist political parties at the time and the Army of Razakars was formed with the men recruited from these parties.
"Seventy percent of the target ceiling, of 50,000 Razakars spread over all the districts of the province, was achieved. Battle schools were established to train Razakar platoon and company commanders. To provide an effective command structure to this organisation, about sixty young officers were selected to be appointed as Razakar Group Commanders," Niazi says.
Pleased with their performance, Niazi dedicated his book to the Razakars and Mujahids of East Pakistan along with the members of the armed forces, civil armed forces, civilian officers and the West Pakistan police, saying they "strove hard, made supreme sacrifices and suffered humiliation to keep Pakistan united".
Maj Siddiq Salik’s account:
In fact, Jamaat's dominance in the paramilitary force annoyed other parties.
Maj Siddiq Salik, who was the public relations officer of the then Eastern Command of Pakistan Army and worked closely with Niazi in 1971, in his book "Witness to Surrender" says in September 1971 a political delegation from West Pakistan complained to Niazi that he had raised an army dominated by Jamaat men.
"The General called me to his office and said: From now on, you will call the Razakars--Al-Badr and Al-Shams--to give the impression that they do not belong to one single party," Salik writes.
He observes that the Jamaat leaders collaborated with the Pakistan army "not only to advance their ideals of Pakistan as an Islamic state, but also to wreak vengeance on people they were at enmity with".
There are Historic Documents:
According to the historic document of surrender, the Razakars also conceded defeat in the country's Liberation War along with the Pakistan armed forces. "...This surrender includes all Pakistan land, air, and naval forces as also all paramilitary forces and civil armed forces," says the instrument of surrender signed between the chiefs of the Pakistan occupation forces and the Indian and Bangladesh liberation forces.
Military schools were set up to train the Razakars and a separate Razakars Directorate was established. The Razakars were provided with machine guns, sten guns and intelligence against Bangalee freedom fighters, their supporters and sympathisers.
Jamaat leaders Golam Azam, Abbas Ali Khan, Motiur Rahman Nizami and Ali Ahsan Mohammad Mojahid launched a countrywide campaign urging youths to join the Razakars, Al-Badr, and the Al-Shams to resist the liberation forces of Bangladesh. The then home ministry also sent reports to West Pakistan about the activities of these forces in favour of the Pakistan occupation forces.
As the newspapers suggest, the top leadership of the Jamaat has been involved in the rape and killing during the war of liberation. Due to their involvement in the anti-liberation activities, Jamaat was constitutionally banned after the country's independence and many Jamaat leaders had to face trial on charges of war crimes.
Source: Online
Tuesday, 31 March 2009
BANGLADESH AND WAR CRIMES etc.
Government has fundamental responsibility to prosecute ‘The 1971 criminals’.
To ensure trial of ‘the 1971 criminals’ the government in 1973 amended the constitution for the first time. The Bangladesh constitution provides the government with unlimited power to try ‘the 1971 criminals’ by any laws no matter whether those contradict the provisions of the constitution or not, denying protection of law, protection in respect of trial and punishment and seek remedy from the Supreme Court for enforcement of fundamental rights.
Power given in Article 47 (3) of the constitution: The government has absolute power to try ‘the 1971 criminals’.
Article 47 (3): “Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.”
Article 47-A: “In applicability of certain articles,(1) The rights guaranteed under article 31. clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.(2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.”
The International Crimes (Tribunals) Act 1973:
The International Crimes (Tribunals) Act 1973, promulgated on July 20, 1973 empowers the government to try individuals on specific charges of crimes against humanity and peace, genocide, war crimes, violation of the Geneva Convention and international laws, for assistance or conspiracy to commit such crimes, and for failure to prevent commissioning of such crimes.
The government only needs to set up a tribunal under this act which is still applicable, as the general amnesty granted to ‘1971 criminals’ by Bangabandhu Sheikh Mujibur Rahman in 1973 does not apply to individuals, “those who were punished for or accused of rape, murder, attempt to murder or arson will not come under the general amnesty” [The press note on the general amnesty on November 30, 1973].
