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Political Conflict, Extremism and Criminal Justice 
in Bangladesh
Political Conflict, Extremism and Criminal Justice 
in Bangladesh
Bangladesh government must step back from chaos
Bangladesh government must step back from chaos
Protesters march in Dhaka during a general strike, held in response to the recent murder of Faysal Arefin, a publisher of books by critics of religious militancy in Bangladesh, 3 November 2015. REUTERS/Ashikur Rahman
Report 277 / Asia

Political Conflict, Extremism and Criminal Justice 
in Bangladesh

Political repression is reaching new highs in Bangladesh. The government’s abuse of rule of law institutions for political ends has created an atmosphere of injustice that is increasingly exploited by anti-state extremist groups. The gruesome recent killing of a secular blogger is just another tragic result of these groups' growing power and impunity.

Executive Summary

As the Awami League (AL) government’s political rivalry with the Bangladesh National Party (BNP) reaches new heights, so has its repression. At the same time, a deeply politicised, dysfunctional criminal justice system is undermining rather than buttressing the rule of law. Heavy-handed measures are denting the government’s legitimacy and, by provoking violent counter-responses, benefitting violent party wings and extremist groups alike. The government needs to recognise that it is in its interest to change course, lest it fail to either contain violent extremism or counter political threats. A key part of a more prudent course would be to depoliticise and strengthen all aspects of the criminal justice system, including the judiciary, so it can address the country’s myriad law and order challenges and help stall a democratic collapse. 

The political conflict between the AL and BNP has resulted in high levels of violence and a brutal state response. The government’s excesses against political opponents and critics include enforced disappearances, torture and extra-judicial killings. Police tasked with targeting the government’s rivals and an overstretched justice system compelled to prosecute opposition leaders and activists now also face a renewed threat from violent extremists. The permissive legal environment, however, is creating opportunities for extremist outfits to regroup, manifested in the killings of secular bloggers and foreigners and attacks on sectarian and religious minorities in 2015. The government’s reaction to rising extremism, including arrest and prosecution of several suspects without due process and transparency, is fuelling alienation that these groups can further exploit.

Reconciling with the opposition and hence stabilising the state requires both political compromises and an end to the repressive use of law enforcement agencies and abuse of the courts. Politicising the police and using elite forces, particularly the Rapid Action Battalion (RAB), to silence political dissent, are laying the seeds of future violence. By concentrating on targeting the opposition, the police are failing to curb criminality; the prisons are overburdened by the mass arrests of opposition leaders and activists; and the judiciary, perceived as partisan for trials and sentences based on political grounds, is losing credibility. The result is a justice system that swings between two extremes: woefully slow and dysfunctional for ordinary cases and speedy, undermining due process, in politically charged ones.

Any effort to reform a dysfunctional criminal justice system, including by investing in training, equipping and otherwise modernising the police, prosecution and judiciary, will be insufficient unless it is also taken out of politics. Years of partisan recruitment, promotions and postings have polarised these institutions to the point that officials no longer conceal their allegiances. Partisanship tends to determine the kinds of complaints and cases that get filed and prioritised and even informs verdicts and sentences.

The problems surrounding delivery of justice are further compounded by legal mechanisms to silence civil society and prevent media scrutiny and parallel processes that undermine due process in politically charged cases. The deeply flawed International Crimes Tribunal (ICT), established in 2010 to prosecute individuals responsible for atrocities committed during the 1971 liberation war, is an important example of the dangers of using rule of law institutions for political ends. Perceptions of injustice are creating opportunities for extremist groups and fuelling political conflict. 

The BNP and its Jamaat-e-Islami ally marked the anniversary of the disputed 2014 elections with indiscriminately violent strikes and traffic blockades, which were matched brutally by the state. The BNP now appears less willing to resort to violence to unseat the government; its decision to re-enter the political mainstream gives the government an opportunity it should exploit by urgently resuming dialogue with the opposition. To demonstrate sincerity and as a first step, it should end use of the rule of law institutions to target opponents and silence critics. Accepting legitimate avenues of participation and dissent would also help regain some lost legitimacy and the trust of citizens in the state’s provision of both justice and security. So long as there is no independent court system to arbitrate disputes fairly, the parties are likely to continue taking those disputes to the streets, but a neutral judiciary could help defuse tensions by upholding fundamental principles and preventing executive excesses. The international community can help to promote political reconciliation by, in the U.S. and EU case, using economic levers to pressure Dhaka to respect civil and political rights, and in New Delhi’s by using close ties to urge the AL to allow the opposition legitimate political expression and participation. There is no time to lose. If mainstream dissent remains closed, more and more government opponents may come to view violence and violent groups as their only recourse.

