Act/Law wise: Judgment of Supreme Court of Bangladesh

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East Pakistan Razakars Ordinance 1971
Section/Order/Article/Rule/Regulation Head Note
Section 8

East Pakistan Razakars Ordinance 1971
Section 8 read with
The International Crimes (Tribunals) Act, 1973
Section 4(2)
Creation of Razakars
Facts, as are not in dispute, are that with a view to suppress and annihilate the aspiration of the people of the then East Pakistan under the leadership of Bangabandhu Sheikh Mujibur Rahman, to achieve independence from Pakistani colonial yoke, the Pakistani occupying authorities set up, through an ordinance, initially a para-militia outfit, naming the same, “Razakars”, by inducting into it those people, who were not, numerically, of large number, who were opposed to the idea of a State for the people of the then East Pakistan. While most of them were from the political party named, “Jamate Islami”, people from other pro-Pakistani parties, such as Nezami Islami, Mulsim League also supplied men to Razakar outfits.
Although they were not merged with traditional armed forces, they were equipped with fire arms and maronated with crush training courses. The ordinance that animated the said para militia, was titled, “East Pakistan Razakars Ordinance 1971, the preamble of which vested it with virtually para militia status by stating, “to provide for Constitution of a voluntary force in East Pakistan”.
The outfit was to be headed by a Director, under whom several officers and staff were to be appointed by the Government to assist the Director in the performance of his functions. (Section 8 of the Ordinance).
The Director and other officers were appointed under the Ordinance to “exercise such powers and perform such duties as (may be) prescribed by the provincial Government”.
At its inception it was placed under the Peace Committees of the respective areas.
Although no Ordinance or legislation was mooted to set up two more para-military outfits, namely, Al-Badar and Al-Shams, they were also de facto brought under the Ordinance. In September, by another Ordinance, the Razakars were glorified with the status of armed forces personnel.
Even though the Ordinance created one post of Director for the whole of the occupied “Bangladesh”, there were other officers and staff under him. So, from the hierarchical point of view, the Director was the ultimate and the top brass, for the whole of occupied Bangladesh de jure. But the evidence prove that there were subsuperiors under him as, naturally, it was not possible for only one Chief Commander to perform command duties for the whole of the occupied territory. As the Ordinance created posts for “Officers” also under the sole Director, it would, in the natural way, follow that these officers had de jure or at least defacto duty to act as regional superiors.
The fact that the Ordinance created one post of Director for the entire occupied territory and then officers under him, and also staff allover, coupled with the fact that the above mentioned prosecution witnesses found the appellant to be in the leading chair, such an inference that the latter was in fact de jure head of the two outfits in the district concerned faces no stumbling block whatsoever.
If witnesses testify that a given person headed the local unit of the outfits, in the backdrop of the fact that the Ordinance created posts of officers under one solitary Director, then there is no need to establish by any document or any evidence that the given person was so appointed. As stated above, the ICTY and ICTR held that no evidence of formal appointment or designation is needed.
It is worth mentioning that in our part of the world, the term officer bears a special significance in that this attribution only applies a person with superior status, i.e. a white colour personnel with a lot of clout. This legacy from the colonial era, when the British Roy applied their dominance over their subjugated Indian subjects through privileged “civil servants” known as “officers” still subsists. In the context of the culture that prevails in this sub-continent, no low level functionary is ornamented with this term. I do also take special notice of the fact that our section 4(2), in variance with Articles 6(3) and 7(3), did not restrict the liability to commanders only but also extend the same to “superior officers” as well. Inclusion of “superior officers” has particular significance because the Ordinance created posts of officers as well. As the Ordinance created no post of superior officers, the legislators must have meant all officers to be superiors because the ordinance created officers only, not superior officers and the staff, who were below the officers. In any event, testimony of these two prosecution witnesses leave no doubt whatsoever that the appellant was at least the de facto commander of the units concerned in the area, if not a de jure one.
It has been quite categorically affirmed by the SCSL Appeal Chamber in Brima, supra, ICTR in Semenza, and Kajchjcli, supra, ICTY in Delalic, supra that for the purpose of implicating a person for his responsibility as a commander over his subordinates, a de facto commandership will suffice.
This finding on law by the ICTY is, in my view, in wholesome consonance with the language in Section 4(2) of the Act, reproduced above and as far as the factual position is concerned, overwhelming weight of evidence prove beyond any shadow of doubt that the appellant in any event, was defacto commander, if not dejure.
