Still writing that darn paper. It has to get done in the next two days.

AsifY bhai rightfully complains about Mainul Hossein’s statement about the filing of the cases against the Jamaat leaders “belittling Bangladesh”. It’s meaningless rhetoric, insulting both to the speaker and the audience. I’ll tell you what belittling Bangladesh is. It’s the clear injustice of this (and he’s still not free, it must be added). And the absolute disproportionality of this.

That being said, I can’t help wonder if the claim that individuals cannot file sedition and treason charges without government support does not have some merit. Consider (some quick thoughts - I apologize for the incoherence of them given how quickly I am typing this out):

1. The crime of sedition is by all accounts a serious one, and one that has serious consequences for the one who is accused of it. Do we really want all and sundry to be able to trigger a government reaction to something someone says by bringing such complaints? What kind of safeguards do we want to build into the process? What should the standards be for triggering such a process? I would claim that given the seriousness of the crime and its consequences, the standards for bringing such a claim should be pretty high?

2. Besides, what should the limits of the sedition laws be, given the seriousness of the charge, and given our constitutional commitment to freedom of expression? Should Hannan making statements on TV about the war be enough to bring the claim to court? Think about what such a facility do to political expression. And not just public political expression - people walking in silent rallies for example. But also semi-public political expression - this blog for example. And also private political expression - that quintessential Bangladeshi habit of whining when dining on cha, paan and fuchka.

There must be some consistency and vision to where and how we draw our lines. We cannot be both for Arif and for putting Hannan away for statements he made on national TV. I understand the emotions that animate us - but let’s keep the eye on the ball?

3. The legal case: What I’ve seen of the legislation that sedition charges are being brought on suggests that the Barrister -newspaperman-Adviser has some grounds for defending what has been done - without needed to twist himself into pretzels (or for that matter, having to resort to “belittling” rhetoric). New Age gives us some indication of some of the relevant law. From what I understand from reading the New Age article, it seems that this is the process:

* Individual shall (in the absence of reasonable excuse) bring case under 121 etc. to the magistrate or the police officer.

[sidenote - the "shall" is highly problematic, don't you think?]

* Magistrate is required to start the proceedings

* 196 bars any court of taking cognisance of any offence of sedition and treason under section 121A and 123A without sanction from the government.

* Yet the former High Court judges citing different provisions claim that the magistrates are required to start the proceedings.

A few issues:

i. I’d like to know from someone who knows the law in Bangladesh what the “starting the proceedings” means? Does it mean they have to file it? Does it mean that they are required to ask the police to file an FIR? The latter has an ultra vires feel to it. 196 clearly says that you can’t give cognisance - which would suggest that as a magistrate you can start “proceedings” only to the point where you are giving cognisance to the claim. Where is that line legally drawn? I would think that a magistrate requiring the police to file an FIR for a sedition case is “giving cognisance to the claim”, but one would have to look at the caselaw on this to be really sure.

ii. Further, I would like to know what the relevant rules are for the police to register or register file an FIR. Are they required to register an FIR? How much discretion is there under the appropriate police regulations for register an FIR? Under what conditions can they look at an ultra vires action taken by a magistrate court and refuse to register an FIR? And can starting the proceedings with mean anything less than allowing an FIR to be register - putting something in their daily GD log for example? Plus, given that 196 defines what the procedural requirements for starting an action are -requirements that include sanction from the government - is not agreeing to register an FIR really so indefensible?

iii. It’s useful to think of the need for government sanction as one of the burdens of production for bringing such a claim to a justice. The law seems to say that you have standing to file a criminal case of this nature (note - it is a criminal charge - not a civil case, where the claim is that the harm has been done to the individual bringing the case) - but you have to make sure that there are certain hoops you have jump through - including getting government sanction. I note the possible appropriateness of this in 1 and 2. And given the points I raise there, it certainly does make more sense to me that the private citizen filing the charges should bear the burden than the viewpoint of the anonymous judges who think that bringing a claim creates a duty on the the police to go out an ask the government for sanction.

4. What is interesting is what the administrative law requirement is for a request to act (here, giving sanction). In the US, for example, the Administrative Procedure Act requires that the denial of a petition to act by a government agency must be accompanied with some reasoned statement of why they refused to act. Court deference to such reasons have varied depending on the context (though generally, there’s a fair amount of deference to agencies). Is there such a requirement for a reasoned statement of why a petition to sanction is to be denied there in the relevant administrative law in Bangladesh? I simply don’t know enough - and by that I mean, I don’t know anything.

But if there is such a requirement, that reasoning might be appropriate for the media and the public (if not the courts) to scrutinize.

5. I understand that some of the claim being brought was over the activities of the accused individuals in 1971. It seems problematic to me that sedition and treason charges can be brought for activities in pre-December 16, 1971 Bangladesh. War crime charges, yes. Murder, rape and torture charges, absolutely. But sedition and treason charges against a state that was yet not independent and sovereign over its own territory?

6. Leaving aside those who committed murder, rape and torture - for the big chunk of the population in 1971 that performed various tasks (supplying milk to Pakistani soldiers, for example) and held various views that can be clearly be shown to be seditious and treasonous to the Bangladeshi state, what is the appropriate measure to take? A few things need to be admitted here. Notwithstanding our national foundation myths, this group would constitute a substantial portion of the population. Millions, tens of millions of people. This suggests a couple of things:

i. We must be wary about judicializing what to do about these people, if only for the reasons of practicality and manageability.

ii. This really is a political issue - better taken care of in political processes. (And I would be willing to bet that if put to a vote, the vast majority of the country would not like to have this issue revisited.)

7. Those who committed rape, murder and torture are different though. I believe the criminal code and common law in the courts define these crimes quite precisely. I can understand the possible legitimacy of bringing criminal charges under the law of the time.

8. Even if legal charges are not (or cannot) be brought against the individuals who committed these crimes - these individuals must still confront the morality of their actions in 1971. I am sorry, but Mr. Hannan’s argument that this was a situation of civil war does not give moral cover to what they did, even if it might give legal cover. The most powerful response to it in the TV show where Mr. Hannan made his comments was the statement of the son of one of the intellectuals carried away, tortured and killed by the Al-Badr/As-Shams monsters. Yes, those who fought on the field of battle side by side with Pakistani soldiers against Bangladeshi muktibahini guerillas may claim moral cover under the argument that it was a civil war they were fighting.

But this justification does not extend to those who raped women and children in villages and towns around the country. We know this happened because many of these women exemplified courage and dignity by naming their rapists even in the face of social ostracization, and the camps themselves are well-documented (see Mash’s site for contemporaneous documentary proof). This justification does not extend to those who tied the hands and feet of men (under mere suspicion of collaborate, or worse, because of greed over land) and dragged them on their backs over miles of rough village roads to Pakistani camps, for torture and worse. An uncle of mine was one of these unfortunate victims. This justification does not extend to those who, in the last days of the war, targeted and carried away the cream of our intelligentsia (and civil servants and police officers) in a well-organized, well-documented campaign, committed the most inhuman torture upon them, brutally slaughtered them and left their mutilated bodies to rot in mass graves.

Even Hannan and those he would protect with his rhetoric cannot deny that these things did not happen.

The absolute number of those who died is irrelevant. Whether it was 3,000,000 or 300,000 or 30,000 or even 300 is irrelevant. Whether we choose to call it a civil war or a war of liberation is irrelevant. Whether we can define it as genocide is irrelevant.

For M is for Murder. And O is for Oppression. And R is for Rape. And T is for Torture. And no amount of prevarication or equivocation will change this fact.

We must not forget this.