National Security laws in Bangladesh

Under the colonial rule of the British and Pakistanis, statutes such as the Indian Safety Act and the Defence of Pakistan Ordinance sanctioned preventive detention, the seizure of property and restrictions on the media, all in the name of protecting security of the state.

The nation's struggle against colonial rule was deeply imbued with the aspiration to ensure the right to a life of human dignity and to enjoyment of their fundamental human rights and freedoms. It envisaged a democratic society allowing for the full exercise of political freedoms. Within a year of independence, on 16 December 1972, the Constitution of Bangladesh came into effect. It guaranteed the fundamental rights to life, to liberty, to security of the person, freedoms of assembly, speech and expression, freedoms of thought, conscience and religion and the right to property.

Thirty years on, the reality is different: the aspirations of the liberation struggle remain largely unfulfilled and democratic rights unprotected. The survival of millions is threatened by vicious poverty. The security of the people, to live with dignity, to enjoy access to food, shelter, health and education, cannot be ensured. And yet, in the name of national security the Bangladeshi government continues to deploy repressive laws to violate political rights. Such laws violate the right to life, to liberty and to security of the person; they are discriminatory in their application and violate all safeguards against arrest and detention and the prohibition of torture or cruel, degrading or inhuman punishment. Such laws are found in: (i) Articles 33, 141A, 14l B, and 141C of the Constitution of Bangladesh; (ii) Special laws such as the Special Powers Act of 1974 and the Special Security Forces Act of 1986; (iii) the ordinary criminal laws such as section 505A of the Penal Code of 1860 and section 99A of the Code of Criminal Procedure of 1898.

Proclamation of Emergency

The second amendment inserted a new section, Part IXA, to the constitution. This empowers the President, under Article 141A, to proclaim a State of Emergency if he is satisfied that "the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance." He may make such a Proclamation prior to the occurrence of any war, aggression or disturbance if he is "satisfied that there is an imminent danger thereof." The President may, pursuant to Article 14l B, also make laws or take executive action curtailing certain fundamental rights, the freedoms of movement, assembly, association, speech and expression, of thought and conscience, the right to property and the right to practise a profession or trade. He further has the power, under Article 141C, to suspend the right to move the courts for the enforcement of any of the fundamental rights guaranteed in the Constitution.

Some level of accountability ensured, however, by the requirement that the Prime Minister must countersign any Proclamation of Emergency and any order to suspend the enforcement of fundamental rights; and that no such declaration shall remain valid beyond 120 days, unless ratified by Parliament. However, given the reality of majority parliamentary politics, the ruling party has effectively been handed a constitutional weapon to attack fundamental rights in the name of internal or national security - its main victims being the people of Bangladesh.

Removal of safeguards on Arrest and Detention

Amendments to Article 33 restricted the safeguards available to those under arrest and detention. The right of any person in custody to be informed "as soon as may be" of the grounds of arrest, to consult and be defended by a lawyer of one's choice, and to be produced before a magistrate within 24 hours of arrest or detention is denied to enemy aliens and those in preventive detention.

Article 33 further limits the rights of any person in preventive detention. It is specified that the detainees must be informed of the grounds for detention as soon as possible, and given the "earliest opportunity" to make a representation against the order. However, the law empowers the enforcing authority to refuse to disclose such facts if he considers it to be against the public interest to do so.

Special Powers Act of 1974

Constitutional limitations on the right to liberty have been supplemented by specific legislation -the Special Powers Act of 1974 ("SPA") - which provides for preventive detention. The use and abuse of the SPA in the name of protecting security interests has resulted in a steady pattern of human rights violations.

The SPA was enacted to "take special measures" for the prevention of prejudicial activities, for more speedy trial and effective punishment of grave offences." It defines a "prejudicial act" as "any act which intended or likely to:

(i) prejudice the sovereignty or defence of Bangladesh;
(ii) prejudice the maintenance of friendly relations with Bangladesh;
(iii) prejudice the security of Bangladesh or to endanger public safety or the maintenance of public order;
(iv) create or incite feelings of enmity or hatred between different communities, classes or sections of people;
(v) interfere with or encourage or incite interference with the administration of law or the maintenance of law and order;
(vi) prejudice the maintenance of supplies and services essential to the community;
(vii) cause fear or alarm to the public or to any section of the public;
(viii) prejudice the economic or financial interests of the state."