As a matter of fact my learned brother S.K. Sinha, J. himself accepts that “All these witnesses practically depicted correct status of the accused” and that “As per law then prevailing, he performed his responsibilities as Razakars leader or officer”. My learned brother also accepts that “The evidence on record revealed that he was the commander of Al-Badre force in larger Mymensingh”.
He also states, “But in fact he performed the responsibility as a superior commander. This was abuse of the powers as he was in the good book of the military Junta. He was allowed to work according to his volition”.
My learned brother also states, “But as per law he was appointed and/or worked and/or performed as commander to assist the Director of the Razakars forces”.
With respect; I am to express that having accepted all these, it would a contradiction in terms to conclude that the appellant cannot be brought under the canopy of superior responsibility.
Acceptance that, (with which I totally agree), “But as per law he was appointed and/or worked and/or performed as Commander to assist the Director of the Razakar Forces”, is in my view, tantamount to accepting that the appellant was actually de jure sub-commander under the supreme commander and hence, saying that he had no command over his subordinates would be self contradictory.
Accepting that, (with which also I cannot disagree), “But in fact he performed the responsibility as a superior commander. This was abuse of the powers as he was in the good book of the military Junta”, in my view definitely means accepting that he was a de facto commander as he was so allowed by the Junta.
If he was really allowed by the Junta, being in their good book, to perform as a superior commander with the blessings of the Junta, then he must be deemed to have been a de facto commander, even if he had done so by abusing his powers.
De facto, connotes factual position, no matter whether that was by abuse of power or not.
I would also rely on the ICTY decision in Aleksovski and SCSL decision in Brima where it has been held that command responsibility may be shared by other members in a situation of collegiate responsibility and that superior responsibility is not excluded by concurrent responsibility of other superiors in a chain of command.
In finding that the appellant did not have command responsibility my learned brother relied on “(b)” of the Gazette notification of 7th September 1971, which provides, “the officers of Pakistan Army under whose command any member of the Razakars is placed shall exercise the same powers in relation to that member as he is authorised to exercise under the same Act in relation to a member of the Pakistan Army placed under his command”.
True it is that the members of the Razakars were placed under the command of Pakistan Army officers by 7th September notification, but it is equally true that, as Mr. Muntasir Mamun, a distinguished historian, stated in “Banglapidia”, the 7th September amendment also bestowed on Razakars the status of army personnel, and those who under the Razakars Ordinance were appointed as “Officers” of Razakars, under the 7th September notification assumed the status of army officers.
So, the situation since 7th September was such that a Razakar officer was of course placed under a Pak Army Officer’s Command. But to say that the Razakr officers were thereby stripped of command responsibility from over his subordinate Razakar staff, would be, in my view, erroneous, because within the Pakistan army structure, where four kind of personnel exists, namely (1) Commissioned Officers, (2) Junior Commissioned Officers, (3) Non-Commissioned Officers, (4) Jawans or Seppys, even a non-Commissioned Officer exercises command over the sepoys under his command even though such a Junior Commissioned or a Non-Commissioned Officer himself remains subject to the command of a Commissioned Officer. A chain of command is thereby formed from top to the bottom, consisting intermediate commanders between the highest and the lowest in the chain.
The chain of command, be it in the army, police or in civilian situation, is such that an officer, who commands his subordinates is also subject to command by his superior. That is why it is called chain of command: a Command in succession from the top to the lowest ladder of officerdom.
As such, it can not, in my view be said that since the appellant himself was under command of an army officer, he could not command his subordinates.
The finding on collegiate responsibility, as enunciated in Brima, supra, goes hands in gloves with this factuality where chain of command exists.
So, if it is accepted, as my learned brother also has done, that the appellant was a Razakar officer (officer carrying a white colour clout), rather than a Razakar staff, that would naturally follow that the appellant also had command responsibility over Razakar staff under him in the then Greater Mymensingh region, notwithstanding that he himself was subject to the command of a Pak Army Officer.
The Tribunal below, was, as such, in my view, in the right track in finding the appellant guilty for superior responsibility as well under section 4(2) of the Act, as there are overwhelming evidence to show that he acquiesced with the offences his subordinates committed and/or failed or omitted to discharge his duty to control or supervise the action of the persons under his command or his subordinates whereby such persons or subordinates or any of them committed such crimes, or failed to take necessary measures to prevent the commission of such crimes. (A. H. M. Shamsuddin Choudhury, J) …Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2019 (2) [7 LM (AD) 375] ....View Full Judgment