Wednesday, October 29, 2014

Nizami's conviction - the 'moral justice' or 'fair trial' prisms

Motiur Rahman Nizami was today sentenced to death for crimes he was alleged to have committed during the country's 1971 War of Independence.

He was charged with 16 offences, convicted of eight, and sentenced to death in relation to four.

Putting the issue of the death penalty aside for the purposes of this discussion, I would suggest that one's response to Nizami's conviction depends upon the prism through which one considers the trial.

If it is through the overall prism of moral justice, the conviction is almost certainly fair.

Motiur Rahman Nizami was the head of the Jamaat-e-Islami student wing during 1971, whose members directly collaborated with the Pakistan military, some of whom are notoriously assumed to have been involved in atrocities during the war. It is difficult to imagine that Nizami, in siding with the military, and due to the position that he held, was not involved in crimes against civilians during the war.

However, if one looked at the trial through the prism of fair trial standards, one would have a different perspective, since there are significant and well founded concerns about the process of the trial.

Apart from the general overall weaknesses in the legislation (discussed elsewhere), in relation to Nizami's trial, three immediate issues come to mind:
- Charge no 16, one of the offences for which Nizami received the death sentence, was not part of the prosecution's initial charge framing application, but appears to have been added (as seen from the e-mails leaked during the 'skype' scandal) at the request of an outsider to the tribunal, Ziauddin Ahmed, a legal academic who whilst advising the judges was also in touch with the prosecution.

- Nizami's defence lawyers were only allowed to call four witnesses in defence of 16 charges, whilst the prosecution were allowed over 20.

- At least one prosecution witness, Shamsul Huq Nannu, claimed in a recorded interview that he was briefed and coerced to give evidence against Nizami. (He subsequently denied that he ever gave the videoed interview, but independent tests done on the voice recordings commissioned by the defence suggested that it was the same person)
For those politically sympathetic to the accused, these fair trial concerns are a very big deal.

However, those concerned with the overall context of justice in 1971 would see these criticisms as minor or irrelevant procedural matters, or would contest their accuracy.

Whilst, in the end of course it is only through a fair trial process that guilt can properly be apportioned, the prism of moral justice cannot simply be put to one side. It is therefore difficult to feel too much sympathy for Nizami.

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