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.