The gazette notification promulgating the Act on July 20, 1973 says the tribunal set up under the act shall have the power to try and punish any person irrespective of his nationality, who, being a member of any armed, defence or auxiliary forces commits or has committed in the territory of Bangladesh, whether before or after the commencement of this act, any of the above mentioned crimes.
In principle the Act is still in force. The Act requires a thorough review. The definition of auxiliary forces needs special care and proper examination.
The government framed the Bangladesh Collaborators (Special Tribunals) Order, 1972, and started prosecuting ‘the 1971 criminals’. But the ‘dark August 1975’ budge changed the situation since the law was repealed on December 31 that year.
Let’s think about it and do something:
"I have got millions of sons losing mine. I have got a country, which is my great achievement. I have a demand--when will the war criminals be tried? "MOKIDUNNESA mother of shaheed Birshreshtha Munshi Abdur Rob.
"My father's soul won't be in peace until the war criminals are tried. The government had conferred the highest respect on the valiant fighters. Why can't they put the war criminals on trial?"FATEMA AMIN daughter of shaheed Birshreshtha Ruhul Amin.
"My husband sacrificed his life for the country. I am proud of him. We want the trial of those who had slaughtered people during the liberation war."MILI RAHMAN wife of shaheed Birshreshtha Matiur Rahman.
"The state needs to file a case in order to try and punish the accused."Professor FARIDA BANU sister of shaheed intellectual Giasuddin. She filed the case with Ramna Police Station on September 24, 1997 against two al-Badr cadres--Chowdhury Mainuddin and Ashrafuzzaman--for killing her brother on December 14 in 1971.
"The government has absolute power to frame any sort of law to try the war criminals."GHULAM RABBANI former judge of Appellate Division of the Supreme Court.
"If the present government does not try the war criminals, then we will try the war criminals after reinstating the Collaborators Act if voted to power."ZILLUR RAHMAN acting president of Awami League.[now president of Bangladesh State]
"The government must move to try the war criminals. An individual cannot do it."ABDUL MANNAN BHUIYAN senior leader of Bangladesh Nationalist Party. He has also said: "The war criminals killed many intellectuals. Nobody took action against them even after there were strong allegations against them. The government must take the responsibility of trying them in line with people's demand."
"People will be able to offer their tributes to the seven gallant soldiers together if they are reburied in the same place. I have requested the chief adviser."Gen MOEEN U AHMED Army chief saying the seven war heroes should be buried in the same place.
Quotations Are Taken From Star Weekend Magazine Volume 6 Issue 49 December 28, 2007.
To ensure trial of ‘the 1971 criminals’ the government in 1973 amended the constitution for the first time. The Bangladesh constitution provides the government with unlimited power to try ‘the 1971 criminals’ by any laws no matter whether those contradict the provisions of the constitution or not, denying protection of law, protection in respect of trial and punishment and seek remedy from the Supreme Court for enforcement of fundamental rights.
Power given in Article 47 (3) of the constitution: The government has absolute power to try ‘the 1971 criminals’.
Article 47 (3): “Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.”
Article 47-A: “In applicability of certain articles,(1) The rights guaranteed under article 31. clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies.(2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.”
The International Crimes (Tribunals) Act 1973:
The International Crimes (Tribunals) Act 1973, promulgated on July 20, 1973 empowers the government to try individuals on specific charges of crimes against humanity and peace, genocide, war crimes, violation of the Geneva Convention and international laws, for assistance or conspiracy to commit such crimes, and for failure to prevent commissioning of such crimes.
The government only needs to set up a tribunal under this act which is still applicable, as the general amnesty granted to ‘1971 criminals’ by Bangabandhu Sheikh Mujibur Rahman in 1973 does not apply to individuals, “those who were punished for or accused of rape, murder, attempt to murder or arson will not come under the general amnesty” [The press note on the general amnesty on November 30, 1973].
The gazette notification promulgating the Act on July 20, 1973 says the tribunal set up under the act shall have the power to try and punish any person irrespective of his nationality, who, being a member of any armed, defence or auxiliary forces commits or has committed in the territory of Bangladesh, whether before or after the commencement of this act, any of the above mentioned crimes.
In principle the Act is still in force. The Act requires a thorough review. The definition of auxiliary forces needs special care and proper examination.
