RESEARCH MONOGRAPH : Preventive Detention And Violation of Human Rights: Bangladesh Perspective

 

 

 

Chapter 3

PREVENTIVE DETENTION UNDER THE CONSTITUTION OF BANGLADESH AND OTHER STATUTORY LAWS

3.1 Introduction

The claim of personal liberty being the essence of a free society, almost all every civilized country has constitutionally protected its citizens from the excesses of the coercive apparatus of state. Bangladesh is not an exception.

Among the national institutions, the legislature always comes in the forefront of the national systems for the protection of the rights of a person arbitrary arrested and detained. One of the main function of the legislature is to enact laws in protecting human rights of the arbitrary arrested persons because arrested and detained persons are considered as innocent until proved their guilt beyond reasonable doubt.

The statutory provisions regarding preventive detention are discussed below.

3.2 Preventive Detention Under the Constitution of Bangladesh

In Constitution of Bangladesh (1972), Article 33 did not leave any scope for preventive detention. But by the second amendment of the Constitution, Article 33 was replaced by the present one. Preventive detention, though an evil, in a necessity for State security and by the Constitution Act, 1973 the rights under Article 33 of the Constitution were curtailed under specific circumstances.

Art. 33(1) & (2) guarantee four rights to a person arrested. Any law or action not in conformity with those rights will be void and the arrest made will be unlawful. The four rights under Art. 33 are:

  1. A person arrested must be informed as soon as possible of the grounds of arrest,
  2. He must be allowed to consult and be defended by a lawyer of his choice,
  3. He must be produced before the magistrate within twenty-four hours of arrest, excluding the time necessary for journey,
  4. He must not be detained for a period longer than then twenty-four hours plus the time of journey without the authority of the magistrate.

But these four rights are not available to a person arrested or detained under a law providing for preventive detention.[23] Although Art 33(3), (5) & (6) provide three important safeguards in the case of preventive detention.

3.2.1 Constitutional Safeguards against Preventive Detention

After the second amendment of the Constitution any person arrested or detained under any law regarding preventive detention will not have the rights conferred by Art. 33(1) & (2) of the Constitution. But the Constitution has itself put some restrictions in the exercise of those laws proving for preventive detention. In order to protect individuals from arbitrary arrest and detention the Constitution provided some safeguards against such laws and against the exercise of powers by the executive authority. Clause (4) and (5) provide three important safeguards for this purpose.

3.2.1.1 Approval by Advisory Board:

The constitution of an Advisory Board for the purpose of reporting to the government its opinion whether a person should be detained for more than Six months may be said to have been introduced for the very reason that review by the Law Courts was excluded. This is no doubt, a special procedure but this shows that the person detained has not been left without any safeguard. The setting up of an Advisory Board to determine whether such detention is justified is considered as a sufficient safeguard against arbitrary detention under any law of preventive detention. Article 33 (4) provides that no law shall authorize detention for a period of more than six months and the period of six months can be extended only if an Advisory Board, before the expiry of six months, opinions that there is sufficient cause for detention. If no such affirmative opinion is given by the Advisory Board, the detenu has to be released on the expiry of Six months. In a writ of habeas corpus, the court is not required to wait for the opinion of the Advisory Board and should dispose of the petition if it is otherwise ready for hearing.[24]

The Advisory Board is to be constituted with three persons, two of whom must be person who are, have been, or are qualified to be appointed as judges of the Supreme Court and the other must be a senior officer in the Service of the Republic.

The Advisory Board stands perhaps midway between the court and the executive. It has the power of going through the records of a case but it will not be bound to hear any arguments addressed by a counsel on behalf of a detained person. If it reports against detaining a person any further he will be at once set free. And no law can be passed for detention of a person exceeding six months unless the Board reports before the end of such a period that he may be detained for a longer period.

If the order, of detention is only for two months there is no scope for the Advisory Board to determine the ‘Sufficiency of cause for his detention’ and so the argument that a detainee is not entitled to pay for a writ of habeas corpus unless his case is referred to the Advisory Board is not tenable clause (4) of Article 33 contemplates detention for a specific period.

3.2.1.2 Communication of Grounds of Detention:

Article 33 (5) says that the detained person right to know immediately ‘the grounds on which the order has been made”. The reason for the expression as soon as may be for furnishing grounds and the earliest opportunity for making a representation[25] indicates the extreme anxiety of the makers of the constitution to see that no person is detained contrary to the law enabling preventive detention or contrary to the safeguards provided by the constitution. Again the grounds served must be in a language that the detenu understands.[26]

There is a proviso to Art.33(5) which permits the detenu authority to refuse to disclose the facts if it considers it to be against the public interest.

3.2.1.3 Right to Representation against the orders of Detention:

The detenu authority has to inform the detenu that he has a right of opportunity to make representation and failure to inform may render the continued detention illegal.[27] Article 33 (5) again provides that the detaining authority must afford the detenu the earliest opportunity of making a representation against his detention order. It is important to mention here that the third right, Right to make an effective representation depends on the second right, Right to communication of grounds. Article 33(5) provides that the detaining authority may refuse to disclose facts which such authority considers to be against the public interest to disclose. Because grounds are reasons on conclusions drawn by the authorities from the facts or particulars on which the detention order is made.

