Continued use of post-bail ‘shown arrested’ cases risks repeating past abuses

It is worth recalling that at his first press conference following BNP’s election victory, Bangladesh’s new prime minister, Tarique Rahman, was asked the following question: “Many people in Bangladesh remain supporters of the Awami League. What kind of reconciliation should there be for them?” His answer was simple: “By ensuring the rule of law.”

Well, about one month into his premiership, the government’s continued reliance on “shown arrested” cases against individuals associated with the Awami League suggests that Rahman’s words remain just that—words. The BNP government appears to show little concern for the rule of law when it comes to such detentions.

The government may reasonably argue, as it does, that it needs time to address the injustices it inherited from the past. But proactively taking new decisions that produce further unlawful detentions is something else entirely. It is unjustified and should be strongly criticised.

The law on this matter is clear. Section 167A of the Code of Criminal Procedure states that where a person is already in custody and the police seek to show that person arrested in another case, a magistrate should allow this only if “the application appears to be well-founded.” In other words, a person should not be shown arrested in a new case unless there is a genuine and substantial evidential basis for doing so.

This provision, newly brought in by the interim government, exists precisely to prevent “shown arrested” cases from being used as a political tool. In practice, however, this standard is hardly ever applied. With extremely rare exceptions, post-bail “shown arrested” cases appear to have no evidential basis whatsoever. They are used simply to prevent individuals from being released after securing bail from the High Court, thereby keeping them arbitrarily—and unlawfully—in detention. In effect, the bail granted by the court becomes meaningless.

This background helps explain what happened on March 11, when the High Court granted former Chief Justice ABM Khairul Haque final bail in the various cases pending against him. However, the process to release him was stalled after an arrest application was filed by police in yet another July 2024 murder case—a case in which, notably, he had not even been named in the original FIR. This seems like a wholly fabricated allegation.

It is difficult to believe that such a decision would have been taken independently by a local police officer or the officer-in-charge of a police station. The far more plausible explanation is that the decision to show the former chief justice arrested was taken at the political or bureaucratic level, most likely within the home ministry, which oversees the police.

In Bangladesh’s politicised administrative structure, major decisions concerning high-profile detainees rarely occur without direction from senior officials. Police officers, particularly those dealing with politically sensitive cases, generally act within signals or overt instructions given by the executive branch. 

The question is, what does the new home minister, Salahuddin Ahmed, have to say about this? Having himself been subjected to unlawful detention and enforced disappearance, will he now allow unlawful detentions to occur as a matter of practice under his own authority?

If the government is serious about establishing a justice system based on the rule of law, it must demonstrate that criminal procedure will not be manipulated for political ends. Silence from the home ministry about such police action sends precisely the opposite signal.

In this regard, one might hope that even if the police attempt to misuse the law by showing someone arrested without evidence, a magistrate would intervene and refuse to authorise it. Unfortunately, experience suggests otherwise.

The recent case of Selina Hayat Ivy, the former mayor of Narayanganj, illustrates the problem. Recently, she was granted bail in five cases. However, following application from the police, she was shown arrested in another case that, again, appeared plainly fabricated. When the matter came before the magistrate, did the court independently examine whether the application was “well-founded”? No.

This pattern reflects a deeper institutional weakness in Bangladesh’s criminal justice system. Magistrates, who are formally responsible for scrutinising police applications, often function in practice as extensions of the executive branch rather than as independent judicial actors. We must now wait to see what decision the magistrate will make in Khairul Haque’s case. It is still possible—though perhaps optimistic—to hope that the court will act independently.

But this should not be a matter of hope. Every citizen should expect independent judicial decision-making as a matter of course.

For that to happen, however, the law minister, Md Asaduzzaman, must also step forward and take responsibility. Magistrates will continue to defer to the executive unless the government clearly signals that judges are expected to decide cases according to law and evidence, not political considerations. It needs to signal that they should no longer be executive rubber stamps, but independent judicial decision-makers.

This is why political leadership matters. In Bangladesh, judicial behaviour has long been influenced by signals from the executive. Magistrates and judges—like the police—often act either on direct political instruction or on what they understand the government expects of them.

If magistrates continue to approve “shown arrested” applications with no evidential basis, it will be difficult to avoid the conclusion that the government is tolerating, if not encouraging, the misuse of criminal procedure to keep political opponents in detention. Someone with Asaduzzaman’s background—who spent many years involved with the human rights organisation Ain o Salish Kendra, and even served on its executive committee—should understand better than most how dangerous such practices are for the rule of law.

There are, unfortunately, many in Bangladesh who care little for the rule of law or due process. For them, anyone associated with the Awami League deserves to be detained, convicted, and punished, whether or not there is evidence of an actual crime. Many of these voices, often young and unfamiliar with how a fair justice system operates, see virtually any act that supported the previous political government as a criminal offence. And where no such offence exists, they are content for them to be arrested for any offence at all.

This mindset exists not only under authoritarian regimes (as Bangladesh suffered during the later years of the Awami League government); it often emerges in the aftermath of political upheaval. Periods of transition can create strong public demands for accountability, but those demands can easily slide into collective punishment, which is exactly what is happening in the country now. If this mentality continues to prevail, Bangladesh risks returning to the same pattern of systemic human rights abuses that characterised the latter years of the Awami League government.

Moreover, bringing fabricated July 2024 murder cases against individuals who have no connection to those events is not merely arbitrary, harassing, and unlawful. It is also deeply disrespectful to the memory of those who were killed. The victims of the July protests deserve genuine justice based on credible investigations and fair trials. Using their deaths as a pretext for politically motivated arrests undermines that objective and risks turning a search for accountability into yet another cycle of injustice.

David Bergman is a journalist who has written about Bangladesh for many years. His X handle is @TheDavidBergman.

Views expressed in this article are the author's own. 

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