For the Awami League government in Bangladesh, and for much of the country’s media, it is third time lucky.
The government’s first two attempts at interpreting foreign court rulings over the last year did not go well. In April, it construed the March 2015 conviction of three men in the United States of conspiring to obtain confidential Federal Bureau of Investigation information as proof of a plot to kill Sajeeb Wazed Joy, the son of Prime Minister Sheikh Hasina, providing it justification for the arrest of two pro-Opposition journalists in Bangladesh. A reading of the court transcripts, however, showed the court had actually ruled that there was no such plot.
Then, more recently, the government argued that a decision by a federal Canadian court in January proved that there was never any corruption in assigning contracts in the World Bank-funded construction of the Padma bridge, where the international financier had suspended its $1.2-billion loan in 2012 alleging a “high-level corruption conspiracy” in the mega project. The truth, however, was that the ruling never said any such thing.
However, the Awami League government has finally got a decision from a foreign court that it can gain political advantage from, without needing to misrepresent it. This ruling, issued in February, involved a Canadian federal court’s decision on whether it was reasonable for a senior immigration officer to define the country’s main Opposition party, the Bangladesh Nationalist Party, as a “terrorist organisation”. And the judge ruled that it was.
The Awami League spokesman, therefore, cannot be faulted for stating, “We have been claiming that the BNP is a terrorist party for a long time and now it has been proved after the Canadian court’s verdict.”
Nonetheless – and there is a nonetheless – the decision is not quite as helpful to the Awami League as the party might think it is. This is because the reason given for defining the Bangladesh Nationalist Party as a terrorist organisation was not to do with a characteristic intrinsic to the Opposition political party itself, but rather about the use of hartals (strikes) in Bangladesh politics.
Like its rival, the Awami League has determinedly used hartals in the past, along with the associated violence. And unless, when next in Opposition, the party decides to discard them as a tactic, the principles set out in this decision suggest that a Canadian court would, in all likelihood, make a similar finding against the Awami League. A similar decision could indeed be made about any other group involved in organising national strikes.
US court’s ruling
As background, it is important to consider an earlier July 2015 ruling by an immigration judge in the United States that took a different position – that the Bangladesh Nationalist Party was not a “tier-3” terrorist organisation. A tier-3 terrorist organisation, according to the US Citizenship and Immigration Services, is “a group of two or more individuals, whether organised or not, which engages in, or has a subgroup which engages in” terrorist activity.
The matter came before immigration judge Dorothy Harbeck as the US Department of Homeland Security submitted a legal memorandum and evidence that claimed that an unnamed Bangladeshi national was “mandatorily barred from asylum, as having ‘engaged in terrorist activity’ based on his membership in the BNP, which DHS alleges is a terrorist organisation”.
The court, however, noted that this particular claim was novel as typically, such a case would involve a respondent who was “a member of a group which has openly taken up arms against the government” and not a “widely recognised and longstanding party in a democratic political system”.
In arguing that the party was a terrorist outfit, the department presented two alternative theories: First, on account of “its current and past ties to terrorist organisations”, and secondly, “on its own merits due to its members having been involved in violence”.
In dealing with the first argument, Harbeck held that “the claim, that 10 years ago the BNP had ties to organisations which had ties to terrorist organisations, is [factually] weak and little reliable evidence supports it. Unsubstantiated allegations – that BNP provided ‘tacit support’ and harboured the JMB [the terror group Jamaat-ul-Mujahideen] – do not prove that the BNP was a terrorist organisation at this time”.
Harbeck also held that no evidence had been presented to demonstrate that the party or its close ally, the Jamaat-e-Islami, “have direct ties” to the Al Qaeda terrorist group – and that the only group with any established ties to the Al Qaeda appeared to be the Harkat-ul-Jihad-al-Islami, and “no reliable evidence proves that BNP or its allies have ties to the HuJI”.
As for the second argument – that the violence of Bangladesh Nationalist Party members rendered the organisation a terrorist group – the court said that while “the record establishes that BNP supporters in the past have engaged in violent acts that likely fall within the broad definition of ‘terrorist activity’… none of the reliably reported incidents implicate BNP leadership or suggest that the party itself ‘engages in’ terrorist activity”.
The court also held that its finding that the party was not a terrorist organisation was “supported by a review of comparable case law, as the BNP is notably distinct from a number of other groups found by other courts to be terrorist organisations”.
It added that there was no reliable evidence that the party had “taken up arms against the government, engaged in battle with it or attacked government buildings”, and no American governmental body had stated on the record that it was a terrorist organisation.
The Canadian case
A year after this decision, in May, a senior Canadian immigration officer rejected one Mohammad Jewel Hossain Gazi’s application for permanent residence on the same grounds that the US had rejected the application of the other Bangladesh Nationalist Party member – that he was a member of a terrorist organisation.
However, when the matter can before a federal court for review, the judge came to a decision that was different from that of the US court: that the officer had “reasonable grounds to believe that the BNP was, is, or will be engaged in terrorism”.
The basis for this decision was the party’s use of hartals.
