Azad judgement analysis 1; 'in-absentia' trials and defense inadequacy

Abdus Shukur Khan, the state defense
lawyer appointed by the tribunal to
defend Abul Kalam Azad 

This is the first of a number of posts considering the adequacy of the Abul Kalam Azad trial and judgement.

It is notable that the conviction and sentencing to death of Abul Kalam Azad has been widely supported by many of the great and the good in the country's political establishment and civil society - as reflected for example by the emotional comments in the signed editorial written by the editor of the Bangladesh newspaper, the Daily Star who mused that the conviction has brought 'an indescribable joy in our heart today and an inexpressible reason to celebrate' as well as comments published in the paper by others.

Whist the atrocities of 1971 quite understandably sear deep and the need for an accountability process are obvious, it continues to surprise me how the current tribunal process, now so mired in controversy, continues to gain such unalloyed support from those otherwise sensitive to injustices within the criminal justice system in Bangladesh (on this issue generally, see this and this)

Why controversy? If anyone has read the full Skype conversations and e-mail correspondence (summarized by the Economist) between Justice Nizamul Huq and the expatriate Bangladesh lawyer Ziauddin Ahmed, there is evidence of collusion between the prosecution, the tribunal and government ministers - at a level which appears to preclude the possibility of independent and fair trials. In the Sayedee case (which I have followed particularly closely) prosecutors have lied to the tribunal about prosecution witnesses (with the tribunal taking no action) and the tribunal has seriously curtailed the number of defense witnesses, refused to issue summons to ensure that key witnesses came to court, and taken near to no action after a defense witness was abducted from outside the tribunal gates. And Sayedee's trial is not alone in experiencing some of these problems.

No doubt these same people will remain unimpressed by any criticisms made of the Kalam Azad trial and judgement - so tone deaf are they to such comments - and dismiss and ignore them, as they have done before.

Nonetheless it is important to continue to put on the record these concerns - and in relation to the Azad trial and judgement there are many.

This first analysis of the Azad trial/judgment looks at the question of 'in absentia' trials and whether or not there was an adequate defense give to Azad (who had apparently absconded as soon as he heard that he was about to be arrested).

It summary this analysis argues that, (a) in contradiction to what is stated in the judgement, there is no international legal support for the kind of in absentia trial that took place with Azad; and (b) linked to this, the defense to Azad provided by the state defense lawyer (who by-the-by - in an interview admitted that he is a supporter of the governing party, the Awami League, and used to be a member of its student wing) was seriously defective.

1. In absentia trials
The trial of Kalam Azad was held in absentia - meaning that  he was was not present during the trial.

The legitimacy of holding an in absentia trial was raised by Abdus Shukur Khan, the defense lawyer appointed by the tribunal (much more about the lawyer later)

The judgement says that one of the 'pertinent legal issues' raised by the defense lawyer was that the:

'trial in absence of accused is not valid, particularly in prosecution and trying an individual on allegation of committing internationally recognized crimes) (para 40)

The Azad judgement answers this by pointing to the UN supported Special Trial for Lebanon, as well as the jurisprudence (case law) of the European Court of Human Rights and that of the Human Rights Committee (in relation to the International Convention on Civil and Political Rights).

However the judgement does so inaccurately - such that arguably, it should have come to rather different conclusions.

Para 50 of the judgement states:

United Nations reversed its policy against trials in absentia with the Special Tribunal for Lebanon (STL or Lebanon Tribunal) in 2006. The STL allows trials "to commence and to end............ without an accused ever having showed up in court. The STL (Special Tribunal for Lebanon) expressly allows for trials in the absence of the accused in article 22 of the STL Statute, entitled "Trials in absentia." Article 22(1), lists the situations where the STL can hold trials in the accused absence.

However, the judgement (conveniently) fails to mention Article 22(3) of the Special Tribunal for Lebanon statute which allows trials in absentia (including in the circumstances of this case where the accused is absconding) only on the basis that an accused person has the right to seek a retrial in their presence if they do return to the court's jurisdiction. The article states:

In case of conviction in absentia, the accused, if he or she had not designated a defence counsel of his or her choosing, shall have the right to be retried in his or her presence before the Special Tribunal, unless he or she accepts the judgement.

In relation to the European Court on Human Rights (ECHR), the Azad judgement states at para 53 that:

The jurisprudence of both the ICCPR and the ECHR confirms that a trial in absentia will not violate a person's right to be present when he has expressly declined to exercise this right.

