Dr. Tureen Afroz, Barrister-at-Law and currently a Prosecutor at ICT-BD. Until her appointment at ICT-BD, Barrister Tureen was Associate Professor of Law at BRAC Law School, Dhaka. She had been also the acting Secretary of Law Affairs for the ‘Ekattorer Ghatak Dalal Nirmul Committee’ since 2010. Law Desk talks with her on several issues related with the War Crimes Trial at ICT-BD.
Law Desk (LD): How do you evaluate the significance of judgments rendered by the ICT-BD? Are all these going to contribute anything new in international criminal law?
Tureen Afroz (TA): Judgments rendered by the ICT-BD are significant in two ways: First, they can be used as sources of international law. As per Article 38 of the Statute of the International Court of Justice, 1945, judicial decisions of national courts have long been recognized as one of the sources of public international law. For example, decisions of The Paquete Habana [175 U.S. 677 (1900)] of the United States Supreme Court or the Augusto Pinochet Litigation of the House of Lords, UK [(1999) 1 WLR 825] have tremendously enriched the international legal jurisprudence. Particularly, in the international criminal law jurisprudence, Article 21(1)(c) of the Rome Statute of the International Criminal Court, 1998 recognizes decisions of national courts as sources of international criminal law. For example, the International Criminal Court (ICC) in the Prosecutor v. Tohomas Dyilo Lubanga considered the definition of conscription as established in the Special Court for Sierra Leone (SCSL) decision in the AFRC Case. Therefore, the judgments rendered by the ICT-BD can go a long way to contribute as sources of international criminal law. Second, the ICT-BD judgments set example as to how the international criminal law jurisprudence developed so far can be adopted and/or modified in the context of any particular national criminal law jurisprudence. In essence, the judgments renedered by the ICT-BD tries to integrate customary international criminal law with Bangladeshi law. This is particularly important for countries which wish to try international crimes under their own national laws.
LD: How do you view the amended appeal provision in the ICT Act? Can the parliament amend a law when the trial is on process? If the amended provision also applies in Kader Mollah case, will it attract non-retroactivity principle?
TA: First of all, the amended appeal provision in the ICT Act gives equal opportunity of appeal to both the accused and the prosecution. In other words, the recent amendment creates a level playing field for the accused and the prosecution in case of right to appeal. This is surely a welcome reform which should have been done long before. Parliament can always amend a procedural law (as opposed to a substantive law) when the trial is on process. Appeal provision in the ICT Act (Section 21) falls under mere procedural law. Therefore, the recent amendment to allow the prosecution to appeal against inadequate sentences would not prejudice the accused in any way. Rather, the earlier restriction on the grounds of prosecution appeal was itself inequitable, unfair and unjust.
Non-retroactivity principle as enshrined under Article 35(1)of our Constitution reads as: ‘No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence.’ It suggests that where no new offence on past conduct is created nor punishment of an existing offence is increased, Article 35(1) is not attracted. Further, the Appellate Division of the Supreme Court of Bangladesh in Bangladesh v. Sk. Hasina Wazed (2008) 60 DLR (AD) 90 held that the prohibition under Article 35(1) does not extend to merely procedural laws. Therefore, the amended appeal provision in the 1973 Act for being a merely procedural law would not attract non-retroactivity principle. Also, as far as the ICT-BD trials are concerned, the application of Article 35(1) is barred by the Article 47A of the Constitution. Therefore, Kader Mollah Case of the ICT-BD can not rely upon the non-retroactivity principle as enshrined under Article 35(1) of the Constitution.
LD: How an organization can be prosecuted and punished within the contemplation of the ICT Act?
TA: After the 2013 amendment to the ICT Act, an organization can now be prosecuted for genocide, crimes against humanity, war crimes, etc. just like any individual (Section 3 of the ICT Act). Similarly, as per Section 20 of the ICT Act, upon conviction, a criminal organization can be punished in a way as it appears to be ‘just and proper’ to the ICT-BD. In my view, punishments to organization may include, in appropriate cases, declaration as to criminal organization, fine, compensation, confiscation of property, deregistration, delisting, banning, etc. Section 20 of the ICT Act in fact gives a wide discretionary power to the ICT-BD as far as imposing punishment on convicts is concerned.
LD: Is there any similar provision (prosecuting organizations) in contemporary international criminal law?
