Is ex-IGP's testimony as approver a boon or a burden for justice?

Former Inspector General of Police Chowdhury Abdullah Al-Mamun confessed to involvement in the mass atrocities committed during the July-August anti-discrimination movement, commonly known as the July Upsurge. He agreed to testify against his co-accused including former Prime Minister Sheikh Hasina and former Home Minister Asaduzzaman Khan Kamal before the International Crimes Tribunal of Bangladesh.

Following his formal request to be treated as an Approver, the Tribunal granted his plea and removed his name from the charge sheet as well as scheduled his testimony for August 3 and 4. Such a decision has triggered intense legal scrutiny on the admissibility, voluntariness and evidentiary value of his forthcoming testimony.

A key question is how the legal system should define Mamun's testimonial role whether as a state witness, accomplice witness or Approver. An Approver, in the jurisprudence, is a co-accused who confesses to their role in the offence and agrees to furnish evidence for the prosecution, often in exchange for a conditional pardon. Legally, such individuals are considered as principals in the second degree, accessories before or after the fact or co-perpetrators, depending on the degree of involvement. In Bangladesh, the framework for such testament is governed by the Evidence Act of 1872, the Code of Criminal Procedure 1898 and specifically for atrocity crimes, Section 15 of the International Crimes Tribunals Act of 1973. According to this section, the Tribunal can accept a full and truthful confession and grant a conditional pardon, with the individual remaining in custody and testifying as a prosecution witness.

The sudden shift of an accused in custody into an Approver is a point of concern on the voluntariness of such a confession. Was it freely made or the result of coercion or inducement? The procedural framework attempts to safeguard against abuse. Section 337 of the CrPC allows a Magistrate to grant a pardon during an investigation or inquiry if the accused makes a full disclosure of the offence and identifies co-offenders. Section 338 allows a Sessions Judge to grant a pardon before judgment and Section 339 permits the revocation of a pardon if the terms are not fulfilled. These provisions are designed to ensure that leniency is not used as a tool for forced testimony. However, critics warn of the dangers of prosecutorial pressure, especially when law enforcement maintains custody over the witness. The distinction between voluntary cooperation and undue influence must be carefully examined. 

The evidentiary admissibility of an Approver's testimony is not in question as Section 133 of the Evidence Act affirms that an accomplice is a competent witness and a conviction is not per se illegal merely because it relies upon uncorroborated accomplice evidence. But Section 114 creates a presumption that accomplice evidence is unreliable unless corroborated in material particulars. This legal strain between technical admissibility and judicial caution is reflected in case law. In 22 DLR (SC) 106, the Supreme Court held that convictions should not rely solely on accomplice evidence without strong corroboration. Similarly, PLD 1959 Kar 662 stressed the need for independent verification of the core narrative even if corroboration exists on minor details. The Indian Supreme Court ruled in AIR 2000 SC 908 that accomplice testimony can support a conviction if it is complete, self-incriminating and consistent. 

A further question arises regarding the mens rea (guilty mind) element of Mamun's participation in such involvement can be proven. At the time of the atrocities, Mamun was serving as the head of police and operating under the direct authority of state functionaries, particularly the Home Minister. If his action was taken in compliance with orders from a superior or lacked autonomous criminal intent, his criminal liability as an accomplice may be diminished. While actus reus (the physical act) does not require the accomplice's actions to be the proximate cause of the crime, mens rea demands a conscious intent to facilitate the offence. Mere obedience to superior command and absent intent or voluntary participation, might disqualify the witness from being treated as a culpable accomplice and may later call into question the legitimacy of his Approver status. 

Trials before the ICT introduce additional complexity. Section 15 of the International Crimes (Tribunals) Act, 1973 provides for the conditional pardon of an accused in exchange for full and true disclosure. However, it requires the Approver to remain in custody until the trial concludes. In the current case, Al-Mamun remains incarcerated, which may lend greater credibility to his testimony compared to an Approver released on bail. The charges relate to the July-August 2023 anti-discrimination movement, during which an estimated 1,500 individuals were killed and over 25,000 injured. The accused are charged under doctrines of command responsibility, planning, incitement, conspiracy, and direct perpetration, all of which fall within the ambit of crimes against humanity.

In such contexts, the doctrine of joint trials under Section 30 of the Evidence Act permits the use of one accused's confession against co-accused, provided the confession meets evidentiary standards. This provision is particularly relevant in collective crime scenarios where hierarchical or organizational culpability must be established. 

While the use of accomplice testimony has precedent in Bangladesh such as the case of Noor-e-Alam, the former bodyguard of Ershad Sikder whose testimony helped convict several others but still it remains rare and contentious. Courts are urged to apply rigorous scrutiny, ensuring the testimony is corroborated by independent evidence, the confession is full and honest and the witness is free from prosecutorial manipulation. Legal doctrine also excludes from accomplice status those acting under coercion or threat, treating them as victims rather than perpetrators.

The road ahead is fraught with legal and ethical challenges. The credibility of Al-Mamun's testimony will hinge not only on its consistency and corroboration but also on the Tribunal's ability to ensure that it was given voluntarily and without coercion. As the case unfolds, the judiciary must navigate complex questions of intent, command responsibility and procedural fairness, all while preserving the integrity of justice in one of the most politically sensitive trials in Bangladesh's history.