Friday, September 27, 2013

Politics and the Molla execution

Putting to one side, for one moment, the appropriateness or otherwise of the decision made by the appellate division to impose a death sentence on Quader Molla (also see this), it is interesting to consider the political context in which the government now has to decide when or if to carry out the execution.

There are two opinion polls this year that provide some information about the mood of the country in relation to the trials and demands for execution.

The first was undertaken by Org-Quest Research Limited who were commissioned by the country's number one Bengali language newspaper, Prothom Alo. It was never published - apparently because it was considered too sensitive.

3000 people were interviewed by phone between 8-15 Feb 2013 on issues relating to the conviction and sentence of imprisonment of the Jamaat-e-Islami leader Quader Molla for war crimes committed during the 1971 war. The questioning took place in the days immediately after the verdict and when the Shahbag movement - which was vehemently seeking the death penalty - was it its height. The estimated margin of error in this poll was said to be +/- 1.7 percent.

Amongst respondents who knew about the ruling (86% of the total) were asked whether they were satisfied with the ruling 59% said that they were dissatisfied and 40 percent said they were satisfied. 1 percent refused to answer.

When the unsatisfied respondents were asked what should have been the fair verdict, the 43% favored the death penalty, 9% expected acquittal and 6% thought anything less than life imprisonment would have been the fair verdict.

In summary, this means that 43% supported the demand that Molla be given the death penalty and 55% were against it, (supporting either life imprisonment, a shorter level of imprisonment or acquittal). 2% had refused to answer.

When the results were considered in terms of whether they lives - 63% of urban residents compared with 37 percent of those living in rural areas supported the sentence of hanging.

This would suggest that there a death penalty decision is not widely popular in Bangladesh, though a significant minority do support it

The second opinion poll was undertaken by Nielsen/Democracy International in April 2013 - subsequent not only to Molla's verdict and the pro-hanging Shahbag protests but also the ICT ruling imposing a death penalty against Sayedee.

This poll involved the face to face interviewing of 2510 randomly selected people throughout Bangladesh, and had margin of error of +/- 2%.

Of those who knew about the tribunal (92%) 86% wanted the trials to proceed.

When those who knew about the tribunals were asked about the fairness of the process, 63% thought that the trials were unfair or very unfair and 31% though they were fair.

Those who thought that the trials were not fair divided into 41% who stated that were simply 'unfair' and 22% who that the trials were ‘very’ unfair.

The poll also found that only 25% of people thought that BNP supported 'war criminals'

In relation to Shahbag, the poll found that 66 per cent of those questioned knew about the Shahbagh protests and out of this number, 69 per cent thought that the ‘reason’ why the protesters were at Shahbagh was to ‘demand justice/capital punishment.’

However, when those voters who knew about the protests were asked about the extent to which ‘most of your friends and family’ supported or were against the movement, the poll found that only 31 per cent supported/highly supported it (of which 13 per cent ‘highly’ supported it) and that 51 per cent thought that their friends and family were against/highly against it (21 per cent being ‘highly’ against).

This second poll therefore suggests that there is a level of deep ambivalence in Bangladesh towards the war crimes trials; whilst the support the idea of trials, most people see the actual proceedings as unfair - though the polls do not examine exactly what people mean by 'unfair (it could mean unfair to the prosecutors, not just unfair to the accused!). Whilst the majority opinion against Shahbag might not only be a vote against Shahbag's demand for the death penalty, it is likely that it does reflect at least to some extent opposition to the death penalty since that was the protestors main demand.

So where does that leave us with the issue of the execution of Molla. 

Taking these polls into account, my view is that Molla's execution will not be a big vote winner for the AL, and amongst certain sections of society in Bangladesh could well turn people off the party (though these people are probably not sympathetic to the party already)

If the government does try to execute Molla in haste, for example without providing a right to review the decision, this could certainly increase the perception of unfairness, that might filter through to opposition to the governing party.

At the same time, Molla's execution will be popular amongst the AL party's base, and a failure to carry out the execution (unless of course something happened clearly beyond the party's control of course) would create significant problems for the party, with the party leadership coming under significant criticism from within.

Probably, looking at the issue in totally political terms, for the Awami League, failure to execute Molla would probably do them more harm than good.

The opposition BNP is being extremely quiet about the tribunals at present - it has not criticised the death penalty as such, but has focused on urging the government to allow the defence to undertake a review by the appellate division. It seems there is little political mileage in the BNP taking up the issue one way or the other.

Thursday, September 19, 2013

More Bangladesh polls results: religion, NGOs, hartals, corruption ...

Last week New Age newspapers published results of a series of opinion polls undertaken by AC Nielsen/Democracy International focusing on the level of political support held by the different political parties, and voters’ views on an election caretaker government, the war crimes trials and the Shahbagh movement. These can all be seen here

However, in the polls undertaken since June 2012 many other questions were asked of voters and below are findings which are likely to be of additional interest – though it should be remembered that that some answers were given over a year ago, and opinions may well have changed.

This is the first time these results - from polls in June 2012, Jan 2013, Mar 2013 and July 2013 - have been published.

All the polls involved face-to-face interviews with between 2,400 to 2,500 randomly selected people throughout Bangladesh. Democracy International says that it is confident that ‘statistically, the views of those surveyed accurately represent the opinions of all Bangladeshi voters with a margin of error of plus or minus 2 per cent.’

Particularly interesting results:
- lack of confidence in NGOs;
- significance of religion;
- Awami League government does well in comparison with last Bangladesh Nationalist Party government in most policy areas;
- 'Corruption' is seen as biggest weakness of both main parties;
- 'history' of party, important to why people vote for AL;
- retirement of AL and BNP's 'founding families' from politics would weaken parties;
- 'hartals' very unpopular;
- control of prices seen as most important priority for new government;
- Overwhelming number of people want dialogue between main political parties.
June 2012 poll 
1. Confidence in institutions: When voters were asked to state whether they had confidence in different institutions, the three in which voters had the least confidence were the ‘police’ (50 percent had no confidence), the ‘political parties’ (43 percent) and NGOs (41 percent). The institution in which voters had the most confidence was ‘the military’ with only 5 percent saying that they had no confidence in it.

2. Religion: The response to two questions indicated the significance of religion in Bangladesh politics. A small majority of people (53 to 47 percent) either disagreed or strongly disagreed with the proposition that ‘religion and politics are two different things’ and 59 percent agreed/strongly agreed that it would be a good thing ‘if all political parties in Bangladesh is based on religion.’

3. BNP/AL policy comparison: Voters were asked to compare the current Awami league government with that of the 2001-6 Bangladesh Nationalist Party government in a number of areas. In ‘education and health care’, 82 percent thought that the current AL government was either successful or very successful, compared to 54 percent who thought the same of the previous BNP government; in ‘reducing poverty’, 36 percent thought the AL had been successful/very successful compared to 32 percent for the BNP period; and both parties get the same ratings, 40 percent, in relation to dealing with law and order. Only in relation to the price of goods does the BNP have a better rating than the AL (41 percent thinking that the BNP had been successful/very successful compared to 30 percent for the AL government). The caretaker government only rated well on the issue of law and order, where 71 percent thought it was successful.

4. Party shortcomings: When voters were asked what was the shortcomings/weakness of the AL and the BNP, the issue that was mentioned the most for both parties was ‘corruption’ - with the same percentage of voters, 35 percent mentioning it as a shortcoming for each party.

5. Why support parties: When asked what were the reasons ‘why some people like or support’ the Al, 46 percent of voters stated it was the party’s ‘leaders’ and 37 percent mentioned it was the party’s ‘history’ - higher levels than the percentage of voters who gave the same reasons about the BNP (31 percent and 15 percent, respectively.)

6. Party/candidate: Just over half of the voters questioned, 52 percent, said that when they vote, they decide solely on the basis of ‘the qualities of an individual candidate’. 18 percent said that they only considered the political party, and 26 percent stating that they consider ‘both’.

7. Founding families: The same percentage of voters, 55 percent and 6 percent respectively thought that both the BNP and AL would be ‘much weakened’ or would ‘disappear’ if ‘their founding families were to retire from politics. Many more people however thought that the Jatiya party would be affected if General Ershad and his family retired from politics with as many as 26 percent of voters thinking that the party would disappear ‘entirely’ (over and above the 52 percent who thought that the party would be weakened by their retirement).

