Source : http://www.crimesofwar.org/commentary/international-council-of-jurists-expunges-critique/
On June 21, 2011, I attended a conference hosted by the International Council of Jurists upon the invitation of its President, Dr. Aggarwala. The conference was on the rule of law and judicial reform. I was asked to present a paper. I offered to speak about the International Crimes Tribunal in Bangladesh and international standards as this subject inevitably concerns matters of judicial reform and human rights. I provided the organizers of the conference with full notice of the topic that I intended to address. In the alternative, I offered to speak about three further topics involving defence rights and international criminal justice. No issue was taken at this stage by the President of the International Council of Jurists of the chosen topic and I was appointed to the Terrorism and Human Rights panel discussion.
I spoke for no more than 10 minutes and covered the First Constitutional Amendment, the need for proper definitions of the crimes, the exportation of fundamental rights in the Constitution and the exclusion of the Criminal Procedure Act and the Criminal Evidence Act.
The conference was attended by the newly appointed Bangladesh Chief Justice, Muzammel Hossain, and another Justice of the Supreme Court of Bangladesh, Justice Shamsuddin Chowdhury Manik. I introduced myself to the Honourable Chief Justice in the morning and informed him that I would be speaking about the International Crimes Tribunal.
I started my brief address by congratulating the Honourable Chief Justice on his recent appointment and I applauded him for his presentation earlier in the day. I stated that it was encouraging to hear his strong words on ensuring the judiciary in Bangladesh remained truly independent. Shortly after commencing my presentation the Honourable Chief Justice left the conference room. As far as I recall neither the Honourable Chief Justice nor Justice Shamsuddin Chowdhury Manik were present during my address.
I spoke for no more than 10 minutes and covered the First Constitutional Amendment, the need for proper definitions of the crimes, the exportation of fundamental rights in the Constitution and the exclusion of the Criminal Procedure Act and the Criminal Evidence Act. I then spoke about the criticisms aimed by various international organizations. The point I made was that the discussions during the conference focused on human rights protection and the rule of law. There were also discussions that focused on bringing an end to impunity. I echoed these concerns and stated that none of the rights raised by the other speakers were being provided to accused in proceedings before the International Crimes Tribunal. I listed some of the rights that had been systematically removed by the Act and the Constitution. I concluded by stating that it was crucial to ensure the independence of the judiciary was maintained.
At the end of my speech, a member of the audience, whom I now know to be Mr. Anis Rahman OBE, a Bangladeshi barrister based in London, made the point that I should not be making such statements in circumstances where the Government was not in a position to respond and clearly the Chief Justice could not respond. At this point I must state that I never intended to put anything to which the Honourable Chief Justice would be required to respond. Mr. Rahman stated that a number of accusations had been made against the Tribunal. He called for a point of order that my remarks be stricken or expunged from the record. The chair of the session, Justice Hassan B. Jallow, the United Nations International Criminal Tribunal for Rwanda Chief Prosecutor, after some conferring with the other members of the panel refused to make such a point of order and stated that there was nothing inappropriate with what I presented.
At the end of the panel session, the audience were invited to ask questions. However, Mr. Rahman rather than ask a question directed abuse at me personally and professionally. This was followed by Ms. Sonia Zaman Khan, a British-Bangladeshi solicitor, directing a number of remarks rather than questions. I was told that I should be ashamed of myself as these people “committed genocide, rape, murder, torture” and the small group of about 10-12 Bangladeshi members of the audience started to chant repeatedly “shame, shame, shame” and bang the table repeatedly. This was all conducted in a very aggressive and provocative manner. I asked to be able to respond and reluctantly, the Chair of the Panel, Justice Jallow, permitted me to respond. I stated in reply that I had not attacked the Tribunal nor had I attacked any individual judge; I had criticized the procedures. Further, I had not opposed the establishment of the Tribunal but I had criticized the manner in which proceedings were being conducted. I further criticized the fact that despite widespread criticisms being made, including the recommendations by the US Ambassador-at-large for War Crimes Issues, Stephen Rapp, to date no changes had been made to the Act, the Constitution or the Rules of Procedure. I used this opportunity to call the Government to bring the procedures in line with international standards. The small group of antagonists, and I must say this represented a very small segment of the audience, refused to listen to anything further and dismissed my answers out of hand. They continued to direct unsolicited abuse. Of particular note, Ms. Sonia Zaman Khan defended the legislation by stating that the international community, in particular the Canadian Government had heralded the legislative framework.
At the end of the session, a number of individuals approached me to commend me on my presentation and expressed their dismay as to how I was treated. I replied that this is a very emotive subject and therefore emotional statements are to be expected. I expressed some surprise; however, that at a gathering of distinguished jurists, there would be a complete disregard for a judicial process that met recognized fair trial standards. I was also taken aback by the suppression of any form of criticism of what is ostensibly a democratic nation.
