In a workshop organised by the South Asian Law Discussion Group on 1st June 2017, M Sanjeeb Hossain, presented his critique of the judgment issued by the Supreme Court of Bangladesh (SC) in Bangladesh v Abdul Quader Molla in the aftermath of the Shahbag Movement. The primary discussant was Professor Catherine O’Regan, Director of the Bonavero Institute of Human Rights, University of Oxford.

Hossain focused on two central issues. First, he analysed the nature and demands of the non-violent Shahbag Movement that broke out in 2013 following the handing down of the life imprisonment sentence for Abdul Quader Molla by the International Crimes Tribunal (ICT) of Bangladesh, for crimes against humanity committed in 1971. The Movement’s central demand was maximum punishment for persons convicted of international crimes, which in Bangladesh is the death penalty. Protesters further demanded an amendment to Section 21 of the International Crimes (Tribunals) Act 1973 Act thereby permitting the Prosecution to appeal against Molla’s life sentence, because until then the Prosecution could appeal only against acquittals. Acceding to this demand, the Parliament made it retrospectively possible for the Prosecution to appeal Molla's sentence. On appeal, the SC sentenced Molla to death. The assessment of the legislative amendment and the subsequent judgment of the SC formed the second aspect of Hossain’s presentation. On these two issues Hossain’s arguments were: first, that sweeping generalizations describing the Shahbag Movement as a ‘search for justice, gone wrong’ are incorrect and that it was a complex, legitimate movement for justice; secondly, while the enhancement of Molla’s punishment illustrates the tension between the principle of complementarity and local transitional justice processes, the SC’s ruling was anchored in the rule of law.

The first claim is largely empirical, and Hossain used numerous sources to depict the culture of impunity that surrounded the perpetrators of international crimes (including Molla) for four decades. He established that the public outrage which culminated in the Shahbag Movement resulted from this longstanding failure to punish wrongdoing. O’Regan acknowledged that the Shahbag Movement was more layered than had been portrayed in popular media. She further recognised that the demand for capital punishment arose because Molla was not sentenced to death, in a society where murderers are routinely given the death penalty – an arguable case of inequality before the law.

In respect of the second issue, Hossain pointed out that the SC addressed the claim about retrospective law making by inviting seven amicus curiae to make submissions on the maintainability of the appeal and enhancement of punishment issues. The SC relied on precedents from several foreign jurisdictions, including India and the US. Against this backdrop, it addressed the principle of nullum crimen and Article 35(1) of the Bangladeshi Constitution that prohibits conviction or sentence under ex post facto law. It ruled that the Parliament can give retrospective effect to procedural laws which do not create new offences or increase punishment. Hossain cited cases from several other jurisdictions to support this ruling, and argued that it was compliant with the rule of law.

In response, O’Regan expressed concerns over the operation of Article 47 of the Bangladeshi Constitution which exempts any law dealing with the prosecution of international crimes from challenge. Addressing this anxiety, Hossain cited similar laws from other democratic jurisdictions, and opined that the reason behind this provision was to ensure that trial process in the ICT was not vulnerable to unnecessary delay. Hossain added that the 1973 Act itself provides adequate protection for the rights of the accused, and the ouster clause is therefore not problematic in practice. O’Regan then critiqued Hossain’s claim that the SC’s judgment was consonant with the rule of law. While both O’Regan and Hossain both admitted their personal opposition to the death penalty and agreed that the notion of human rights does not mandate uncritically accepting every top-down statement issued by international human rights organizations, O’Regan emphasized on due consideration being given to the right to a fair trial before any criminal tribunal.

On the issue of complementarity, undeniably, local forums are best suited for trials. International justice forums should be the last resort. However, when local justice systems impose the death penalty, this can understandably be a cause for anxiety. Hossain establishes a strong case for carrying out a contextual analysis when such anxieties arise. By recognising the distinct circumstances within which Bangladeshi transitional justice processes are being carried out, Hossain presented a nuanced account of a ruling that has generated a significant amount of debate.