Justice cannot depend on political allegiance
Sultan Mohammed Zakaria, joint convener of the National Citizen Party (NCP), has responded to my earlier article, noting a number of principles on justice, due process and accountability for the July 2024 killings and other serious crimes alleged during the Awami League period which he supports. In the order they appear, he endorses:
"A commitment to the rule of law, liberal democracy and human rights grounded in international law."
The importance of challenging "alleged miscarriages of justice".
The need to "continue to demand" justice for the July killings.
That the NCP does not endorse "arbitrary detention based on allegations".
Recognising "the pain and grievances of those who experienced repression".
That killings "deserve a thorough and credible investigation".
That "those who suffered oppression must not become oppressors themselves".
That "every person accused of a crime must receive the safeguards against unlawful arrest and detention guaranteed by Article 33 of the Constitution".
He also supports "access to bail in most cases, subject to limited exceptions, regardless of the seriousness of the allegations".
Zakaria accepts that accountability for the July killings and other serious crimes is essential, and that it must be pursued within the rule of law and international human rights standards, through thorough and credible investigation.
The pain of victims and their families deserves recognition, but it does not justify lowering those standards. No one should be detained arbitrarily on the basis of allegations alone. Every accused person is entitled to the constitutional safeguards against unlawful arrest and detention, and bail should be available in most cases, however serious the allegations. Where these principles are breached, miscarriages of justice should be challenged.
These are principles no one committed to the rule of law should dispute.
The question is how Zakaria and the NCP, for whom I assume he speaks, should apply these principles to the situation Bangladesh now faces. Hundreds of Awami League politicians, high-profile supporters and others linked to the party are in prison, many of them for close to or more than two years.
Most are held on murder allegations with no evidence of their complicity. Some are now being named in formal charges at the International Crimes Tribunal or in charge sheetsbefore the magistrates' courts, again without sufficient evidence to justify prosecuting them for crimes against humanity or murder.
For many detainees, it is politics (their relationship with the Awami League or Sheikh Hasina), rather than evidence of a crime, that has become the deciding factor in both their detention and their prosecution.
Immediately after 5 August 2024, given the scale of the killing and the lack of clarity about where criminal responsibility lay, it was understandable that the authorities cast their net wide. Many, including the former prime minister, had fled to India, and it was important to stop other political leaders who might bear criminal responsibility from leaving the jurisdiction.
The legal basis for arresting many politicians and others linked to the Awami League was that their names appeared in First Information Reports (FIRs) in murder or attempted murder cases, or in abetting these crimes, filed by the injured or by the families of those killed.
But as became clear, and as even the interim government acknowledged at the time, these FIRs were laundry lists of Awami League MPs, leaders, activists and supporters, and many of those arrested had at most a far-fetched link to murder or to abetting it.
This was the point at which things went wrong. Faced with so many killings to investigate, flawed FIRs and a clamour for justice, the interim government should immediately have reformed law and practice to create a national system of non-partisan investigation, preferably involving international experts.
This would have allowed the authorities to distinguish those against whom there was no evidence of criminal complicity from those against whom there was substantive evidence. Cases against the first group could then have been dismissed.
Those in the second group would have been granted bail with strict conditions or, in exceptional cases, kept in detention. Had this been established, it would have set in train an evidence-based system of accountability, rather than one suffused with politics and personal vendetta.
This never happened, and the result is the situation we face today.
The point of this article is not to impute blame for this situation, but to consider what the BNP government can now do to remedy these injustices and how parties like the NCP can play their part. Unless the government, with the support of the opposition, takes steps now to correct these abuses on the basis of the principles Zakaria sets out, Bangladesh will leave itself open to criticism at home and abroad.
More importantly, the government will repeat the abuses that the uprising which toppled the Awami League government set out to end.
What is needed is a credible, independent review of every current detention, charge sheet and formal charge. Where there is no evidence, the case should be dropped. Where there is evidence, the accused should, in most cases, be granted bail.
The NCP can play its part by publicly calling for such a review, and by making clear that the principles Zakaria has set out apply to everyone, including those it holds responsible for the repression of the Hasina years. If the party wants to be a transformative force, it should not remain silent in light of breaches of the principles which it endorsed.
The July uprising was, at its heart, a revolt against a state that used its law enforcement authorities and the courts to punish its political opponents. A process of accountability that detains and prosecutes people because of their politics, rather than the evidence against them, does not break with that past. It continues it.
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David Bergman is a journalist. He divides his time between London and Dhaka