孟加拉国的政治冲突、极端主义和刑事司法
孟加拉国的政治冲突、极端主义和刑事司法
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
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

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。

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

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

Rohingya refugees gather at a market inside a refugee camp in Cox's Bazar, Bangladesh, 7 March 2019. REUTERS/Mohammad Ponir Hossain
Briefing 155 / Asia

Building a Better Future for Rohingya Refugees in Bangladesh

Bangladesh is hosting nearly a million Rohingya refugees who have little hope of going home any time soon. The government should move to improve camp living conditions, in particular by lifting the education ban and fighting crime. Donors should support such steps.

What’s new? With no near-term prospect of returning to Myanmar, almost a million Rohingya refugees in camps in Bangladesh face an uncertain future. An impressive aid operation has stabilised the humanitarian situation; attention must now turn to refugees’ lives and future prospects, in particular improved law and order and education for children.

Why does it matter? A lack of security and hope creates major risks. Militants and gangs increasingly operate with impunity in the camps, consolidating control to the detriment of non-violent political leaders. Without education opportunities, children will be left ill equipped to thrive wherever they live in the future.

What should be done? Bangladesh should institute an effective police presence in the camps and bring the perpetrators of crimes to justice. It should also lift its ban on formal education in the camps. If it does, donors should help meet the costs of these and other measures to improve refugees’ lives.

I. Overview

Eighteen months on from the mass expulsion of 740,000 Rohingya from Myanmar to Bangladesh, no sustainable solution for the refugees is in sight. Repatriation to Myanmar should remain the long-term goal – not only to relieve the huge burden on Bangladesh but also because that is the strong preference of the refugees themselves. But the unfortunate reality is that Rohingya refugees in Bangladesh will be unable to return home to Myanmar for the foreseeable future. Systems are now largely in place to provide for their essential humanitarian needs in the sprawling refugee camps. It is now time to move beyond the emergency phase of managing this crisis. Shifting focus in this way requires Bangladesh to ease its restrictions on longer-term assistance. Specifically:

  • The Bangladesh government should lift its ban on the provision of formal education in the camps; local and international organisations are ready to provide such education.
     
  • It should also improve law and order in the camps, where militants and gangs increasingly operate with impunity and are consolidating control to the detriment of non-violent political voices and leaders. This requires instituting a regular and effective Bangladeshi police presence in the camps and investigating crimes and bringing perpetrators to justice.
     
  • For their part, donors should help Bangladesh not only to meet the refugees’ immediate humanitarian needs but also to cover the costs of measures that improve their lives and prospects for the future.

II. Slim Prospects for Return

The Myanmar security forces’ mass expulsion of Rohingya starting in August 2017 created a major humanitarian emergency in neighbouring Bangladesh and the largest refugee settlement in the world.[fn]This briefing is based on an April 2019 visit by Crisis Group to Dhaka and the Cox’s Bazar refugee camps, including interviews with refugee leaders, humanitarian agencies and local analysts. For more background on the situation of the Rohingya, see Crisis Group Asia Reports N°s 296, The Long Haul Ahead for Myanmar’s Rohingya Refugee Crisis, 16 May 2018; 292, Myanmar’s Rohingya Crisis Enters a Dangerous New Phase, 7 December 2017; 283, Myanmar: A New Muslim Insurgency in Rakhine State, 15 December 2016; 261, Myanmar: The Politics of Rakhine State, 22 October 2014; and 251, The Dark Side of Transition: Violence Against Muslims in Myanmar, 1 October 2013; and Asia Briefing N°153, Bangladesh-Myanmar: The Danger of Forced Rohingya Repatriation, 12 November 2018.Hide Footnote Around one million Rohingya, from this and previous exoduses, live in a cluster of densely populated camps in Cox’s Bazar district, as well as some in the Chittagong Hill Tracts.