January 2013 poll
8. Hartals: Voters were very hostile to both ‘hartals’ and ‘barricades’ organized by political parties – with over 90 percent viewing them as ‘bad.’ 65 percent even thought ‘criticising opponents in the media’ was ‘bad’. The kinds of political activities that were popular were rallies, public gatherings, TV debate and use of posters.

9. New election Priority: The issue that by far the most number of voters stated should be ‘given priority’ by the next elected government was ‘control of prices’ with 94 percent of voters thinking it a priority. In a question (where voters were allowed to provide more than one answer) 58 percent also thought that ‘improving law and order’, and 40 percent ‘dealing with corruption’ and ‘increasing jobs’, should be priorities.

March 2013
10. Media: Television is by far the most important medium through which people receive their news. When voters were asked ‘which medium do you receive the most reliable news’, 75 percent said ‘television’, with only 6 percent stating ‘newspapers’. 25 percent said ‘words of mouth’ with ero no-one stating the ‘internet’.

11. When asked which TV stations they watched, 37 percent said they watched BTV, 13 percent ATN Bangla, 11 percent Channel One, 7 percent Somoy TV and NTV, and 4 percent said ETV and ATN news.

12. In terms of those people who did read newspapers, 32 percent stated they read Prothom Ali, 27 percent Bangladesh Protidin, 15/16 percent said Amar Desh, Jugantor and Ittefaq, 8-10 percent Jonokhonto, Noyo Niganto, Kaler Khonto and Samakol.

July 2013
13. Dialogue: When voters were asked, ‘Do you believe that the government and opposition parties should get involved in a constructive dialogue soon,’ 93 percent agreed. And when additionally asked whether or not the ‘international community can facilitate dialogue’, 43 percent agreed and 33 percent disagreed.
(This work of DI is part of the Democratic Participation and Reform programme, which is funded by the American and British aid bodies, USAID and UKAID)

Nielsen/Democracy International Polls on Bangladesh

Last week on September 11 2013, New Age published five articles on a series of AC Nielsen/Democracy International opinion polls undertaken in Bangladesh in the past year. It was the first time that results of the polls had been published

For those interested in Bangladesh and wanting to get a better understanding of what people's view in the country actually are on a variety of different issues the polls are absolutely fascinating.

Below are the articles, with links to the original pieces in New Age
1. Significant swing towards BNP
AL hopes lie with ‘undecided voters’

A series of international standard opinion polls conducted over the past year show a significant swing of popular support towards the Bangladesh Nationalist Party, putting the current opposition party in a strong position to win the next national elections due to take place before 24 January 2014, New Age can reveal.
The most recent poll conducted in July 2013 put BNP’s support at 43 points, 11 percentage points ahead of the Awami League and more than double the results of a November 2012 survey which at that time found the BNP’s support to be at only 20 per cent.
Although the headline result of the July 2013 poll is good news for the BNP, the Awami League still has much to play for as the survey found that 19 per cent of all voters — one fifth of the total electorate — had still not made up their mind.
The July 2013 poll does not appear to be a freak result as two opinion polls carried out between the two polls found the opposition party gradually gaining ground over the Awami League.
A January 2013 poll showed the BNP had increased its support to 32 percent and a poll in April found that the percentage of people willing to vote for the BNP had increased to 38.
Support for the Awami League had in the same period flat-lined — remaining unchanged in the January and April 2013 polls, and only rising slightly to 32 per cent in the most recent poll in July.
The question asked of all respondents was: ‘If the election is held today, which party would you think you are likely to vote for?’
The polls — which were shared with New Age — were conducted by the pollster AC Nielsen as part of the Democratic Participation and Reform programme, which is funded by the American and British aid bodies, USAID and UKAID, and implemented by the international non-governmental organisation Democracy International.
Whilst this is the first time that the results of the polls have been made public, they were shared with the four main political parties after the completion of each survey.
The polls, which involved face-to-face interviews with between 2,400 to 2,500 randomly selected people throughout Bangladesh, also asked their views on other issues of the day including the caretaker government, the war crimes trials and the Shahbagh protests (see adjoining articles).
Democracy International says that it uses the most modern statistical methods of polling employed elsewhere in the world and is confident that ‘statistically, the views of those surveyed accurately represent the opinions of all Bangladeshi voters with a margin of error of plus or minus 2 per cent.’
The poll results also show that whilst the BNP is currently more popular in all age categories, it has particular support amongst first-time voters, now aged 22 or under.
The preference of first-time voters is particularly significant as they are likely to account for about 15 per cent of the entire electorate at the next elections.
The July 2013 poll found that 46 per cent of the 18–22 age category supported the BNP whilst only 29 per cent supported the Awami League.
In 2006, at the time when the BNP was last in office, this cohort of voters was aged between 11 and 15 years, with little knowledge of the current opposition party’s period in office.
The BNP’s increased popular support is though not simply the result of its appeal to young voters; it is also due to former AL voters turning to the BNP.
All four polls between November 2012 and July 2013 show that almost a half of those who had voted for the Awami League in the 2008 election said that they would no longer vote for the party - with as many as 24 per cent of 2008 AL supporters stating in the July 2013 poll that they had changed their allegiance to the BNP.
In contrast, 90 per cent of those who voted for the BNP at the last election stated in July 2013 that they continued to support the party. In November 2012, this figure was only 70 per cent.
A particularly significant finding of the polls is how well the BNP is doing in those constituencies which historically, looking at the four elections results since 1991, the Awami League has won by healthy margins.
In the 41 constituencies which, on an average over the past four elections the Awami League candidate won by a margin of votes of between 7 and 14 percentage points (which Democracy International terms ‘AL-leaning’ seats) the July 2013 poll found that the BNP was, on an average, winning by a margin of 17 per cent (51 per cent the BNP to 34 per cent the Awami League).
And in the 72 constituencies which historically over the post-1991 elections, the AL candidate has won on an average by a margin of more than 14 percentage points — the ‘strong AL seats’ — the BNP, according to the July 2013 poll, was at level pegging with the Awami League (40 per cent the BNP to 38 per cent the Awami League).
The July 2013 poll also found that whilst the Awami League continues to have more support in rural (34 per cent) compared to urban areas (25 per cent), the BNP has greater support than the Awami League in both parts of the country, with support for the opposition party at 42 and 44 per cent in both rural and urban Bangladesh respectively.
The polls provide no clear reasons for the swing to the BNP between November 2012 and July 2013 although the nine months period included four war crimes trials convictions, the ensuring political violence, the Shahbagh protests, allegations against ‘bloggers,’ the two Hefazet rallies in Dhaka, and fuel price increases, some or all which may have been factors.
The last poll was undertaken after the four city corporation elections, held in June 2013.
Despite the swing to the BNP, a poll in January 2013, showed that the prime minister continues to have wide popular support — with 52 per cent of people saying that they ‘liked’ her. This was 2 percentage points less than the 54 per cent who ‘liked’ the opposition leader Khaleda Zia. The poll also found that 30 per cent of people did not like either leader.
Democracy International emphasised to New Age that the ‘views expressed in these surveys are those of the respondents who were selected using a statistical sampling method and do not necessarily reflect the views of the organisation or its donors, USAID/UKAID.’ 
2. Voter’s economic perception provides hope for AL
Although the July 2013 headline poll results point to a significant swing towards the Bangladesh Nationalist Party, the electorate’s positive views of their own financial well-being provide the Awami League with reasons to hope that the popular mood in the country, particularly amongst the undecided voters, could turn back towards the party before elections.
When asked in July 2013, ‘Has the Bangladesh economy improved, worsened, or stayed the same under the current government?’ 46 per cent of the respondents were of the view that the economy had ‘improved’ and only 38 per cent stated that the ‘economy had ‘worsened.’ Sixteen per cent stated that they thought that the economy had stayed the same.
And when the voters were specifically asked whether they were better or worse off ‘than five years ago,’ the results were practically the same; 48 per cent said that they were ‘better off,’ 36 per cent said that they were ‘worse off’ with 16 percent stating that nothing had changed.