TA: Nuremberg Trial has experienced prosecution of 7 groups/organizations. Out of them 3 groups/organisations (SS, SD and Gestapo) were found guilty and was declared as criminal organizations. It must be stated that criminal liability of organizations is not uncommon in the national and international legal and judicial arena. For example, in recent times, the Church of Scientology has been prosecuted as a criminal organization for extortion, fraud, illegal practice of medicine, violation of privacy laws, etc. in Germany, France and Belgium.
LD: Some quarters have demanded the non-applicability of presidential clemency by amending Article 49 of the Constitution. Do you think that royal prerogative can be abridged? If such amendment is done, would be a violation of due process?
TA: The President enjoys the Prerogative of Mercy under Article 49 of the Constitution. It suggests that 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. It has been held in Bangladesh v. Kazi Shaziruddin [(2007) 15 BLT (AD) 95] that the exercise of power under Article 49 by the President is not subject to any Constitutional or judicial restraints. However, exercise of such prerogative power by the President cannot be arbitrary, discriminatory, irrelevant, irrational or malafide [R v. Secretary of State for the Home Department ex p. Bentley  4 ALL ER 442; Burt v. Governor General  3 NZLR 672; Satpal v. Haryana, AIR 2000 SC 1702].
It is true that the Nirmul Committee (NC) in its recent Press Conference has demanded the non-applicability of presidential clemency in case of ICT-BD convicts. To meet this end the NC has suggested necessary amendments to Article 49 of the Constitution. I also strongly believe that the convicts of genocide, crimes against humanity, war crimes, etc. should not be allowed to be considered for the President’s Prerogative of Mercy.
Further, this will not be a violation of due process. In fact, such non-applicability of presidential clemency would be very much in line with international criminal law jurisprudence and practices. The Rules of Jus Cogens under international law suggests that no state can grant clemency to the convicts of genocide, crimes against humanity, war crimes etc. as these offences are considered to be the most henious crimes in the history of human civilization. Moreover, any legal arrangement contrary to the Rules of Jus Cogens are considered to be void under Article 53 of the Vienna Convention on the Law of Treaties, 1969.
As per Article 25 of the Constitution of Bangladesh, it is a fundamental principle of state policy to respect international law and principles. Therefore, Bangladesh state must respect the Rules of Jus Cogens and the relevant Vienna Convention and as such, must not allow its ICT-BD convicts to receive mercy from the President. Further, this should not be taken as a curtailment of prerogative power of the President. Rather the purpose of the suggested amendment to Article 49 of the Constitution should be viewed as imposing a disqualification to the ICT-BD convicts to be considered for Presidential prerogative of mercy.
LD: The ICT Act prescribes for a non-mandatory death penalty i.e. the death penalty is not the only punishment. Whereas, there is a huge popular expectation that anything less than the death penalty will not be acceptable. Given the situation the appeal process, the role of the Appellate Division and our judicial legacy are very significant to address the issue. How do you view this matter?
TA: Any judicial forum would do justice according to law. The Appellate Division is of no exception. We should always keep in mind that the Chief Justice and the other Judges of the Appellate Division are independent in the exercise of their judicial functions (Article 94(4) of the Constitution). Nevertheless, as a society we should not expect our apex court to do something which may erode the social faith and trust on the rule of law.
It is true that the Appellate Division has the power to issue such orders or directions as may be necessary for doing complete justice in any cause or matter pending before it (Article 104 of the Constitution). However, in doing such ‘complete justice’, the Appellate Division is reluctant to create conflict with the express provision of law [H. M. Ershad v. State (2001) 6 BLC (AD) 30]. Hence, very often, complete justice may not turn out to be ‘perfect justice’ between parties [Naziruddin v. Hameeda Banu (1993) 45 DLR (AD) 38]. This in turn suggests that the Appellate Division would decide the appeals from the ICT-BD only according to law; it may or may not satisfy the popular expectation of the society.
LD: The government has not yet taken the initiative to protect the witnesses. Do you think that it is going to take a toll on the judicial process?
TA: Yes, it will. Witness protection is a necessity for ensuring a fair trial at the ICT-BD. Insecurity renders the witnesses not to make themselves available for trials or to provide irrelevant/fake depositions. Thus, in the absence of a meaningful witness protection scheme, it is very difficult for the ICT-BD prosecution to produce adequate and appropriate witnesses before the tribunal.
LD: Thank you indeed.