Khairul Haque’s detention is a symptom of a bigger malaise

The detention of former Chief Justice, the 81-year old ABM Khairul Haque, has once again demonstrated the extent to which the interim government is willing to use the legal system to "punish" people deemed to have backed the previous Awami League regime. The question is, whether such use — or abuse — of the legal system is designed to deliver "justice" or merely exact revenge. 

While Khairul Haque's case is quite extraordinary, it is by no means unique. It is simply the latest in a series of such "cases" where dozens, in some cases hundreds of people have been "named". Thousands of such cases have been filed since the overthrow of former prime minister Sheikh Hasina on 5 August last year. This practice has continued despite concerns expressed by rights groups, such as the New York-based Human Rights Watch (HRW). 

Earlier this year, HRW observed that a "disturbing pattern of security force abuses has re-emerged after Hasina's ouster, this time targeting former Awami League supporters, including journalists".

"The police are again arbitrarily detaining people and filing mass criminal complaints against unnamed people, which allows the police to intimidate and threaten virtually anyone with arrest," said a report by HRW published on  27 January. 

Six months on from the report, former chief justice Haque was sent to prison on the basis of a "case" which reflected precisely what HRW was warning about. 

Justice Haque was arrested and produced in court on 24 July, in relation to the murder of a BNP activist, 16-year old Abdul Kayum Ahad in Dhaka's Jatrabari on 18 July last year. Haque was one of 467 people named in the case, while another 1,000 to 2,000 unnamed people and 150 to 200 policemen were also implicated in the murder case. 

Arbitrary arrest

Haque's arrest produced strong support from many backers of the interim government, particularly from the BNP's top leadership. They hold Haque responsible for "killing democracy" through his 2011 judgement which held the provision of caretaker government to oversee elections to be "unconstitutional". 

This allowed the AL government to abolish the caretaker system and return to elections under incumbent governments, producing three consecutive, thoroughly-discredited polls. 

However, the "case" under which Haque has been sent to jail has nothing to do with the 2011 judgement. It is also questionable whether a judge can be punished for interpreting the law in one particular way, even when it goes against common wisdom. If they can, then what would be the point of having a Supreme Court in the first place?

The lack of merit in the "murder case" in which Haque has been implicated, has not gone unnoticed.

"Haque has been detained without any evidence linking him to this killing," David Bergman, a strong critic of Sheikh Hasina in the past, posted on social media platform X. "The police who detained Haque, the senior officers who instructed them to detain him, and the magistrate who subsequently remanded him in jail — along with every member of the interim government — know very well that there is no such evidence and that no evidence will surface in future. 

"It is an archetypal arbitrary detention," Bergman wrote. 

This practice of filing cases against unnamed people, implicating a large number of named people without evidence etc., is not new in Bangladesh. The BNP suffered massively over the past 10 years or so, as thousands of their activists were harassed through such cases. But the mass uprising that brought down Hasina was expected to put an end to such abuse of the law and arbitrary arrests. 

Lack of evidence 

However, there were signs in the early days after the formation of the interim government headed by Nobel peace laureate Muhammad Yunus, that such hopes would be dashed pretty rapidly. 

In the first two months after Yunus took office, said the HRW report, "over 1,000 cases were filed against tens of thousands of people, mainly Awami League members".

According to Manabadhikar Sangskriti Foundation, a Dhaka-based human rights group, nearly 200,000 people were implicated in 268 cases filed in August last year alone, but 168,000 of those were unnamed. 

The pattern of arresting people on the strongest of charges — murder, attempted murder — without evidence, and then remanding them in police custody was set at the very beginning of the new regime. One of the earliest warnings against this practice also came from Bergman. 

"Whilst the Bangladesh government has changed, it looks very much as though the police and the courts have not," Bergman wrote on X on 14 August last year, the day senior AL leaders Salman F Rahman and Anisul Huq were remanded in police custody in relation to a murder case, where the two were accused of "instigating" the killing of a shop worker. 

"This feels very much like a typical false case that the police under the AL government used to repeatedly file against BNP leaders for alleged arson committed by BNP workers," he wrote.

Dozens of former AL ministers, over 100 former AL members of parliament and thousands of party supporters are currently in jail, most without any formal charges. Many journalists, artists, even a sports icon have been implicated in various "murder cases". 

In the early days after the fall of Hasina, most people expected arrests to be made. Justice for the victims of police firing in July-August last year have been one of the key demands of the student activists who overthrew the AL regime. 

Grief to anger

All political parties — except the Awami League — have backed the call for accountability, and pledged to make trials for the perpetrators of the killings a priority in their own political programmes. The interim government has also pledged to move ahead with the trials before next elections are due. 

However, the pattern of these cases involving murder and attempted murder, where names of prominent AL leaders and sympathisers have been included along with thousands of anonymous people, have raised serious concerns. There is a strong likelihood that the police will be unable to present evidence to formally charge, let alone convict the accused in many, if not most such cases. 

In such a scenario, justice may not be seen to have been delivered, grief may turn to anger and the goal of accountability could be set back for years.  

The idea that an 81-year old retired Chief Justice would "instigate" the killing of a 16-year old political activist who was shot by police during a street confrontation, would be laughable if the matter was not so serious. 

The pattern of the cases and the names of those arrested and accused, suggest that these are more likely designed to harass and punish AL leaders and their sympathisers in civil society (for instance, four well-known media personalities are currently in jail, as is prominent writer Shahriar Kabir who was a key campaigner for trial of Jamat-e-Islami leaders for war crimes committed in 1971.)  

For its part, the government has defended itself by saying they are not the ones filing the cases. It is the people, families of victims, who are going to the police or courts with complaints, and lawyers are helping them to fill-in the forms (it is possible that the names of prominent people, from cricket icon Shakib al-Hasan to Justice Haque, were included in the cases on the advice of such lawyers.) That, however, is only part of the picture. 

Independent review

The government could have ensured that only cases with strong evidence are admitted by the courts before issuing arrest warrants. Police could have been instructed to not file or accept mass complaints, especially against unnamed people or people against whom there is no evidence. 

Very few of those in jail manage to get bail, even when there is little evidence to back the complaints. Those who do get bail in one case, often find another, equally spurious case has been filed, which keeps them incarcerated. This is another indication that the interim government is happy to go along with what looks more like a vendetta or political retribution than justice. 

Nearly a year has passed since this wave of arrests and cases began. By now, investigators should have gathered enough evidence to formally charge most of those either in jail, or in hiding or still "unknown." If not, then one can only assume there is no evidence against the people named (and unnamed) in the complaints.

These cases have become what prominent lawyer Sara Hossain called a "national embarrassment" at a round-table discussion on July 23. It is difficult to see how the Yunus government can claim to deliver justice and establish accountability through such an abusive process. 

It is time for the interim regime to change course and order a thorough review into all such cases, with a goal to pursue only complaints where there is clear evidence of the crime against the accused. Otherwise, they will have created another legacy of revanchism in the already revenge-ridden politics of the country.  

The writer is former Head of BBC Bangla, and former Managing Editor, VOA Bangla. He can be contacted by email: sabir.mustafa@gmail.com.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.