The results could be significant for the forthcoming elections as the perception of voters’ economic well-being before elections is in many countries considered a good indicator of whether they will vote for the incumbent party or for a change — with those who consider themselves to have economically improved more likely to vote for the incumbent party.
With much hanging on how the undecided voters (which the poll showed accounted for 19 per cent of the total electorate) finally decide for which party they will vote, it is notable that 40 per cent of the undecided voters stated that they were ‘better-off’ compared with only 32 per cent who stated that they were ‘worse-off.’
The results of one other question, which is also thought to be a good proxy for how people will vote in an election, provided mixed fortunes for the governing party.
In April 2013, when voters were asked the question, ‘Overall, do you think things in Bangladesh are headed in the right direction, or are they headed in the wrong direction?’ the results were bad news for the Awami League.
Eighty-four per cent stated that they were headed in the wrong direction with only 14 per cent stating otherwise.
However, when asked in July 2013 the same question, the figures had significantly changed.
The number of those who thought that the country was headed in the wrong direction had reduced to 58 per cent with the number of those feeling that the country was moving in the right direction rising to 37 per cent — a significant uptick for the Awami League. 
The policy area where the government is consistently considered by voters to have most succeeded is in the area of education.
When voters in July 2013 were asked what were the ‘three main achievements of the current government,’ more than a half of all the respondents (52 per cent) mentioned ‘improvements in the educational sector.’
The decision by the government to provide free textbooks to all primary and secondary school students, the nationalisation of more than 27,000 primary schools, and the appointment of tens of thousands of new teachers may well have been behind the positive views of voters.
In addition, a fifth of the voters (21 per cent) mentioned improvements in the buildings of communication infrastructure (roads, flyovers, etc) and 13 per cent mentioned agriculture as amongst the government’s achievements.
Other policy decisions considered positively were ‘women’s empowerment’, the ‘health sector’ and war crimes trials — each mentioned by 11 per cent of voters. ‘Increasing production of electricity’ and ‘digital Bangladesh’ was mentioned by 10 per cent of voters.
Nineteen per cent of those questioned, however, stated that the government ‘has had no success.’
The poll, involving face-to-face interviews with 2,500 randomly selected people throughout Bangladesh, with a margin of error of plus or minus 2 percent, was conducted by the pollster AC Nielsen as part of the Democratic Participation and Reform programme, which is funded by the American and British aid bodies, USAID and UKAID, and implemented by the international non-governmental organisation Democracy International.
3. Main party allies lose support  
The level of voter support for the principal allies of the both of Bangladesh’s main political parties has dropped by more than a half since the 2008 national elections, with Jamaat-e-Islami’s support as low as 1 per cent and the Jatiya Party 3 per cent, according to a national opinion poll conducted in July 2013.
In 2008, Jamaat, an ally of the Bangladesh Nationalist Party, had received 4 per cent of the national vote, which at that time was the lowest level of support the party had received in the four elections since 1990, with the Jatiya Party, an ally of the Awami League, receiving about 8 per cent in the last elections.
As the levels of support for these two parties are in the low percentages, it is possible that the small decline in support found in these polls are within the margin of error of plus or minus 2 percentage points and may not be that meaningful.
The July 2013 poll found that Jamaat only retained the support of 57 per cent of voters who said that they had previously supported the party in 2008, with nearly a third of these 2008 Jamaat supporters (29 per cent) stating that they would now vote for the BNP.
In a poll nine months earlier in November 2012, the vast majority of 2008 Jamaat supporters, 89 per cent, had continued to support the party.
The new decline in Jamaat’s support appears to have particularly occurred in the last three months as polls in January and April 2013 showed that the party’s support was holding then at 3 per cent.
The July 2013 poll suggests that the decline in the Jatiya party’s support is due to its loss of support to both the Awami League and the Bangladesh Nationalist Party.
Seven per cent of those who had voted for the Jatiya party in the 2008 elections said in July that they would vote for the Awami League and 10 per cent said that they would now support the BNP.
The polls, involving face-to-face interviews with between 2400 and 2,500 randomly selected people throughout Bangladesh, was conducted by the pollster AC Nielson as part of the Democratic Participation and Reform programme, which is funded by the US and UK government aid bodies, USAID and UKAID, and implemented by the international non-governmental organisation Democracy International.
4. Popular support for caretaker govt
A majority of voters, including most Awami League supporters, are against the decision of the government to remove the caretaker government system, according to an international standard election poll that was undertaken in April 2013.
A subsequent poll taken three months later, however, showed a greater willingness on part of the electorate to accept elections under a political government although a clear majority still disapproved.
Constitutional provision for a three-month election-time caretaker government, first introduced in 1996, was removed by the present government in 2011.
Although the BNP has demanded its reintroduction for the forthcoming elections due to take place before 24 January 2014, the prime minister has rejected elections under any government other than the current one.
In the April 2013 poll, 81 per cent of voters, including 62 per cent of the Awami League supporters, said that they were ‘against’ the ‘removal of the caretaker government system,’ with only 15 per cent being in favour of the constitutional change.
When those voters who supported the caretaker system were asked ‘what are the positives of the caretaker government?’ 67 per cent stated that it would ensure ‘neutral and unbiased conduct of elections,’ 42 per cent said that it would lead to the ‘eradication of corruption,’ and 22 per cent that it would ‘care about everyone not just their party.’
When asked what were the negatives of ‘conducting elections under the current government?’ 49 per cent mentioned that it would result in a ‘biased election,’ 38 per cent that it would result in the ‘opposition not participating,’ and 30 per cent that the ‘vote wont be counted fairly.’
Respondents were allowed to provide multiple answers to these questions.
Hostility to the removal of the caretaker system, however, appeared less when voters in the same poll were asked a slightly different question: ‘Do you approve or disapprove of a national parliamentary election taking place under the current government?’ In answer to that question, only 68 per cent disapproved, and 32 per cent approved.
A poll conducted three months later in July 2013 showed that the level of support for political government-held elections had increased further to 41 per cent although a majority, 52 per cent, continued to disapprove.
The poll although continued to show that the strength of feeling against a political government held elections was much greater, with the percentage of those who ‘strongly disapproved’ holding elections under a political government over three times higher than those who ‘strongly approved’ (30 to 9 per cent).
It appears that one reason for the increased comfort with the idea of holding elections under a political government was the victory of the Bangladesh Nationalist Party in the four city corporation elections held in June, one month before the poll was undertaken.
Seventy-seven per cent of those asked about whether these elections helped ‘increase voter’s confidence in elections under the current government?’ thought that they had.
The July 2013 poll also asked voters questions about how personally safe they ‘felt to vote’ under a political government (in comparison with elections under a caretaker government) and found that 53 per cent stated they would either feel ‘not safe’ or ‘less safe’ against a total of 47 per cent who said that they would feel either ‘safe’ or ‘safer’ to vote.
And whilst a majority of voters (51 per cent) felt that their vote would ‘not be stolen,’ 49 per cent felt that this would happen, with 17 per cent feeling ‘strongly’ that their vote would not count.
Despite the concerns held by a majority of people concerning the holding of elections under a political government, the July 2013 polls found that at the same time most people (52 per cent) had faith in the capacity of the Election Commission in ‘holding free and fair elections under the current government.’
Only 32 per cent felt that the Election Commission was ‘not capable,’ with 13 per cent stating that they did not know.
In the earlier April 2013 poll, however, the results suggested that the electorate had more confidence in the Election Commission if it was operating under a caretaker government.
In that poll only 28 per cent stated that ‘the Bangladesh Election Commission will do its job neutrally under the current government,’ with 64 per cent agreeing with the same proposition if it was operating under a ‘non-partisan government system.’
The polls which involved face-to-face interviews with between 2,400 to 2,500 randomly selected people throughout Bangladesh, were amongst a series conducted since the beginning of 2012 by the pollster AC Nielsen as part of the Democratic Participation and Reform programme, which is funded by the American and British aid bodies, USAID and UKAID, and implemented by the international non-governmental organisation Democracy International.
5. Majority support war crimes trials but oppose Shahbagh protests
Most voters want the 1971 war crimes trials ‘to proceed’ even though a majority also consider the trials to be ‘unfair’ or ‘very unfair,’ according to an opinion poll conducted in April 2013.
The poll, which was amongst a series of surveys conducted by the pollster AC Nielson also found that nearly twice as many people were against, rather than in favour, of the Shahbagh movement.
When 2510 randomly selected people throughout Bangladesh were asked in April whether they knew about the war crimes trials, 92 percent said that they did with 86 per cent of these voters stating that they personally wanted the trials to proceed, with only 12 per cent against.*
However, when asked about the fairness of the process, 63 per cent (of those that knew about the trials) thought that the trials were unfair or very unfair (with 41 percent stating that they were unfair and 22 per cent stating that the trials were ‘very’ unfair) and only 31 per cent considered that the trials were fair or 'very' fair (with 22 percent stating that they were fair and 9 per cent thinking that they were ‘very’ fair).Those voters who thought that the trials were ‘unfair/very unfair’ included supporters of all the main parties: 84 per cent of the BNP and Jamaat supporters, 80 per cent of Jatiya party voters, and even 32 per cent of Awami Leaguers.
Voters were not asked about the reason for their views on the fairness of the tribunal but the process was subject in November and December 2012 to particular controversy with the publication of Skype conversations and e-mails involving the former chairman of one of the tribunals and allegations about the state abduction of a defence witness.
Voters were also asked about their view on the relationship between the BNP and the war crimes trials.
Fifty-four per cent agreed with the statement that the BNP ‘was not supporting war criminals, they are only demanding fair trials’ whilst 25 per cent agreed with the statement that the BNP ‘secretly support war criminals.’ Twenty-one per cent did not know which statement was correct.
This result would suggest that the attempt by Awami League politicians to taint the BNP through alleging its support for ‘war criminals’ has only been partially successful.
Questions were also asked about the Shahbagh protests which were triggered in February 2013 by the decision of the International Crimes Tribunal to sentence Abdul Quader Mollah, following his conviction for crimes against humanity during the 1971 independence war, to life imprisonment, rather than to a death sentence.
The poll found that 66 per cent of those questioned knew about the Shahbagh protests and out of this number, 69 per cent thought that the ‘reason’ why the protesters were at Shahbagh were to ‘demand justice/capital punishment,’ with only 19 per cent thinking that the object was ‘anti-Islamist.’
However, when those voters who knew about the protests were asked about the extent to which ‘most of your friends and family’ supported or were against the movement, the poll found that only 31 per cent supported/highly supported it (of which 13 per cent ‘highly’ supported it) and that 51 per cent thought that their friends and family were against/highly against it (21 per cent being ‘highly’ against).
The poll found that most Awami League supporters (60 per cent) supported the Shahbagh protests, with most BNP supporters (71 per cent) opposing them.
The poll also sought views on the nature of the protest. When asked, ‘Do you think the movement was a pure movement by the youth or is it a movement created by a certain party?’ the majority of voters, 51 per cent, stated that it was ‘orchestrated,’ with other 25 per cent believing it to be a ‘pure movement.’ Fifteen per cent of voters, however, thought that it started off as a pure movement and was ‘later supported by a political party.’
Most voters in the poll (61 per cent) did not think that the Shahbagh movement would have impact on the next general elections although 24 per cent considered that it would help the Awami League and 7 per cent that it would assist the BNP.
The April 2013 opinion poll is part of the Democratic Participation and Reform programme, which is funded by the US and UK government aid bodies, USAID and UKAID and implemented by the international non-governmental organisation Democracy International.
* Correction: This and the following paragraph have been amended to clarify that the questions about the level of support for proceedings and about the fairness of the trial process, were asked of those respondents who 'knew' about the war crimes trial, which was 92 percent of the total respondents.

