Death and Justice: What Might Have Been

Death and Justice: What Might Have Been
By Shafiqur Rahman for AlaloDulal

There was an eerie predictability about the verdict and also about the aftermath. Even the domestic and international reactions could also be foreseen given all that have transpired in the last year. At home fires burned, people died and the two nations screamed past each other. At abroad, Amnesty International, Human Rights Watch and other rights groups criticized the process. News and opinion centers like the Economist, New York Times duly noted the controversies about the trial and the reactions in Bangladesh and pontificated few lines. Predictably also, the alleged controversies are centered around the appeal process and the death penalty verdict. I am not qualified to contribute anything extra in the debate surrounding the issue of due process for appeal and retroactive change of law. I will say something about death and justice however.

Most people in Bangladesh are not aware of the extent to which, in the eyes of the Economist-New York Times reading crowd, the pall of death sentence hang over the Shahbagh movement. Contrary to popular perception, death penalty is not very unpopular in Europe and America. Near about two-third Americans and nearly half of Europeans still support death penalty for selected crimes. But the important fact is that there is a strong progressive-liberal and religious-humanitarian coalition of people who are firmly against death penalty. And this coalition of people has influence beyond their numbers in setting the global debate on international affairs. There are lot of ethical and logical arguments for and against death penalty; retribution, deterrence, proportionality, utilitarian, economic arguments, etc. But in the end what really turns modern humanists against death penalty is that the deliberate taking of the life of a man who cannot do any further harm to society is an obscene act. Enlightened humanism stands on a few indispensable axioms; one of the basic assumption is the sanctity of human life. Modern human sensibility has evolved to the level that it cannot justify methodical snuffing out of a human life by the impersonal state machinery when that human life cannot threaten any other human being ever.

For most of these progressive people, the sight of a crowd of hundreds of thousands of people demanding death is disturbing. They usually associate that with emotionally charged religious or nationalistic mobs. Many of our people both in the home country and abroad are aware of the cloud of controversy surrounding death penalty. When they engage with the liberals, they try to justify the demand for deaths as proportionally appropriate for the extraordinary crimes committed during the war. The message gets across to the progressives, albeit with mild condescension of low expectations of the brown people. The thing is, the principle of universalism is intertwined with liberalism. If you are against death penalty, you are against death penalty for Hitler. Period. The last year has been interesting in the way how many Bangladeshi pretenders of liberal-humanism at home and abroad gave themselves away by professing to be ‘against death penalty except for the people I really hate’.

What do our nation care whether a bunch of ‘do good’ liberals in the west support our thirst for justice or not? Actually these are the same group of people who marched against the war in Iraq, hated George Bush’s evangelizing militarism and now regularly protests against Obama’s callous policies like unrestrained drone killings. These are the people in the world who actually cares what happens to people of different faith and color living beyond the shores of the first world. The range of opinion of the other segments of people in the west go from benign indifference to active disdain. So the opinion of these people matters for the standing of our country and people in the world. These are the same type of people who actively supported the independence of Bangladesh during 1971 despite their governments’ indifference or opposition. If you ask any of those people from 1971 now about their impression on death penalty for war criminals, you will find almost unanimous opposition to death penalty. Of course they fully support our effort to bring to justice some of the perpetrators of war crimes in 1971 but even they will most often draw a red line before death penalty.

Support of death penalty has strong retributive and proportionality arguments for it. Retribution means punishment is a matter of what is deserved for a wrongful act and proportionality argues that punishment must be in proportion to the crime. Logically it is hard to argue against retributive or proportional justice but the problem is that there is only a fine line between retribution and vengeance; vengeful justice is the desire to punish a criminal because the people gain satisfaction from seeing or knowing that the criminal receives punishment. We are programmed by evolution to get satisfaction from seeing criminals getting justice. When a community’s desire of getting the satisfaction from consummating death sentence becomes the end goal rather than the justice, the resulting social mob for vengeance is deeply disturbing to progressive sensibilities.

Then again, people of Bangladesh do not live on the munificence of the progressive-liberals. We are a rising nation that work and trade with the world for hard-earned currency. Progressive sensibilities is not something that should be deeply worrying when far worse things are happening in the world and the attention of the world is very scant and intermittent on us anyway. We should and must worry about what is happening in our country first and foremost. Vengeful justice is not a large problem when it is directed to a small and isolated target, an individual or a group. When it is directed towards a substantial and powerful section of the society, things can go out of control quickly.

