Like in Cairo’s Tahrir Square, they came out in the thousands in Dhaka’s Shahbag Square. But these young men and women converged in February not to press for democracy and civic rights. They came instead to demand death for a politician who had been sentenced to life imprisonment for his role in the 1971 civil war that led to the creation of Bangladesh from Pakistan.
Vendetta politics borrowed from Pakistan have steered Bangladesh repeatedly to dysfunction. In former East Pakistan, the present judiciary is avowedly secular and politicized, tilting in the direction of the ruling party, the Awami League of the country’s founder, Sheikh Mujibur Rahman. The big shift came in January 2010, when Bangladesh’s Supreme Court struck down the Islamic provisions inserted into the 1972 Constitution by military regimes and revived the basic principles of the original document: democracy, nationalism, socialism, and secularism. The constitutional reversion by the court was backed by a three fourths majority in Parliament, controlled since 2008 by founder Rahman’s daughter, Prime Minister Sheikh Hasina Wajed.
Yet even her big majority has not emboldened Wajed to go the whole hog, as intended by the court. So in October 2010, sitting down to consider the consequences of the court’s overturning of the 5th and 7th Amendments, Wajed agreed with her advisers not to remove the Islamic phrase of inception (“In the name of Allah, the most Beneficent and Merciful”) inserted into the Constitution by Gen. Ziaur Rahman, founder of the opposition Bangladesh Nationalist Party, or to remove Islam as the state religion in recognition of the country’s new Islamicized reality.
Her decision has serious repercussions for the reform in laws suggested by the court and has angered the liberal-secular centers of opinion in the country. It has also pushed back widespread demand for the re-banning of religious parties. How can a state with Islam as its official religion ban Islamic parties? In its decision forbidding a women’s college to impose a Muslim dress code on its students, the Dhaka High Court said the Supreme Court verdict had automatically reverted the country to secularism. Most Islamic scholars insist that separation of religion and politics in public life under secularism is abhorrent to Islam.
But the Awami League government has moved to target religious parties in another way: by reviving the International Crimes (Tribunals) Act, 1973, to punish crimes against humanity and genocide. Foreign Minister Dipu Moni was at pains to clarify the status of these courts in January, saying: “The International Crimes Tribunals in Bangladesh are not ‘international’ in nature, but for all meaning and purposes they are ‘domestic.’ The only international element in the whole scheme of things is the nature of the offences, that is, the international crimes.”
The opposition in Bangladesh has never been as crushed as it is today. General Rahman’s widow, Khaleda Zia, has ruled in the past with the help of Jamaat-e-Islami and other religious parties. (Jamaat and BNP members are facing trial at the war crimes tribunals.) Most observers think it will take a long time to revive BNP and its partner parties unless a natural calamity or a steep deterioration of the economy compels people to join the most prominent trait of the nation: violent street protest. There is now enough ammunition for agitation against the Awami League, which has packed the courts and war crimes tribunals with political appointees.
Will Bangladesh’s next bout of dysfunction come from what its courts hand down in the coming days? “The Awami League has come to power in the worst of all possible ways: with an overwhelming majority in Parliament,” wrote William Milam, a former U.S. ambassador to Bangladesh and Pakistan, in The Friday Times recently, “This led immediately to a majoritarian approach to governance, which seems inherent in the politics of South Asia. As in many developing countries, when one of the political parties wins an election by a large margin the victory appears to give the leader of the winning party the impression that he or she embodies the nation, and is, according to one scholar, the main custodian and definer of its interests and is entitled to govern as he or she sees fit, constrained only by the hard facts of existing power relations and by a constitutionally limited term of office.”
Lawyers in Dhaka, who don’t like what is building up in the country, are discreetly pointing to flaws in justice under the Awami League in the face of an unusually strict contempt-of-court routine practiced by the judges.
There are bound to be corrections in the long run, but not before much damage is done through the exaggeration of illiberal forces in Pakistan and secularist dreams (which can’t be fulfilled) in Bangladesh.
In Bangladesh, the law, or an absence of it, allows the government to make Supreme Court appointments without “meaningful consultation” with the chief justice. Justice Ruhul Quddus Babu was among the 17 new judges appointed in April 2010. He was an accused in the 1988 murder of a leader of the student wing of the Jamaat but the case against him was dropped shortly before his appointment, drawing sharp criticism from the Supreme Court Bar Association. As a further PR fiasco, the then chief justice refused to administer oath to Babu and two others who had been accused of kicking the door of the chief justice’s room in 2006 as “an act of vandalism.” The said chief justice was replaced in September 2010 with a more pliable judge. The Bar Association declared that the appointment had exposed the “government’s intention to control the next caretaker government, which will conduct the national elections in 2013, which are normally overseen by the last retired judge of the Supreme Court.”
In Pakistan, polarization in favor of an activated Supreme Court has been more one-sided than in Bangladesh because of growing Islamist extremism and the “softening” of the state by Al Qaeda and the Taliban. But Bangladesh is less internationally isolated than Pakistan, so its internal bipolar fracture is not exacerbated by unfriendly neighbors and international terrorism. And in Pakistan, where vendetta-prone politicians use litigation to get even with one another, the Supreme Court has emerged as the strongest of the three pillars of the state, at times having challenged Parliament itself, and may take a while to moderate its reactive overdrive. Since 2008, the Supreme Court of Bangladesh is clearly the overgrown muscle of Parliament, which is trespassing on judicial turf through political inductions.
But judicial secularization in Bangladesh may not succeed because of the country’s political polarization. The Supreme Court in Bangladesh is stymied by the procedural excesses of the government, such as the induction of judges, which will be pursued by Awami League’s opponents whenever they come to power. Justice is marred by politicization even when immaculately delivered, that is, when one side of the political landscape thinks the courts are discriminatory. This has not happened in India as much as in Bangladesh and Pakistan. The Indian higher judiciary has already responded to criticism through self-correction in the realm of public interest litigation.
There are bound to be corrections in the long run, but not before much damage is done through the exaggeration of illiberal forces in Pakistan and secularist dreams (which can’t be fulfilled) in Bangladesh. Judicial strictures in Bangladesh will, however, be less damaging than in Pakistan, where the bankrupt state is in retreat and governance has been minimized by its eroding outreach. India’s economic performance, and to some extent Bangladesh’s, will cushion the consequences of judicial overdrive in those countries. But in Pakistan people may have to suffer more strife because of the sense of irremediable grievance and victimization created by it.
From our April 5, 2013, issue. For updates, follow Ahmed on Twitter.