Massacre at Pilkhana: five years on
A critical overview of the legal and inquiry process
Barrister Nazir Ahmed*
On 25th and 26th February 2009 some undisciplined soldiers of the then Bangladesh Rifles (BDR) killed 74 people including 57 army officials. The army officials include one Major General, two Brigadier Generals, sixteen Colonels, eleven Lieutenant Colonels, twenty three Majors and two Captains. A few civilians on the street were also killed from stray bullets. Such mass killings of senior army officers are unprecedented in the world history even during a war.
The reference to the Supreme Court for opinion
In relation to the legal proceedings, the government seemed to be bewildered about what to do at the beginning. They were initially thinking of trying the suspected murderers under the Army Act 1952. Some inside the government suggested putting the suspects on trial before the courts under the ordinary laws of the land. Having been indecisive for sometimes, the government - through the President, under Article 106 - sent the matter to the Supreme Court for opinion on two points: (A) Can the provisions of the Army Act 1952 (Act XXIX of 1952) be applied against the BDR personnel involved in the incident? (B) In the event, the answer to the aforesaid question "A" is the negative, can the provisions of the Army Act 1952 be applied against the said BDR personnel by issuing notification under Section 5 of the Army Act 1952? The Supreme Court unanimously gave their opinion in the negative. The government got an escape route from the Supreme Court's opinion. Many argue and feel that if the Supreme Court gave their opinion in the positive or the government initiated the trial of the mutiny under the Army Act 1952 without referring the matter to the Supreme Court for opinion, justice could have been provided speedily and swiftly.
The government initiated trials of the munity and murder under the BDR Order and Bangladesh Penal Code, in line with the opinion of the Supreme Court. As a result, the whole judicial process and the method used to deliver justice have become complex and lengthy. Now the question is: why did the President refer the matter to the Supreme Court for opinion? Was it necessary or compulsory for him to do so? It is worth mentioning that although all rulings, judgments and orders of the Appellant Division of the Supreme Court [the highest court of the land] are binding on the government as well as on all courts subordinate to it, the advisory opinion of the Supreme Court is not binding on the Government or the President. If that is so, why did the President feel compelled to refer the matter to the Supreme Court for opinion? Was it to avoid any future controversy? Or was it for political reason or purpose? Or was it to delay the whole process? Or was it for any other purpose? There were, and still are, various matters which have caused huge controversy within the country. Some of which have clearly divided the nation (for example, the issue of a caretaker goverment, the mass withdrawal of cases by the government, the contradictory existence of the secularism with the State religion in the Constitution, the Presidential pardon of a principal murder case suspect and so on) - but the President has never thought of referring these to the Supreme Court for opinion.
Investigation and inquiry
After the Pilkhana carnage, the government set up an investigation committee headed by a former Additional Secretary Anis-uz-Zaman Khan. The investigation committee submitted its report to the Home Ministry on 21st May 2009. The army's own 'court of inquiry' submitted its report to the Army Chief on 10th May 2009. None of the full reports have been made public.
One of the recommendations of the army court of inquiry's report was the formation of a high-level court of inquiry to investigate the involvement of civilians and institutions with the rebellion. It observed that the court of inquiry had failed to identify the masterminds, as it could not obtain information on them because of its limitations. Furthermore, the government's investigation committee, in its report, also recommended, inter alia, a further inquiry to identify the plotters and said it could not identify the masterminds who had plotted the rebellion and the killings as it lacked tools and techniques to interrogate the suspects and unearth the truth and none of the people brought before the committee had provided any crucial information or proof. No such inquiry, recommended by both committees, has been set up to identify the masterminds and to unearth the conspiracy.
The appointment of Abdul Kahhar Akhand as the Chief Investigation Officer to investigate for the purpose of prosecution and trial also caused controversy, for Mr Akhand was perceived to be a government sympathiser due to the fact that he sought nomination from the current ruling party in the 2008 General Election. His role and techniques of investigation in other high profile criminal cases have also caused debate and controversy. It is alleged that Mr Akhand neither tried not did he show any interest to try to interrogate or at least interview some known political figures associated with the government whose roles during the mutiny and aftermath were suspicious and whose names came out in leaked part of the government commissioned report. Instead, Mr Akhand was accused of interviewing and interrogating persons (of opposition background) unconnected with this carnage with irrelevant questions, apparently after getting tips of the government high ups.
