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Political Conflict, Extremism and Criminal Justice 
in Bangladesh
Political Conflict, Extremism and Criminal Justice 
in Bangladesh
Rohingya Deserve Non-violent Leadership
Rohingya Deserve Non-violent Leadership
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

Rohingya Deserve Non-violent Leadership

Originally published in Asia Times

In August 2017, the flight of 700,000 Muslim Rohingya from Myanmar produced the world’s newest refugee crisis – and one of its worst. Now stuck in miserable camps in Bangladesh, the Rohingya have little prospect of returning to their homes any time soon.

Their suffering is primarily a grave humanitarian concern and the Bangladeshi government and its foreign partners should focus their response on protecting the well-being of those displaced and assisting host communities. But the Rohingya’s plight also raises a so far unspoken question: Will they wait patiently to return in a safe and dignified manner – for now an unrealistic goal – or will the main militant organization in their midst lead them to pursue their goals with violence?

The Arakan Rohingya Salvation Army (ARSA) formed in 2012 in the wake of strife among Buddhists and Rohingya in Myanmar’s underdeveloped and conflict-ridden northern Rakhine state. The group leveraged the anger and desperation of Rohingya facing daily oppression as an ethnic and religious minority. Through communal leaders, ARSA propagated a message of hope while in fact bolstering its position via a combination of claims to religious legitimacy and fear.

The militants are now attempting to re-establish themselves as a political voice in the Bangladesh camps. But it’s not too late for the refugees to establish non-militant leadership and self-governance.

ARSA does have sympathizers in the camps, but its authority is less clear than before the mass exodus. In the view of many Rohingya, it was ARSA’s attacks on Myanmar police that provoked the country’s brutal, indiscriminate military campaign forcing them into exile. Foreign governments and human-rights organizations have branded this campaign as ethnic cleansing, crimes against humanity and possibly genocide.

Not all refugees hold ARSA responsible for the calamity that befell them. Some adopt the view that, whether or not ARSA’s attacks had taken place, the Myanmar authorities would have found a way to drive the Rohingya from their land.

The Rohingya’s plight is likely to worsen before it improves ... While Bangladesh has thus far been hospitable to the refugees, the political climate could easily turn against them, particularly in the event of ARSA violence on Bangladeshi soil.

But ARSA was also responsible for killings of civilians, both Rohingya and their Hindu neighbors, as it sought to eliminate perceived informants. After careful analysis, Amnesty International concludedthat ARSA massacred dozens of Hindu villagers in August 2017. The group exposed Rohingya civilians to Myanmar’s massively disproportionate response. Its militants did not wear uniforms or do anything else to distinguish themselves from the civilian population, and they launched attacks from the cover of villages.

Since the refugee exodus, ARSA has continued its insurgency, claiming responsibility for an attack on a Myanmar convoy in January. It has also been linked to several killings in the camps.

In October last year, 47 Rohingya religious scholars issued a fatwa condemning any act of jihad, even for self-defense, against Myanmar. But Crisis Group’s May report suggests that this ruling does not necessarily mean the Rohingya have abandoned ARSA or the idea of violent resistance. First, it was issued at the height of the exodus, when the scholars sought to reassure Bangladesh that the refugees were not a security threat. Second, it did not categorically reject violence, but rather denounced particular tactics the signatories viewed as premature or misguided.

Factors other than opposition to violence could hinder ARSA from representing the Rohingya. Village populations that once backed the militants are now scattered across the camps, new leaders (majhis) are emerging and the “common enemy” that ARSA rallied against – the Myanmar security forces – is far away across the border. Most refugees are preoccupied with the daily struggle to establish basic standards of living in the camps.

Nor does it appear that transnational jihadist groups – that is, groups such as al-Qaeda in the South Asian subcontinent, Islamic State (ISIS) or their Bangladeshi affiliates – have been able to exploit the Rohingya crisis to mobilize or recruit in the camps. While concerns this might happen are legitimate given the security landscape in Bangladesh, there is no evidence that it is occurring, nor that a counterterrorism lens is useful for understanding the evolving situation in the camps.

The Bangladeshi authorities appear to share this assessment. Moreover, ARSA itself has always sought to distance itself from transnational groups.

But the Rohingya’s plight is likely to worsen before it improves. The monsoon season has arrived, threatening the camps with flooding. While Bangladesh has thus far been hospitable to the refugees, the political climate could easily turn against them, particularly in the event of ARSA violence on Bangladeshi soil.

The Rohingya need a non-violent leadership who can work to ensure their safe and voluntary return to their homeland.