Wednesday, September 18, 2013

What HRW, Amnesty and ICJ say about Quader Molla death sentence

Here are the views of two international human rights organizations, and one international jurist organization to the appellate division decision on Quader Mollah which sentenced him on 17 September 2013 to death (see here for details of offense and here for what might happen now).

Note: emphasis added

Human Rights Watch (please note that after providing this statement, HRW issued a slightly amended more formal statement, which can be accessed here)
The verdict handed down by the Appellate Division of the Supreme Court of Bangladesh in the war crimes trial against Abdul Qader Mollah, which reversed a prior life imprisonment for murder as a crime against humanity charge and sentenced him to death, is based on the retroactive application of amended legislation.  
When the Mollah trial judgment was handed down on February 5, sentencing him to life in prison, there was no provision in the International Crimes Tribunal (ICT) Act allowing the prosecution to appeal against an acquittal. In the face of large public protests demanding the death penalty, the cabinet proposed amendments to the ICT Act, which parliament duly passed on February 17. These amendments allowed the prosecution to appeal the sentence, and decreased the time for an appeal to be completed. 
The amendments are a clear violation of the International Covenant on Civil and Political Rights (ICCPR), to which Bangladesh is a state party. Article 14 of the ICCPR states that “no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” 
The prohibition on retroactive penalties is one of the fundamental protections of the rights of the accused in both international law, and for that matter in Bangladeshi law as well. Without this protection, governments would simply keep amending laws whenever faced with a verdict they didn’t like. 
An amendment to the Bangladeshi constitution which strips those accused of war crimes of certain fundamental rights should be repealed to ensure equality and due process of law. 
Human Rights Watch noted that it is precisely because these accused are considered beyond the ambit of constitutional protection that allows the Attorney General, speaking after the verdict, to declare that a constitutional review of the death sentence was not applicable to Mollah and that the case is now over. The only possibility, the Attorney General said, was for Mollah to apply for presidential clemency.

Human Rights Watch has long called for justice for the 1971 atrocities. People in Bangladesh have already waited far too long for justice. But justice depends on fair trials and due process of law. The application of retroactive legislation to hand someone the death penalty calls into question the validity of these trials. One of the goals of the trials was to show that justice had been done, but the conduct of the government risks the further polarization of society and making people like Mollah into martyrs. We hope that the courts and government will think and make fair trials, not convictions, their first priority.

Human Rights Watch is opposed to the death penalty in all circumstances an irreversible, cruel and degrading punishment.

Instead of giving in to public pressure, the government must now do the right thing and seize this moment to join the international community in doing away with this barbaric practice.
Amnesty International: 
Death sentence without right of judicial appeal defies human rights law
Bangladesh should immediately commute the death sentence of Abdul Quader Mollah, Amnesty International said after the Supreme Court increased his sentence from life imprisonment to death following an appeal by the government.

Mollah, a senior leader in the opposition Jamaat-e-Islami party was first sentenced to life imprisonment for crimes against humanity by the Bangladeshi International Crimes Tribunal (ICT) in February 2013. The tribunal was set up in 2010 to try those accused of committing war crimes during Bangladesh’s 1971 independence war. 
We are very concerned about the Supreme Court’s ruling and the apparent relentless effort by the government to ensure that Mollah could be put to death. We urge Bangladeshi authorities to commute his death sentence, and to impose a moratorium on executions as a first step towards abolishing the death penalty,” said Abbas Faiz, Amnesty International’s Bangladesh Researcher. 
The death sentence was handed down by the highest court in the country, giving Mollah no chance to appeal. The imposition of the death sentence without the possibility of appeal is incompatible with Bangladesh’s obligations under international human rights law. 
“Imposing a death sentence without the right of judicial appeal defies human rights law. There is no question that the victims of Bangladesh’s independence war deserve justice, but one human rights violation does not cancel out another. Executions are a symptom of a culture of violence rather than a solution to it,” said Faiz. 
“This is the first known case of a prisoner sentenced to death directly by the highest court in Bangladesh. It is also the first known death sentence in Bangladesh with no right of appeal.” 
Amnesty International opposes the death penalty in all cases without exception, regardless of the nature or circumstances of the crime; guilt, innocence or other characteristics of the individual; or the method used by the state to carry out the execution. 
The Attorney General and the Law Minister have said there would be no possibility of a review of the death sentence by the Supreme Court.