Recommendations

To restore political stability and ensure security

To the Government of Bangladesh:

  1. Commit to accepting legitimate political opposition and dissent, including by ending use of the criminal justice system to target political critics; and respond positively to the BNP’s decision to refrain from violence and re-enter the political and constitutional mainstream through participation in the electoral process by reopening urgently a dialogue to end the destabilising political stalemate.

To the Opposition:

  1. Commit to peaceful opposition, including by preventing party activists from using violence to subvert the political order; and sever ties with political allies who use violence to destabilise the government. 

To the Higher Judiciary:

  1. Develop consistent judicial doctrine/interpretation upholding the right to a fair trial and restraining the executive branch from undermining fundamental constitutional rights and principles, including actions against civil society institutions that undermine their ability to function freely.

To respect the constitutional right to free speech and dissent

To the Government of Bangladesh:

  1. Withdraw all cases against journalists, human rights groups and other civil society actors that are based on vague and dubious grounds, such as expressing views deemed “derogatory” of public officials or against the “public interest”, and end press closures and raids on media offices.
     
  2. Withdraw the 2014 national broadcast policy and remove restrictions on online expression in the Information and Technology Act.

To the Higher Judiciary:

  1. Refrain from issuing contempt of court citations to media and other civil society representatives for criticising court judgments, and overturn unjustified contempt convictions in other courts, including the International Crimes Tribunal.

To ensure due process and end political interference in the justice system

To the Government of Bangladesh:

  1. Enforce the constitutional requirement for an independent judiciary by establishing a more transparent, consultative appointment process, including consultations with the bar councils and parliamentary endorsement.
     
  2. Avoid statements alleging the identity of those responsible for crimes while investigations are ongoing; and end the practice of presenting suspects to the media, rather than in court, as required by the constitution.

To the Higher Judiciary:

  1. Issue clear orders against any executive bodies or officials found to be interfering in the judicial process.
     
  2. Insist on the need for an adequately resourced and staffed Supreme Court secretariat as fundamental to achieving judicial independence; provide the necessary resources to and scrutinise the workings of the lower judiciary; and hold to account judges who fail to provide a fair trial.

To modernise the criminal justice system

To the Government of Bangladesh: 

  1. Introduce amendments to adapt the Code of Criminal Procedure 1898, Evidence Act 1872, Police Act 1861, Penal Code 1860 and the Jail Code to modern challenges, including by implementing Bangladesh Law Commission recommendations on increasing use of technology and forensic and other modern evidentiary standards in investigations and trials. 
     
  2. Professionalise the police, prosecution agencies and lower judiciary, including by introducing a merit-based selection and recruitment process, secure tenure and effective mechanisms to evaluate performance and check political interference. 
     
  3. Identify personnel, training and resource needs particularly for the Police Bureau of Investigation, while developing specialised investigation units for national- and district-level policing. 

To push for a broader political reform agenda

To the International Community: 

  1. Link some development assistance, and in the U.S. case the restoration of the Generalised System of Preferences (GSP) facility, to demonstrable improvements in human rights, free speech and association and fair trial. 
     
  2. Use, in the case of India, its close relationship with the AL to urge the government to allow legitimate avenues of political expression and participation to the opposition.

Brussels, 11 April 2016

Op-Ed / Asia

Bangladesh government must step back from chaos

Originally published in The Nikkei Asian Review

The brutal murder of a law student blogger who had criticized Islamist groups in Bangladesh has underlined the growing power and impunity of the country's extremist rump. The death of Nazumuddin Samad, 28, who was hacked and shot to death on April 7, has also highlighted how the rise of religious extremism is affecting the country's image and its efforts to advance economically.

It has long been obvious that the governing Awami League's campaign against the rival Bangladesh National Party has seriously weakened the country's commitment to liberal democracy, the rule of law, civil - in all senses of the word - society, and that it risks causing significant damage to the economy. But it is only now becoming clear that the winners in this long lasting vendetta are violent religious extremists.

With jihadis on a killing spree and a government that brooks no opposition,  Bangladeshi citizens and the country's liberal and secular civil society are under siege. Samad is just the latest victim of a resurgent extremist movement that has killed at least five other bloggers, targeted publishers, attacked religious and sectarian minorities and their places of worship, and murdered foreign nationals who had made the country their home. The killings, and a cycle of strikes last year, are chilling the investment climate, with private investment stagnating over the past five years even as the economy has grown.