These expansive definitions of 'prejudicial acts" grant considerable scope for their abuse by the authorities.

The SPA has been widely used to detain opposition activists, especially the members of radical left organizations under the first Awami League and BAKSAL regimes. It has also been disproportionately deployed against the hill people of the Chittagong Hill Tracts. With the passage of years, its use has increased rapidly. According to Amnesty International, 35,000 people were detained under the first Awami League and BAKSAL regimes of Sheikh Mujibur Rahman during the period from 1972 to August 1975; 100,000 under President Zia between 1975-1981; and 150,000 under Lieutenant General Ershad during 1982-1990. Several thousand remained under preventive detention during Khaleda Zias' regime and more than 2,000 under the present regime of Sheikh Hasina only in 1999.

The judiciary has, in innumerable cases, acted as a "bulwark against illegal detention." Detainees have been released by orders of the High Court Division following the filing of writs of habeas corpus or the initiation of proceedings under section 491 of the Criminal Procedure Code of 1898. In the vast majority of such cases, the Court has found the grounds of detention to be vague, indefinite and lacking in material particulars. In other cases, orders of release have been given for various reasons, including:

- the failure to inform the detainees of their right to representation;
- the failure to serve the grounds of detention within the statutory period of 15 days;
- the lack of a nexus between the order and the grounds of detention. For example, the order states that a person has been detained "to prevent him from acting in a manner against public safety and law and order" while the grounds specify "preventing him from acting against the economic or financial interest of the state;"
- the failure to produce the detainees before the Advisory Board within a certain time;
- retrospective issuing of orders.

On 12 March 1997, Sheikh Hasina ruled out in Parliament the possibility of repealing the Special Powers Act of 1974. She was replying a question asked by an opposition Member of Parliament, who called the Act "a jungle law framed by the previous Awami League Government". Ironically, a High Court Division Bench recently ruled that the detention of four Bangladesh Nationalist Party (BNP) leaders, under the Special Powers Act of 1974, was illegal and ordered that each be awarded one hundred thousand taka as compensation.

The Special Security Force Ordinance of 1986

The Presidential Security Force Ordinance (PSFO) established a Security Force to be under the direct command of the President, and to be controlled and administered by a Director who may be endowed with the powers of the Chief of Army Staff in respect of operations of the Force. The Force may seek the assistance of other services, such as the law enforcing Agencies, paramilitary forces, defence and intelligence agencies.

The Force was originally intended to "provide physical security" both to the President, wherever he may be, and to the VIPs (including any Head of State or Government or any person declared to be a VIP by the government). Following restoration of the parliamentary system, it was renamed the Special Security Force ("SSF"): its primary function is to protect the Prime Minister the President and other VIPs. Its work also includes "collecting and communicating intelligence affecting the physical security of the Prime Minister, the President or a VIP" (Section 8). The SSF is now accountable to the Prime Minister under the present parliamentary system. The SSF are given the following powers:

"...arrest without warrant any person when there is reason to believe that the presence or movement of such person at or near the place where the Prime Minister, the President or a VIP is living or staying or through which he is passing or about to pass is prejudicial to the physical security of the Prime Minister, the President or such VIP and if such person forcibly resists the endeavour to arrest him or attempts to evade arrest, such officer may use all means necessary to effect the arrest and may, if necessary and after giving such warning as may be appropriate in the circumstances of the case or otherwise, so use force against him as to cause death." (Section 8).

The wide and unfettered powers granted to the authorities under the SSFO are exacerbated by section 11 which prevents prosecution for such acts without government sanction.

CRIMINAL LAWS

(i) Section 505A of the Penal Code

In 1991, the SPA provisions relating to restrictions on the freedom of the press (namely sections 2d, 3g, 16, 17 and 18) were repealed. Within months, a new section, 505A, was added to the Penal Code which provided that any person who "by words, written or spoken, or by sign or visible representation or otherwise does anything or makes, publishes or circulates any statement, remark or report which threatens national security, public order, or friendly relations with foreign states or the maintenance of essential supplies and services is punishable with seven years of imprisonment.

