top of page

Democracy Denied by Bangladesh’s Supreme Court

Updated: Nov 23, 2023

22 November 2023

The People’s Republic of Bangladesh is a parliamentary representative democratic republic. The Prime Minister sits as the Head of the Government, which serves as the executive branch of the political system, and is elected for five year terms. The President is elected by a 350-seat unicameral parliamentary legislature and is (formally) responsible for the appointment of the Prime Minister. Against the backdrop of a written constitution, legislative power is vested in both the executive and legislative branches.


In recent history, Bangladeshi politics has been dominated by two parties: the Awami League (“AL”) and the Bangladesh Nationalist Party (“BNP”). Although several other parties contribute to the state’s political landscape, many face institutional challenges. Jamaat-e-Islami, the largest Islamist party in Bangladesh, for example, has long been deregistered as a political party “because its charter, which acknowledges the absolute power of God, violates the constitution” in that it “does not recognize people as the source of all powers, nor does it accept the undisputed power of the people’s representatives to make laws.”

The AL came to power in 2009 and quickly abolished the previous caretaker government system, which allowed an incumbent government to rule until power was transferred to a newly-elected government through proper elections, and “had ensured three free and fair elections since its incorporation into the constitution in 1996”.

The AL did so by unilaterally amending the constitution without a referendum, and despite the objections of civil society and opposition parties. In the face of these unilateral measures, the opposition boycotted the 2014 elections, to the advantage of the AL, who once again took power. Since that time, the AL has remained in power, increasingly cementing its position through the use of force and grave human rights violations, alongside the manipulation and politicisation of key institutions, such as the Election Commission and the judiciary.

Driven by the need to repress anything seen as political dissent, the AL has curtailed freedom of speech through draconian legislation; arbitrarily detained opposition leadership, activists, and supporters; brutally cracked down on any deemed to threaten its position; and monopolised, politicised, and corrupted state institutions which should ordinarily protect the civil and political rights of civilians. Outside of activities having any semblance or relation to any lawful acts, reports also increasingly demonstrate the use of torture and enforced disappearances as further tools of political repression.

As the 2024 elections approach, the human rights landscape in Bangladesh is dire, and must be addressed urgently if Bangladesh is to realise a democracy that functions in practice, and not just in name. Bangladesh is a country that has struggled for generations to reconcile its past and pave a way for the future, a future that benefits all its citizens irrespective of ethnicity, faith or political beliefs.

Bangladesh has been for a number of years, under the Awami League Government, a country of real concern for many within the international community, as despite its rhetoric and protestations to be a democracy, the reality is quite different, with a complete absence of free and fair elections, the circumvention of the rule of law and countless human rights violations being committed with disturbing frequency, to such an extent that it is viewed as a State sanctioned policy.

Further, emboldened by the lack of consequences for its actions and a growing culture of impunity, the Awami League Government has presided over policies to reduce democratic space and consolidate its grasp on power.

Bangladesh Jamaat-e-Islami is a democratic and systematic political party. Since its inception, it has played an active role in all democratic and anti-tyrannical movements and also in securing people’s rights. As an opposition political party, it has an obligation to hold the government to account and ensure that it is acting, at all times, in the interest of the people it has been elected to serve. To this end, Jamaat also played a historic role in the movement from 1991 to 1996 for attaining the demand of a caretaker government. Jamaat took part in all credible elections.

On Sunday, 19 November 2023, Bangladesh’s Supreme Court rejected an appeal by Jamaat-e-Islami challenging an earlier court decision, which excludes their participation in the forthcoming elections on 7 January 2024. Jamaat, the largest Islamic party and third largest political party in the country, has been prevented from standing for election since a High Court ruling on 1 August 2013 declared its registration illegal because its religious nature is alleged to violate the Constitution. It is the latest in a series of steps Bangladesh has taken towards autocracy, abrogation of the rule of law and intolerance of political dissent.

In denying Jamaat the opportunity to participate in elections peacefully, and to engaged the Supreme Court’s decision violates the rights of political participation and free elections under the International Covenant on Civil and Political Rights (ICCPR) 1966, which binds Bangladesh. Article 25 of the ICCPR states that “every citizen” has “the right to take part in the conduct of public affairs, directly or through freely chosen representatives” and take part in free elections. Banning Jamaat from standing cannot be considered a “reasonable” restriction on their rights of political participation.

The decision taken by a five-member bench of the Appellate Division headed by Chief Justice Obaidul Hasan violates fundamental standards of natural justice. Jamaat had applied for an adjournment due to a general strike, but the court proceeded in the absence of Jamaat’s senior lawyers. CJ Obaidul Hassan previously served on the International Crimes Tribunal-2 between March 2012 and September 2015. He sentenced several members of Jamaat, such as Muhammad Kamaruzzaman and Mir Quasem Ali, to death by hanging. The Working Group on Arbitrary Detention found that both cases failed to meet the standard of a fair trial. This raises concern over the independence and impartiality of the court in a country that now ranks 127th out of 140 countries for the Rule of Law, according to the World Justice Project in 2022.

Whilst the Supreme Court exists to uphold the Constitution, it must not do so by sacrificing the very rights of political participation, which it is there to protect that define the legitimacy of a free and democratic nation.

In the lead up to the 2024 elections, the human rights and political landscape in Bangladesh is shocking, and there is no possibility of free and fair political processes being held, particularly given the AL’s increasing encroachment on supposedly independent state institutions, such as the judiciary and the Election Commission, which may otherwise mitigate this danger, even if only partially. With Bangladeshi citizens facing a situation in which maintaining their freedom means giving up or failing to exercise the political beliefs entirely, efforts must be made to ensure that there is not a further five years’ of political censorship, suppression and disruption. International responses, such as sanctions, are admirable and necessary to combat this situation. However, for numerous Bangladeshi stakeholders, the only meaningful way in which this can be achieved with the urgency needed is to call for the reintroduction of the caretaker government system, in the hope of breaking the total chokehold of the AL that will, unless addressed, guarantee that its human rights violations continue unopposed and with impunity, in 2024 and beyond.


Comments


bottom of page