The government framed the Bangladesh Collaborators (Special Tribunals) Order, 1972, and started prosecuting ‘the 1971 criminals’. But the ‘dark August 1975’ budge changed the situation since the law was repealed on December 31 that year.
Let’s think about it and do something:
"I have got millions of sons losing mine. I have got a country, which is my great achievement. I have a demand--when will the war criminals be tried? "MOKIDUNNESA mother of shaheed Birshreshtha Munshi Abdur Rob.
"My father's soul won't be in peace until the war criminals are tried. The government had conferred the highest respect on the valiant fighters. Why can't they put the war criminals on trial?"FATEMA AMIN daughter of shaheed Birshreshtha Ruhul Amin.
"My husband sacrificed his life for the country. I am proud of him. We want the trial of those who had slaughtered people during the liberation war."MILI RAHMAN wife of shaheed Birshreshtha Matiur Rahman.
"The state needs to file a case in order to try and punish the accused."Professor FARIDA BANU sister of shaheed intellectual Giasuddin. She filed the case with Ramna Police Station on September 24, 1997 against two al-Badr cadres--Chowdhury Mainuddin and Ashrafuzzaman--for killing her brother on December 14 in 1971.
"The government has absolute power to frame any sort of law to try the war criminals."GHULAM RABBANI former judge of Appellate Division of the Supreme Court.
"If the present government does not try the war criminals, then we will try the war criminals after reinstating the Collaborators Act if voted to power."ZILLUR RAHMAN acting president of Awami League.[now president of Bangladesh State]
"The government must move to try the war criminals. An individual cannot do it."ABDUL MANNAN BHUIYAN senior leader of Bangladesh Nationalist Party. He has also said: "The war criminals killed many intellectuals. Nobody took action against them even after there were strong allegations against them. The government must take the responsibility of trying them in line with people's demand."
"People will be able to offer their tributes to the seven gallant soldiers together if they are reburied in the same place. I have requested the chief adviser."Gen MOEEN U AHMED Army chief saying the seven war heroes should be buried in the same place.
Quotations Are Taken From Star Weekend Magazine Volume 6 Issue 49 December 28, 2007.
SOME IMPORTANT ISSUES
The original sin
Justice for 1971 crimes
Dr. Ahmed Ziauddin
Bangladesh still has not dealt with its past and past never left her. For any society, traumatized by serious crimes and widespread victimizations, dealing definitively with past is critical, or else, it will hunt present and future. A tormented society cannot just be expected to forget or even forgive, unless ways are found to bring the society to terms. In nearly four decades, Bangladesh has failed to reconcile with its past, an “original sin” according to a noted commentator.
Societal victimizations have innate characteristics. It also victimizes succeeding generations. It would be wrong to assume that passing off those directly victimized would lessen traumas, pains, grievances of their successors. It would not. Only “justice” guarantees compressive closure and that is what is preciously needed now in Bangladesh.
If the current Caretaker Government has its way, it's not likely to take steps to initiate the process of long denied and demanded justice for 1971 crimes. In that case, the Government risks being accused of exploiting sensitivities of 1971 for short-term political gains, like many of its predecessors. The Chief Advisor and Chief of Army, two key players of the current administration, early in their regime, in a synchronized way, raised spectrum of expectations of justice. That opened up torrents of pent-up feelings and emotions of pains as well as hope that those responsible would finally be brought to account and victims get justice.
Crimes of 1971
It's very difficult to decipher how in Bangladesh “War Crimes” and “War Criminals” became only issue to denote 1971. All campaigns, for justice or otherwise, organizations, newspapers and other medias, commentaries “exclusively” focus on War Crimes. It is as if, only one crime was committed in Bangladesh in 1971. Trial of War Criminals is the only call that emanates from Bangladesh today and this excessive focus on War Crimes has enabled those allegedly responsible, to spin and play around legal technicalities of definition of War Crimes.
In reality, most victims in Bangladesh in 1971 were victims of Genocide and Crimes against humanity, two most abhorrent crimes known to the world. National, ethnicity, racial and religion determined fates of victims of 1971.
