Preventive Detention And Violation of Human Rights: Bangladesh Perspective

 

Chapter 6

RECOMMENDATIONS AND CONCLUSION

6.1 Recommendations

I forward the following recommendations:

1. Preventive detention should be used only as a last resort and for emergency period only. So necessary legal reform must be made to stop the use of preventive detention in peace time.
2. Scope of preventive detention must be curtailed and the grounds on which it could be allowed must be clearly stated down by the legislative authority.
3. The scope of safeguards under Art. 33 should be extended. Detaining persons should also have the right to be produced before the magistrate within 24 hours of arrest.
4. Article 33(4) of the constitution should be amended and the initial period of detention should be lessened from existing 60-day period.
5. Detention must not be for indefinite period. A maximum period for preventive detention should be inserted in the constitution.
6. All the legal statute regarding preventive detention must be scrutinized very carefully and repeal the provisions which violate the spirit of the constitution.
7. The detenu must be communicated the grounds of arrest within a fixed specific time, which must be laid down by law.
8. The relatives of the detenu should be informed as soon as possible of the detention, so that the detenu can exercise his right to representation as soon as possible.
9. A judicial review should be held to review the conditions of all the persons detained under preventive detention laws.
10. The detenu should not be kept with the regular convict as it is not a form of punishment for any crime.
11. The detenu must be treated with honour as he has not violated any law so legal provisions should be made to force the detaining authority to be respectful.
12. The detenu must be allowed immediate and regular access to lawyer family members and unbiased medical board.
13. All forms of torture or inhume treatment should be avoided and for that strict rules and regulations must be made for the detaining authority.
14. In case of illegal detention, the detenu must be compensated adequately and the responsible party for such mistake, if not bonafide, must be brought under the law.
15. In case of interrogation all the recommendations made by the Supreme Court in various cases must be followed and a comprehensive rules and procedure should be created for the use of interrogating officers.
16. All reasonable opportunities should be provided to the detenu.
17. Direction and orders of any court must be given its due importance.
18. In order to ensure accountability of actions of the police authorities, the directives of the Supreme Court in BLAST vs. Bangladesh and Saifuzzaman vs. State should be implemented as soon as possible.
19. Government should restrict the use of preventive detention as much as government can. To ensure the proper functioning of democratic environment and to maintain human rights, the recommendation state above should be followed.
20. Legislative reform should be initiated in line with all these commendations.

6.2 Conclusion

Preventive detention is a necessary evil. Sometimes in a state of national emergency it can be a useful tool in restoring peace and security. But it is a matter of great surprise that the constitute of Bangladesh allows the Govt. to use various draconian laws regarding preventive detention against its own citizen. Arbitrary arrests and detention or torture has become a norm in Bangladesh. The philosophy behind preventive detention was to ensure safety of the community at large, but in reality it has become the biggest threat for the safety of the community. Individual liberty has fallen into the mercy of the government. But to ensure true democracy in the country all form of arbitrary detention must be avoided and individual liberty must be ensured. And only then the society can flourish and proper environment for democracy will be shaped.

REFERENCES

Statutes

The Constitution of Bangladesh

The Code of Criminal Procedure-1898

The Special Powers Act-1974

The Emergency Power Rule-2007

The Constitution of India

The Public Safety Ordinance-1958

The Penal Code-1860

The Security Act-1952

Arms Act-1878

The Explosive Substances Act-1908

Books

Halim, Md. Abdul. 1998. Constitution, Constitutional Law and Politics: Bangladesh Perspective. Dhaka. P.258

Chowdhury, M. Jashim Ali. 2010. An Introduction to the Constitutional Law of Bangladesh. Dhaka. P.191

Islam, Mahmudul. Constitutional law of Bangladesh, Mollick Brothers, Dhaka, ISBN 984-32-01-0126-4

Faiz-ud-din, Muhammad. 2011. Human Rights: National and International Perspective. Dhaka. P.45

Patel, T. 1993. Personal liberty under the Constitution of India. Jain Publisher, Delhi (1993)

Chowdhury, Badrul Haider. 1990. The long Echoes. Publisher: Naima Haider (Dhaka, 1990)