However, the Eurporean Court of Human Rights jurisprudence in fact only allows in absentia trials in the same set of circumstances as the Lebanon tribunal when there is a right to a retrial. So in the case of Krombach (para 85) it was held:

It is true that proceedings that take place in the accused’s absence will not of themselves be incompatible with the Convention if the accused may subsequently obtain, from a court which has heard him, a fresh determination of the merits of the charge 

So, it is first of all important to note that the Bangladesh tribunal is the only international/UN sponsored court/national court dealing with international criminal offenses which allows in absentia trials without a right of retrial. 

There will be many who will say that since the Bangladesh International Crimes Tribunal is a national tribunal it does not matter what other courts do or say. Putting to one side for the moment the legitimacy of that argument, what is significant is that the Azad judgement does in fact try to justify its in absentia process by reference to the Lebanon tribunal  and the ECHR jurisprudence; the Bangladesh tribunal does accept that at least in relation to the issue of 'in absentia', international standards do apply. 

And the Azad tribunal judgment is inaccurate in suggesting that the Lebanon tribunal and the ECHR supports the legality of its in absentia process.

However, what about the ICCPR? The ICCPR case law does not state explicitly that a right to retrial is required, however what it does do is place particular emphasis on the need for courts to provide significant defense rights when in absentia trials take place. General Comment No. 13, para 11 states that:

“[t]he accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defenses and the right to challenge the conduct of the case if they believe it to be unfair. When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defense is all the more necessary.” (emphasis added)

It is important to note that all this applies in the circumstances in which the trial of Azad took place - where the accused has deliberately escaped prosecution.

Para 26 of Azad's judgment states that: 

'Thus, this Tribunal has the ability to hold trials in absentia in such a way as to refrain from violating human rights norms guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and other agreements.'

The next question therefore is whether or not the tribunal ensured that Azad had a sufficient defense. 

2. Time to prepare
On 7 October, the tribunal appointed the lawyer Abdus Shuker Khan as state defense lawyer to defend Azad. According to para 21 of the judgement, four days later, on 11 October later Khan received (as required by the International Crimes (Tribunal) Act 1973) copies of the formal charge and the documents which the prosecution intended to rely on including the statements of prosecution witnesses.

Ten days later on 21 October, the tribunal started hearing the application to charge-frame (indict) the accused, and on 4 November, the tribunal passed its order of indictment framing 8 charges against Azad. 

[To read witness testimony, cross examination and judgement click here] 

Three weeks later, on 26 November, the trial started with the prosecution bringing to court 22 witnesses. Over a period of 13 days finishing on 22 December 2012, these witnesses gave their evidence and were subject to cross examination by Azad's defense lawyer. The defense lawyer was then required to bring any defense witnesses to testify on behalf of Azad to the tribunal.

So: the defense lawyer had only ten days to prepare himself to challenge the charges proposed by the prosecution (in the charge framing hearings). Then following the order of indictment (when he came to know exactly what charges his client was facing) only a further 22 days to (a) prepare his cross examination of the prosecution witnesses, (b) admit as evidence any documentary information and (c) obtain his defense witnesses in relation to 8 charges - 7 of which involved crimes against humanity and one which was a crime of genocide - all of which potentially could result in a death penalty. [One should note of course that all these offenses are international criminal offenses which is an area of law that has its own separate jurisprudence.]

Did the tribunal provide the lawyer sufficient time to prepare? 

Providing only three weeks to prepare the case does in fact comply with section 9(3) of the 1973 Act, which requires that there be a minimum time of three weeks between the time the defense lawyer receives copies of the prosecution evidence and the date of thee trial.

In addition, the lawyer himself told me in an interview that he had no complaints about the time provided to him to complete his preparation. 'Yes, I had enough time. Three weeks is sufficient between charge framing and witness testimony,' he said. And he did not challenge this before the tribunal or seek an adjournment.

However, it is pretty clear from any objective or common sense position - at least from an international standards position - that the time period is totally inadequate for any lawyer to properly prepare for a trial of this kind. It is an almost ridiculous short length of time.

However, to appreciate why the lawyer (and the tribunal) considered this period was sufficient, one needs to consider this state defense lawyer's level of preparation, and how defense lawyers generally Bangladesh operate.

3. The lawyer's preparation
My interview with the lawyer confirmed what any reading of the witness testimony in fact suggests; he undertook no investigations or inquiries on behalf of his client. Indeed, he told me that his preparation was simply based 'on the papers provided by the prosecution'.