Multiple appeals against death sentences, as well as a final review of the highest court ruling on them, are available to prisoners sentenced to death by other courts in Bangladesh.
Even prisoners sentenced by the ICT have the right to a judicial appeal. 
The death sentence imposed on Abdul Quader Mollah by the highest court in Bangladesh brings to five the number of death sentences linked to ICT trials. The other four - Abul Kalam Azad , Delwar Hossain Sayedee, Muhammad Kamaruzzaman and Ali Ahsan Mujaheed – were sentenced to death by the ICT earlier this year. 
Commuting Mollah’s death sentence will be in line with the trend set by the International Criminal Court and all other international criminal courts established since 1993. They have all excluded the death penalty as a sentence for the most horrific crimes: crimes against humanity, genocide and war crimes.
International Commission of Jurists: 
Bangladesh: Abdul Quader Mollah death sentence violates international law
The ICJ said that the death sentence handed down today by Bangladesh’s Supreme Court against Abdul Quader Mollah is incompatible with international principles of fair trial.
If carried out, the sentence would violate his right to life and freedom from cruel, inhuman, or degrading punishment. 
On 17 September 2013, the Appellate Division of the Supreme Court of Bangladesh upheld the prosecution’s appeal to impose the death sentence on Abdul Quader Mollah (photo), the assistant Secretary-General of Jamaat-I-Islami. 
Abdul Quader Mollah had received a life sentence on February 5, when the International Crimes Tribunal (ICT) convicted him on five counts, including murder and rape. 
“The prosecution’s appeal to impose the death sentence on Abdul Quader Mollah was based on a law that was not in force when he was first convicted, and applying that law retroactively, especially for the death penalty, violates international law,” said Sam Zarifi, ICJ’s Asia-Pacific Director. 
On 17 February 2013, Parliament passed an amendment to the International Criminal (Tribunals) Act 1973 to enable prosecutors to appeal a life sentence and seek the death penalty. 
Before this amendment, the prosecution was only allowed to appeal if the accused was acquitted. 
The ICJ says the retrospective application of the amendment in Abdul Quader Mollah’s case is incompatible with Bangladesh’s obligations under the International Covenant on Civil and Political Rights (ICCPR), including Article 15, which prohibits the imposition of a heavier penalty than provided for at the time the criminal offence was committed. 
“Judgments such as these highlight the serious problems with the war crimes tribunal that undermine its legitimacy,” Zarifi further said. “The wounds of war can only be healed through a fair and transparent trial process that meets international standards of fair trial and due process of law.” 
“It is essential that those responsible for committing atrocities during the Bangladeshi war of liberation are prosecuted and brought to justice,” Zarifi added. “But the death penalty perpetuates the cycle of violence and is a perversion of justice, and all the more so when it is imposed in violation of due process.” 
The ICJ considers the death penalty in all cases to constitute a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
The ICJ calls on Bangladesh to join the great majority of States around the world in rejecting the use of the death penalty. 
To that end, Bangladesh should impose a moratorium on the practice and take steps towards its abolition, as prescribed by repeated United Nations General Assembly Resolutions.

Tuesday, September 17, 2013

What happens now with Quader Molla?

What happens now that the appellate division has imposed the death sentence on Abdul Quader Mollah  in relation to one offence. How quickly can the executive carry out the order of the court, if it so wishes?

1. Certified copy
It seems clear that nothing can happen before a certified copy of the order is produced by the Appellate division. (In the court room today the chief justice simply stated the conclusions of the appeals, and did not provide any reasons.)

So either a decision - with reasoning - has to be written or if it has already been written, a'certified' copy has to be produced.

Then, according to the Attorney General the certified copy has to be sent from the Appellate Division to the International Crimes Tribunal which he said was 'the executing court'. The Tribunal will then issue a 'warrant of death' which will be given to the jail authorities, which is responsible for carrying out the hanging.

It should be noted that courts in Bangladesh can take a very significant time to complete their written judgments - many months, sometimes more than a year. It is upto the five judges to decide whether the decision will be completed quickly or not. It is of course also possible, I imagine, that the dissenting judge could delay the certification process

2. Review petition
Once a certified copy has been written - there is the question of a review petition. On this the defence lawyers and the attorny general/law minister have different position.

According to the defence, Article 105 provides Molla the right to seek a review of the appellate decision. This Article states:
The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.
Order 26 of the Appellate Division rules sets out the procedure for this.
1. Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XL VII, rule 1 of the 'Code of Civil Procedure and in a Criminal proceeding on the ground of an error apparent onthe face of the record.

2. Applications for review shall be filed in the Registry within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed. The applicant shall, after filing the application {or review, forthwith give notice thereof to the other party and endorse a copy of such notice to the Registry.

3. Every application for review shall be accompanied by a certified copy of the judgment or order complained of and when the application proceeds on the ground of a discovery of fresh evidence certified copies of the documents, if any relied upon, shall be annexed to the application, together with an affidavit setting forth the circumstances under which such discovery has been made.

4. No such application shall be entertained unless it is signed by a Senior Advocate who, in this behalf: shall not be governed by the restrictions contained in clause 2 of the First Schedule to these rules.

5. The Senior Advocate signing the application shall specify in brief the points upon which the prayer for review is based, and shall add a certificate to the effect, that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.

6. Except with the special leave of the Court, no application for review shaH be drawn by any Advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.

7. As far as practicable the application for review shall be posted before the aame Bench that delivered the judgment or order sought to be reviewed.

8.. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.

9. No application for review shall be entertained unless party seeking review furnishes a cash security of [Tk.lO,OOO], which shall be liable to be forfeited [if the review petition] is dismissed.
So any review would need to be made, "within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed." It goes onto say, "Every application for review shall be accompanied by a certified copy of the judgment."

The defence argues that this means that they have 30 days to file a review application after they have got a certified copy of the order. The review has to be very narrowly drawn - an 'error apparent on the face of the record' has to be shown. The court can either refuse to hear such a petition, or they can agrre to hear some arguments and then make a decision.

The Attorney General however argues that there is no such right to a review, pointing out that there is no such provision in the International Crimes (Tribunal) Act 1973 for such a review. He stated to me in an interview:

"Before enactment of this law the constitution was amended, and thereafter the [International Crimes (Tribunal) Act] is a special law for a special purpose and in this law there is provision for trial by tribunal and there is a forum for appeal. Since there is nothing in law about any review according to me there is no scope for review."

Another AG official pointed out that Article 105 gives the right, 'subject to the provisions of any Act of Parliament', and because of the status of the ICT Act - with its exemptions from constitutional provisions through Article 47 of the constitution - the section does not apply

When I asked Abdur Razzaq, the chief defence lawyer about the view held by the attorney general - a view which also appears to be held by the Law Minister - he said the following:

I think the Attorney General is incorrect. We certainly have right both under Intenratoinal Crimes Tribunal Act and under constitution to file a review The appeal was heard both under the constitution and under ICT Act, and constitution clearly says that right to review and more so in this case as this is first court giving the death penalty. Normally a death penalty will go before both the high court and appellate division - so at least there must be a right to review
He said that he was particularly concerned that this was the AG's view as he "is the person who is advising the govt" 
"We may have to go to appellate division to seek a stay of application of the death penalty until an application is dealt with."

3. Clemency
Both defence and the state however argue that Molla could seek clemency under Article 49 of the constitution. This states:
"The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority."
The Attorney General stated to me that:

"In our country after judgement, death penalty cannot be done in a few days. There is a procedure. Accused has to be informed. He has right to seek clemency.

This however is a private matter for the Molla and his family, and according to the law minister (see article above) would require Molla having to admit his guilt (though it is not clear what is the basis of him saying that.)

It is not clear whether Mollah needs to have a copy of the certified order of the judgement or not. One assumes that would be necessary.

So where does that leave us? 
In some confusion I think
- first there is a question of how quickly the appellate division decides to issue a certified copy. That seems to be crucial to whether or not hanging could possibly happen in the next few months or not.
- once that is done, and time has been given for an application to seek clemency (though it is not clear how much time would need to be given), it is possible (assuming clemency is not given) under the government's interpretation of Article 105 of the constitution for hanging to take place at any point in time.
- however, the above depends on what the appellate division's view of whether a review application is allowed, and whether or not they agree (assuming the defence do lodge such an application) to give a stay order on the execution of the court's judgement until a review application has been lodged and decided upon by the court.
- even if the appellate division does accept that a review application can be lodged by the defence, it is very unlikely that it will be successful, since it is the same judges who gave the judgement who will make a decision on the review application.

Mollah death penalty; details of the charge


The appellate division today (17 September 2013)  dismissed appeals made by Quader Molla's lawyers against his conviction on five counts of crimes against humanity. Instead the court upheld unanimously that his acquittal on charge no 4 should be reversed and should stand as a conviction, and most significantly that, by a majority, the sentence on charge no 6 (the murder of a family), should be changed from life imprisonment to a death penalty.

No judgment was read out. A written judgement will be made available in due course.

