The Government of Bangladesh has suggested that it is going to form at least another bench to expedite the trial of the men accused of committing crimes against humanity. There are certain things that the government can do to avoid much of the controversy that is dogging the current tribunal.
- Have at least two judges with district court experience: In the current tribunal, Justice Fazle Kabir was a district court judge before being elevated to the High Court. Zaheer Ahmed is also a retired district court judge. District courts are the trial courts of Bangladesh’s legal system, and the judges who rise up through that system have a far greater experience regarding the minutiae of handling a trial, like evidentiary and exculpatory issues. The transcripts of the direct and cross-examination of prosecution witnesses in the trial of Delwar Hossain Saydee has made this abundantly clear. Justices Zaheer and Kabir have been extremely active in deciding whether to sustain or overrule the objections by the prosecution and the defense teams, while the chairman, Justice Nizamul Huq has mostly been a silent spectator. The new tribunal should also have at least two judges with experience at the district court level, and unlike this the current tribunal, one of these two should be made the chairman of the tribunal.
- Have at least two judges with at least five years of appellate experience: Justice Fazle Kabir was appointed by the BNP government in 2003. So, he had seven years of experience in the High Court under his belt before being appointed to the war-crimes trial. Justice Nizamul Huq, on the other hand, was appointed in 2001, not confirmed in 2003 (along with Shamshuddin Chowdhury Manik, what a wise decision that was), and then again reappointed in 2009. This means that he had only heard appellate cases for 3 years (2001-2003, 2009-2010) before being appointed to the Tribunal, and even that with a six-year gap in between. For the new tribunal, the government would do well to appoint judges with at least five years of uninterrupted appellate experience.
- Avoid controversial judges: At first glance, this may seem to be an extremely subjective measure, but the government would be wise to do all it can to appoint people who are as uncontroversial as possible. Justice Fazle Kabir is controversial because he was the other judge with then-Justice Khairul Huq when he handed down his Fifth Amendment verdict and started our court on its festival of constitution-shredding. However, that is a matter of completely different magnitude from Justice Nizamul Huq, who took part in a mock-prosecution of these same men as a private citizen, and whose presence has irreversibly tainted the whole proceedings. For the new tribunals, Awami League should avoid individuals with direct participation with the 1992 mock trials, as well as those judges who were reappointed in 2009, and some of whom have been elevated to the Appellate Division.
If Awami League really wants to finish all the trial proceedings within the 2012 calendar year, then it has no choice but to constitute new tribunals. However, the absence of interlocutory appeals makes this process quite challenging, since different tribunals could potentially rule differently on the same issues, and the prosecution would be able to take advantage of forum-shopping. While the road ahead is certainly challenging for the government, if it chooses the members of the new tribunal with some foresight (which was very much missing was constituting the current tribunal), it may make its mission slightly easier.