Pakistani military and their local cohorts intentionally targeted Bangalis, to destroy in part or whole, because of their national, ethnical, racial identities. Others were exclusively targeted because of their religion, such as Hindus. Once transposed, such facts neatly fit the Crime of Genocide as defined in the Genocide Convention of 1948 and the International Crimes (Tribunals) Act of 1973.
The next crime, which victimized large numbers of other victims, was Crimes against humanity. In short, international laws, it means, widespread or systematic attack directed against any civilian population, with the knowledge of attack. In other words, Crimes against humanity are large-scale attacks, and inhumane acts against or persecutions of civilians. In 1971, most victims were unarmed civilians and not armed combatants. For those carrying weapons, different laws apply but under no circumstances, civilians could be targeted.
So, it's very important to keep in mind while demanding justice for crimes committed in 1971, that one particular crime is not overemphasized so that it becomes synonymous to 1971.
Highest criminal responsibility
Anyone who has committed any of these crimes or ordered, solicited, induced, facilitated, aided, abetted, incited or contributed in any other way in furthering the criminal activity with the knowledge, should be individually held accountable. However, it's important that attention is given to those in superior authority, who planned or organized or ran criminal organizations like Al Badar, bore highest criminal responsibility, and should be pursued in all earnest. Bringing those to justice with higher criminal responsibility should thus be made a priority.
Duty to prosecute
Investigation and prosecution is not an “option” for a State but a “duty” under international and national laws for international crimes like Crime of Genocide, Crimes against humanity, War Crimes etc. The Government as the authority of the State, is obliged to “prevent” the commission of Genocide in the first place, and committed, investigate and then prosecute those responsible.
In regard to Bangladesh Genocide, this is preciously what the Government of Pakistan said in its case against India concerning Trail of Pakistani Prisoners War on 11 May, 1973. Pakistan filed a case on that day before the International Court of Justice (ICJ), the judicial organ of the UN that mainly resolves disputes between its members and is based in The Hague, Holland, to prevent India from transferring 195 POWs accused of Genocide, Crimes against humanity and War Crimes to Bangladesh for trials in Bangladesh.
In its application, Pakistan maintained that “Pakistan has an exclusive right to exercise jurisdiction over one hundred and ninety-five Pakistani nationals or any other number, now in Indian custody, and accused of committing acts of genocide in Pakistani territory, by virtue of the application of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, and that no other Government or authority is competent to exercise such jurisdiction.”
Pakistan further said, “That the allegations against the aforesaid prisoners of war are related to acts of genocide, and the concept of “crimes against humanity” or “war crimes” is not applicable.” In other words, Pakistan accepted that 195 POWs, who were top ranking military leaders in Bangladesh, committed “acts of genocide” and thus reinforcing what Bangladesh has always maintained. Pakistan's sojourn to the World Court, however, failed as India did not recognize jurisdiction of the ICJ.
Unfortunately, despite admitting Genocide before the International Court of Justice, Pakistan negated from its claim to investigate and prosecute of those of its nationals for committing Genocide, and so also Bangladesh, whose nationals were victims and on whose territory, crimes were committed. The losers, at the end, were those millions of victims.
The Government of Bangladesh thus cannot circumvent its duty to investigate and prosecute crimes of 1971 on any pretext, such as, failures of previous Governments, or shortages of time, or on other grounds. Obligation to investigate and prosecute is a duty that the Government cannot withdraw from and further perpetuate culture of impunity that is so endemic in Bangladesh.
Two laws, same crimes
Why Bangladesh adopted two different sets of laws for the same sets of crimes committed in 1971 has since been an enigma.
The first legislation, proclaimed within weeks of liberation of Bangladesh on 24 January, 1972, the Presidential Order no 8, titled the Bangladesh Collaborators (Special Tribunals) Order, 1972, was designed to prosecute “certain persons, individuals or as members of organizations, directly or indirectly have been collaborators of the Pakistan armed forces, which has illegally occupied Bangladesh by brute force, and have aided and abetted the Pakistan armed forces in occupation, in committing genocide and crimes against humanity..” etc. In other words, the law was for prosecution of collaborators.