Below is an extract from the original ICT judgment relating to charge no 6. It should be noted that the only evidence is the testimony of a woman, a member of the family that was murdered 40 years ago, and who was a young girl at the time the murders took place. There was no other corroborating evidence.

At the end of the judgment extract is an extract from the defence arguments made at the time of trial arguing that the women's testimony could not be relied upon

You can read the rest of the judgement and other details of the trial proceedings here
Adjudication of Charge No.06 [Killing of Hazrat Ali and his family and Rape]335. Summary Charge No.06: During the period of War of Liberation , on 26.3.1971 at about 06:00 pm the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar or member of group of individuals being accompanied by some biharis and Pakistani army went to the house of Hajrat Ali at 21, Kalapani Lane No. 5 at Mirpur Section-12 and entering inside the house forcibly, with intent to kill Bangalee civilians, his accomplices under his leadership and on his order killed Hazrat Ali by gun fire, his wife Amina was gunned down and then slaughtered to death, their two minor daughters named Khatija and Tahmina were also slaughtered to death, their son Babu aged 02 years was also killed by dashing him to the ground violently. During the same transaction of the attack 12 accomplices of the accused committed gang rape upon a minor Amela aged 11 years but another minor daughter Momena who remained into hiding, on seeing the atrocious acts, eventually escaped herself from the clutches of the perpetrators. By such acts and conduct the accused had actively participated, facilitated, aided and substantially contributed to the attack directed upon the unarmed civilians, causing commission of the horrific murders and rape by launching planned attack directing the non-combatant civilians and thereby committed the offence of ‘murder’ as ‘crime against humanity', ‘rape’ as ‘crime against humanity’, 'aiding and abetting the commission of such crimes' or in the alternative the offence of 'complicity in committing such offences' as mentioned in section 3(2)(a)(g)(h) of the International Crimes(Tribunals) Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act. 
Witness336. Prosecution adduced and examined only one witness in support of this charge. It examined Momena Begum as P.W.3. She is the only survived member of victim family and daughter of Hazrat Ali. She witnessed the horrendous event of killing and rape. The event happened inside their house and thus naturally none else had occasion to see the event committed. P.W.3 Momena Begum testified in camera as permitted by the Tribunal. She made heartrending narration of the atrocious event that she witnessed with choked voice. At the relevant time she was 13 years old and newly wedded. 
Discussion of Evidence337. P.W.3 Momena Begum has testified that she is the only survived member of their family. The event took place on 26th March 1971. According to P.W.3 at the relevant time they had been living in the house no. 21 of no. 5 Kalapani lane of Mirpur 12. It remains unshaken and undisputed too. 
338. P.W.3 while narrating the incident on witness box stated that on 26th March 1971 just immediate before the dusk her father hastily came back to home and was telling frightened that Qauder Molla would kill him. Aktar goonda and his Bihari accomplices and Pakistani army were chasing her father to kill him. Her father entering inside house closed the door and at that time her parents and brothers and sisters were inside the room. On being asked by her father she and her sister Amena kept themselves in hiding under the cot. She heard that Quader Molla and biharis coming in front of the door started telling- “son of a bitch, open the door, otherwise we will throw bomb”. They threw a bomb as her father did not open the door and thereafter, her mother having a ‘dao’ in hand opened the door and instantly they gunned down her mother. Her father attempted to hold her mother and then accused Quader Molla holding collar of wearing shirt of her father was telling- “ son of a pig, would you not do now Awami league? Would you not follow Bangabandhu? Would you not utter the slogan ‘Joy Bangla’?” Then her father folded hands begged Quader Molla and Aktar goonda to spare him. But the accused Abdul Quader Molla dragged her father outside the room. His accomplices slaughtered her mother with a ‘dao’, also slaughtered her sisters Khodeja and Taslima with a ‘chapati’ (at this stage, P.W.3 on dock started crying shedding tears). 
339. P.W.3 further stated, by memorizing the horrendous event that her two years old brother Babu started crying but he was also killed by dashing him to the ground violently. On hearing cry of Babu, her sister Amena started howling and then they dragged Amena from under the cot and tortured her by ragging her wearing clothes. Amena had raised cry to save her and at a stage her cry came to an end. Thereafter, they also had dragged her out from under the cot by causing injury with some sharpen object and then she raised cry and lost her sense. When she regained her sense she felt severe pain at abdomen and she could not walk and found her wearing pant in ragged condition. She somehow, there from, came to one house at ‘Fakirbari’ where its inmates found her in bleeding condition wearing ragged pant and then they made arrangement of her treatment by calling a doctor on the following day and then on being informed by them her father-in-law came there and brought her to his house where she was given necessary treatment. 
340. P.W.3 further stated that in 1971 she could not forget the scene of killing of her parents, brother and sisters which she herself witnessed and being traumatized she was almost mentally imbalanced and now she is in fact dead although still alive. At the time of identifying the accused on dock P.W.3 carrying immense heartache stated that she wanted to ask the accused—‘where is my father’? 
341. The above narration as to the commission of horrific event could not be dislodged by the defence in any manner. Rather, P.W.3, on cross- examination has re-affirmed that at the time of event they all were inside one room of their house. She could not see who killed her father but she, remaining in hiding under a cot, saw Quader Molla dragging her father out. 
342. P.W.3 , in cross-examination, in reply to question elicited to her by defence stated that the Bangalee person accompanying the Biharis and Pakistani army who was speaking in Bangla and dragged her father out holding his shirt’s collar was Quader Molla and she saw it remaining in hiding under the cot. Thus, the presence of accused Abdul Qauder Molla at the crime site has been re-affirmed by P.W.3. 
343. On cross-examination, P.W.3 has reaffirmed the horrific incident of killing and torture. She stated that her mother was slaughtered inside the room when her father was forcibly dragged out and she did not see her father’s killing. Thereafter, Biharis slaughtered her sisters Khodeja and Taslima inside the room. The Pakistani army and Biharis killed her brother by dashing him to the ground violently. They dragged out her sister Amena and caused successive torture. 
344. As regards father’s killing P.W.3 stated in cross-examination that after independence Akkas member informed her that Quader Molla had killed her father. She also stated that gang of 10-12 persons attacked their house and of them only one person wearing Pajama-Panjabi who was speaking in Bangla was Quader Molla. 
Evaluation of Evidence and Finding345. Defence does not deny an orgy of atrocities that took place on the date time and in the manner. But it refutes the charge that the accused was at the very centre of the web of these crimes as have been brought in charge number 6. It has been argued by the learned defence counsel that P.W.3 Momena Begum is not the daughter of victim Hazrat Ali Laskar. Prosecution has failed to bring any corroborative evidence to substantiate the charge. There has been no evidence to show that accused Abdul Quader Molla has overt act to the commission of alleged crimes. 
346. First, the argument that P.W.3 Momena Begum is not a daughter of victim Hazrat Ali Laskar is deprecated one. Without any evidence or putting suggestion to P.W.3 on the basis of any tangible evidence no such argument stands lawful and correct. Besides, on cross-examination, in reply to question put to her, P.W.3 stated that her father was running a tailoring shop at Mirpur 01 in front of Majar and she also used to work there prior to her marriage. 
347. It appears that the charge does not allege that the accused himself personally committed the crime of murder of inmates of P.W.3. But ‘murder’ as a crime against humanity does not require the prosecution to establish that the accused personally committed the killing. The crimes alleged are not isolated crimes. We are not agreed with the argument advanced by the learned defence counsel Mr. Abdus Sobhan Tarafder that the accused cannot be held responsible for the offence of murder as listed in charge no.6 as the prosecution has failed to establish the overt act of the accused. The case in hand involves the offences enumerated in the Act of 1973 which are also considered as system crimes committed in violation of customary international law. Overt act of accused Abdul Quader Molla is immaterial as he has not been charged for committing any isolated crime. He is alleged to have accompanied the gang of perpetrators to the crime site. Jurisprudence evolved suggests that even a single act on part of accused may lawfully be characterized as the offence of crimes against humanity. 
348. In the case in hand, we are just to adjudicate how the accused incurs responsibility for the accomplishment of the crime. What of his conducts or acts has made him responsible? It is to be noted that even a single or limited number of acts on the accused’s part would qualify an offence as crime against humanity. In addition, in certain circumstances, a single act of the accused has comprised a crime against humanity when it occurred within the necessary context. 
349. It has been proved beyond reasonable doubt that P.W.3 had witnessed the incident of killing her parents, sisters and minor brother committed at their own house. Miraculously she escaped. She is a traumatized witness and a survived victim. At the time of incident she was a girl of 13 years of age. One can say that how she can memorize the incident long 41 years after the incident took place? It is true that with the passage of time human memory becomes faded. But it is also the reality that human memory is quite capable of reserving some significant moment or incident in the hard disc of his or her memory which is considered as long term memory (LTM) and it is never erased from human memory.
350. We have found that the following version of P.W.3 remains unshaken: “the accused Quader Molla holding collar of wearing shirt of her father was telling- “son of a pig, would you do now Awami league? Would you not follow Bangabandhu? Would you not utter the slogan ‘Joi Bangla’?” Then her father folded hands begged Quader Molla and Aktar goonda (terrorist) to leave him. But the accused Abdul Quader Molla dragged her father outside the room and since then he could not be traced. His accomplices slaughtered her mother with a ‘dao’; slaughtered her sisters Khodeja and Taslima with a ‘chapati’.” 
351. It is need less to say that the horrific event that the P.W.3 herself experienced is inevitably still retained in her memory. There has been no earthly reason to disbelieve this witness. Rather, she seems to be a natural live witness who sustained severe mental trauma experiencing the horrific killing of her parents, sisters and minor brother in front of herself. 
352. We do not find any reason to view that P.W.3 had no reason or scope to know the accused Quader Molla, particularly when statement of P.W.3 demonstrates that according to her father, Abdul Quader Molla was chasing him and her father begged life from Abdul Quader Molla and Aktar goonda. It is found that on the following day of ‘crack down’ in Dhaka the incident of brutal killing of parents and other inmates of P.W.3 Momena took place, in violation of customary international law. 
353. Already it has been found that the crimes for which the accused has been charged were not isolated in pattern and the same were the outcome of organized and systematic attack directed against the civilian population. Now, let us find what were the conducts on part of the accused prior to the commission of the crime and whether he accompanied the principal perpetrators who were local notorious Bihari and hooligans. 