In my view, the government should have commissioned at the very outset a high powered national Inquiry Commission - preferably under a former Chief Justice. Heads of all discipline forces and other key relevant officials (including probably equal representative(s) from the governing party and the opposition party) should have been made members of that Commission. Unlimited power and wider terms of reference, along with all logistic and technical support, should have been given to such a commission, so that they could go wherever they wanted to go to unearth those who had masterminded this carnage. Such a Commission could have identified real culprits and conspirators.
Change of name and uniform of the BDR
In the past, the BDR had played a valiant role in the country's war of liberation. It has performed courageous actions to safeguard the country's borders against overwhelming odds and against more powerful and mostly unfriendly forces of a neighbouring country. It has won the respect and admiration of the general populace as a whole. So, the gruesome killings in Pilkhana therefore not only shocked but also confused the nation. During that period, the national demand was to provide exemplary punishment to the culprits so that something like this could never happen again. However, the government seemed to be curious to change the name and uniform of the BDR. Accordingly, the Border Guard Bangladesh (BGB) Act 2010 was enacted on 6th December 2010, repealing the Bangladesh Rifles Order 1972. A new uniform [very close to the uniform of Indian BSF) was made for the BGB. The BDR had its own history, prestige, honour and dignity. At least two of the seven Bir Srestha award (the highest award given for supreme sacrifice in the liberation war) were given to the BDR. Mutinies and coups had happened in other discipline forces many times in the past, but change of the name and uniform were never thought to be needed. Why were these thought necessary for the BDR? By changing the name and uniform, has the BGB made more effective and efficient force than the BDR? The BGB's recent incompetent role in the border areas in combating smuggling, kidnapping and border killing by the BSF does not suggest so. The future will perhaps clearly judge whether the government has really made a correct decision to change the name and uniform of the then BDR.
The process of securing justice
In order to ensure justice and set a deterrent to similar incidents of carnage happening again, there must be: (i) a proper investigation and enquiry with a clear objective of finding real masterminds and conspirators, ii) Fair and credible trial, (iii) Exemplary punishment with the deterrent factor in mind. A one sided or partial or superficial enquiry or investigation cannot bring fruitful results. For the punishment to be acceptable to all, the trial process must be fair, transparent and credible. Many startling revelations have come up from the trial. Many civil society members and civil rights groups have expressed resentment about the proceedings. More than 100 mutineers have died due to 'heart attack' while being held in custody. The Chairman of the National Human Rights Commission believed that the mutineers were going through enough psychological pressure. They were being pressurized into providing information. He also said that such a large number of deaths in the name of interrogation were simply unacceptable in a civilized society. If these resentments and allegations were true, then these would be real causes for concern from the perspective of fairness. The offences were not mere criminal offences. These were heinous crimes which have threatened and shaken national security and stability. Therefore, the punishment should aim at deterring others from committing the same offences again.
Finally, family members of the victims of February 25-26 BDR carnage want complete justice, for it is the only thing at present that can console their broken souls. The Prime Minister has repeatedly said that no killing shall go unpunished in Bangladesh. She often points to the tragic murder of Bangabandhu Sheikh Mujibur Rahman, Jail killing and attempts on her life. Certainly the perpetrators of the notorious crimes deserve exemplary punishment. I am sure that no one will disagree on this point. But what makes me feel sad is that the government has very tactfully tried to put cloud on the February Massacre case by blame game and doing everything to ensure the total process to be delayed. There is a saying "Justice delayed is justice denied." Five years have passed. How long do the victims need to wait to get complete justice and how long does the nation need to wait to know the real masterminds and conspirators? Are the family members of those martyred army officers and the members of their families not going to see the killers and masterminds and conspirators of February massacre punished?
The nation has right to know who were responsible for inflicting such harm on the entire nation and to what ends. After all, the country needs to know who its enemies and its friends are. Professor Huntington (in his book called 'Clash of Civilisation') said "unless we hate what we are not we cannot truly love what we are." Echoing him, I would say that unless we know who our enemies are, we cannot truly love our real friends. Better late than never. It is important that the government immediately set up a high powered national inquiry commission to identify and bring to justice the real plotters and masterminds, to avoid any such incidents in the future. Besides, it also needs to complete the process of delivering justice, as well as the inquiries into the deaths of the BDR soldiers who died while in custody, as soon as possible, so that the families, on both sides, can get a certain sense of relief and closure. We do not want any culprit to go unpunished. At the same time, we do not want any innocent person to be a victim of injustice.
*Nazir Ahmed FRSA FCMI FCIArb
LLB Hons (London), LLM (London), Barrister-at-Law (Lincoln's Inn), Advocate, Supreme Court of Bangladesh
**Summary of this article was presented at a meeting on on "Pilkhana Massacre" held in London, on 24 February 2014.