Law review
Preventive detention law in Bangladesh: A review
Md. Jahid Hossain Bhuiyan
The first thing after achieving independence the people aspired to get was a constitution where the fundamental rights of the people would be ensured. The Constitution of Bangladesh was adopted on the 4th December and was given effect to from the 16th December 1972, the first anniversary of the 'victory day'. The constitution makers felt the necessity of giving recognition to the basic human rights in consequence of which they incorporated the provisions of Universal Declaration of Human Rights, 1948.
A study of the Constitutions of India and Pakistan of the then period reveals that the constitution makers allowed the Parliaments of their respective countries to pass the preventive detention laws. The original Constitution of Bangladesh did not contemplate preventive detention law without the authority of the court. But it is a fact that by the Constitution (Second Amendment) Act, 1973, which amended Article 33, the parliament had been empowered to pass preventive detention laws.
After the liberation of Bangladesh, the Bangladesh Scheduled Offences (Special Tribunal) Order, 1972, popularly known as P.O. 50/1972 was promulgated with a view to control the market of essential commodities and some marked criminal offences. The provisions of preventive detention were severe and as such popular discontent began to increase every day. Awami League, the then ruling party repealed the P.O. 50/1972 along with the Security of Pakistan Act, 1952 and Bangladesh Public Safety Ordinance, 1958 in the teeth of serious public criticism. Soon after the people got relief from the pangs of the repressive laws, the Parliament on February 9, 1974 enacted the black law, “Special Powers Act, 1974” containing the provisions of preventive detention. The Act says that any person can be arrested and detained by the executive authority if there is apprehension in the mind of the authorities that he may commit “prejudicial act” which means-
(i) to prejudice the sovereignty or defence of Bangladesh;
(ii) to prejudice the maintenance of friendly relations of Bangladesh with foreign States;
(iii) to prejudice the security of Bangladesh or to endanger public safety or the maintenance of public order;
(iv) to create or excite feelings of enmity or hatred between different communities, classes or sections of people;
(v) to interfere with or encourage or incite interference with the administration of law or the maintenance of law and order;
(vi) to prejudice the maintenance of supplies and services essential to the community;
(vii) to cause fear or alarm to the public or to any section of the people;
(viii) to prejudice the economic or financial interests of the State.
It is pertinent to mention that the Awami League launched movements to repeal all repressive laws. As a consequence, we find that the authority presented a bill in the Assembly on 20th September 1958 for repeal of the Security of Pakistan Act, 1952. But the same party, on being in power after the liberation of Bangladesh presented the Special Powers Bill, 1974 in order to materialise their heinous political interest. Two members of the Parliament Mr Ataur Rahman Khan and Mr Abdus Sattar, belonging to the B.J.L. and J.S.D. vehemently objected but the ruling party overlooked them. This law was primarily enforced on the tribal people of Chittagong Hill Tracts, political rivals and especially, the suspected members of Jatio Shmajtantirik Dol and the Shorbohara Party.
In continuation, the governments have been using this law for the last thirty years apparently to threat, suppress and harass the opposition leaders and workers The Special Powers Act, 1974 explicitly authorises an individual to be detained -- without charge or trial -- for up to six months and up to indefinite period if so sanctioned by the Advisory Board.
What happens in reality is that after arrest, the police officer prays to the court for remand and thereafter they start to an extent physical and mental torture which is a flagrant violation of international human rights law. It may be reiterated that physical and mental torture has become a common feature in most of the countries of the world.
All the political parties when out of power make serious criticism of the law and promise in the election manifesto that they would repeal this black law if put into power. For example, the three alliances during the movement for fall of the autocratic Ershad regime had been very vocal that they would introduce the practice of democracy after repealing the Special Powers Act, 1974 which violates human rights. But it is regretting that the Bangladesh Nationalist Party (B.N.P.) which came into power started emphasizing that it is a law of utmost necessity and government cannot work without it. Likewise, Sheikh Hasina, Awami League Chairperson, declared before she came into power through the Parliament election held on 12th June 1996 that she would repeal the law if came to power. But after assuming power she pulled her tone in opposite direction by announcing that its efficacy to past governments justified its existence. Again BNP in its election manifesto in 2001 said that it would scrap this tyrannical law if came to power but it did not. The present government also has not repealed the Special Powers Act, 1974.
It is mentionable that in democratic countries preventive detention is usually a method resorted to in emergencies like war. For instance, in America, the law relating to preventive detention is the Internal Security Act, 1950, which provides that the powers of preventive detention can be exercised only in times of an emergency like war. Similarly, provisions for preventive detention cannot be found in England, except only during an emergency like war. But in Bangladesh, laws regarding preventive detention can be resorted to in times of both peace and emergency which is really disappointing.
Md. Jahid Hossain Bhuiyan teaches law at the Uttara University, Dhaka.
