Expediency over Fundamental Rights: An Assessment of the Bangladesh International Crimes (Tribunal) Act 1973 (as amended)

Transcription

1 Expediency over Fundamental Rights: An Assessment of the Bangladesh International Crimes (Tribunal) Act 1973 (as amended) A. Introduction 1. The International Crimes (Tribunal) Act 1973 (as amended) ( ICTA ) has been heavily criticised. 1 This is intended to be an overview of the extent to which the ICTA fails to comply with internationally recognised standards of fairness. 2 B. Retroactivity 2. There is concern over the retroactive application of the ICTA; 3 Section 3 gives the Tribunal jurisdiction over crimes committed before or after the commencement of the Act. 4 The Bangladesh Constitution ( The Constitution ) prohibits retroactive legislation; however, this protection has been removed in relation to ICTA proceedings. 5 C. Fair and Impartial Tribunal 3. The right to trial by a fair and impartial tribunal is enshrined in Article 14.1 of the International Covenant on Civil and Political Rights ( ICCPR ) and Article 67(1) of the Rome Statute of the International Criminal Court ( Rome Statute ). The Constitution 1 This has included criticism from international organisations such as Amnesty International and Human Rights Watch- Asia Division. 2 Amendments were made to the ICTA in 2009; however, they did very little at all to meet the criticism. 3 Article 15 ICCPR and Article 22 Rome Statute. 4 Simply using legislation adopted after does not infringe this right (Article 15 ICCPR and Article 11(2) Universal Declaration of Human Rights). However, International Criminal Law must have regarded the act/omission as attracting individual criminal responsibility at the time. An example of the issues under the ICTA is the possibility of prosecuting crimes committed in internal conflicts as war crimes in Article 35(1) of The Constitution no person shall be convicted except for violation of a law in force at the time of the commission of the act charged as an offence was removed by Article 47A(1) which was brought into force by The Constitution (First Amendment Act 1973) (Act XV of 1973). ICTA Compliance with Internationally Recognised Standards of Fairness 1

2 expressly confers this right to Bangladesh citizens; 6 however, this has also been removed in relation to ICTA proceedings ICTA Tribunal members are appointed by the Government and can not be challenged by the Prosecution or Defence. 8 This raises concerns about impartiality and bias. Various reports have stated that most of the appointed judges and prosecutors are former party men of the ruling coalition Further, all members are Bangladeshi nationals; however, a mixed panel would ensure that justice is not only done but seen to be done. D. Minimum Fair Trial Guarantees i) Presumption of Innocence, 10 Right to Silence and Protection against Self Incrimination Each of these rights is interlinked. The presumption of innocence is so critical as to be non-derogable 12 ; however, it is inadequately protected in the ICTA. 13 It is also claimed that the Bangladeshi Government has conducted a hate campaign against some of the individuals even before any charges have been brought against them Under the ICTA the Tribunal is entitled, without prior warning, to ask the accused any question, at any stage of the trial. Failure to answer or a false answer, entitles the Tribunal to draw such adverse inferences as it thinks just. 15 This discards the right to silence as well 6 Article 35(3) of The Constitution. 7 Article 35(3) of The Constitution was removed in relation to proceedings under the ICTA by Article 47A(1) The Constitution. 8 Section 6(8) ICTA. 9 Dr. S. Serajul Islam and Dr. M Saidul Islam, War Crime Tribunal in Bangladesh: A Contested Move, 10 Article 14.2 ICCPR and Article 66 Rome Statute. 11 Article 14.3(g) ICCPR and Article 67(1)(g) Rome Statute. 12 Suzannah Linton, Completing the circle: accountability for the crimes of the 1971 Bangladesh war of liberation 2010 Criminal Law Forum 191 at This is also affected by the fact that the Evidence Act 1972 and the Criminal Procedure Code 1898 have been removed in relation to ICTA proceedings; this will be discussed further in a later section. 14 Dr. S. Serajul Islam and Dr. M Saidul Islam, War Crime Tribunal in Bangladesh: A Contested Move, 15 Section 11(2) ICTA, this section does provide that such a failure or false answer cannot result in punishment. ICTA Compliance with Internationally Recognised Standards of Fairness 2