With Prime Minister Sheikh Hasina's government bent on silencing free speech and legitimate dissent, mass arrests of opposition activists and illegal detentions and extra-judicial killings are on the rise, and citizens see the police and courts as more of a threat than a source of protection or disinterested arbitration.

Until recently, there was little political space for violent extremists in Bangladesh's secular polity; jihadi threats were successfully -- if brutally -- crushed. However, political conflict and dysfunction has created a vacuum that militants have filled. The threat is far more lethal now; homegrown extremists are bent on silencing liberal and secular voices violently, and Bangladesh's jihadi landscape is fast becoming more complex, with new entrants including al-Qaeda in the Indian Subcontinent and Islamic State.

Hasina's Awami League and former Prime Minister Khaleda Zia's BNP, the two largest parties, seem locked in an intractable zero-sum game that is aggravating social and political divisions and crippling state institutions. Neither side accepts the legitimacy of the other, manifested in the indiscriminate violence of BNP-led street demonstrations and the government's repressive use of law enforcement and the courts.

The politicized police force is more focused on targeting the opposition than on curbing criminality or extremism; prisons are overburdened by mass arrests of opposition leaders and activists; the judiciary is perceived as partisan in trials with political overtones, including criminal cases against Zia that could see her imprisoned for life, and is fast losing credibility. Heavy-handed measures, including enforced disappearances, torture and extra-judicial killings are denting the government's legitimacy, and, by provoking violent counter-responses, benefitting violent members of established parties and extremist groups alike.

New opportunities

However, there are new opportunities to end the political deadlock and restore a more functional democracy. In a departure from the policy of violence it unleashed in the run up to and following elections in 2014, and in contrast to its attempts to unseat the government forcibly, the BNP has re-entered the political mainstream, including contesting local polls. Yet rather than grasping the opportunity, the government is further tightening the screw on anyone who disagrees with it.

It is now bent on silencing civil society critics. Prominent human rights groups are being targeted, and onerous restrictions have been placed on online expression. After Mahfuz Anam, the editor of the largest English-language daily, The Daily Star, publicly admitted his paper had published uncorroborated corruption allegations against Sheikh Hasina in 2008, AL party activists filed more than 60 defamation and 17 sedition cases against him.

By undercutting the secular civil society institutions that are the best check against the spread of religious extremism, the government is empowering the forces of chaos. By abusing the rule of law to silence critics and target opponents, it is undermining the trust of citizens in the state's provision of both justice and security.

Few believe that Anam, Zia, the opposition leader's party colleagues and other government critics will get a fair hearing from judges appointed less for their qualifications and integrity than for their political reliability. However, as she moves to consolidate power through a manipulated criminal justice system, Hasina should recognize the risks to her own credibility, and possibly survival: If history is any guide, the arbitrary legal provisions and instruments her government has introduced could be used against her in the future.

The BNP certainly has much to answer for in relation to the last three years of violence. Its preference for the street over the ballot box mobilized mobs of violent hardliners and claimed far too many innocent lives. But its decision to contest municipal and local elections in December, and again in March, seems to mark a change in strategy made all the more significant by its decision to refrain from major protests despite allegations of widespread AL rigging.

The onus of breaking the cycle of violence rests with the AL. Hasina should not listen to those in her own party who interpret the BNP's new willingness to engage as a sign of weakness that should be met with greater repression. As a first step back toward normality, the government should end the use of the police and judiciary to target political opponents and silence critics, and accept peaceful dissent; that would help it regain some of its lost legitimacy.

To combat extremists who are using the poisoned political waters to increase their influence, the authorities need to go further than merely halting their abuse of the criminal justice system; they need to restore its impartiality so that verdicts against violent jihadis carry the weight of justice rather than mere political vengeance. The government should also bear in mind the potential economic cost of its strategy: Foreign direct investment rose slightly in the second half of 2015, but investors do not like political uncertainty, let alone chaotic violence, and their enthusiasm is likely to cool if the drift away from the rule of law continues.

If mainstream avenues of legitimate dissent remain closed and the protections of the law continue to be denied, a rising number of the government's opponents may feel compelled to view violence, and violent groups, as the most effective alternative force for change. Islamist extremists would then be the ultimate winners.