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 11 April 2016 6 minutes 孟加拉国的政治冲突、极端主义和刑事司法 政治镇压在孟加拉国进一步升温,政府为了政治目的滥用法治,而其所营造的不公正气氛则让反政府极端组织有机可乘。近日,某世俗派博主惨遭极端组织的毒手,而该惨案正是这些组织实力壮大且肆无忌惮的恶果。 Share Facebook Twitter Email Linkedin Whatsapp Save Print Download PDF Also available in English Chinese, Simplified English 执行摘要 随着人民联盟(AL)控制下的政府与孟加拉国民族主义党(BNP)的政治对抗不断升级,政府的压迫手段也再创新高。与此同时,一个高度政治化、运转不周的司法体系正在削弱而非加强法治。高压政策使政府的合法性受到质疑,同时,政府的强硬手段还适得其反地引发暴力反抗,并令暴力党派和极端组织坐收渔利。政府需要认识到改变现状符合其自身利益,否则它抑制暴力极端主义、或应对政治上的威胁。更关键的则是要去政治化,并加强刑法体系在各方面的建设,司法机构也不例外;如此为,孟加拉国才能应对其国内众多的法制挑战,并避免民主制度崩塌。 人民联盟和孟加拉国民族主义党之间的政治冲突已导致了众多暴力事件和政府的残酷镇压。为打压反对派和批判者,政府采取了强迫失踪、严刑逼供和法外处决等过激手段。不仅警察被授意针对政敌,司法机构沦为迫害反对派领袖和社运分子的工具,暴力极端分子也对他们发起了新一轮的威胁。然而,目前的法律环境却为极端团体创造了重组的机会,这则体现在对世俗派博主和外国人的谋害、以及2015年对宗派和宗教少数派的袭击上。为应对不断上升的极端主义势力,政府对部分嫌疑人实行了抓捕和审讯,但因其流程不正规且缺乏透明度,这进而加剧了政治疏离感,且让极端组织有了更多的可乘之机。 若要与反对派和解并恢复社会稳定,政府需做出政治妥协,不再利用执法部门镇压异己、并停止滥用法庭。政府为了禁言政治异见,而利用警察和特别部队——尤其是快速行动营(RAB)——打压的行为正在为将来的暴力反抗埋下伏笔。因为要集中打压反对派,警方无暇遏制犯罪行为;对反对派领袖和社运人士的大规模抓捕使得监狱系统不堪重负;司法机关的信誉亦是——因其被认为在审判和量刑上效忠于党派的政治利益——每况愈下。如此一来,司法系统便在两个极端间摇摆不定——即,办理普通案件时效率极其低下,且运作不周;而在处理政治指控时,其则断案神速,并略过了正当的诉讼程序。 除非能剔除司法中的政治影响,任何——单靠增加培训,加强警力装备,和实现公安、公诉和司法部门现代化的——改革努力都难以解决司法系统失调的问题。数年来分帮结派式的招募、升迁和委任导致体制内分化严重,以至于官员都不再掩饰各自的派系忠诚。投诉如何定性和上报、而上报案件的轻重缓急由如何划分;这些都取决于司法官员的党派偏见,他们甚至还会提前透露判决结果。 孟加拉国的法治问题并不止步于此,其还诉诸司法手段来禁言公民社会、阻碍媒体监督,并在处理政治案件时,以不公平程序取代正当程序。法制机构若沦为服务政治的工具,其将百害无利,而漏洞百出的国际犯罪法庭(ICT)则着重印证了这一点。该法庭成立于2010年,其本是为了起诉那些在1971年解放战争中犯下暴行的战犯而设,然而其缺乏公正的形象令极端势力有机可乘,并对政治冲突火上浇油。 为纪念具争议的2014年大选,孟加拉国民族主义党及其盟友伊斯兰大会党(Jamaat-e-Islami)组织了大规模的盲目暴力袭击和交通封锁,而政府亦是以暴制暴。如今,孟加拉国民族主义党似乎已不太愿意诉诸于武力政变了,并决定回归主流政治,而政府应抓住机会,尽快恢复和反对党对话。为表诚意并作出表率,政府应率先停止用司法手段攻击对手和异见者。接受合法的政治参与及批判渠道亦有助于政府收复部分合法性,并重拾公民对国家司法和安全的信任。只要一日没有司法独立和裁决公正,那各利益攸关方就可能会将争端诉诸于街头,然而一个中立——即,能坚守基本原则、防止行政过度干涉——的司法提携则将有助于缓和紧张局势。国际社会亦能促进孟加拉国的政治和解。美国和欧盟可以利用经济筹码向达卡当局施压,以此要求政府尊重公民权和政治权。印度则可以借助它与孟加拉国的密切联系,并敦促人民联盟向反对党开放合法的政治表达和参与通道。事不宜迟,如果政府继续封锁表达异见的主流渠道,那将会有更多的反对派将暴力和加入暴力组织视为其唯一的出路。 布鲁塞尔,2016年4月11日 Download pdf to continue reading the full report (English) 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: 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: 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: 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: 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. Withdraw the 2014 national broadcast policy and remove restrictions on online expression in the Information and Technology Act. To the Higher Judiciary: 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: 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. 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: Issue clear orders against any executive bodies or officials found to be interfering in the judicial process. 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: 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. 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. 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: 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. 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 Related Tags More for you Op-Ed / Asia After Hasina, Bangladesh needs a foreign policy reset Originally published in Nikkei Asia Statement / Asia Bangladesh: The Long Road Ahead Also available in Also available in Bengali