354. The incident of killing of parents, two sisters and one minor brother on the day time and in the manner remains unshaken. It is a fact of common knowledge that Mirpur is a locality of the then Dhaka city having mostly bihari population and accused Abdul Quader Molla used to maintain close and culpable affiliation with the local bihari goonda and pro-Pakistani people and already we have found from evidence of P.W.2 that Abdul Quader Molla was closely associated with the Jamat E Islami (JEI) politics and was a potential leader of ICS. Admittedly, at the relevant time he was a leader of ICS of Shahidullah Hall, Dhaka University. 
355. Evidence of P.W.3 amply demonstrates that Abdul Quader Molla by accompanying the gang consisting of Biharis, local Aktar goonda and Pakistani army to the crime site, in other words, substantially facilitated and aided the commission of the horrendous killings. Why the accused, being a Bangalee civilian accompanied the local Bihari hooligans? Why he used to maintain culpable association with them even since prior to 25 march 1971? 
356. It is to be noted that now it is settled that even mere presence at the scene of the crime may, under certain circumstances, be sufficient to qualify as complicity. From the evidence of P.W. 3 , a live witness, it is found that the accused by his presence in the crime site and by his culpable acts substantially encouraged and facilitated the main perpetrators in committing the crime and also he shared the intent similar to that of the main perpetrators and thus obviously he knew the consequence of his acts which provided moral support and assistance to the principal perpetrators. Therefore, the accused cannot be relieved from criminal responsibility. In the case of Prosecutor Vs. Charles Ghankay Taylor : Trial Chamber II SCSL: Judgment 26 April 2012 Paragraph 166 it has been observed that- “The essential mental element required for aiding and abetting is that the accused knew that his acts would assist the commission of the crime by the perpetrator or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. In cases of specific intent crimes, such as acts of terrorism, the accused must also be aware of the specific intent of the perpetrator.” 
357. Acts and conduct of accused Abdul Quader Molla at the crime site adequately suggest inferring his intent and knowledge. It is proved that he at the launch of the event dragged Hazrat Ali Laskar out of his house and before it the gang gunned down his wife. It is patent that the accused was sufficiently aware of likelihood that his acts would assist the principals in committing crimes. Thus, the accused is found to have actively and substantially encouraged and abetted the gang of perpetrators in committing the crime of killing of family inmates of Hazrat Ali Laskar. 
358. The Tribunal notes that accused Abdul Quader Molla had physically participated in the attack targeting the father and family members of the P.W.3 as her father belonged to Awami League politics and was a pro-liberation civilian. Testimony of P.W3 demonstrates evidently that the accused, by his acts of ‘accompanying’ the gang of Bihari and local Aktar goonda and also by an act of forcibly dragging Hazrat Ali Laskar out of house, Abdul Quader Molla’s presence in the crime site made him criminally linked with the commission of the offence of killing of Bangalee civilians. Thus, it is lawfully presumed that the accused had actus reus in providing moral support and aid to the commission of offence. The actus reus of abetting requires assistance, encouragement or moral support which has a substantial effect on the perpetration of the crimes. 
359. Now the question has been raised by the defence that the principal offenders have not been identified and brought to the process of justice and thus the accused cannot be held responsible as aider and abettor. It has been held by the Appeal Chamber of ICTY, in the case of Kristic that – “A defendant may be convicted for having aided and abetted a crime which requires specific intent even where the principal perpetrators have not been tried or identified ( April 19, 2004 para 143 of the judgement) .” 
360. No person of normal human prudence will come to a conclusion that at the time of incident of part of systematic attack, the accused who accompanied the principal perpetrators had a different or innocent intent. Rather, the evidence of P.W.3 demonstrates that the accused and the principals made the attack with common intent to accomplish their explicit and similar intent of killing. 
361. Mr. Abdur Razzak the learned senior counsel for defence argued by citing the decision of Appeal Chamber: ICTR in the case of Sylvetre Gacumbitsh [Case No. ICTR-2001-64-A] that according to causation standard for aiding and abetting that the acts must have a ‘substantial effect’ on the commission of the crime. The learned counsel also drew attention to the following paragraph [Page-199-Para 688 of Prosecutor v. DU[KO TADI] ICTY Trial Chamber: Case No. IT-94-I-]: “The ILC Draft Code draws on these cases from the Nuremberg war crimes trials and other customary law, and concludes that an accused may be found culpable if it is proved that he “intentionally commits such a crime” or, inter alia, if he knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime.“ 
362. Presence of an accused alone in the crime site may not always be sufficient to infer his contribution and assistance of the accused in the commission of crime committed by the principals. But we have found too in the case of Prosecutor v. Tadic [ICTY Trial Chamber: Case No. IT-94-I-T] wherein it has been observed as below: “.............However, if the presence can be shown or inferred, by circumstantial or other evidence, to be knowing and to have a direct and substantial effect on the commission of the illegal act, then it is sufficient on which to base a finding of participation and assign the criminal culpability that accompanies it .” 
363. In the case in hand, evidence of P,W.3 inescapably shows that the accused actively and knowing the consequence of his acts accompanied the gang of perpetrators to the crime site and by his illegal act of forcibly dragging Hazrat Ali Laskar out of house he substantially facilitated the commission of crimes committed by the principals. Therefore it cannot be said at all that the accused’s presence at the crime site and accompanying the principals were devoid of guilty intent. 
364. Accompanying the perpetrators while attacking the inmates of the P.W.3 is a significant indicia that the accused provided substantial assistance and moral support for accomplishment of the crime, although his acts had not actually caused the commission of the crime of killing in the crime site. In this regard, we may rely upon the decision of the Trial Chamber of ICTR in the case of Kamubanda [ January 22, 2004, para 597] which runs as below: “Such acts of assistance....... Need not have actually caused the commission of the crime by the actual perpetrator, but must have had a substantial effect on the commission of the crime by the actual perpetrator”. 
365. Thus, we find that the accused Abdul Quader Molla physically and having ‘awareness’ as to his acts participated and substantially abetted and encouraged to the commission of the crime. The manner time and pattern of conduct of the accused Abdul Quader Molla at the crime site and also prior to the commission of the crime is the best indication of his conscious option to commit a crime. Intent, coupled with affirmative action, is evidence of the highest degree of imputative responsibility. Acts on part of the accused at the crime site are thus qualified as crimes against humanity as the same formed part of attack directing the unarmed civilian population. His acts were of course culpable in nature which contributed to the commission of murder of Hazrat Ali Laskar and also to the commission of murder and rape committed in conjunction of the event at the crime site. 
366. The testimony of a single witness on a material fact does not, as a matter of law, require corroboration. In such situations, the Tribunal has carefully scrutinized the evidence of P.W.3 the live witness before relying upon it to a decisive extent. Since the horrific event was committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passerby will be witnesses. P.W.3 is the only survived member of victim family and thus her evidence cannot be brushed aside or viewed with suspicion. Besides, it is to be noted that the testimony of a single witness on a material fact does not, as a matter of law, require corroboration. The established jurisprudence is clear that corroboration is not a legal requirement for a finding to be made. “Corroboration of evidence is not necessarily required and a Chamber may rely on a single witness’ testimony as proof of a material fact. As such, a sole witness’ testimony could suffice to justify a conviction if the Chamber is convinced beyond all reasonable doubt.” [ Nchamihigo, (ICTR Trial Chamber), November 12, 2008, para. 14]. 
367. Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape etc. In view of discussion as made above and taking the settled jurisprudence into account eventually we are persuaded that the acts of accused Abdul Quader Molla , as has been testified by the P.W.3, in the course of implementation of the actual crime of killings and rape, render him criminally responsible for the commission of the crime that has been established to have taken place as a part of systematic attack and as such the accused Abdul Quader Molla is found to have incurred criminal liability under section 4(1) of the Act for the offence as mentioned in section 3(2)(a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.
Extract from defence closing arguments 
To see more about defence closing arguments, click here
Charge 6: Murder and rape as crimes against humanity
The Prosecution relies on the live testimony of PW 3 (Momena Begum), who was present during the commission of offences charged. 
The Defence calls into question the reliability of PW 3’s testimony. At the time of the alleged offence, PW 3 was a young child, clearly traumatised by the events she witnesses including the killing of her entire family and rape of her sister. This culminated in a period of insanity for three years (“I was insane for three years after…they tied me by chain”, (PW 3, Cross examination 17 July 2012). Although she admitted to being in hiding during the commission of offence, she provided a number of detailed points as abovementioned. However, PW 3 was unable to state how she was able to see or indeed recall who was present in the house at the time or furthermore, how she knew that the Accused was present. She did not describe the Accused at the time or state that she knew him prior to the offence so as to be able to recognize him. She was further unable to describe the role of the Accused in the alleged incidents. She did not state whether the Accused ordered the killings or rape, aided and abetted in the killings or rape or indeed directly perpetrated the killings. Instead she continuously referred to the generic “they” to describe the alleged perpetrators without elaborating as to whom this included. 
It is submitted that PW 3 was unable to identify the Accused as his alleged presence at the commission of offence is entirely based upon hearsay. In examination in chief, PW 3 testified “Kamal Khan who served tea to the freedom fighters told me that Quader Molla killed my parents. My father in law, Akkas Molla also told me the same” (PW 3, Examination in chief, 17 July 2012.) PW 3 thereby admitted that she did not know at the time who committed the offences and was only told at a subsequent date. This is in direct contradiction to her examination in chief wherein she sought to assert that she recognized the Accused at the time. This amounts to no more than hearsay evidence to which the relevant considerations must apply as detailed above. 
The Defence further highlights that following her recovery, PW 3 admittedly never reported the atrocities that she witnesses or named the Accused as bearing any criminal responsibility. Given the circumstances in which PW 3 would have witnessed the commission of offences and that she admittedly was told of the Accused’s alleged involvement after the fact, and in light of no further supporting evidence, it is submitted that the Prosecution has failed to prove the Accused’s guilt beyond a reasonable doubt.