The other one passed a year and half later on 20 July 1973, the International Crimes (Tribunals) Act, 1973, was to try and punish any member of “armed forces, defence or auxiliary forces” who committed seven major crimes, including Crimes against humanity, Genocide and War Crimes. It baffles many, why it took so long to enact this law, purportedly to judge main protagonists of these crimes, while within five weeks after victory from occupations; laws were ready to try locals!
The two laws dealt with collaborators and members of armed forces differently for committing very same crimes. In fact, no members of armed forces were ever brought under the International Crimes Act 1973, while several thousand collaborators were brought under the net.
This duality, apparently with no plausible justifications, essentially went against an important principle of law, equal treatment under law, and as a result, when final batch of 195 POWs were allowed to return to Pakistan, for whom the International Crimes Act 1973 was primarily meant for, then the Collaborators Order lost some of its edge. If there was one law, for the crimes committed in 1971 and given adequate constitutional protection, perhaps that law would have played more significant roles.
Non-prosecution or amnestySeveral Special Tribunals under Collaborators Order processed numerous cases and leading members of East Pakistan Government headed by Dr. M.A. Malik were convicted. Senior Jamaat leaders were also convicted for participating and collaborating in crimes. Many more were being investigated and thousands of others remained detained.
The Government, on 16 May, 1973, for the first time, declared clemency to certain categories of persons who had been convicted for or charged with the offences under the Bangladesh Collaborators (Special Tribunals) Order, 1972. On November 30, 1973, the Government made second announcement of clemency to those who had been convicted or accused of offences under the Collaborators Order, except those accused of murder, rape or arson. The en mass release was premised that this would contribute to national reconciliation but in reality, it had exact opposite effects.
There was no consultation of any sort with victims of 1971 crimes, who lost most and thus, the proverbial first seed of the 'original sin” was planted though this unilateral decision. Not only small fries but big fishes then wiggled out of prison because of corruption, favoritism and misuse of powers.
The amnesty order was also legally flawed, in that, only the President of Bangladesh under Article 57 has been authorized to grant pardons to “convicted” persons, not those accused or under trial. Under the misnomer of amnesty, the Government in fact stopped all prosecutions, did not press charges further and released others. It acted illegally in releasing those convicted.
If analyzed, it transpires that what happened was, in absence of better expression, non-prosecution, where the Government decided not to pursue complaints. This was in no way clemency or amnesty, and therefore, successive Governments are under no legal obligations not to prosecute because this amnesty order. This amnesty order in no way is a hindrance to initiate investigations against those freed. Moreover, another similar order could easily replace that amnesty order.
Approaches followed
Nobody could imagine seismic effects of Genocide, Crimes against humanity and War crimes on lives, properties and future of Bangladesh. The new Government just could not get grips over tsunami of pains and sorrows. Victims were helped in some ways but mostly left to fend for themselves. Many new civil society actors emerged and organizations formed, but nobody organized the victims that would have given them some voice. There was no “policy” produced to deal with victims and aftermaths of Genocide and a Libration war.
In some ways, however, Bangladesh, even in absence of a policy, victim's organizations or effective consultations, made attempts to deal with consequences. It picked up local collaborators to avoid private vengeances. Law to prosecute and punish collaborators was brought in, and Special Tribunals started to operate.
Some key individuals were stripped of their citizenship; a strategy though received initial supports, was legally flawed. Such disqualifications were not made as a part of punishment, after a legal process, but done with executive fiat. All such disqualifications were subsequently reversed.
Amnesty, perceived to be panacea of reconciliation, simply collapsed on weights of injustice. Those beneficiaries of amnesty or non-prosecution, regrouped, eventually re-energized and mounted opposition to very ethos of Bangladesh, a liberal and secular society. Today's Islamists are by and large same individuals, believing in same ideologies, and belonging to same organizations that benefited reconciliation gesture.
Virtually nobody received compensation in a meaningful way, nor was lost properties restored. Obviously, there was no question of reparations and victims then forced to pick-up themselves and move on. Some monuments and mausoleums were constructed, symbolizing struggles and sufferings. Even within victims, some sort of artificial hierarchy emerged though marking of Intellectual Martyrs Day on each 14th December, while million other victims have not got such a day for collective grievances and reflection. As yet, Bangladesh doesn't commemorate a Victim's Day or even a Genocide Day.