Some eighteen months on from the main exodus, a major humanitarian operation by local and international aid groups has successfully addressed the immediate priorities. Life-saving essentials – food, water, sanitation, shelter and basic health services – are now in place. As the monsoon season looms, the camps are much better prepared this year than before: drainage has been improved and roads through the camps have been surfaced. But there are limits to what can be done to mitigate risk in such densely packed camps carved out of former forest and where there are almost no flat areas. A heavy monsoon (unlike last year’s unusually mild one) could still take a serious toll, and a cyclone – a relatively frequent event in this region – would be devastating.

The likelihood that the refugees will remain in Bangladesh for years requires that attention now turn to their medium-term prospects.

There is no prospect that the refugees will be able to return home to Myanmar’s Rakhine State any time soon. The Myanmar authorities still have not addressed the fundamental issues of Rohingyas being denied citizenship, freedom of movement, security and other basic rights. Fighting between the Myanmar military and the Arakan Army – a militant outfit that draws its support mainly from the ethnic Rakhine population (a mostly Buddhist group distinct from the Rohingya Muslims) – has escalated sharply since January.[fn]See Crisis Group Asia Briefing N°154, A New Dimension of Violence in Myanmar’s Rakhine State, 24 January 2019.Hide Footnote The fighting has affected remaining Rohingya communities, both because they are caught between the warring parties and sometimes find themselves in the crossfire, and because of the uncertainty and fear that fighting brings. This creates a further impediment to the refugees’ return. The conflict also has pushed repatriation down the list of priorities in Naypyitaw, which is currently focused on the Arakan Army insurgency and national elections in 2020.

III. Fraught Conditions in the Camps

The likelihood that the refugees will remain in Bangladesh for years requires that attention now turn to their medium-term prospects. A key priority is education. The Bangladesh government currently prohibits the provision of formal education to the refugees. This restriction robs families of their hope for a more economically secure future and ensures that a generation of children will be deprived of the skills they will need to flourish, wherever they ultimately live.

Informal private “tuitions” held in private dwellings and networks of madrassas that only teach the Koran do not adequately fill the formal education gap.[fn]Crisis Group interviews, refugee leaders and humanitarian agencies, Cox’s Bazar, Bangladesh, April 2019.Hide Footnote No evidence has emerged of these madrassas promoting violence or intolerance among children, or of indoctrination or recruitment by local or transnational jihadists. However, a policy of denying young people formal education and leaving them reliant on unregulated madrassas almost certainly increases the risks of such groups gaining a foothold in the camps.[fn]Bangladeshi officials also cite this as a risk. See “Delayed repatriation risks breeding Rohingya terrorists: Bangladesh official”, The Irrawaddy, 24 April 2019.Hide Footnote Already, the Chittagong-based Islamist movement Hefazat-e-Islam – which has publicly called for jihad against Myanmar – has considerable influence over the madrassa network in the camps, through the funding and religious scholars that it provides.[fn]Crisis Group interviews, journalists and analysts, Dhaka and Cox’s Bazar, Bangladesh, April 2019. For more details on Hefazat-e-Islam, see Crisis Group Asia Report N°295, Countering Jihadist Militancy in Bangladesh, 28 February 2018. On the calls for jihad, see “Hefazat: Jihad against Myanmar if Rohingya killing continues”, Dhaka Tribune, 15 September 2017.Hide Footnote

Equally concerning is the lack of law and order. One prominent refugee leader described the security situation as “very serious”, saying he was “unable to sleep at night” for fear of attack.[fn]Crisis Group interview, Rohingya refugee leader, refugee camp, Cox’s Bazar, April 2019.Hide Footnote A determined and often violent struggle is currently underway for de facto control of the camps. At stake is informal political authority over a huge population and access to lucrative economic rents from the camp economy – both licit and illicit – through corruption and extortion. The groups vying for control include the Arakan Rohingya Salvation Army (ARSA) militant group, which has shown that it is willing to deploy deadly violence to further its aims; informal networks of religious leaders; non-violent political and civil society groups; and a random assortment of criminal gangs.