If all the relevant facts and particulars of the grounds, therefore are not supplied to the detenu it is not at all possible for him to make an effective representation and the right to make a representation becomes illusory. It is therefore for this provides of Article 33(5) that the second and third constitutional rights of a detenu have become quite meaningless.

3.3 Preventive Detention under the Special Powers Act, 1974

The basic content of the Act lies in section 3, which enables the government to detain any person in custody under the disguise of preventive detention. The parliament on February 9, 1974 enacted this black law, Special powers Act, 1974 containing the provisions of preventive detention.

Some important sections of the Special Powers Act 1974, which is related to the prevention detention, these sections are following bellow:

Section-3: Power to make orders detaining or removing certain person

Section 3 of the Act lays down the substantive power and conditions of an order of detention. Sub-section(1) of section 3 of the Act empowers the Government to order detention of a person on the satisfaction with respect to any person that with a view to prevent him from doing any prejudicial act.

Sub- section (2) of the same section empowers a District Magistrate or an Additional District Magistrate to order detention of a person after arriving at similar satisfaction to that of government for the same purposes.

Section- 4: Execution of Detention orders

Section 4 of the Special Powers Act provides that the order of detention passed under section 3 of the Special Powers Act shall be executed as provided in section 80 of the Code of Criminal Procedure. If section 3 of the Special Powers Act, 1974 and section 80 of the Code of Criminal procedure are read together, it becomes abundantly clear that an order of detention passed under section 3 of the special powers Act, 1974 must be served upon the detenu.

Section-8: Communication of grounds of order

Section 8 of the Act requires the detaining authority to communicate the grounds of detention to the detenue within 15 days from the date of detention informing him at the same time that he has a right to submit a representation in writing against the order of detention and also affording him an opportunity of submitting the representation at the earliest possible opportunity.

Section-9: Constitution of Advisory Board

Section 9 of the Act requires the Government to constitute an Advisory Board consisting of three persons of whom two persons are or have been or are qualified to be judges of the Supreme Court and the other person should be a senior officer in the service of Republic. This section also requires the Government to appoint one of the two members who are or have been or are qualified to be judges of the Supreme Court as Chairman of the Advisory Board.

Section-10: Reference to Advisory Board

Section 10 of the Act requires the Government to place the grounds of detention and the representation, submitted by the detenue before the Advisory Board within one hundred and twenty days from the date of detention.

Section-11: Procedure of Advisory Board

Section 11 requires the Advisory Board to consider the grounds of detention, the representation submitted by the detenue, any other information which it may deem necessary and after allowing the detenue an opportunity of being heard to submit a report to the Government as to the propriety or otherwise of the detention within one hundred and seventy days from the date of detention of the detenue.

Section-12: Action upon the Report of Advisory Board

In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith[28].

In the case, Board’s opinion regarding detention-opinion of the Advisory Board is given under section 12 and section 12 says that Government may confirm the detention order but if the Advisory Board gives the opinion that there is no case for detention then the Government shall revoke the detention[29].

In another case of the detenu not placed before the Advisory Board within 120 days from the date of detention Government failed to show that in accordance with provision of section 12(1) of the Act the Advisory Board reported that there was sufficient cause for detention of the detenu-Detention held illegal[30].

3.4 Emergency Power Rule-2007

The government formulates the Emergency Power Rule-2007[31] as per the power given under section 3 of the Emergency Power Ordinance, 2007[32] and it came into operation from 12 January 2007. Rule 14, 15, 16 and 21 deals with the provision of preventive detention and it gives a wide range of powers to the executive authority to detain a person merely on suspicion on their mind.

3.4.1 Provision related to preventive arrest warrant of warrant:

As per rule 21 of the Emergency Power Rule-2007, under the state of emergency, if it appears satisfactory or believable that a person has committed or may commit an offence under any act mentioned in this rule or rules 14 and 15, provisions related to the preventive warrant of arrest under Special Power Act, 1974 may be applied against that person. As per rule 14 of the Emergency power Rule-2007, to safeguard the security and interest of the state and the people and to maintain discipline and peace, the law and order forces will play an active role in applying the Penal Code-1860[33], Arms act-1878[34], Explosive Substances Act-1908[35], Foreign Exchange Regulation Act-1947[36], Special Powers Act-1974[37], Narcotics Control Act-1990[38] and special other acts in restraining illegal arms, explosive substances, sabotage, hoarding, adulteration in drugs and food stuff, counterfeiting money and government stamps, black marketing, smuggling, narcotics and other crimes subversive of the security and economic life of the state and the people.

3.5 Conclusion

In Bangladesh, most of the developing countries, the laws regarding Preventive Detention has been used as a weapon to dominate, crash the opposition and to perpetuate rule. After achieving our independence, there are no situations of war or internal aggression or internal disturbance which are threatening our security but Art. 33, The Special Powers Act, 1974 and Emergency Power Rule-2007 are still being used to suppress anti-government movement and sometimes democratic movement also.

 

 

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