Conclusion
Those who thought that with disappearances of victims, calls for justice would also die. They could not be more. Now the nation united in calling for justice for crimes of 1971. The past has returned with force, that many tried to bypass.
Bangladesh has to deal with its past, and now, or else, schism and fault lines developed on 1971 would further widen. The wounds are too deep to heal without justice.
All out efforts should be made to organize victims of Genocide and other crimes of 1971. Victims should be reminded that their pains are felt and shared by all. Victims should also be made center of all activities and all approaches should be victims centric.
Without prosecutions, there would be no healing. In post conflict societies, peace only comes with justice. The Government of Bangladesh cannot shrink off its responsibilities, if it aims at a democratic, developed and peaceful Bangladesh. It has to fulfill its obligations, without which, all aims will remain elusive. Experiences around the world tell us, justice is the best healer and that; there is no peace without justice.
The writer is international law expert and can be reached at Bangladesh Center for Genocide Studies, Belgium. Email: bdcgs@aim.com.
© All Rights Reservedthedailystar.net
Justice for 1971 crimes
Dr. Ahmed Ziauddin
Bangladesh still has not dealt with its past and past never left her. For any society, traumatized by serious crimes and widespread victimizations, dealing definitively with past is critical, or else, it will hunt present and future. A tormented society cannot just be expected to forget or even forgive, unless ways are found to bring the society to terms. In nearly four decades, Bangladesh has failed to reconcile with its past, an “original sin” according to a noted commentator.
Societal victimizations have innate characteristics. It also victimizes succeeding generations. It would be wrong to assume that passing off those directly victimized would lessen traumas, pains, grievances of their successors. It would not. Only “justice” guarantees compressive closure and that is what is preciously needed now in Bangladesh.
If the current Caretaker Government has its way, it's not likely to take steps to initiate the process of long denied and demanded justice for 1971 crimes. In that case, the Government risks being accused of exploiting sensitivities of 1971 for short-term political gains, like many of its predecessors. The Chief Advisor and Chief of Army, two key players of the current administration, early in their regime, in a synchronized way, raised spectrum of expectations of justice. That opened up torrents of pent-up feelings and emotions of pains as well as hope that those responsible would finally be brought to account and victims get justice.
Crimes of 1971
It's very difficult to decipher how in Bangladesh “War Crimes” and “War Criminals” became only issue to denote 1971. All campaigns, for justice or otherwise, organizations, newspapers and other medias, commentaries “exclusively” focus on War Crimes. It is as if, only one crime was committed in Bangladesh in 1971. Trial of War Criminals is the only call that emanates from Bangladesh today and this excessive focus on War Crimes has enabled those allegedly responsible, to spin and play around legal technicalities of definition of War Crimes.
In reality, most victims in Bangladesh in 1971 were victims of Genocide and Crimes against humanity, two most abhorrent crimes known to the world. National, ethnicity, racial and religion determined fates of victims of 1971.
Pakistani military and their local cohorts intentionally targeted Bangalis, to destroy in part or whole, because of their national, ethnical, racial identities. Others were exclusively targeted because of their religion, such as Hindus. Once transposed, such facts neatly fit the Crime of Genocide as defined in the Genocide Convention of 1948 and the International Crimes (Tribunals) Act of 1973.
The next crime, which victimized large numbers of other victims, was Crimes against humanity. In short, international laws, it means, widespread or systematic attack directed against any civilian population, with the knowledge of attack. In other words, Crimes against humanity are large-scale attacks, and inhumane acts against or persecutions of civilians. In 1971, most victims were unarmed civilians and not armed combatants. For those carrying weapons, different laws apply but under no circumstances, civilians could be targeted.
So, it's very important to keep in mind while demanding justice for crimes committed in 1971, that one particular crime is not overemphasized so that it becomes synonymous to 1971.
Highest criminal responsibility
Anyone who has committed any of these crimes or ordered, solicited, induced, facilitated, aided, abetted, incited or contributed in any other way in furthering the criminal activity with the knowledge, should be individually held accountable. However, it's important that attention is given to those in superior authority, who planned or organized or ran criminal organizations like Al Badar, bore highest criminal responsibility, and should be pursued in all earnest. Bringing those to justice with higher criminal responsibility should thus be made a priority.