“The underlying reason to stage a hartal is economic disruption as a means of coercion against the government to achieve a particular goal,” the immigration officer stated. “The other issue with these hartals is that they also frequently resulted in violence by BNP activists and members and those incidences too became a means of coercion against the government.”
The focus on hartals allowed the officer to bring the party’s conduct within the definition of terrorism under Canadian law, which includes activities that, for a political purpose, are “committed in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including economic security” and where such acts or omissions “intentionally cause serious interference with or serious disruption of an essential service, facility or system”.
The officer quoted from a note on hartals written by the Institute of Commonwealth Studies, which set out the significant economic damage caused by hartals, and from the BBC, Economist, Human Rights Watch, Foreign Policy and other reports on the violence and social impacts associated with strikes.
The officer then concluded:
“The hartals employed by the BNP have significant economic impact on Bangladesh’s economy and have resulted in both substantial damage to property and both death and serious bodily harm caused by BNP activists and members as well as disruptions in services… continued use of hartals by the BNP as a means of forcibly compelling the government to meet the BNP’s demands as well as the incidences of violence that erupts from these hartals are indicators that these tactics rise above simple peaceful protest or advocacy. There is little evidence that the BNP leadership discouraged the use of violence during these hartals; they only condemned the violence after the fact in some incidences, deflecting the blame directly from them… [T]he BNP’s consistent use of hartals and their resulting incidences of violence leads me to believe, on reasonable grounds, that the BNP implicitly condoned the use of violence by the continued use of hartals without discouraging the use of violence by its membership.”
Difference between two judgements
Lawyers acting for Gazi claimed that the earlier “US Immigration Court’s analysis and conclusion to the effect that the BNP is not a terrorist entity are persuasive and should be followed in Canada”.
However, the Canadian judge noted a significant difference existed between US and Canadian law.
The US definition of terrorism is much narrower than under Canadian law, and deals with hijacking, sabotage of a conveyance, seizing and threatening to kill, violent attacks, assassination, and the use of biological, chemical or nuclear weapons.
It does not, however, include damage to economic security, or serious interference/disruption of an essential service, facility or system – which are the reasons why the Canadian court considered it reasonable to find that hartals in Bangladesh were in effect a terroristic practice.
For the Bangladesh Nationalist Party, this decision is no doubt brutal, and it responded to the decision with its normal lack of introspection. Rather than recognising the danger that it represents to the party, and stating that it would no longer be part of the kind of violent hartals that international courts could consider terroristic, the party claimed at a press conference that the decision was stage managed.
“The court’s observation over BNP is a part of a drama staged by the [Bangladesh] government,” senior leader Rizvi Ahmed said. “It is [the Bangladesh government’s] aim to create a smokescreen ahead of the upcoming general election.”
He then went on to blame a Canadian online news website, supposedly owned by a former leader of the Awami League, for first reporting on the case. “They are engaged in hatching conspiracy in Canada against BNP and spreading propaganda against it,” he said.
Implications for Awami League
The Canadian case involved a member of the Bangladesh Nationalist Party seeking asylum. It is, however, quite possible that were the tables to be turned with the Awami League in Opposition, an immigration officer could make a similar decision about an Awami League party member that would be similarly upheld by a court.
This is because the court viewed the tactics used by both parties in Opposition – and in particular, the use of hartals and violence – as similar. The immigration officer stated that, “[P]olitics in Bangladesh is a violent affair. In that respect, both parties have engaged in similar tactics.” The officer also quoted a US Congressional Research Service report that in 2010 stated:
“Both the AL [Awami League] and the BNP, when out of power, have devoted their energies to parliamentary boycotts, demonstrations, and strikes in an effort to unseat the ruling party. The strikes often succeed in immobilising the government and disrupting economic activity.”
And the Canadian judge accepted this evidence, saying:
“I agree with the Officer’s assessment, emphasised by the Applicant, that violence characterises both political parties: ‘… politics in Bangladesh is a violent affair’. That is, I do find that supporters of both the BNP and the governing party have resorted to violence to influence the public and government in various ways at various times.”
Gazi, the applicant, sought to use this equivalence between the two parties to argue that the Bangladesh Nationalist Party should not be treated as a terrorist organisation: He claimed:
“Since the BNP and the AL are the two mainstream parties in the country, and since members of both parties commit violence, to do so would mean that every single mainstream politician in Bangladesh is automatically an accomplice of terrorism, as are all members or followers of the two parties.”
However, the judge did not accept this argument. “I do not agree that mutual misconduct immunises BNP from being considered a terrorist organisation,” he said. “[T]the issue before the Officer was whether the BNP, not the ruling Awami League, is a terrorist organisation as Canada broadly defines it. The governing Awami League is not before this Court.”
According to the Institute of Commonwealth Studies, since 1990, when democratic politics returned to Bangladesh, the Awami League organised 266 days of hartal between 1991 and 1996 and 176 days of hartal between 2001 and 2006, periods of time when they were the Opposition. And while the level of violence during these hartals may not have reached the levels achieved when the Bangladesh Nationalist Party was in Opposition, the violence remained significant.
As a result, this Canadian ruling may well come back to haunt the Awami League in the future – unless of course, when next in Opposition, it disavows the use of national strikes.