The AC Nielsen survey conducted this April on public opinion in Bangladesh have following information. The news was published in The New Age and the link is given below. 92% of the respondents say they are aware of the trial and 86% want the trial to go on while only 12% want the trials to stop. But 63% said the trial are unfair or very unfair and only 31 % saying the trials are fair or very fair. Clearly there is massive support for the trials but also recognition that the process had not been fair. The demand for justice is not easily to surmise even without survey data. A tremendous wrong was inflicted upon millions of innocent and simple Bangladeshi people in 1971. The general people can understand divided loyalty during the time of political upheaval but they are never ready to forgive fellow countrymen who stained their hands with the blood of innocent civilians in service of foreign masters. There is a groundswell of support for delivering justice towards those betrayers and achieve some kind of closure with the victims of 1971.

I do not think that the general people have followed the events very closely. I also do not believe that propaganda is the sole reason for the one third voters who usually reside in the middle to turn sour on the process. It would be very interesting to get comparable data before Shahbagh happened. In absence of that I feel free to speculate. I will have no problem of accepting my mistake with further information. I think that the continuous baying for death from February on-wards took the largest toll on the perceived fairness of the polls. People have an inbuilt sense of justice. They have gradually internalized that this incessant drumbeat for death resembles more an exercise in vengeance than a vision of completion of justice. It is my hypotheses that for most of the people in the middle who supports the process, it is primarily for achieving closure rather than wreck vengeance on hated enemies.

Achieving a closure seem to be a pipe dream now. Our nation is more divided now than ever before. Some primal forces have been unleashed through the cleft and nobody can even guess how the chips will fall down in the end. Watching and reading the reactions from all sides after the Appeal verdict of Kader Mollah, I was reminded of a very prescient article I read months ago. It reminded me of things that might have been.

The article named “Truth not Punishment” was published in Forum magazine of The Daily Star in  2010 and was written by Dr Jalal Alamgir. Dr Jalal Alamgir was a tenured professor of Political Science at University of Massachusetts-Boston. Tragically he died in a drowning accident in Thailand in 2011.  We are sorely missing his insights on the current course of the country. I urge the readers to go though the article in toto but I must mention here the section that made me think wistfully of what might have been (bold effect added by me for emphasis).

In this essay, I am making the following case:
We should recognise honestly that after decades of complexities, secret deals, and depraved politics, justice, though necessary and urgent, will be limited.

Such limited justice can be morally justified only by a long-term commitment to truth.

To prioritise truth, we must de-prioritise capital punishment. In 1941, years before the Nuremberg trials, Winston Churchill planned summary executions for fifty top Nazis at war’s end. He considered this punishment a political decision, not a legal matter. But Harry Truman, the American president, wanted a tribunal. Josef Stalin cast the deciding vote. As the human rights scholar Geoffrey Robertson explained, Stalin “loved show trials as long as everyone was shot in the end.”

And so a severely flawed tribunal was held at Nuremberg. It punished crimes against humanity by using inhuman standards: twelve Nazis were hanged first and then burnt in the ovens of Dachau, one of the German concentration camps.

Nuremberg’s moment of success was not in the verdict but in the courtroom, when the Nazis were shown reels of the horrors that they had created. Some of them wept and sat stunned, as they came to grips with the truth. The punishment from exposing openly and publicly what they had done to humanity was far more compelling than what Churchill’s planned executions might have produced. It is from this public record that the world’s aversion to genocide began and Nazism, as an ideology, received its death penalty. South African apartheid also received its capital punishment through the Truth Commissions pioneered by Nelson Mandela and Bishop Desmond Tutu.

Our war crimes trials should draw from these illustrations. For the first time ever, we will have an officially mandated forum to hear eyewitness accounts about 1971 without fear of retribution and in the watch of globalised media. The government must strive for worldwide publicity for the hearings.

Although local collaborators will take the stand, our real goal should be to let the world know, through an open and fair process, who was responsible for the genocide, even though they may be outside our legal jurisdiction. A new generation of Pakistanis may then hear about a version different from what they have been told. Americans may learn about the dishonorable role of their erstwhile leaders. Even Bangladeshi schools may begin to discuss 1971 in open terms.

That is why the trials, however limited, must proceed. Capital punishment, while entertaining some trigger-happy activists, will only derail us by refocusing attention on the verdict rather than the proceedings. It will invite controversy; it will alienate madrassas, a crucial audience; and it will greatly reduce the international acceptance of the trials.

We must not spoil this momentous opportunity. If the trials are able to expose the perpetrators and collaborators of genocide, and in the process shame them permanently in the face of truth, they will achieve far more success than what is offered by summary punishment. They may even help us escape the cycle of convenient partnerships and celebratory vengeance that marks our political culture.”

Truth not Punishment, June, 2010.


14 thoughts on “Death and Justice: What Might Have Been

  1. Astute analysis. This is what worries me the most:

    “Our nation is more divided now than ever before. Some primal forces have been unleashed through the cleft and nobody can even guess how the chips will fall down in the end.”

