The collapse of the 15-year-long authoritarian Awami League regime in Bangladesh has left deep scars from horrendous human rights violations and political oppression, politicization of public institutions, rampant corruption, embezzlement of public funds, and distortion of constitutional order. To implement the democratic aspirations of the masses that brought the regime's downfall, it is imperative to establish proper mechanisms to address the past actions of the government and ensure the harmonization of societal factions.
Societies that have emerged from similar experiences in Asia, Eastern Europe, Africa, and Latin America have established a system of mechanisms known as transitional justice. As an interim government is taking charge of the state, it is expected that it will take necessary measures to devise a balanced strategy of transitional justice to build a better Bangladesh.
Argentine scholar Ruti Teitel, who is credited with coining the term, identifies five distinct legal and political tools that a transitional society may use to resolve past injustices and establish a rule-based, harmonious society. These are criminal justice, historical justice, reparatory justice, administrative justice, and constitutional justice. A transitional society may choose a single tool or a combination of tools to meet its needs.
In the context of transitional justice, criminal justice denotes the trials of serious crimes committed during the past regime that remained unaddressed. It is the most popular transitional justice mechanism, and the prosecutable crimes may range from murder and enforced disappearance to torture and even international crimes. Given that Bangladesh is a party to the Rome Statute, it is Bangladesh’s international obligation to conduct similar criminal trials. The responsible persons of the previous government must be brought to justice to end the culture of impunity that has prevailed over the last fifteen years.
To assess the precise nature of such a mechanism in Bangladesh, there should be a comprehensive investigative infrastructure that would function independently or collaboratively with the criminal justice mechanism. This is where historical justice comes into play. In this context, many societies have established truth commissions to investigate past crimes and establish accurate narratives of those crimes.
Bangladesh will need to establish a truth commission to trace and record the political, economic, and other crimes committed over the last fifteen years. Many truth commissions have traded impunity for truth. Bangladesh will need to decide where to draw the line between truth and impunity when establishing such a commission.
The prolonged authoritarian regime created a polarized society, and the post-revolution unrest is a result of such polarization
In addition to a formal truth-seeking institution, the government should also consider people-centric reconciliation mechanisms. In many societies, including Rwanda and Timor-Leste, these mechanisms have successfully promoted inter-communal harmony. The prolonged authoritarian regime created a polarized society, and the post-revolution unrest is a result of such polarization. A divided society cannot advance meaningfully without resolving its trust crisis. Hence, a reconciliation mechanism will be instrumental in achieving mutual confidence and preventing future conflicts.
The question of reparatory or restorative justice arises alongside criminal and historical justice. The victims of the past regime deserve reparation for their sufferings in the form of compensation and restitution, if possible. In the context of Bangladesh, the victims may seek justice for any injustices they suffered during the last regime, including those experienced during the recent protests and subsequent phases. The government must establish appropriate legal mechanisms and a list of reparable sufferings, including torture, enforced disappearances, and murders.
To establish faith in the law and order of society, the government must rectify the governance system besmirched by the politicization of public institutions, the introduction of draconian laws, and the mala fide application of the law. Public distrust in governmental bodies and the legal system is alarmingly visible due to the earlier regime's manipulation. Unless the government reforms public institutions, repeals draconian laws, and counters the misuse of the legal system, the revolution's objectives will remain unfulfilled. Proper checks and balances should also be put in place to prevent potential re-politicization of public institutions and the demonization of the legal system.
Additionally, a significant number of government officials were complicit in the crimes committed by the government and were directly involved in crimes and corruption. The government may consider broadening the scope of truth commissions to encompass the actions of government officials with serious criminal allegations.
Finally, and most importantly, the government must focus on constitutional justice. The root cause of the prolonged tenure of the immediate past government can be traced back to inadequacies in the constitutional framework. Without meaningful constitutional reforms, a revolution is always incomplete. Hence, Bangladesh should ensure the necessary constitutional amendments. The areas of reform should be determined through the broad participation of society. Given the failure of the existing constitutional framework to tackle repeated political crises since independence, the government may consider drafting a second Constitution. However, this should be left to the people to decide.
Many societies around the world have successfully implemented transitional mechanisms to establish stability post-crisis. Mandela’s South Africa is one such example. It is evident that the situations created during the last regime necessitate the creation of several transitional mechanisms. In the past, Bangladesh's failure to adopt transitional justice mechanisms led to a series of authoritarian regimes since independence. This time, Bangladesh cannot afford the luxury of avoiding the opportunity to engage with transitional justice mechanisms in the spirit of the rule of law, human rights, and the true ideals of the Liberation War.
Quazi Omar Foysal is an international law expert, currently serving as a Lecturer at American International University-Bangladesh. He holds three LLMs from the University of Dhaka (Bangladesh), the Geneva Academy (Switzerland) and the Catholic University of Louvain (Belgium), respectively.
