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Moulana Azad’s judgement: Why controversy?
Sunday, 27 January 2013
Azad judgement analysis 1; ‘in-absentia’ trials and defense inadequacy

 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.

David Bergman/