Duty to prosecute
Investigation and prosecution is not an “option” for a State but a “duty” under international and national laws for international crimes like Crime of Genocide, Crimes against humanity, War Crimes etc. The Government as the authority of the State, is obliged to “prevent” the commission of Genocide in the first place, and committed, investigate and then prosecute those responsible.
In regard to Bangladesh Genocide, this is preciously what the Government of Pakistan said in its case against India concerning Trail of Pakistani Prisoners War on 11 May, 1973. Pakistan filed a case on that day before the International Court of Justice (ICJ), the judicial organ of the UN that mainly resolves disputes between its members and is based in The Hague, Holland, to prevent India from transferring 195 POWs accused of Genocide, Crimes against humanity and War Crimes to Bangladesh for trials in Bangladesh.
In its application, Pakistan maintained that “Pakistan has an exclusive right to exercise jurisdiction over one hundred and ninety-five Pakistani nationals or any other number, now in Indian custody, and accused of committing acts of genocide in Pakistani territory, by virtue of the application of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, and that no other Government or authority is competent to exercise such jurisdiction.”
Pakistan further said, “That the allegations against the aforesaid prisoners of war are related to acts of genocide, and the concept of “crimes against humanity” or “war crimes” is not applicable.” In other words, Pakistan accepted that 195 POWs, who were top ranking military leaders in Bangladesh, committed “acts of genocide” and thus reinforcing what Bangladesh has always maintained. Pakistan's sojourn to the World Court, however, failed as India did not recognize jurisdiction of the ICJ.
Unfortunately, despite admitting Genocide before the International Court of Justice, Pakistan negated from its claim to investigate and prosecute of those of its nationals for committing Genocide, and so also Bangladesh, whose nationals were victims and on whose territory, crimes were committed. The losers, at the end, were those millions of victims.
The Government of Bangladesh thus cannot circumvent its duty to investigate and prosecute crimes of 1971 on any pretext, such as, failures of previous Governments, or shortages of time, or on other grounds. Obligation to investigate and prosecute is a duty that the Government cannot withdraw from and further perpetuate culture of impunity that is so endemic in Bangladesh.
Two laws, same crimes
Why Bangladesh adopted two different sets of laws for the same sets of crimes committed in 1971 has since been an enigma.
The first legislation, proclaimed within weeks of liberation of Bangladesh on 24 January, 1972, the Presidential Order no 8, titled the Bangladesh Collaborators (Special Tribunals) Order, 1972, was designed to prosecute “certain persons, individuals or as members of organizations, directly or indirectly have been collaborators of the Pakistan armed forces, which has illegally occupied Bangladesh by brute force, and have aided and abetted the Pakistan armed forces in occupation, in committing genocide and crimes against humanity..” etc. In other words, the law was for prosecution of collaborators.
The other one passed a year and half later on 20 July 1973, the International Crimes (Tribunals) Act, 1973, was to try and punish any member of “armed forces, defence or auxiliary forces” who committed seven major crimes, including Crimes against humanity, Genocide and War Crimes. It baffles many, why it took so long to enact this law, purportedly to judge main protagonists of these crimes, while within five weeks after victory from occupations; laws were ready to try locals!
The two laws dealt with collaborators and members of armed forces differently for committing very same crimes. In fact, no members of armed forces were ever brought under the International Crimes Act 1973, while several thousand collaborators were brought under the net.
This duality, apparently with no plausible justifications, essentially went against an important principle of law, equal treatment under law, and as a result, when final batch of 195 POWs were allowed to return to Pakistan, for whom the International Crimes Act 1973 was primarily meant for, then the Collaborators Order lost some of its edge. If there was one law, for the crimes committed in 1971 and given adequate constitutional protection, perhaps that law would have played more significant roles.
Non-prosecution or amnestySeveral Special Tribunals under Collaborators Order processed numerous cases and leading members of East Pakistan Government headed by Dr. M.A. Malik were convicted. Senior Jamaat leaders were also convicted for participating and collaborating in crimes. Many more were being investigated and thousands of others remained detained.
