Should Former IGP Mamun Walk?

The International Crimes Tribunal verdict in the July Uprising case has produced a doctrinal collision. Former inspector general of police Chowdhury Abdullah Al Mamun was first granted a conditional pardon and treated as an approver, then convicted of crimes against humanity and sentenced to five years imprisonment.

The judgment records that he made a full and true disclosure of his own role and that of his co-accused.

Once the tribunal has pardoned an accused under Section 15 of the International Crimes Tribunals Act 1973 and then finds that he has complied with that condition, can it still punish him for the same offences?

Section 15 is built on the familiar domestic model. It lets the tribunal at any stage of the trial tender a pardon to a person supposedly concerned in a Section 3 crime -- on condition that he makes a full and true disclosure of the circumstances within his knowledge and of every other person involved.

Anyone who accepts must be examined as a witness and kept in custody until the end of the trial. The provision does not spell out what happens next, but in Bangladeshi law that silence is filled by the wider approver scheme in the Code of Criminal Procedure 1898 and by settled precedent.

Under Sections 337 to 339A of the CrPC a conditional pardon is tendered, the approver is examined as a witness, and only if the public prosecutor certifies that he has concealed something essential or lied may he be tried for the original offence, in a separate proceeding where he can plead that he complied.

Section 339A then directs that if the court finds that he has complied with the conditions of the pardon it shall pass a judgment of acquittal. Once an approver has honoured the condition, he is entitled to walk free of that charge.

It is true that Section 23 of the International Crimes Tribunals Act states that the provisions of the CrPC and the Evidence Act do not apply to proceedings before the tribunal. But Parliament deliberately borrowed the CrPC language into Section 15 and used the same word pardon that appears in the Constitution and in other statutes.

Nothing in the Act says that pardon before the tribunal is meant to be weaker than pardon before any other court. Section 22, which lets the tribunal regulate its own procedure, cannot sensibly be read as a licence to erase the ordinary legal meaning of an express statutory protection.

The handling of Mamun’s status shows that the tribunal itself initially followed that understanding. In July it accepted his plea, granted him a conditional pardon under Section 15 on the usual full and true disclosure terms, reclassified him as a state witness and ordered that he be kept in separate custody.

Public statements from the chief prosecutor reinforced the expectation that he would be safe if he told the full truth. If he withheld the truth, he could be restored to the list of accused. If he told the full truth, he could reasonably expect the protection traditionally attached to approver status. In addition, when being specifically asked, the chief prosecutor expressly acknowledged Mamun’s status as a state witness, and another prosecutor hinted his release after conviction as per the long established practice.

The final judgment breaks from that logic. The tribunal finds that Mamun has provided a complete and truthful account of the July crackdown, that his insider testimony was decisive in proving the superior responsibility of Sheikh Hasina and the former home minister, and that he has accepted responsibility for his own role. It then convicts him and imposes a custodial sentence, justified by references to the gravity of his participation balanced against his cooperation. In substance, Section 15 is treated as a promise of mitigation rather than a true pardon.

That reading is hard to reconcile with the structure of the law. Section 20 of the same Act gives the tribunal a wide discretion to award sentence of death or such other punishment as appears just and proper.

By contrast, Section 15 uses the language of conditional pardon that in domestic and wider common law usage means that once the condition is satisfied the state has given up its right to punish for that offence. The bargain is not that the approver will receive a lower sentence but that he will not be treated as an accused at all unless he breaks his word.

International practice does not rescue the verdict. At the International Criminal Court cooperation is a mitigating factor at sentencing but does not extinguish liability. There is nothing inherently objectionable about that framework, yet it has never been written into Bangladeshi law.

The International Crimes Tribunals Act does not incorporate the Rome Statute, apart from its definitional aspects, and does not authorize the tribunal to discard domestic guarantees in favour of imported sentencing philosophy.

The result in Mamun’s case is an awkward hybrid. The tribunal invoked the domestic concept of a conditional pardon to persuade a central insider to testify, declared that he had been pardoned, and reclassified him as a state witness. It then reverted to a pure sentencing logic and punished him anyway once his evidence had helped to secure two death sentences.

That combination delivers all the benefits of an approver to the prosecution and almost none of the legal security that the doctrine is supposed to offer to the witness.

Once the tribunal found that Mamun had made a full and true disclosure within the meaning of Section 15, the structure of the domestic approver doctrine strongly points to one lawful path.

Either the pardon stands and he is not punished for the offences it covers, or the tribunal first declares that he has failed to comply, withdraws or forfeits the pardon, and then proceeds to try him again as an accused with an opportunity to contest that step. 

What the law does not comfortably allow is the route actually taken in this case where the tribunal both affirms compliance and still imposes a custodial sentence for the very crimes in respect of which the pardon was granted.

The ultimate word will rest with the Appellate Division. Yet it is difficult to defend the proposition that a person who has been formally pardoned, and judicially found to have satisfied the condition of that pardon, can remain in law an accused for the same conduct. On that narrow but crucial point the Mamun sentence looks very hard to reconcile with the statute that created the tribunal.

Barrister Khan Khalid Adnan is advocate of the Supreme Court of Bangladesh, fellow at the Chartered Institute of Arbitrators, and head of the chamber at Khan Saifur Rahman and Associates in Dhaka.