The lawyer justified this by saying that the son of his client told him that he did not wish to assist. 'After I was appointed, I went to Azad's house,' he said. 'I met his younger son, Zahid Azad, and spoke to him and invited him to provide any supporting documents, and invited him to come as defence witness, but the man replied that we have nothing to do with this case.'

It was the lawyer's view that since the family was not providing any cooperation there was no further inquiries he should make on behalf of his client.

When I asked him whether he had gone to any of the 'crime scenes' - all of them in Faridpur, he replied that he had not. Why I asked did he not go to Faridpur? 'It was not possible to go to to Faridpur, as the family did not help. I am not familier with Faridpur district,' he replied.

When pushed on this, he said, 'I intended to go and visit, and ask for assistance from the accused family and because the family did not assist, I could not go.'

I asked him why he only sought assistance from the family, since there may be many other people, perhaps BNP or Jamaat supporters or others who would be willing to assist. I also asked him whether he recognized that his client was Azad, not his family.

He explained that he did not think 'as defence state counsel I need to investigate. The law does not require it.' He explained that is was customary in Bangladesh to defend simply by scrutinising 'the statement of defense witnesses'.

When I mentioned that the lawyers representing the other accused, (i.e those representing the leaders of the Jamaat-e-Islami) appear to be undertaking extensive defense investigations, he said that 'those lawyers are assisted by accused relatives and supporters, but no one is assisting me.'

Since the defense lawyer did not undertake any defense investigations, it is hardly suprising that he was not able to bring to the tribunal a single defense witness, or submit a single document or indeed properly question or challenge any of the claims of prosecution witnesses on the basis of any knowledge that came from outside the prosecution papers that had been provided to him. 

This raises the question: Is simply relying on prosecution papers sufficient preparation for a lawyer? In failing to undertake any defense investigations, was the lawyer failing to give his client a proper defense?

4. Adequacy of the legal representation.

In Bangladesh terms, if one considers the general practice of lawyers dealing with most criminal defense cases, the answer to the above question may well be 'yes'. It is common practice for most criminal defense lawyers in Bangladesh to simply prepare their cases on the papers provided by the investigation/prosecution, often without having met their clients. Lawyers do not undertake further inquiries or undertake defense investigations. In fact in most criminal cases in Bangaldesh, defense lawyers do not meet their clients outside the court room.

This may well explain why (a) the lawyer acted in the way he did, and (b) the tribunal thought that the preparation and representation provided by the lawyer was adequate. [One should note that the court was of course fully aware of the situation. At the end of the prosecution witnesses, Justice Obaidul Hassan passed an order stating (here summarized) 'Prosecution Witness has been closed today. As per section 9(5) of International Crimes Tribunal Act-1973, Defense Counsel has failed to produce any witness or documents in favor of his client because accused is absconding and his family is not cooperating Defense Counsel to supply any document or witness. In this circumstance, this case has been fixed for argument on 23rd December 2012.' The tribunal seems to be accepting that the non-cooperation of the family this was a justifiable explanation as to why the lawyer had come forward with no defense witnesses, no documents.]

However, by any kind of international standards, the lack of preparation by the lawyer and the nature of the representation would be considered highly inadequate. The lawyer and the tribunal should both themselves have recognized this.

And in considering how adequate defense should be in in absentia trials, one should keep note that the UN Human Rights Committee stated that 'strict observance of the rights of the defense is all the more necessary' in such trials.

5. The appropriateness of the defense counsel
Abdus Shukur Khan, the state defense counsel, told me that he did not know exactly how he was chosen. 'The Dhaka bar association recommended me, but I do not know how. One of my friends informed me that I had been appointed as the state defense, and the chairman [of the tribunal 2] asked me to meet him. After the interview I was appointed.'

He said that he knew nothing about international criminal law but was able to read about it in the time he was the lawyer.

Perhaps most significantly, in the context of his trial, Khan confirmed that he had been a member of the Chattro League (the governing party, the Awami League's student wing), and that he continued to be a 'supporter' of the Awami League, though he insisted he was not a member.

In the context of the tribal and highly partisan nature of Bangladesh politics, the need to ensure that the tribunal was independent and that Azad would have a lawyer who would properly protect his interests, it seems particularly inappropriate to have hired a lawyer to represent Azad who had, as he had admitted, strong Awami League links.


Azad analysis 2: 'Common knowledge and assumptions'