I stated in reply that I had not attacked the Tribunal nor had I attacked any individual judge; I had criticized the procedures.
I left the conference shortly after my address. The following day I learned of a number of statements that had been made by members of the Bangladeshi community in the audience. In particular it was stated that Justice Shamsuddin Chowdhury Manik explained in detail the procedures of the International Crimes Tribunal and made it clear that all steps had been taken towards ensuring a trial process based on internationally accepted standards. It was also stated that I had made “grave insinuations against the legal process in Bangladesh but had also chosen the wrong forum to express views on the war crimes trial in the country.”
In response to these statements the following remarks are made. First, I made it quite clear in my presentation that no offence was intended towards any member of the Bangladesh judiciary. Absolutely no accusations were addressed towards any judge or judicial institution of Bangladesh. I openly criticized the Act, the Rules of Procedures and the First Constitutional Amendment. I echoed the concerns of a number of international organizations, including Human Rights Watch, the International Center for Transitional Justice, Amnesty International, and importantly, the International Bar Association. In relation to Ms. Khan’s statements that the Act is heralded by the international community this is quite simply misleading and not supported by any credible facts.
Second, I am not in a position to respond to Justice Shamsuddin Chowdhury Manik’s comments due to the fact that none of these comments were made in my presence. However, I will state once again that, in my opinion, which is shared by the vast majority of international observers of the legislative framework at the Tribunal, that the laws and procedures fall woefully short of what is understood to be recognized international standards.
Third, as to the suggestion that my remarks were “expunged” I am not in a position to comment on what may or may not have occurred after I left the conference. What I am able to state with absolute certainty is that when the request was made in my presence, the Chair of the Panel, Justice Jallow, refused to dismiss my remarks. He made it quite clear that my remarks were not inappropriate nor were they directed to cause offence. I have also been subsequently informed that Sir Gavin Lightman, formerly Mr. Justice Lightman of the High Court of England and Wales, in summarizing the conclusions of the conference, adopted the same position.
The article that appeared in The Daily Star on June 22, 2011 entitled “Judiciary Ensures Rule of Law in Bangladesh” is quite misleading and does not represent what actually transpired. For example, it conveniently fails to mention that one of the dignitaries attending the conference, Sir Lightman, made the point that there was no malice intended in my address. It also fails to address the point above that Justice Jallow refused to expunge my remarks when requested to do so by Mr. Rahman.
Following the publication of the article in The Daily Star I sought to ascertain whether my remarks had in fact been expunged after my departure. Regrettably, I was informed that the President of the International Council of Jurists, Dr. Adish Aggarwala, had expunged my remarks from the proceedings. I immediately made contact with the International Council of Jurists and was informed by Dr. Aggarwala that if I submitted my paper the International Council of Jurists would take a final decision as to whether my controversial statement was relevant. By his own admission, the President of the International Council of Jurists confirmed that he was not present during my speech.
What I now find particularly worrying is that my remarks were expunged by the President of the International Council of Jurists even though he had not heard them. He had concluded that my remarks were controversial again without hearing them. It is clear that my remarks were expunged at the request of those persons who had sought to suppress my criticisms of the legislative framework of the International Crimes Tribunal.
It is also of concern that the conference was organized with the “academic support” of the General Council of the Bar of England and Wales and the reputation of this organization may lend support to a process which now appears to be quite flawed.
The rule of law and free speech is what distinguishes a democratic nation. Expunging remarks due to the fact that they are considered to be controversial or against the interest of the State does not represent a democratic process.
It is of course the cornerstone of any democratic process that there is free debate on the issues and that the administration must be called to account for any process it seeks to implement. The rule of law and free speech is what distinguishes a democratic nation. Expunging remarks due to the fact that they are considered to be controversial or against the interest of the State does not represent a democratic process.
My concluding remarks are as follows. I do not oppose the establishment of the International Crimes Tribunal as the State is under an obligation to bring an end to impunity. I have no desire to criticize the Government of Bangladesh nor do I have any desire to criticize the Tribunal or the Judges. I do consider, however, as I stated in my remarks on June 21, 2011, that the legislative framework of the International Crimes Tribunal requires urgent reform. I do not consider it sufficient to amend the Rules of Procedure, as has been suggested. In my view the First Constitutional Amendment that removes the protection of fundamental rights must be amended. The Act and the Rules of Procedure must also be brought in line with Bangladesh’s responsibilities under international law. Finally, the legislative framework must be brought in line with Bangladesh’s responsibilities as a State Party to the Rome Statute. It is difficult to see where the controversy lies.
Statements made by Toby Cadman of 9 Bedford Row International “expunged” by the International Council of Jurists