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

 

 

 

Chapter 5

CASE STUDIED ON PREVENTIVE DETENTION

5.1 Introduction

Despite the legal and constitutional provisions against arbitrary arrest and detention, the practice of arbitrary arrest, detention and torture is rampant in Bangladesh. Fortunately, the higher judiciary in Bangladesh has taken a proactive stand in protecting individuals from arbitrary preventive detention orders. The judiciary has set forth various standard regarding the grounds on which preventive detention order can be made. It interpreted the laws regarding preventive detention in a way that the use of this as a tool of exploitation and torture can be curtailed.

5.2 Some leading cases regarding preventive detention

When a person is detained under any law regarding preventive detention, he can file a writ petition against such order in the High Court Division under Art. 102 of the Constitution. Generally, most cases of detention order are quashed by the Supreme Court. Some leading cases regarding preventive detention has come to time in exercising this constitutional right to seek remedy from the apex court. Some of the leading cases regarding preventive detention are:

5.2.1 Farzana Haq vs Government of Bangladesh[49]

Facts of the case:

Sanaul Huq Niru was arrested and detained first on 13th September 1987 under SPA. His detention order was challenged and the Court directed that the detention order was illegal and ordered the release of the detainee. He was not released rather a fresh detention order was passed against him under section 3 of the Special Powers Act,1974. The same drama was repeated several times and ultimately his detention came up before a Division Bench of the High Court Division.

Judgment:

The Court ordered the detaining authority to pay regard to the order of the Court It decided that the detention was illegal and the detainee should be set at liberty forthwith.  And this time the order war complied with by the detaining authority.

5.2.2 Bilkis Akter Hossain v. Government[50]

Facts of the Case:

Dr. Khandakar Musharraf Hossain was arrested on the ground of delivering provocative speech.

Judgement:

The court held that the detention was illegal and also held that there was a non-application of mind in giving the detention order. And in this case along with three other similar petitions, detention of four political leaders was held mala fide, and illegal. For the first time, the court awarded compensation of one lakh taka to each detenues.

5.2.3 Abdul Latif Mirza v. Bangladesh[51]

Facts of the case:

Abdul Latif Mirza was detained under the SPA 1974 on the ground of vehemently criticizing the fundamental principles of the government and also allegation was made that he is trying to over through the government through violent means.

Judgment:

The Court held that the grounds on which the person is detained are vague and hence bad. The ground that he addressed public meetings criticizing fundamental principles of the government is not clear. Also the court denied that it amounts to a prejudicial act under the meaning of the Special Powers Act 1974.

 

5.2.4 Habiba Mahmud v.  Bangladesh and Others[52]

Facts of the case:

The appellant’s husband, Kazi Mohamood Hossain, was arrested on August 20, 1991 in pursuance of an order of detention date August 18, 1991 under section (3) (1) (a) of the Special Powers Act, 1974.

In the grounds of detention it is stated that the detenu had been engaged in various anti-social and lawful activities, and for that there was resentment and hatred against him in the minds of the public. The detenu was previously detained twice from April 1982 to April, 1983 and from November 1984 to March 1985. In November 1988 another order for his detention was passes, but the detenu evaded arrest by going over to India. For his oppressive and terrorist activities the detenu was suspended form the post of chairman of kotwaliparaupozila. So that nobody dares raise any objection against him, the detenu organized an armed illegal bahini known as the Special Army and that bahiniis still existing.

Judgment:

In view of the above, I hold that the detenu Kazi Mahmood Hossain Montoo Kazi is being detained without lawful authority. The judgment and order of the High Court Division is set aside. The appeal is allowed, but without any order as to costs. The detenu be released forthwith, if not wanted in connection with any other case.

5.2.5 Tahera Nargis Sayed v. DIG Prison, Dhaka[53]

Facts of the case:

In this case, to defy an order of the HCD declaring a preventive detention illegal, a fresh order of detention was served and thereby the petitioner’s husband was deprived of his liberty in defiance of the order of the Highest Court. Even before the release order was served, the detenue was served with fresh order of detention. The DIG prison was accused of delaying the release and in the meantime informing the government about the release order so that government can issue fresh order of detention.

Judgment:

The jail authority is not the detaining authority rather they are custodian of the body of the detenue and they could not allow the detaining authority to serve fresh order within the jail premises which was effect of thwarting the order of this court. They must advice the Special Branch official to move out of the jail and do what they wanted to do after the detenue is completely emancipated from the custody of the jail authority.

5.2.6 Huidrom Konungjao Singh vs State of Manipur & Others[54]

Facts of the case:

The son of the appellant, namely, Huidrom Shantikumar Singh was arrested on 19.6.2011 by the Imphal Police under Section 302 of Indian Penal Code, 1860 read with Section 25(1-C) of the Arms Act, 1959. The District Magistrate, Imphal West passed the detention order dated 30.6.2011 under the Act on various grounds with an apprehension that as in similar cases, the accused involved therein had been enlarged on bail the detenu in this case would also be released on bail and he would indulge in activities prejudicial to public order.

Judgement:

Supreme Court of India laid down that a person’s liberty is sacrosanct and cannot be taken away by the state without due process of law as it violates fundamental rights. The detaining authority also has to satisfy that it had reliable material on the basis of which it had reasons to believe that there was real possibility of the arrested person’s getting bail and that after his release, he would indulge in activities, prejudicial to public order.

The appeal succeeded and detention order dated 30.6.2011 was quashed.

5.2.8 Md. Sekandar Ali v. Bangladesh[55]

Facts of the case:

In this petition one Md Sekander Ali, was expelled from the Degree Examination hall. The agitating expelled candidates raided the examination centre, attacked the Upazilla Nirbahi Officer and his house. Md. Sekander Ali was detained under Section 3 of the Special Powers Act, 1974. The government alleged that Md. Sekander Ali had secret sitting with the others and at his indication all others indulged in unlawful acts.  

Judgment:

Declaring the detention illegal, the Court held that the law requires the Government, while detaining a person, must serve specific grounds for detention so as to enable the detenue to know what his faults are so that he is in a position to make an effective representation.

5.3 Conclusion

The foregoing discussion reveals that the criminal law and the constitution nexus in Bangladesh stands on a loose footing and that and that the fundamental rights of the accused and the safeguards the constitution accords to him have not yet become a central focus of the country’s criminal law.

 

 

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