The Government, on 16 May, 1973, for the first time, declared clemency to certain categories of persons who had been convicted for or charged with the offences under the Bangladesh Collaborators (Special Tribunals) Order, 1972. On November 30, 1973, the Government made second announcement of clemency to those who had been convicted or accused of offences under the Collaborators Order, except those accused of murder, rape or arson. The en mass release was premised that this would contribute to national reconciliation but in reality, it had exact opposite effects.
There was no consultation of any sort with victims of 1971 crimes, who lost most and thus, the proverbial first seed of the 'original sin” was planted though this unilateral decision. Not only small fries but big fishes then wiggled out of prison because of corruption, favoritism and misuse of powers.
The amnesty order was also legally flawed, in that, only the President of Bangladesh under Article 57 has been authorized to grant pardons to “convicted” persons, not those accused or under trial. Under the misnomer of amnesty, the Government in fact stopped all prosecutions, did not press charges further and released others. It acted illegally in releasing those convicted.
If analyzed, it transpires that what happened was, in absence of better expression, non-prosecution, where the Government decided not to pursue complaints. This was in no way clemency or amnesty, and therefore, successive Governments are under no legal obligations not to prosecute because this amnesty order. This amnesty order in no way is a hindrance to initiate investigations against those freed. Moreover, another similar order could easily replace that amnesty order.
Approaches followed
Nobody could imagine seismic effects of Genocide, Crimes against humanity and War crimes on lives, properties and future of Bangladesh. The new Government just could not get grips over tsunami of pains and sorrows. Victims were helped in some ways but mostly left to fend for themselves. Many new civil society actors emerged and organizations formed, but nobody organized the victims that would have given them some voice. There was no “policy” produced to deal with victims and aftermaths of Genocide and a Libration war.
In some ways, however, Bangladesh, even in absence of a policy, victim's organizations or effective consultations, made attempts to deal with consequences. It picked up local collaborators to avoid private vengeances. Law to prosecute and punish collaborators was brought in, and Special Tribunals started to operate.
Some key individuals were stripped of their citizenship; a strategy though received initial supports, was legally flawed. Such disqualifications were not made as a part of punishment, after a legal process, but done with executive fiat. All such disqualifications were subsequently reversed.
Amnesty, perceived to be panacea of reconciliation, simply collapsed on weights of injustice. Those beneficiaries of amnesty or non-prosecution, regrouped, eventually re-energized and mounted opposition to very ethos of Bangladesh, a liberal and secular society. Today's Islamists are by and large same individuals, believing in same ideologies, and belonging to same organizations that benefited reconciliation gesture.
Virtually nobody received compensation in a meaningful way, nor was lost properties restored. Obviously, there was no question of reparations and victims then forced to pick-up themselves and move on. Some monuments and mausoleums were constructed, symbolizing struggles and sufferings. Even within victims, some sort of artificial hierarchy emerged though marking of Intellectual Martyrs Day on each 14th December, while million other victims have not got such a day for collective grievances and reflection. As yet, Bangladesh doesn't commemorate a Victim's Day or even a Genocide Day.
Conclusion
Those who thought that with disappearances of victims, calls for justice would also die. They could not be more. Now the nation united in calling for justice for crimes of 1971. The past has returned with force, that many tried to bypass.
Bangladesh has to deal with its past, and now, or else, schism and fault lines developed on 1971 would further widen. The wounds are too deep to heal without justice.
All out efforts should be made to organize victims of Genocide and other crimes of 1971. Victims should be reminded that their pains are felt and shared by all. Victims should also be made center of all activities and all approaches should be victims centric.
Without prosecutions, there would be no healing. In post conflict societies, peace only comes with justice. The Government of Bangladesh cannot shrink off its responsibilities, if it aims at a democratic, developed and peaceful Bangladesh. It has to fulfill its obligations, without which, all aims will remain elusive. Experiences around the world tell us, justice is the best healer and that; there is no peace without justice.
The writer is international law expert and can be reached at Bangladesh Center for Genocide Studies, Belgium. Email: bdcgs@aim.com.
© All Rights Reservedthedailystar.net
Subscribe to:
Posts (Atom)
