Inadequate prep time, cross-examination limits: David Bergman questions fairness of Hasina’s in-absentia trial

British journalist David Bergman has raised concerns over the fairness of ousted prime minister Sheikh Hasina's in-absentia trial for crimes against humanity, which began today (3 August) at the International Crimes Tribunal (ICT) in Bangladesh.

In a Facebook post, Bergman pointed out that the same state-appointed defence lawyer is representing both Hasina and her co-accused, former home minister Asaduzzaman Khan. 

"That creates significant potential conflict of interest problems preventing them each having a proper defence, as the two accused could clearly have very different interests at the trial, with for example the home minister blaming the prime minister for certain actions or vice-versa," he said.

Bergman also questioned the defence's readiness. The defence lawyer reportedly received all prosecution evidence only on 25 June, just five weeks before the trial. "It is impossible for any lawyer to devise a proper defence for both clients, particularly when the lawyer has no contact with the client," he said.

"When I asked the lawyer why he had not applied today for an adjournment he said, that 'he would seek an adjournment when he needed one' and that 'he was ready today to cross examine the first witness'.

"I think we can be certain that if Hasina had her own lawyer present, they would have sought an adjournment. And the fact that the current state appointed lawyer did not make that application is notable," he added. 

Bergman further criticised the tribunal's decision to block cross-examination of a witness based on contradictions between earlier statements to investigators and today's courtroom testimony. The prosecution cited a 2013 Appellate Division judgment from the Quader Mollah case — decided during Hasina's government — to justify the restriction. 

"The irony… is very notable," Bergman said. He pointed out that Tajul Islam, now chief prosecutor, had previously argued against the same rule a decade ago while defending Jamaat-e-Islami leaders. "Now we have a situation of Tajul Islam… seeking to enforce the same rule he had considered so unfair in the past," he said.

Bergman also noted the tribunal chairman congratulated the defence lawyer on a "good cross examination," despite having been restricted from questioning on contradictions. "Not quite sure how he could make that out," Bergman remarked.

"If the Tribunal is going to follow Appellate Division rulings that are now generally considered highly contentious and unjust, the government should change the law to allow defence lawyers to cross examine witnesses on the basis of contradictions between what they said to an investigation officer and what they stated in court," he added.