In Bangladesh, a judiciary under the government’s shadow

In January, a Bangladesh High Court bench rejected the bail application of Mirza Fakhrul Islam Alamgir, the secretary-general of the opposition Bangladesh Nationalist Party (BNP). Alamgir later obtained bail from a lower court in February and was released soon, but the High Court’s initial refusal appeared so nakedly partisan that it merits serious scrutiny.

With the BNP leader Khaleda Zia under virtual house arrest and the de-facto leader Tarique Rahman in exile in the United Kingdom, Alamgir is the most senior politician leading the country’s beleaguered opposition. His mild-spoken yet electrifying political speeches set him apart from his rabble-rousing peers. A freedom fighter with deep roots in left-leaning politics, he has often shown solidarity with protesting workers in his personal capacity, if not from his party’s. Alamgir’s tenure as the BNP’s secretary-general was marked by an intent focus on inclusive and peaceful movements, steering away from the long-standing Bangladeshi political tradition of street violence and sustained destruction of property.

Now 76, he has faced numerous arrests and political charges throughout his decades-long career, the latest occurring on 29 October during a BNP-organised rally in Dhaka. This rally was abruptly and violently dispersed by the police, who then proceeded to file ten different criminal cases against Alamgir. He was accused of committing various nefarious crimes — despite being documented as being on the rally’s stage. By putting him behind bars, the government hoped to stir anger among the BNP’s rank and file, provoking them to veer towards a brand of violent street agitation that would justify a bloody clampdown.

Bangladesh is now in its 16th consecutive year of a government led by Prime Minister Sheikh Hasina. She returned to power in 2008, winning an election supervised by a military-backed government with strong Western and Indian support. But despite its flaws, the election was at least shepherded by a nonpartisan caretaker government.

By contrast, after Hasina unilaterally abolished the caretaker system in 2011, the subsequent elections were all marshalled by people essentially handpicked by Hasina — to the great protest of the opposition parties — and unsurprisingly delivered a triumphant victory to her. This was possible only because Hasina wielded tremendous leverage over the entire state machinery in Bangladesh. The hitherto under-scrutinised role of the judiciary, in general, and the High Court judgement rejecting Alamgir’s bail petition, in particular, would help to explain how Hasina came to wield so much power.

A crucial component of Hasina’s tactics was subjugating the judiciary to her fiats. From appointing judges from cohorts of lawyers with a background in partisan politics to humiliating former Chief Justice Surendra Kumar Sinha, Hasina has used a deft combination of patronage and brute force to ensure the judiciary comes down to her side every time.

But the judgement delivered by the High Court justifying the denial of Alamgir’s bail marked a new low.

Many other co-accused had already been given bail, but not him. Shahjahan Omar, a senior BNP leader at the time, was also arrested and accused of the same crimes. But unlike Alamgir, Omar was released on bail—and hours thereafter, he met with Hasina to formally switch loyalty, joining the Awami League and announcing that he would contest the election under its ticket, whereas his former party was boycotting it. Omar ended up becoming an MP on the Awami League ticket.

The dramatic switch came when the government was desperate for a renegade splinter of the BNP to take part in the election so that its certain victory would be legitimised despite the BNP’s boycott. Omar’s turnabout shows that had Alamgir—who far outranks Omar in prominence — also chosen that path, he would not only have been rewarded with freedom from imprisonment but also with being an MP and whatnot.

Omar’s bail, which was reportedly processed quickly, also indicates how the judiciary coordinates with the government and indicates that its decision was not based on the legal merit of the case but because it was the wish of the Hasina government.

The fact that the government intervenes in these court decisions was most illustrated when Dr Abdur Razzaq, then a cabinet member and one of the leading members of the ruling Awami League, said in a live-televised interview that the BNP was assured the release of all its activists if it participated in the election. Razzaq revealed the behind-the-scenes details to assert that the Awami League was sincere and went to great lengths to ensure the BNP’s participation. Still, by doing so, he revealed that the cases had no legal basis but merely political leverages.

The higher courts in Bangladesh used to acknowledge that the country’s criminal justice prosecution system was ripe with abuse and prone to government influence. As such, the judiciary used to be a generally available avenue to counteract the overreach of partisan and biased police investigations. Even if lower courts, under the executive government’s stricter control, declined to grant someone bail, the High Court would often provide the relief, especially in cases of a partisan nature. Both the BNP and the Awami League politicians used to benefit from this approach when they were in the opposition.

But the High Court, in denying Alamgir’s bail petition, not only defied this norm but also proved even more partisan than the police when it said the offence Alamgir allegedly committed amounted to “sedition.” That is a breach of the Supreme Court’s earlier legal precedent that sedition charges may not be brought for political protests because of the implications for civil liberties — not to mention, the broader legal question as to why an attack, if at all, on a residential building would have constituted sedition.

One of the High Court’s arguments in rejecting the bail plea was that the offence was “non-bailable.” Still, the higher courts — including judges who oversaw Alamgir’s case — are widely acknowledged to have discretionary authority to offer bail in such cases. In November 2022, Justice Salim, one of the presiding judges, provided bail to Jhumon Das, accused of inflaming communal passions, a non-bailable offence. In 2021, the same judge provided advanced or anticipatory bail to 25 lawyers accused of violence on the premises of the Supreme Court Bar Association, a case resembling Alamgir’s. These are only a few recent precedents that would have allowed the High Court to grant Mirza Alamgir bail.

The High Court benches in Bangladesh had a glorious history of curbing the worst excesses of the government of the day. During the first Hasina government in 1996-2001, the High Court bench fined the government for filing spurious cases against several BNP leaders. Conversely, during the BNP government from 2001-2006, a High Court bench invalidated the Fifth Amendment to the Constitution, a sensitive case at that time because President Ziaur Rahman, the BNP’s founder, had made that amendment to the Constitution. During the subsequent military government in 2007-2009, a High Court bench quashed a case against Sheikh Hasina filed under the Emergency Power Rules, sending a powerful message that the judiciary would not be subservient to the military government.

Unfortunately, under the current Hasina regime, this innate and extensive power of providing bail has only been extended in general to pro-Hasina politicians. Former Disaster and Relief Minister Mofazzal Hossain Chowdhury Maya and former member of parliament Abdur Rahman Bodi were allowed to skip extended stays in prison through bail, not only during their trials but even after they were convicted of the crimes. All of this is to demonstrate that even convictions are not a bar to the granting of bail by the appellate courts in Bangladesh. As such, the denial of bail for this matter for Mirza Alamgir was a glaring aberration to this otherwise clear trend.

The final extraordinary argument of the High Court that set the case of Alamgir apart was the court’s opinion that the movement that he helped lead was for “so-called voting rights” and that it was an “unholy” and “hell”-ish movement. For a judge to so wrongly construe a movement for the fundamental rights of the citizenry was an abnegation of his oath of office.

Alamgir was released along with others, perhaps because the political government determined it was no longer necessary to keep him behind bars, not because the courts suddenly decided to do the right thing.

[Ehteshamul Haque, an accomplished attorney with extensive experience in corporate America, has served as legal counsel for leading entities such as HP and Verizon. A graduate of Georgetown University’s law school, he began his career at the US Department of Justice.]