3 as the protection against self incrimination and has been said to codify trial-by-ambush in the form of surprise judicial questioning Attention is also needed to prevent the use of torture and other techniques to force suspects into confessing during investigation, especially given the Bangladesh police forces reputation. 18 ii) Examination of Witnesses Section 10(h) ICTA prevents cross examination of a witness, without leave of the Tribunal, on the answer to any question by the Tribunal. This may hinder the Defendant in adequately putting his case and leaves scope for abuse. iii) Other rights 10. Other rights that are inadequately considered are time for preparing a Defence and disclosure requirements on the Prosecution Further, the ICTA does not include the following defences: Mental capacity, self defence, and duress, 21 mistake of fact or law 22 or superior orders and prescription of law Bangladesh has been strongly encouraged to abolish the death penalty in relation to these proceedings. 24 Its retention also increases the need for procedural and evidentiary 16 Suzannah Linton, Completing the circle: accountability for the crimes of the 1971 Bangladesh war of liberation 2010 Criminal Law Forum 191 at Similar provisions also apply to witnesses and persons giving statements to Investigation Officers, see Section 18 and Section 8(5) ICTA. 18 Letter to Prime Minister Sheikh Hasina Re: International Crimes (Tribunals) Act, HUMAN RIGHTS WATCH 9 July 2009, 19 Article 14.3(e) ICCPR and Article 67(1)(e) Rome Statute. 20 Section 9(3) ICTA provides that the Prosecution only have to disclose the list of witnesses and evidence they intend to rely on three weeks before the commencement of the trial. 21 Article 31 Rome Statute. 22 Article 32 Rome Statute. 23 Article 33 Rome Statute. 24 Suzannah Linton, Completing the circle: accountability for the crimes of the 1971 Bangladesh war of liberation 2010 Criminal Law Forum 191 at 308; the death penalty is retained by Section 20(2) ICTA. ICTA Compliance with Internationally Recognised Standards of Fairness 3

4 safeguards. A mandatory review procedure must also be included for the ICTA to be compatible with international fair trial standards. E. Evidentiary Rules 13. Section 23 ICTA excludes the Criminal Procedure Code 1898 (v of 1898) and the Evidence Act 1872 (I of 1872). The Tribunal may regulate its own procedure 25 and is not bound by technical rules of evidence. 26 It is entitled to admit as evidence newspapers and magazines, take judicial note of facts of common knowledge, 27 official government documents and NGO documents. 28 Such documents and evidence are not necessarily accurate and there is also concern over potential political motivations within them. These provisions expediate proceedings and relieve the burden on the Prosecution at the expense of the accused. F. Appeals and Judicial Review 14. The Constitutional amendments prevent the ICTA from being challenged as unconstitutional. 29 The ICTA also provides that it shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force Judicial Review is unavailable 31 and persons under the ICTA are prevented from moving the Supreme Court for remedies under The Constitution. 32 It has been stated that The Act should be amended so that convicted persons are provided the right of appeal to an appellate court apart from the regular judicial structure Section 22 ICTA, it appears that this includes pre-trial procedure which is not seen as an area for judges to regulate. 26 Section 19(1) ICTA. 27 Section 19(3) ICTA. 28 Section 19(4) ICTA. 29 Article 47(3) introduced by The Constitution (First Amendment Act 1973) (Act XV of 1973) prevents laws under the ICTA from being challenged on the grounds that they are inconsistent with or repugnant to any of the provisions of this Constitution. 30 Section 26 ICTA. 31 Article 44 of The Constitution, which provides for the right to move the High Court Division for enforcement of fundamental rights was removed in relation to proceedings under the ICTA by Article 47A(1) of The Constitution 32 Article 47A(2) of The Constitution. 33 Toby M Cadman, Ensuring Fair Trials in Accordance With International Best Practice Standards Annex 2 Open letter to the Daily Star 21/10/2010. ICTA Compliance with Internationally Recognised Standards of Fairness 4

5 G. Conclusion 16. The ICTA is clearly inconsistent with internationally recognised standards of fairness in some fundamental areas. The first step needed is the removal of the Constitutional amendments and the rights of those under the ICTA need to be brought into line with those of other Bangladesh citizens The importance of adequate safeguards is even more important given the length of time that has elapsed since the 1971 war. 30 December 2010 Kate Louise Parker Pupil Barrister 9 Bedford Row International, London 34 Equality before the law is a fundamental principle of the Rule of Law and is enshrined in Article 26 ICCPR and Article 67 Rome Statute. The Constitution also provides for equality before the law, however, when attempts were made to challenge the Constitutional Amendments in relation to the ICTA Justice Whaib stated that he thought a reasonable distinction could be drawn between the rights afforded to ordinary citizens and other citizens accused of war crimes. ICTA Compliance with Internationally Recognised Standards of Fairness 5