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Repeal 1st amendment to [Bangladesh] constitution for fair ICT trials: HRW

by David Bergman, 21 May 2011

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New Age (Bangladesh)

Human Rights Watch has written to the prime minister, Sheikh Hasina, asking her to repeal Article 47A of the country’s constitution to ensure a fair trial of the people accused of committing international crimes during the 1971 independence war of Bangladesh.

Article 47A was introduced in July 1973 as part of the first amendment to the constitution and has the effect of denying those accused of offences under the International Crimes (Tribunal) Act 1973 the right to move the High Court for any constitutional remedies.

The law minister, Shafique Ahmed, rejected

out of hand any thought of repealing this provision of the constitution.

‘Why should we agree with this? These men have committed murder throughout the country.’ he said.

‘Let the Human Rights Watch man who claims to be an expert in Bangladesh constitutional law and in international jurisprudence, let him communicate with me. That is my comment,’ he added. ‘Please convey the message.’

At present seven men — five leaders of the Bangladesh Jamaat-e-Islami and two of the Bangladesh Nationalist Party — have been detained by the International Crimes Tribunal set up in March 2010 under the 1973 law. One is on bail.

The request for the constitutional repeal was made by the international human rights organisation in a letter signed by Brad Adams, its Asia division executive director and dated May 18, which sets out 12 categories of changes that the organisation says are necessary ‘to ensure that the trials are carried out in accordance with Bangladesh’s international human rights obligations, international criminal law and Bangladesh’s constitution.’

The letter to the prime minister says that Article 47A of the constitution denies ‘fundamental rights guaranteed in the constitution and international law, which are accorded to accused persons in all other criminal trials.’

‘There is no justification for withdrawing these rights to those accused of violations of international humanitarian law,’ the letter adds.

In calling for this change, Human Rights Watch has gone beyond the proposals made by the United States war crimes ambassador-at-large, Stephen Rapp, who in his letter to the Bangladesh government in March 2011 only proposed changes to the International Crimes Tribunal’s rules of procedure.

Changes in the rules of procedure can be made directly by the tribunal without any legislative changes.

In his letter to government ministers Rapp had said that ministers had told him that it would take too much time to make changes in the legislation but were willing to consider additions to the rules of procedure.

The other proposals suggested by Human Rights Watch in its letter reflect many of Rapp’s suggestion, including the introduction of a system of interlocutory appeals that will allow the ‘parties to be able to appeal [against] key decisions during the trial process instead of waiting for a conviction’ – which the letter said was ‘essential’ - and amendments that will provide greater clarity to the definitions of the offences in the 1973 act.

The letter makes clear that the organisation considers that there should be changes not just to its rules of procedure, but also to the 1973 Act.

Adams also emphasises the need for an improvement in the capacity of the ICT prosecutors and judges.

‘Ensuring that prosecutions and trials meet international standards requires considerable technical expertise so that the cases presented and verdicts delivered are based on sufficient, legally obtained evidence,’ the letter states.

‘We are concerned that Bangladesh’s limited experience in trying grave international crimes means that prosecutors and judges are not sufficiently trained and experienced to effectively handle these complex cases.’

Human Rights Watch had previously written to the prime minister in July 2009 about the International Crimes (Tribunal) Act 1973 and in the new letter says that it appreciates that since then the government has introduced some amendments to the legislation.

Whilst calling for changes, the US-based human rights organisation states firmly that it welcomes the ‘government’s commitment to bring to justice those responsible for serious human rights abused in 1971’ and are ‘pleased that the government has decided to set up special courts with a special prosecution team to address these crimes.’