    Look at Egypt, where a “secular” counter-revolution against Morsi and the Brotherhood have brought to power a ruthless new military dictatorship (why isn’t anyone using the word “coup”) and the possible rehabilitation of the dreaded Mobarak.

    Secularism is not secularism if it ends up empowering precisely the forces of rightist politics, brute force, and non-democratic rule.

  2. You are probably coming from a social science or arts background. My background lies in physical science. Hence, by default, I don’t have expertise in progressive-liberalism as much as you & some other members of this blog do. Keeping that in mind, here’s my two cents:

    As you said, if death penalty is a heinous thing, it is heinous even if you hang Adolph Hitler. It is heinous even if you hang the five adult rapists who committed an unthinkable crime to that Delhi girl. It is heinous even if you hang Munir (Rima murder case, one of the most notorious criminal case of BD during early ’90), even if you hang Col. Farooq (self proclaimed killer of Sheikh Mujib).

    Hence, if someone opposes BD government for capital punishment of convicted war criminal, he/she should not only focus on this trial but on the whole judicial law of Bangladesh. As far as I know, people do receive capital punishment regularly in Bangladesh in murder cases.

    If that process continues but Bangladesh government relieves convicted war criminals from capital punishment due to ‘progressive-liberals’/other international bodies’ pressure, people will feel injustice.

    Thirteen years ago, a boy named Shihab (one of my play-mates) was abducted from his house for random. The police later found his eighteen piece mutilated body in a pond near my home. The main perpetrator could not be caught. He fled to some other place of Bangladesh/India. Now if you ask any resident of our area what that perpetrator deserves, they will all say that the killer deserves the highest punishment of the land.

    If someone wants to stop hanging, he/she should try to change the rule regarding the highest punishment of the land. Unless that changes and if other people keep getting hanged in murder cases, any other punishment except ‘capital punishment’ of Shihab’s killer will seem unjust to the residents of my area.

    Same thing applies to Shahbag.

    1. Shafiq is a mechanical engineering graduate from BUET. Thus, one does not need arts or social science background to become ‘educated’.

      1. “Shafiq is a mechanical engineering graduate from BUET. Thus, one does not need arts or social science background to become ‘educated’.”

        Thanks for the first line of your message. Your second line is ambiguous. Please explain what you mean by it. ‘Educated’ is a very broad term. Having a good grasp on arts, social science, physical science or on a particular topic like ‘progressive-liberalism’ does not define ‘educated’.

        I studied in the electrical engineering department of BUET. I work in the wireless communications area and I may know wireless more than most (not all) of the people who do not work in wireless. I just wanted to convey that I do not have a theoretical grasp on progressive liberalism. If you want a theoretical explanation of the comments that I raised above, I won’t be able to do so. My comments are just generated from the experiences of a person who has seen murder, rape, robbery, etc. in his surrounding area. I feel that many people in Shahbag feel about the war criminals in the same way as I do about Shihab’s killer. One should take that feeling into account, too.

      2. The discussions at alalodulal are at such a high level of generality that professional expertise in a particular area may not come very handy. It would be helpful however to be ‘educated’ in a broad liberal sense. The widely quoted definition of education as ‘learning how to learn’ underscores this particular meaning of ‘education’. To be considered educated, you do not need to know beforehand about all the issues of the world , but you should be able to learn quickly about the core principles underlying the issue, at least when the issue at hand is of high level of generality.

        “Learning to learn’ quickly is not just a matter of innate ability, it is about building adequate background. But it has to be right kind of background. To critically analyze Economist Jyoti Rahman’s blogs, you do not need to know a lot about Indian or Bangladeshi economy, all you need is the familiarity with the most elementary principles of statistics and economics. Similarly to critically assess Shifiq’s blogs you do not need to know all the arguments surrounding liberalism, constitutionalism or death penalty, all you need is little background in philosophical reasoning along with familiarity of modern principles of moral and political philosophy.

        Due to this broad background, an educated person can follow a substantive discussion and quickly identify the core principles at play. In today’s world of cheap information, everyone throws in such a heap, that deeper principles at work get buried. So it helps to become educated. more than ever before.

      3. You replied to my reply on October 1. Surprisingly, I did not see a reply option in your comment. Hence, I am replying here.

        “To be considered educated, you do not need to know beforehand about all the issues of the world , but you should be able to learn quickly about the core principles underlying the issue, at least when the issue at hand is of high level of generality.”

        Your statements suffer from over-simplification. Who is going to judge if my (or any other’s) rate of learning is quick enough? The term ‘educated’ differs from person to person. Your definition is not universal; nor is mine. It’s just an opinion.

