Former CEC Awal’s detention and electoral retribution

There seems to be no former political opponent of the country’s two main political parties – the Bangladesh Nationalist Party and the Jamaat-e-Islami - whom they believe should not be imprisoned. And there seems to be no element of today’s criminal justice system unwilling to assist in making that happen. In this respect, very little has changed from the days when the Awami League was in power.

Just over a month ago, I wrote about the former Chief Justice, who was first jailed in a murder case with which he was transparently unconnected, and then prosecuted for his role in an Appellate Division judgment that could hardly constitute a criminal offence. Both cases were initiated by the BNP. He remains in custody — now for nearly 5 months — without any credible legal justification.

This week, my focus turns to the detention of former Chief Election Commissioner Kazi Habibul Awal, arrested on 25 June from Moghbazar in Dhaka. He has now spent five months in custody without bail in a case filed by a senior BNP official.

The case against Awal was filed by Md Salauddin Khan, a BNP National Executive Committee member. The First Information Report (FIR) names all members of the Election Commission involved in the last three elections, including Awal, who chaired the Commission during the January 2024 national election.

According to the FIR, after the 2024 election date was announced, Awal “prepared for another farcical election.” It claims that on polling day, he told the media that 27.15 per cent of votes had been cast by 3:00 pm, and then “an hour later” asserted that 40 per cent had voted — a figure the complainant describes as “fabricated, false, and baseless.”

The FIR alleges that 40 per cent of voters had “not gone to polling centres” and that the Election Commission “illegally declared certain Awami League, Awami League–backed dummy candidates, and some Jatiya Party members as elected Members of Parliament and published the gazette accordingly.”

“The then Chief Election Commissioner and other Election Commissioners, through collusion, violated the Constitution and the Electoral Code of Conduct, thereby unlawfully installing the Awami League in power,” the FIR says.

As to the general allegation that Awal ”prepared for another farcical election”, there is important context.

First, the Election Commission was not responsible for the BNP’s decision to boycott the polls. That decision was triggered by a number political decisions made by the Awami League government; to hold elections without the establishment of some kind of non-partisan government; to restrict BNP rallies; and to arrest thousands of its activists or arbitrary offences.

Secondly, the Commission again had no role in, and so no responsibility for, the Awami League’s nomination of “dummy” candidates or its arrangements to ally itself with the Jatiya Party.

Thirdly, after the Awami League made these decisions, the Election Commission had no authority to cancel the elections.

So that leaves Awal’s conduct during the elections - specifically, the question of the differing turnout figures.

The FIR suggests that the 27 per cent figure, reported by Awal at around 3:00 pm was accurate, and that his later statement of 40 per cent was a deliberate falsification to lend legitimacy to the election. Supporting this claim, though not mentioned in the FIR, is footage of an interview where Awal initially repeats the 27 per cent figure before “correcting” it to 40 per cent after an official intervened.

Critics argue that if turnout was 27 per cent at 3:00 pm, it could not realistically rise to 40 per cent by 4:00 pm, when polling closed. Media reporting also suggested that the digital dashboard, even five hours after polls were closed, recorded turnout at 28 per cent.

Those defending Awal give a very different explanation. Voting starting at 8:00 am.  Awal first briefed the media at about 1.30 pm and stated, based on midday data, that 27 per cent of people had voted. At around 5.30 pm, there was another media briefing, where he accidentally cited 27 per cent, referring to the earlier figure, but this which was quickly corrected to 40 per cent by the Commission Secretary. They say that if the figure at midday was 27 per cent then the figure at the end of voting would inevitably be higher.

At a post-election press conference the following day, journalists questioned the discrepancy, “The [data] we have now is 41.8 per cent. If anyone has any doubt, you can challenge it and you can verify this. If you think this is necessary, [you can check] at any place you like… If you believe this is inflated number, then you are most welcome to challenge that and [say] there was dishonest [action] by us.”

Awal supporters say ample documentation should exist proving his side of the story. They further argue that the reason the dashboard continued to record 27 per cent was that the election officers were busy preparing the result sheets, not updating the new digital app, which was being used for the first time.

Ultimately, only an investigation can establish the level of voter turnout – requiring  a review of documentation and perhaps even the re-counting of all or at least some ballots. Yet no inquiry took place before Awal’s arrest.

Tellingly, the very next day after Awal’s arrest, the government established an Inquiry Commission to investigate, inter alia, irregularities and alleged criminal acts in the past three elections — precisely the matters for which Awal was being  detained. That commission has only just now completed its work. Why, then, was Awal imprisoned before any investigation had even started?

Then, one comes to the criminal offences which Awal is alleged to have committed. When the FIR was first lodged, it referred to the following offences: section 171B concerning bribery to get someone to vote; section 171D, relating to the impersonation of someone at the elections; section 171I about the failure to keep election expense accounts; 171G, concerning making a false statement with an intent to affect the result of an allegation; and 171H, about making illegal payments in connection with an election.

None of these, save possibly 171G, could conceivably apply to Awal. Even if 171G were proven true, the penalty is a fine, not imprisonment — and even were he to be convicted of a conspiracy charge relating to that offence, it would carry a maximum sentence of six months. Awal has already been detained for five months.

A week after he was arrested, three additional offences were added to the FIR. Section 420 concerning “cheating” to obtain or destroy or alter property; section 406 relates to dishonest breach of trust relating to property and section 124A for the offence of sedition.

None fits the fact. There is no identifiable “property” involved for cheating or breach of trust — and invoking sedition is wholly untenable. Section 124A criminalizes words that “bring into hatred or contempt, or excite disaffection towards the Government.” Nothing Awal said comes remotely meets that threshold.

Awal’s arrest and continuing detention reflects yet another example of a breakdown in Bangladesh’s criminal justice system – where many people are arrested as acts of crude political retribution rather than on the basis of evidence and where police, prosecutors, magistrates, and  judges show no willingness to challenge transparently arbitrary detentions. There are not aberrations; they form a consistent pattern under this government.

Of course, this mirrors what happened during the Awami League era — abuses fully condemned at that time by the same people who now authorise, celebrate or turn a blind eye to them. Just as Awami League has rationalisations to justify arbitrary detentions, so do today’s politicians and leaders. It was a travesty then. It is a travesty now. But few acknowledge this reality, and fewer still are willing to speak out.

*David Bergman is a journalist and has been writing about Bangladesh for many years. He can be contacted on Facebook here: david.bergman.77377

*The views expressed here are the writer's own.