Dipu Moni, the law, and the politics of the BNP arrests

I would certainly like to be a fly on the wall when Dipu Moni the foreign minister, sets up her next meeting with foreign diplomats and tries to explain why the government has arrested five Bangladesh Nationalist Party leaders, including two MPs.

The New Age newspaper (website down, so no link available right now) quoted her as saying:

‘The demand for a caretaker government is illegal and unjust, though BNP has been stick[ing] to it. In the name of that demand, they have killed people during the previous hartals, created chaos and made provocative speeches'

[Note: news website suggests that this is an actual quote from Dipu Moni, but it is possible that it is a contraction of what she said]

The foreign minister is obviously within her rights to argue that the demand for a caretaker government is 'unjust' - though in doing so she is setting herself against the vast majority of the Bangladesh people who support the notion of a neutral election time government. 

But hey, this is politics, and Moni - and the Awami League - can certainly try and argue that the demand for a caretaker government is unjust if they want to

But what about her saying that the demand is 'illegal'?

Moni, is a lawyer, so one assumes she would not, particularly in her position as foreign minister,  have used the word 'illegal' lightly.

Clearly there are no penal code provisions that would make the demand for a caretaker government illegal - and if there were, then the Awami League leaders who made the demand (successfully) for introduction of caretaker government in 1995/6 were also making an illegal demand.

Perhaps, Moni though is trying to argue that the BNP is in breach of a new article 7A of the constitution that was introduced in 2011 (as part of the 15th amendment which also removed the caretaker government provisions.) This states:

7A. Offence of abrogation, suspension, etc. of the Constitution.⎯
(1) If any person, by show of force or use of force or by any other un-constitutional meansÍ
(a) abrogates, repeals or suspends or attempts or conspires to abrogate, repeal or suspend this Constitution or any of its article; or
(b) subverts or attempts or conspires to subvert the confidence,  belief or reliance of the citizens to this Constitution or any of its article, his such act shall be sedition and such person shall be guilty of sedition.
(2) If any person⎯
(a) abets or instigates any act mentioned in clause (1); or
(b) approves, condones, supports or ratifies such act, his such act shall also be the same offence.
(3) Any person alleged to have committed the offence mentioned in this article shall be sentenced with the highest punishment prescribed for other offences by the existing laws.

Now, this provision is extremely broad - applying to those who 'attempt' to repeal any article of the constitution or indeed anyone who 'attempts ... to ... subvert the confidence, belief or reliance of citizens to this constitution.'

However, the section is only engaged when these above activities are done, 'by show of force or use of force or by any other un-constitutional means'. 

Now making the 'demand' for a change in the constitution does not fall within these categories mentioned above.  Even if Moni was referring to making such a demand through hartals - 'hartals' are also not in themselves illegal or unconstitutional in Bangladesh.

It is therefore difficult to see how the demand for the introduction of new provisions in the constitution is illegal.

What about the arrest of the leaders. She says in the New Age quote:

'In the name of that demand, they have killed people during the previous hartals, created chaos and made provocative speeches'

It is true that in the last series of hartals, there were a number of simply atrocious incidents in which burning of vehicles and use of cocktail bombs used by BNP supporters/activists caused terrible, and in some cases fatal, injuries to children  - and it may well be fair to argue that the BNP as a party along with some leaders have some overall moral responsibility for these incidents (as the AL did for incidents in 2006). But to try to pin criminal responsibility for what took place on any one of these five men is another matter.

The National Human Rights Committee chairman was correct when he said that the police cannot arrest someone on the basis of no 'specific allegation' which is the case here.

No doubt the police/government will try and concoct some kind of case against these men - as they have done so before against in relation to other incidents (it is interesting of course to see Sajeeb Wajed, the prime minister's son argue that there is specific evidence against these men), but most people will conclude that any cases the police/government do bring will have no proper legal basis and the arrests are just for political ends. Nothing more, nothing less.

Dipu Moni has talked a lot in the past about the government's commitments to 'rule of law'. Perhaps she needs to think again before doing so again.

However, putting to one side the issue of the legality of the arrests, what about the politics behind them - what do they mean, and who gains.

I would make the following points:

1. It seems to reflect a decision by the government not to seek any accommodation with the Bangladesh Nationalist Party but to go for elections under some kind of so called 'all party pro-AL government', and which the BNP will not take part. Whilst of course it is possible for things to change in the next few weeks, this seems unlikely as the government's course now does appear to be set very firmly towards elections without the BNP (a course it may well have been on anyway for quite some time.) (The BNP also seems to have ditched any idea of taking part in negotiations to seek some kind of settlement with the Awami league - and are now going all out to try and stop the elections taking place or if they do take place, prevent them from having a high turn out.)

2. One of the reasons for concluding the above, is that if the government was in any way imagining a contested election with the BNP, it would not have made such arrests. The opinion polls suggest that this kind of action is unpopular amongst the electorate. Moreover, the arrests were done at a moment when the Awami League was gaining some kind of higher moral ground through (a) the unpopular hartals organised by the BNP and (b) the media coverage of the terrible injuries to people though the hartals. This was a moment for the AL to exploit - but instead the AL arrested 5 BNP leaders and surrounded the house of Khaleda Zia. As one of my colleagues said, 'No one will remember Munir [the boy who died from his burns during the hartal] now, they will all talk about these arrests.'

One must surely assume that the AL leaders were aware that the optics of the arrests would not look good - but decided to go ahead with the crackdown anyway as it gave them other strategic advantages relating to their target of weakening the ability of the BNP to stop the one-sided elections.

3. What are these strategic advantages? As I have said elsewhere, politics in Bangladesh is war by other means - and the arrest of the BNP leaders and the threats against Khaleda Zia herself are I would suggest done to demoralise the BNP, and show up their weakness as a party, whilst for the AL supporters this is a great morale booster. Whether the strategic advantages out balance the optics disadvantages is yet to be seen.

4. What will be the impact of these arrests on the BNP? It could either make the party move to the extreme and proceed further towards violence/hartals or it could make the BNP appreciate that it's strategy of hartals is not going anywhere - making them less popular, failing to result in a level of violence that could provoke the army to intervene and also not resulting in any increased likelihood that the Awami League will agree to their demands (in particular its hope that at the very least Sheikh Hasina will stand down as prime minister during the pre-election period.)

For the AL, which in the end would, I suggest, prefer for elections to take place without the BNP, it is better for them that the BNP remains in a moderate hartal/aggressive mood, as they can get on with the elections, and the BNP will continue to reduce in popularity. Ironically, if the arrests make the BNP more willing to push for negotiations, this could work against the AL strategy. But time now is short - and it may be difficult for the BNP to change tack.