Well the proceedings today (Monday) in the High Court - where the challenge to the First Amendment was in its second day - were rather surprising. [To read about the first day's proceedings, see this post]
Monday's hearing had finished with one of the Judges asking the attorney general to respond to his view that consideration should be given to amending the International Crimes (Tribunal) Act 1973 so that those accused could approach the Appellate Division during the proceedings - and not just following a conviction.
However, this morning, before the attorney general had an opportunity to say a word, Barrister Razaaq, the lawyer acting for two petitioners currently detained by the International Tribunal on allegations of crimes against humanity, jumped to his feet and informed the court that he did not want to "press" his application.
(In Bangladesh, there is a court practice that allows petitioners, if they think they will not get a favorable rule from the court, to ask the court if they can withdrawal their application. If the request is done very soon after arguments have started, the petitioner can go straight back to another court without disclosing to the second court that they had previously withdrawn the application from a previous court.
Where significant arguments have been made by a petitioner (as happened in this case), the court can still allow a petition to be withdrawn, but the petitioner would have to disclose to the second court (if the petition was being resubmitted) that the petition had previously been withdrawn and "had been rejected as not pressed.")
Justice Wahab then made a number of comments. He said that had Razzaq not withdrawn the petition he had been minded to rule against him anyway. He said that he thought a reasonable distinction could be drawn between the rights afforded to "ordinary citizens and other citizens accused of war crimes." He also said that in relation to the International Crimes (Tribunal) Act 1973, "significant measures had been taken to ensure a proper and fair trial."
He then passed an order saying that Razaaq had requested "following instructions from his clients" not to press the application.
Following the hearing, Razzaq told me outside the court that he had withdrawn it because he had thought that the judge would have passed an order against him. He said the Judge "had already made up his mind".
So why did Jamaat withdrawal the petition, when the Judge, the morning earlier had asked the attorney general about interlocutory appeals to the appellate division?
One insider suggested that the thinking behind the withdrawal was as follows: the court was looking at the issues, 'emotionally' not 'judicially'; that although the court had made some positive observations, it was unlikely to mention these in its judgement unless it was willing to say that the first amendment was unconstitutional (since the amendment itself did not allow the court to assess the 1973 Act) and it appeared unlikely that the court would do this; that if they had gone on with the application and lost, it would have have taken a long time for the appellate division to consider the case and the trials might have been over before it was concluded; that if a rule had been issued against them, it would look bad; and that after the eid vacation, there may be new benches which might be more willing to consider the application positively.
I would suggest in the current political and legal climate in Bangladesh, it is arguable whether the lawyers will find any other court bench to be more responsive to their arguments.
In withdrawing their petition from the court simply because the lawyers thought that they were going to lose also makes the Jamaat's legal position on the first amendment look pretty weak.
The Jamaat lawyers may not have wanted headlines about their petition being rejected by the court - but the semantics of what actually happened in the court today will be lost on most media. This is perfectly illustrated by the Daily Star's headline "HC rejects writ challenging crimes Tribunal" - presumably the kind of headline that they wanted to avoid. I think most people think, or will think after reading the media tomorrow, that the Jamaat petitioners simply lost their case.
Moreover, it might well have been the case that the Appellate Division would have considered an appeal on a priority basis.
About the merit of the arguments against the first amendment - I am cetainly in no position to make a competent assessment. However I do think from the arguments put to the court on Sunday that there was some kind of case to answer. The government was not however given the opportunity to do respond - and of course they may have had some very strong arguments in response.
On a wider point, I do think the way in which the first amendment is viewed by the political class in Bangladesh is rather unfortunate; that is to say "if you support war crimes trial, you are in favour of amendment; if you are against the amendment you are against the war crimes trial" This is of course much the way in which the whole issue of 'international standards' is viewed (more about that in future posts).
Clearly, now that proceedings have started, it is almost impossible for the government to change tack - however, in my view, what the government should have done was, prior to the process starting, have removed the changes that were made to article 47 of the constitution by the first amendment, and also to have amended the 1973 Act to make it constitutionally un-challengeable.
These changes would not have prevented those who committed war crimes, crimes against humanity etc from being detained, prosecuted and convicted though it may have made the investigation body have to work a little bit harder to put their legal cases together, which is no bad thing in the context of the seriousness of the allegations.
In addition, these changes would have given some additional protections to the defendents, have also made the trials fairer, and also maee the trials much less subject to criticism from outside Bangladesh.
Bdnews: Challenge to War Crimes Law Withdrawn, 23 August 2010