        “Similarly to critically assess Shifiq’s blogs you do not need to know all the arguments surrounding liberalism, constitutionalism or death penalty”

        I believe that I have assessed this blog. I have expressed my concerns about selective abolitionism, e.g. denouncing a war criminal’s sentence because it’s a death penalty while not caring for many convicted criminals of Bangladesh who are getting hanged for killing just one person! This concern is not against Shafiq’s comments. It’s about the way how some of these pro-left organizations are approaching these trials.

        Now, whether my assessment is critical or not, is completely subjective. There’s no universal standard on ‘critical assessment’ :).

    2. Mr Rumi, thanks for your well thought-out comment. Let me first say that I did not set out to profess my views on death penalty here. I wanted to show how the collective calling for deaths may be perceived by a foreign and a domestic audience. Actually my main objective was to rekindle interest on Jalal Alamgir’s article, which I thought is very insightful and prophetic. But I must say something about my view because just analyzing other people’s view and not declaring own position is a form of cowardice.

      My view on death penalty is ambiguous. I also think that when a person has no chance to further harm society, then killing him in the name of state or society is obscene. Note that this means that the person has no chance to get back to the society in the foreseeable future.

      But I also have a dispassionate utilitarian streak. I supported Shahbag movement in the early days because I thought hanging few war criminals will help bring the vitally needed closure on 1971. I was not very informed about the details of the case. I thought Kader Mollah was surely guilty of the crimes he was accused of. Later, I became less sure but that is a different thing.

      My view on death penalty is amoral and cynical. I am ashamed of it but I cannot sugarcoat it. I think death penalty is obscene when applied to a permanently incarcerated man. But I also think that if death of a guilty person can bring closure and peace to millions then that death penalty can be justified. Note the emphasis on Guilty and Closure to millions. If any of these (guilt or closure) is in doubt then death penalty cannot be justified. I think we have reached that point in the case of Kader Molla.

      1. I am very doubtful that, even if hanging these few old men may bring emotional “closure” to the mass movement against the public Frankenstein of Razakar, the hangings will NOT necessarily establish “rule of law, economic progress or success of Bdesh”. The failures of politics and judiciary games on the trials will always retain a legacy question mark.

  3. There’s an underlying assumption here that the people are OK with what happened – and I think that’s a very simplistic way of looking at it. There is also a problem with assuming that anyone against the death penalty would find “the sight of a crowd of hundreds of thousands of people demanding death” to be disturbing. We know that Shahbag has been more complex than just a call for the death penalty. Many Bangladeshis who are otherwise against death penalty possibly supported Shahbag for reasons other than the death penalty itself. I think these kinds of assumptions are at risk of further dividing an already split country. I can’t deny that words like nationalism and nationhood add fuel to the fire. But nor can we ignore the fact that Bangladeshis wanted justice – they just had different ideas of what that justice was given the context and constraints.

    We will never know if a retrial would have yielded similar results had a) Shahbag never happened, and/or b) the trial process had been completely fair. The bigger question, I think, is whether the ends justify the means. Did we want these leaders in jail, knowing that they are feeding off of our tax money which could have been spent on better things? Do we want to imprison them knowing that they may go free when the subsequent government comes in? In the end we have to ask ourselves, what kind of justice do we want? Sure, it is disturbing that most Bangladeshis support the trial and are OK with the lack of due process. But I think that the quest for justice and rule of law is far from over – and in fact, may be bigger than the trials for war crimes. Movements grow, die, are reborn, morph, and go through many stages of ebb and flow. I wouldn’t undermine citizens so much.

  4. The one itching problem that I have with this sort of articles that advertise lack of due process on part of prosecution and disapproval for death penalty, is none of these writers ever opposed death penalty before the war trial began and secondly, they hardly ever mention, the threat to Tribunal by Jamat-Shibir (backed by BNP or should I say BNP backed by Jamat-Shibir) or presentation of a false witness in social media as “lack of due process”.

    I would love to think the writers of this sort of articles do believe in democracy, fairness, rule of law, justice and all nice things that they preach, but I cannot. I hardly ever have seen any of them show any concern on the trial process once change of Government take place or put any pressure on the opposition to conduct a fair trial once they come to power. Let alone criticize the position of opposition in the trial process. We really need see some of that from them before believing in them.

    Right now, I cannot believe you. We have long chain of collaborators and traitors among us. Sorry.

    1. This blog has been active since 2011. There has been only one government since that time. Please wait for a change of government to see whether writers in this blog still stand for due process, humanism, rule of law.

      Also, please don’t try to guess the motive of the writers. A writer may write from the most heinous of motives or the most selfless. You should only argue on the basis of what is written.

  5. Kudos to Mr Rumi for his most brilliant comment. 23 minitues of Reading this just became a waste of time.but your comment has changed my whole experience 🙂

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