Over at DP Blog, Asif Saleh has an excellent, thoughtful post that raises a number of good points. He correctly reiterates the need for due process that we’ve talked about here from the beginning of the SOE. I would recommend reading the whole thing, and glancing over the comments.

I had written on extortion cases (and particularly this extortion case) back in April. It’s heartening to see some of the thoughts that I had been trying to push back then being voiced by others. 

Asif’s exceedingly rich post has motivated me to put down some (hopefully) deeper thoughts on the Sheikh Hasina extortion case. First what may seem like a lawyer’s quibble. Probably the most powerful part of Asif’s post is this one:

This was the FIR report as quoted in Daily Star. Run your searches to see how many times Hasina’s name was mentioned in it. There seems to be just one mention where it says Selim threatened to stop the work with the help of Hasina (the then PM) if the commission was not paid.

Now it seems the entire dealing was done by Shaikh Selim where he used Hasina’s name to threaten the accuser. Was Hasina involved directly in it? The accusation seems to be purely circumstantial. Now we already have Shaikh Selim’s edited interrogation tape. He may well be saying that he shared the booty with Hasina and the entire case and the he-said vs she said can be played in the court of law but what boggles my mind is that how can this be a non-bailable case? Am I to believe that I can file a case against an adviser in the current government of extortion and mention the chief adviser’s name on the side and Mr. Fakhruddin will be taken to jail indefinitely at a non-bailable offense? Of course not.

The outrage is justifiable. But Asif seems to conflates two issues:

1. The issue of Sheikh Hasina not being granted bail (which really is a different beast than a “non-bailable offense” as Asif calls it, but even I will call that a lawyer’s quibble)

2. The fact that criminal charges can be brought against someone (let’s call them X) based on the statement of a third party (Y) against an alleged victim of extortion (V) that if V did not cooperate with Y, X would do unlawful things to them.

I don’t think Asif means to conflate the two. I think the outrage is firmly rooted in the second issue rather than the first. But it’s important to keep them separate, because the second issue really opens a Pandora’s box.

I. 

On to the first issue: The bail is usually a security deposit that the accused places with the court as a guarantee of appearance at the trial.  Now, I don’t think that Sheikh Hasina absconding from trial is an issue here. But on the other hand, it’s also reasonable to think that upon being arrested and released on bail, Sheikh Hasina would try to foment some kind of disturbance. (I’m not saying that she would. I’m only claiming that it’s reasonable.) So not allowing her to get out on bail would be a reasonable decision for the CMM court to take.

[UPDATE: But see Imran's comment below. Bail was denied under the Emergency Rules. The arbitrariness and unfettered discretion for the government in these Rules are worrisome. This doesn't change my point though. I'm less worried about the non-granting of bail than the second issue...]

There’s a sub-issue here that’s worth noting though. I do not know what the legal limitations are on the court granting or not granting bail - and on how much discretion the judge is allowed on this, and on setting the bail amount (I’d love to be educated by readers). I don’t see a US VIIIth amendment-type limitation on excessive bail (which reflects the limitation on excessive bail in the English Bill of Rights) in our constitution. This, of course, is yet another failing of a document that is so broad in its lofty statements that it becomes meaningless, especially when combined with the weakness of its system of checks and balances. A constitutional limitation on excessive bail would probably result in some kind of proportionality of the amount of and decision to grant bail to the alleged crime. Absent such a constitutional limitation, and barring any other legal limitation on the books, I doubt one can claim that the CMM judge acted unlawfully. [UPDATE: Again, refer to the Imran's comment below. The CMM acted under the Emergency Rules, and Emergency Rules themselves are problematic.] Now I do think that there should be some kind of proportionality - though I also realize that how “proportionality” should be defined is a pretty tough question. (See for example, the US Supreme court’s long struggle with defining a role for proportionality in the jurisprudence of the “Cruel and Unusual Punishment” clause)

But I do have to say that my heckles are not raised by the non-granting of bail in this case. It’s harsh. Probably not the way I would do it. Unfair, p’haps, in the way I think of things. But not entirely unreasonable. It doesn’t create outrage the same way the second issue  does. 

II. 

To the juicier second issue then: The actual charges, and being able to bring them based on the kinds of evidence that seem to be available here. It’s true that what we actually know about the FIR is second-hand - as reported in Daily Star.

But as I had written before on my extortion piece in April, this sort of case really is normal in our country. I personally know of people who’ve been on the receiving and giving ends of trumped-up charges much flimsier than this in the periods of recrimination after the last two elections. Sure, the charges were dropped in the long run, because there really was no evidence. But the point of such cases was never to actually make the charges stick and gain convictions. Rather, these cases were about harassing one’s political opponents, silencing them, settling scores, and in the process also gain advantage in the local distribution of and access to resources. 

The SOE government  really is using the truck-size loopholes that the two parties left open for them in the last fifteen years. The parties didn’t create these loopholes, for sure. But they did nothing to close them either. At best, the leadership of both parties did not give a damn about the abuse of the system by their acolytes down the chain of command, and the stresses and strains it placed upon communities, the distrust it sowed among neighbors. At worst, they wanted things just the way they were, for the malformed, malignant system was to their benefit. When we’re outraged today - let’s spare some of our outrage for the vileness those who, be it through indifference or intent, led us to our current predicament. 

III.

It’s troubling - nay, outrageous - that legal processes in our country allow these kinds of charges to be brought. Substantively, the actual charges are shoddy if all the evidence they have is the evidence noted in the FIR as reported in the Daily Star. Absent evidence that ties Sheikh Hasina to Sheikh Selim’s threat (like her directing him to make the threat, or her sharing in the loot), it seems to me that a foundational element of a crime - the act of doing something wrong, what would be called the actus reus of the crime - is not apparent here.  Sheikh Selim threatened. There’s an act there -but that’s Sheikh’s Selim’s act, not Sheikh Hasina’s. Sheikh Selim took the money. Again, that’s Sheikh Selim’s act, not Sheikh Hasina’s. To justly convict for extortion, surely there has to be a link between Sheikh Hasina and Sheikh Selim beyond “they belonged to the same family and party and government”. 

As my criminal law professor liked to point out (and I’m not going to be as eloquent as she was) - having the actus reus requirement in criminal law really is fundamental to liberty. We ignore it at our peril.

The only two ways that I can think of (though grant you, with limited legal knowledge) that Sheikh Hasina would be liabile under the evidence that currently seems to be available are the common law crime of conspiracy and some sort of analog of the US laws on racketeering. Conspiracy is conceptually problematic - for there is the danger that one will be held liable for the kind of wrong-doing that one could not have contemplated or intended (or to drown the reader in further legalese, one did not have the necessary mens rea for the act one is held liable for.) Conspiracy is also a favorite of prosecutors in the US because a lot of evidence that might otherwise not be admissible (like the hearsay evidence of Sheikh Selim threatening Ajam Chowdhury) may be. 

The use of either conspiracy or racketeering laws to make charges stick against former heads of government would be sad indeed, for implicit in them is the suggestion that our government has been run like an organized crime outfit in  the last 15 years. This may be, to some, an accurate appraisal. But it’s a sad one all the same.