David Bergman exposes flawed judicial reasoning and loopholes in Sheikh Hasina’s case

Journalist David Bergman has been following the ICT trial process and Bangladesh for many years. He has highlighted the serious weaknesses, weak arguments and loopholes in Prime Minister Sheikh Hasina’s trial. His column is presented live

David Bergman

There are two serious problems with Sheikh Hasina’s trial. First, the court-appointed defense lawyer ‘failed’ to raise even the most basic questions about the prosecution’s crucial evidence.

The second problem is that the judges themselves did not rigorously examine the evidence, if not in all cases, at least in some. The courts seemed to accept the prosecution’s position on the picture presented by the prosecution and what was established by their evidence. This is made even more problematic by the weak legal fight of the defense.

These two problems have led to some flaws in the reasoning used by the court in its judgment. An example of this is the (intercepted) phone call between Sheikh Hasina and the Vice Chancellor of Dhaka University on the evening of July 14. Sheikh Hasina’s ‘Razakar’ remarks to the student protesters angered the students and this led to further agitation. Her phone call with the Vice Chancellor took place a few hours after those remarks.

The prosecution argued that the phone call proved that Sheikh Hasina had ordered the killing of the students. Not only that, but the way the court read it out, this specific claim was used as a basis for two of the three charges against Sheikh Hasina. In its verdict, the tribunal accepted this allegation as true. But this interpretation raises questions.

In the verdict read out in court, Justice Shafiul Alam said, “We have seen that during a telephone conversation with Dhaka University Vice-Chancellor ASM Maksud Kamal, the accused Sheikh Hasina mentioned that she had already ordered the students to be hanged in the same way as the Razakars were hanged.”

But an analysis of Sheikh Hasina’s conversation suggests that there is a mistake in the court’s interpretation. To prove the tribunal’s claim, the judge read out three parts of Sheikh Hasina’s conversation to the court.

In the first, Sheikh Hasina can be heard saying, ‘I have hanged the Razakars, now I will do the same to you. I will not spare a single one, I have told you.’ In the second, Sheikh Hasina can be heard saying, ‘In which country do we live? Haven’t you seen what happened to the Razakars, this time I will not spare you either.’ In the third, Sheikh Hasina can be heard saying, ‘All these people must be thrown out… I am telling you that after enduring today, they will be arrested, captured and whatever action they take will be taken.’

The first two statements are clearly expressions of anger. This is violent language, no doubt about it. But what she is talking about is judicial punishment, not extrajudicial killing. Sheikh Hasina is comparing the students with the Jamaat leaders sentenced to death after the ICT verdict. This means that she wants the same kind of punitive action to be taken against the protesters through the courts. Although her statement is offensive, she did not say anywhere that she wants to kill the protesters on the streets.

Even if it is assumed for the sake of argument that Sheikh Hasina used the word ‘hanging’ to mean ‘murder’, nowhere in the conversation did she say that she had already given such an order. Yet that is what the judge claimed.

The tribunal’s interpretation may be due to the way Sheikh Hasina said it, “I told you.” But her statement is not clear, and it is difficult to establish that Sheikh Hasina “ordered” the killing. Or another reason behind the tribunal’s interpretation may be that the tribunal mistakenly combined two unrelated parts of the phone call.

The last quote, ‘I am telling you’—comes only when the Vice-Chancellor says, ‘Yes—let’s end this trouble. Then I myself will arrest those who are creating this unrest, those who are the main ones (behind it) and expel them from the university.’

In this context, Sheikh Hasina’s ‘order’ is understood to mean the order to expel the students from the university. This ‘order’ means the order to detain the students, which she later actually did. There is no mention of any order to hang, execute or kill anyone here.

Therefore, the prosecution’s claim that Sheikh Hasina had ordered the killing ‘in advance’ by proving the July 14 phone call and the tribunal’s decision are quite weak. Rather, the evidence available suggests that Sheikh Hasina clearly ordered the use of lethal weapons four days after the incident, i.e. on July 18.

In a conversation with former mayor Taposh, he said, “I have given instructions. I have given open instructions now, now use lethal weapons. Shoot straight wherever you find them.”

Sheikh Hasina has given this order, and there is evidence from the Inspector General of Police (IGP). It was completely wrong to see the July 14 phone call as an order to kill, and the actual order to kill was actually given on July 18. It is important to acknowledge that no order to use lethal weapons was given until July 18. This has a major impact or significance.

If Tribunal-1 had appointed properly qualified and experienced defence lawyers, they would have tried their best to save the accused. They would almost certainly have examined the prosecution’s explanation regarding the July 14th conversation and raised the points mentioned above. But instead, the defence lawyers have simply claimed that the conversations were generated by AI. They have not even arranged for any independent examination of these conversations.

First, it undermines the basis of Count 1 against Sheikh Hasina, which alleges that the attacks on university students on July 15-16 were part of a crime against humanity. She was sentenced to life imprisonment on that charge. This charge appears to be based on a misinterpretation of Sheikh Hasina’s conversation with the Vice-Chancellor on July 14.

Second, it casts serious doubt on the ongoing ICT investigation and prosecution of the July 16 killings in Rangpur and Chittagong, which will have a broader impact on other issues.

These include the Begum Rokeya University, the trial of Abu Sayeed’s murder in Rangpur, and the investigation into the killing of three people in Chittagong city (one of the results of which is the detention of former MP Fazle Karim Chowdhury for nine months). The treatment of these cases as crimes against humanity in particular was questionable from the outset. Because it is difficult to show the events of July 16 or earlier as a ‘massive or planned attack on a civilian population’. But for crimes against humanity, this must be proven.

Another important point is that the prosecution was using the argument that Sheikh Hasina had already ordered the killings on July 14. But this claim is baseless. And if this claim is baseless, then it becomes much harder to argue that the July 16 killings were ‘committed in accordance with state policy’ (which is very important for proving crimes against humanity).

An important question is whether Tribunal-2, which is dealing with the trial of Abu Sayeed’s murder, is bound to follow the legal and substantive reasoning of Tribunal-1 (which ordered Sheikh Hasina’s trial), or can it reach a different decision.

However, the failure of the defense attorney does not reduce the responsibility of the judges. The judges themselves should have considered the evidence independently and fairly, especially in the case of the July 14 conversation, but they did not appear to have done so.

After receiving the full verdict, it will be possible to understand whether the tribunal’s statement on the July 14 phone conversation, which has now been made public, has been given detailed legal reasoning and explanation.