Opinion To truly break with the past, Bangladesh needs robust institutions, not vendetta

Despite its name, the International Crimes Tribunal (ICT), which is holding Hasina’s absentee trial, is a domestic court. It will be an understatement to say that the conduct of a legal proceeding in absentia is controversial under most circumstances (including in the case of India’s foreigners’ tribunals). Article 63 of the Rome Statute that set up the International Criminal Court — of which Bangladesh is a state party — states quite unambiguously that “the accused shall be present during the trial”. But the fact that Hasina’s trial would be in her absence doesn’t seem to greatly concern its backers. In response to a reporter’s queries, as far back as December 2024, the special adviser to the tribunal’s chief prosecutor said, rather nonchalantly, “I don’t know what India will do about Sheikh Hasina’s return to Bangladesh. But if India does not have her return here, her trial will continue in her absence.”

The UN fact-finding report notes that the interim government is committed to holding those responsible for the serious violations accountable, and that it has concentrated its resources on bringing criminal cases before the ICT as quickly as possible. But it says that several interlocutors, including some human rights defenders and public interest attorneys, have voiced concerns about the ICT’s contentious history and its legal structure, and are sceptical of its ability to conduct truly independent, fair, and effective proceedings. The interim government has since approved amendments to the ICT Act to address several issues regarding due process and fair trials raised by the UN human rights office and others. However, the revisions, says the UN report, addressed some but not all those issues. It specifically notes the continued absence of the fair trial protections required for proceedings in absentia. The banning of the Awami League, which happened after the UN report was released, raises additional issues about Sheikh Hasina’s right to due process and a fair trial.

In view of the speed with which the interim government is proceeding to try Bangladesh’s ousted leader, it may be worth reflecting on the question of time and the pursuit of justice. While there is a lot to be said for the adage that justice delayed is justice denied, there are situations when new opportunities for justice become available with the passage of time. For instance, it is not unusual for familiar barriers to justice, such as the power and influence of people committing breaches, to weaken and disappear over time. There are good reasons for why war crimes, and crimes against humanity — whether committed in time of war or in time of peace — are not subject to any statutory limitation. The Nazi war criminal John Demjanjuk, who worked as a Nazi camp-guard and immigrated to the United States in 1952, was finally convicted and sentenced to five years in prison by a Munich court in 2011 — nearly eight decades after the Holocaust.

The UN fact-finding report includes an important observation about Bangladeshi politics, that its “political parties have been historically dominated by individual leaders who pursued politics of patronage and sought to weaponise the political system against their opponents”. The adverse effects of such practices, however, were tempered so long as people were able to regularly vote the ruling party out of power. This was possible because of “a constitutional system of temporary caretaker governments that would seek to level the playing field before a new round of elections”. Unfortunately, following its victory in the 2008 election, the Awami League eliminated this institution. Many observers of Bangladeshi politics recognise the caretaker arrangement as an important institutional innovation in the country’s constitutional history. Thankfully, the report of the constitution reform commission appointed by the interim government includes the recommendation of “the appointment of an election-time interim government after the end of the term of the Parliament or, if the Parliament is dissolved, until the next elected government is sworn in”.

There is no denying that many of Bangladesh’s institutions require reforms. But there are valid concerns about whether an unelected interim government has the authority to carry out all the reforms that Yunus and his colleagues would like to make. Reinstating the institution of the caretaker government, and establishing robust constitutional safeguards for it, could serve as a significant legacy for Yunus and the government he heads.

The writer is professor emeritus of Political Studies at Bard College, New York