By Nadia Chowdhury
LLB,LLM,MSc, Barrister-at-Law, Legal Team Member, ICR Foundation
“I’ve waited 44 years for this justice. My mother died not getting justice for the loss of her son in her lifetime. She stayed awake at night for 30 years mourning his death,” cried Golam Mostafa’s brother as he broke down after hearing news of the execution.
“Zaman Shaheb [Kamaruzzaman] used to visit the torture cell in Suren Saha’s house everyday with Major Riaz. They brought a youth and pushed him into the lake in front of the house right in front of me asking him to keep swimming for his life.
“The boy swam the whole lake while Zaman shaheb clapped his hands. When the boy could swim no more out of exhaustion from swimming, he shot him turning the lake blood red,” submitted a prosecution witness. The hanging of war criminal Kamaruzzaman flooded international news headlines with captions along the lines of ‘Islamist/Islamic political leader hanged.’
Makes one wonder, what makes someone qualify as an Islamist leader? Was it the fact that Kamaruzzaman shaved the head of the then Islamic History Lecturer Abdul Hannan, only to colour his face with lime and ink and make him walk down the street of Sherpur town naked while being whipped (charge 2 of 5 his crimes)? Or was it his role in planning and advising the Pakistani Army to commit the genocide of 120 men and the rape of the women of that village (charge 3 of 5 his crimes)?
Are these acts condoned by Islam in the grander scheme of achieving unity with the so called ‘holy land’ Pakistan, even though Bengalis were compared to monkeys and chickens? Or is it simply an outrageously blasphemous mockery of people’s faiths to hail a merciless monstrous criminal mastermind as an ‘Islamic/Islamist leader,’ as if Islam compels him to rape, murder, and tortures?
I’ll let you decide.
Alongside reports calling him an Islamist opposition leader, international organisations also condemned the death penalty of the one special Al-Badr leader Kamaruzzaman, exceptionally in the midst of a penalty that has been prevalent for 44 years in Bangladesh – as if his life was somehow more special than comparatively lesser criminals already being sentenced to death. Remember the Delhi gang rape case of 2012 where a female physiotherapy intern was beaten and gang raped by 6 men using an iron rod for penetration causing serious injuries to her abdomen, intestines and genitals? Where is international sympathy towards four of the six accused who have been awarded the death penalty?
Remember the Peshawar school massacre of 2014 by the Taliban, which included 132 deaths of school-children aged between 8 and 18? Where is the international outrage over Pakistan lifting their moratorium on the death penalty because of this incident?
Perhaps the lack of sympathy for these criminals are lost due to the shock these unfathomable crimes inflicted on the ‘collective conscience’, as Justice Yugesh Khanna stated when rejecting the pleas for a lesser sentence in the Delhi gang rape case. Perhaps the gravity and nature of these crimes are such that they only allow space for consideration of the victim’s rights in the average conscientious person’s mind. If the horror of all the rape and torture and murder committed by Kamaruzzaman were still fresh in our minds and not detached from us by time through maliciously being denied justice for over 42 years, would we hesitate to treat him as any other criminal on the same scale as those mentioned above?
Or would we still hail him as some sort of sage leader to be exempted from capital punishment for charges 3 and 4: the genocide of 120 men, the rape of the women of that village, and the killing of Golam Mostafa when capital punishment is the common practice in Bangladesh for crimes of murder, drug trafficking, human trafficking, rape et cetera? What is it about Kamaruzzaman that draws so much international attention to place him above the law, when the death penalty has been in practice in Bangladesh since its inception for 44 years?
Kamaruzzaman’s review petition judgment cites another sensational case of the Bombay bomb attack case where the court observed, “that though the ‘community’ revered and protected life because ‘the very humanistic edifice is constructed on the foundation of reverence for life principle’ it may yet withdraw the protection and demand death penalty … [in the rarest of rare cases]when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”
This collective conscience has clearly demonstrated the kind of penalty they see befitting for such criminals when they, for example, cut off a rapist’s genitals as has happened in India. Alternatively, if Kamaruzzaman’s own party could have it their way, his crimes would have been met with much harsher punishments – ranging from public lashing, public stoning to death, amputation of hands, or public execution under Sharia Law. The defence submissions against the death penalty fall outside the scope of consideration with regards to Kamaruzzaman’s case as the Crimes Tribunal Act not only permits the death sentence, but figures it at the top of the list of penalties as framed by our legislators in 1973 with the horrendous memory of the genocide fresh in their minds. As Justice AHM Shamsuddin Choudhury notes in pg. 32 of Kamaruzzaman’s review petition judgment, “[Legislators] saw or heard of the extent and the horror that atrocities committed by them left behind, which shattered the conscientious people throughout the world.
“Their memories were also vibrant at that time as to the ramification these holocaust left behind for generations and with such fresh memories, they placed death sentence at the peak of the list of sentences. “Indeed, when we affirmed death sentence, we had to reminisce the magnitude of the atrocities Pakistani forces committed with the help of their local outfits … In the backdrop of events that remained pervasive for the nine month period, death sentence alone must have been the only appropriate one, as that is commensurate with the gravity of the offenses, whether we apply general deterrent rational or retributive rational, or desert rationale alongside the doctrine of proportionality.”
Not executing the death penalty awarded to a war criminal convicted of crimes against humanity, when capital punishment is prevalent for lesser crimes in Bangladesh, would be a mockery of Justice as stated by the Indian Supreme Court in the case of Mahesh v State of MP. “The common man will lose faith in Courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.”
Such unique trials of war demand to be met in accordance with its own set of needs and consequences varying with country, legal systems, and historical context. When the rights of the accused are concerned, the victims’ rights must be given equal consideration.
“If the punishment is just and in proportion to the seriousness of the offence, then the victim, the victim’s family, and friends and the public will be satisfied that the law has been upheld and there will be no desire for further relation or private revenge,” published in the White paper for the UK Criminal Justice Act 1991. As of today 55 countries actively practice the prevailing use of death sentence, 7 retain capital punishment for exceptional cases, including 33 out of the 50 component States of the United States of America, while 13 other countries, like Singapore, retain mandatory death sentence for drug trafficking, and Saudi Arabia retains mandatory death sentence for murder, with more countries like Kuwait and Nigeria have backed out of their moratorium after experiencing bitter experiences similar to those suffered in Peshawar.
Muhammad Kamaruzzaman was duly tried by ICT Tribunal 2 for Crimes Against Humanity on 7 charges, being found guilty of 5, and being awarded the death sentence cumulatively on charges 3 and 4: the genocide of 120 men and rape of the women of the village Shohaghpur on July 25, 1971, planned and advised by Kamaruzzaman, and also for the Murder of Golam Mostafa by Al-Badr on Kamaruzzaman’s orders on August 23, 1971.
44 years on, the government of Bangladesh has successfully made redundant the allegations of a ‘deal’ with Jamaat, upheld its promise to try the 1971 war criminals, and have heard the pleas of the widows of Shohaghpur and many more victims. Most importantly, they heard the pleas of the collective masses in majority, by implementing the death penalty and standing up against favouritism tactics and bullying methods of western forces, found in organisations such as the United Nations, Amnesty International, Human Rights Watch and many more.
With Bangladeshi people eagerly awaiting the trial of more war criminals to come, and recent developments in active steps taken to bring back Bangabandhu’s absconding killers, Bangladesh has embarked upon a new dawn.
A new dawn that hopefully ultimately restores the progressive ideals upon which our beloved nation was born.