Violent groups operate freely in the camps. As evening draws in and humanitarian workers withdraw to their bases in Cox’s Bazar town, security is in the hands of untrained and unarmed night watchmen appointed from among the refugees. Overstretched Bangladeshi police are focused on perimeter security and protection of local Bangladeshi communities and remain mostly outside the camps at night. Refugees express serious concerns about their personal security, and militants and gangs are intimidating, kidnapping and killing with impunity.[fn]Crisis Group interviews, refugee leaders, analysts and humanitarian workers, Cox’s Bazar, April 2019. See also “In Rohingya camps, a political awakening faces a backlash”, Reuters, 24 April 2019.Hide Footnote Murders and other forms of violence are an almost nightly occurrence; the police rarely investigate, and perpetrators have almost never been brought to justice.[fn]Ibid.Hide Footnote

Allowing formal education in the camps is a first priority.

This creates a toxic political environment within the camps. Without basic security, non-violent political actors face intimidation or worse. For example, ARSA was likely responsible for the grisly murder of Arif Ullah, a camp leader, in June 2018 – based on the manner of his killing which is typical of ARSA (a deep knife cut to the throat) and the fact that death threats typical of ARSA had been circulating against him on WhatsApp, accusing him of being too close to the Bangladesh army.[fn]Crisis Group interviews, analysts with detailed knowledge of the security situation in the camps, Bangladesh, April 2019.Hide Footnote Some refugee leaders to whom Crisis Group spoke in April 2019 had received credible death threats, they believe from ARSA, and fear for their lives.[fn]Crisis Group interviews, refugee leaders, Cox’s Bazar, April 2019.Hide Footnote Amid the lawlessness, violent actors are likely to further consolidate control, which will stifle peaceful political organisation among the refugees and constructive debate about how to shape their own futures. Effective control of the camps will pass to those who prioritise accumulation of power or wealth, or militant agendas, over the future well-being of the community.

The burden of ameliorating these problems disproportionately falls on Bangladesh. Understandably, Dhaka’s policy response is focused on repatriation, which it sees as the only viable durable solution for the refugees. Making life better for the Rohingya where they are now would not only impose financial strain on Bangladesh but might be perceived as working at cross-purposes with Bangladesh’s interest in Rohingya returns to Myanmar.

IV. Improving Refugees’ Medium-term Prospects

Returns to Myanmar should remain the long-term goal – not only to relieve the hardship visited on Bangladesh and avoid consolidating what a UN investigation called ethnic cleansing, but also because that is the preference of the refugees themselves.[fn]Crisis Group interviews, refugees and refugee leaders, Cox’s Bazar, April 2019 and November 2017-March 2018. See also “‘I still don’t feel safe to go home’: Voices of Rohingya refugees”, Oxfam, 18 December 2017.Hide Footnote International pressure on Myanmar through the UN and by countries having influence in Naypyitaw should continue to focus on improving the situation of Rohingya remaining in Rakhine State, a prerequisite for any sustainable return. This pressure should include insistence on implementing the Kofi Annan Commission recommendations of August 2017, in particular its detailed suggestions on addressing discrimination and ensuring freedom of movement and a credible pathway to restoring Rohingyas’ citizenship rights. It is only by demonstrably improving conditions in Rakhine that any refugees would consider returning home.

At the same time, Bangladesh should recognise – even if it does not want to state this publicly – that no major repatriation is on the horizon. In this context, policies that restrict the Rohingya refugees’ ability to prepare for an uncertain future should be eased. Allowing formal education in the camps is a first priority, and there exist local and international groups with the ability and willingness to do so.[fn]Crisis Group interviews, humanitarian agencies, Dhaka and Cox’s Bazar, April 2019.Hide Footnote Measures to improve law and order would include instituting a regular Bangladeshi police presence in the camps, investigating crimes and bringing perpetrators to justice. Failure to address these issues now will do significant long-term harm to the refugees, and potentially fuel insecurity and instability in this part of Bangladesh.

Though some of the burdens to be borne by Bangladesh are unavoidable, donors can and should, at least, lessen the financial impact on Dhaka. If the implications of the Rohingya refugee crisis for regional peace and security are not to worsen, donor countries need to be generous in their support not only to the annual humanitarian appeal but, if Dhaka’s restrictions are eased, also to longer-term assistance to the refugees.

Brussels, 25 April 2019

Appendix A: Map of Rakhine State