Sunday, September 15, 2013

Why Rushanara Ali's comment on US GSP removal was all wrong

In an otherwise uncontroversial performance at a press conference in Dhaka on Friday, 13 September, Rushanara Ali, the British Labour MP, and shadow international development minister made some misguided remarks about the decision of the United States government to suspend Bangladesh's trade benefits under what is known as the Generalized System of Preferences (GSP).

In an article titled, British party peeves over US's GSP cut, this is what one news website reported her as saying:
British Labour Party was ‘very disappointed’ over the US decision of suspending Bangladesh’s GSP facility after the worst-ever building collapse in April that killed more than 1100 people, mostly garment workers.
“....that sends wrong message. It suggests that they turn back on the industry rather than taking responsibility and fixing it, which should be the focus now,” visiting Bangladesh-born British MP Rushanara Ali said on Friday at a press conference.
Six MPs of the Britain-Bangladesh All Parliamentary Group is visiting Bangladesh to enquire the prevailing situation in garment sector following the building collapse. They will report back to the UK parliament.
The opposition MP suggested concerted efforts of all to improve safety of Bangladesh’s garment industry, which is the lifeblood of the country’s economy.
“We have to ensure the legacy of the people who lost their lives.... It’s not that this sector is worst and so should be damaged further. This sector should be improved and strengthened and that the issues like wages and the conditions inside the factories should be addressed by marshalling the resources of multinationals, international communities and the nation so that such disaster never happen again”.
She appreciated European Union’s roadmap after the factory collapse, but said the role of US was critical as it’s a major market for Bangladesh.
“We need to make sure there is a constructive response, not a destructive response for this industry”.
Turning back on the industry she said would be “damaging and depressing”
And in an article in a national paper, titled, 'British MPs slam US decision to suspend GSP', much the same is reported:
British Labour Party Spokesperson for International Trade Rushanara Ali has criticised the US for suspending the GSP facility for Bangladesh.
“We are very disappointed about the American decision, Congress’s decision,” she said at a press conference at a city hotel Friday also attended by another Labour Party lawmaker, Shabana Mahmood.
“That sends a wrong message. It suggests that they can turn their back on the industry rather than actually take responsibility and help to fix it,” Rushanara Ali said.
“The role of US is critical. It is a major market for this sector and we need to make sure that there is a constructive response not a destructive response.”
One should remember that the US only removed the GSP after over 100 workers were killed in the Tasreen fire in November 2012 and 1500 garment workers were killed when the Rana Plaza building collapsed in April this year.

Here are the reasons why she is wrong to make these remarks, and why arguably the European Union should be gaining much greater leverage on the Bangladesh government to obtain workplace improvements by playing hardball with the Bangladesh government and threatening to suspend its own GSP unless specific changes are made.

1. On a point of fact, the US GSP did not cover the Bangladesh garment sector, so its cancellation has no direct negative impact on this sector. In fact it covers a relatively small number of Bangladeshi exported products, so the direct economic impact on the country (yet along the Garment sector) will be minor. 

2. The US government has provided the Bangladesh government an action plan that sets out clearly what it must do to regain the GSP. It is a detailed action plan that can be seen here

3. One must assume that the Labour MP supports the implementation of the points set out in the action plan - improved safety enforcement, trade union rights etc etc. If so she should be supporting any kind of lever that actually forces the Bangladesh government to change the law and make improvement its regulatory systems. She should know that people within Bangladesh (and outside, including of course the US government) have been calling for these changes to happen for years and nothing has happened - and if Ali thinks that any Bangladesh government will now, all of a sudden, make these changes without having been seriously incentivised to do so, then she does not understand why the Tasreen fire or Rana Plaza happened in the first place

4. Lets be clear. The state regulatory safety system in Bangladesh is politically or financially corrupt, is basically broken. Governments over the years have done nothing to reform RAJUK (the Capital Development Authority), or the Inspectorate of Factories or the BGMEA (the exporters association) - three organisations crucial to ensuring the safety of the garment sector. As a result they barely fulfill their legal and mandated obligations.

5. The only reason why the Bangladesh government seems now concerned about complying with the issues set out in the US Action Plan is because the Bangladesh government desperately wants it bank. That is the simple fact of the case. It is sad that these kinds of improvements only happen when Bangladesh governments are forced into a corner, but that is the truth of the matter.

6. And whilst the EU/Bangladesh government compact is also positive - and in some ways reflects the US action plan - it could be much more effective if there was a clear threat from the EU that if the government fails to make particular changes in a set time frame, the EU would very seriously consider removing the GSP privileges.  This is what the Labour party spokesperson should have said, not criticising the US policy decision on GSP removal.