(ii) Section 99A of the Code of Criminal Procedure

If the administration considers any publication to be prejudicial to the security of the state, it may take action under section 99A of the Code of Criminal Procedure to ban and seize all copies of that publication. In the recent years the government has banned several publications, including 'Evidence' which carried out reports on human rights violations.

Intelligence Services

The following intelligence agencies operate to protect internal or national security: National Security Intelligence (NSI), Directorate General of Forces Intelligence (DGFI), Special Branch (SB),Special Security Force (SSF) and the Detective Branch. The NSI, DGFI and SSF are directly accountable only to the Prime Minister. The NSI was created by a cabinet decision in 1972 without having any statutory basis for its creation. The SB and DB are, however, parts of the police and are accountable to the Home Ministry.

These agencies are intimately involved in the application of national security legislation. In many cases, detainees have been illegally kept in the custody of the intelligence services for interrogation purposes. Many cases have been reported of custodial violence against political activists by members of the intelligence services. Surveillance of political, socio-cultural, development and human rights organisations is also conducted by such agencies. NGOs require prior clearance by the NSI and SB to initiate projects or in some cases to appoint staff.

These agencies have placed themselves in a position beyond the reach of the law. There is no provision to discuss their activities in the national parliament.

A NEW DANGER?:

The Public Safety (Special Provisions) Bill, 2000:

The governing Awami League has recently introduced the controversial The Public Safety (Special Provisions) Bill, 2000 in parliament. The bill has sought provisions for recognising certain crimes as non-bailable offences and trying those under special tribunals.

A couple of the eight category of crimes proposed to be recognised as non-bailable offences explicitly hint at the government's political intention behind the attempt of enactment of such a law. The bill has proposed crimes like, along with other things, obstruction to free movement of vehicle or diverting traffic to be considered non bailable offence.

Such provisions, if adopted by parliament, would definitely be applied to the government's political opponents who use to agitate in the streets against bad governance.

Initially, the cabinet also discussed punishment of the media for publishing 'false reports' against VIP's! This idea, which, if misused, would violate the right to information and knowledge, has been erased from the discussion table due to pressure from concerned groups. Never the less, if this Bill becomes Law, fundamental human rights are at stake.

This trend of introducing repressive laws is nothing new to the people of this country. Whenever the political elite feel threatened, mainly due to their own failure in delivering service to the common people; when the administration loses its transparency and bad governance becomes the policy of the day, then is the time to opt for draconian and repressive laws in order to gain protection from the wrath of the masses. Historically, it has been proven that although governments enact draconian or repressive laws in the name of peoples security', ultimately these laws are always used to suppress the legitimate and democratic voice of the common people and the opposition movements.

The Suppression of Terrorist Offences Act made in 1992 during BNP government recreated a sense of insecurity in the minds of the common people, who viewed it as an undemocratic act to suppress the voice of the opposition. The law, under which several thousand people suffered, died a natural death in 1994, leaving a deep sear in the political history and psyche of this country.

However, the provisions for denying bail to the accused under the proposed Public Safety (Special Provisions) Act, 2000 goes against the normal practice of the Criminal Procedure Code and will eventually violate fundamental human rights of under-trial prisoners. Furthermore, the Bill states that investigations into the crimes must be completed within 30 days. Given the fact that the investigations department is not a separate institution and is therefore inundated with a backlog of pending investigations, this is too short a time to carry out a thorough investigation. Coupled with the obvious corruption in the police and criminal justice system the situation can only become worse.

Political opponents of the present regime and various human rights groups fear that, as in the past, nothing other than the suppression of the voice of the dissidents will happen under the proposed 'Public Safety (Special Provision) Bill.' This, they fear, will happen in the name of 'public security,' and public bashing will become routine work with the help of corrupt administration, bad governance and political criminalisation. If this Bill finally becomes Law, it will be (mis)used against political opponents, as has happened with repressive laws in the past. According to an annual human rights press report submitted at a press conference on 31 December 1999 by Odhikar, a coalition for human rights, approximately 10,000 political workers were apprehended in 1999. Among this number, several thousand were arrested under the Special Powers Act. If this proposed Bill becomes Law, the number of opposition workers arrested or apprehended by the police will only increase. With the Special Powers Act still in full force, the introduction of another repressive law can only place the citizens of Bangladesh in double jeopardy.

The writer is a member of Odhikar - a coalition for human rights, Dhaka.