Borhi, A.K. 1958. Fundamental Law of Pakistan. Karachi. P.424

Mahajan, V.D. (1972) .Select Modern Governments. New Delhi. P.84

Denning, Lord Atfred. 1949. Freedom under the Law. London. P.11

Hannan, M. Abdul, 2009. Human Rights of the Accused in the Criminal Process. Dhaka. P.37

Balyley, David H.1964. Public Liberties in the New States. Chicago. P.23

Reldman, D. 1993. Civil Liberties and Human Rights in England and Wales. Oxford. P.169

Paul, Nirmal Chandra. 2008. The Special Powers Act, 1974. Dhaka: Shams Publications. P.105-6

Articles

Hoque, Ridwanul and Naser, Mostafa Mahmud. 2006. ‘The Judicial Invocation of International Human Rights Law in Bangladesh: Questing a Better Approach’, Indian Journal of International Law, Vol. 46, No.2 (pp. 151-186;

Alam, M. Shah. 2004. ‘Enforcement of International Human Rights Law by Domestic Courts in the United States’, Golden Gate University School of Law. Vol. 10, pp. 27-52

Perelman, Ch. 1982. ‘The Safeguarding and Foundation of Human Rights’, Journal of Law and Philosophy, Vol. 1, pp. 119-129.

Malik, Shahdeen. 2007. ‘Arrest and Remand: Judicial Interpretation and Police Practice’, Special Issue, Bangladesh Journal of Law, p.289.

Ch. Perelman, ‘The Safeguarding and Foundation of Human Rights’, Journal of Law and Philosophy, Vol. 1 (1982), pp. 119-129

Websites

1.http://www.askbd.org/ RAB/RAB_eng.htm

http://www.bdresearchpublications.com/Journal

3.http://books.google.com.bd

http://www.bdresearchpublications.com/…080..

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[1] AIR 1950 SC 27

[2] Sunil Kumar Sammaddar vs. Superintendent of Hoagly Jail 75 Cal WN 151

[3] Alamgir vs. The State AIR 1957 at p-285.

[4]  Patel, T; “Personal liberty under the constitution of India” Jain Publisher, Delhi (1993) at p-48.

[5] Chowdhury, Badrul Haider; “The long Echocs,” Publisher: Naima Haider (Dhaka, 1990) p.3

[6]  Brohi, A.K.; “Fundamental law of Pakistan” Din Muhammadi Publisher, Karachi (1958) at p-424.

[7] Balyley, David H, “Public liberties in the New states” Cambridge University Press (1964) at p-23.

[8] Act no. (xiv) of 1974

[9] (1971) AC 260

[10] Ahmed, Moudud, Bangladesh: Era of Sheikh Mujibur Rahman, University Publiscation, P. 100

[11] Abdul, Md Halim, Constitution, Constitutional Law and Policies: Bangladesh Perspective, 5th Ed, CCB Foundation, at P. 297.

[12] Ordinance (xiv) of 1949

[13] ACT (xxxvi) of 1950

[14]Supra f. note 1.

14 Feldman, D. “Civil Liberties and Human rights in England and Wales”, Oxford Publications (1993) P. 169

[15]Section 2(f) of the Special Powers Act, 1974.

[16]Section 2(f) of the Special Powers Act, 1974.

[17](1973) ISCR P.468.

[18]Quoted by Brohi A. K. Ibid P.424. [(1917) AC 260]

[19] Quoted by Munim-FKMA P.107

[20]Denning, Lord Atfred, “Freedom under the Law,” Hamlyn Lecture Series London (1949) at P.11.

[21]Pankaj Kumar vs. State of West Bengal, AIR (1970) SC 97.

[22] Ch. Perelman, ‘The Safeguarding and Foundation of Human Rights’, Journal of Law and Philosophy, Vol. 1 (1982), p. 119-129.

[23]  Art. 33(3)(b)

[24] Dr. Habibullah v. Secy., Ministry of Home, 41 DLR  160

[25] Ghulam Azam v. Bangladesh, 46 DLR 29

[26] Hari Kisna v. Maharashtra, AIR 1962 SC 911

[27] Jayendra Thakur v. India, AIR 1999 SC 3517

[28]Nirmal Chandra Paul, The Special Powers Act, 1974, 1^st ed. (Dhaka: Shams Publications, 2008), p. 105-6.

[29]Md. Anwar Hossain v. State, 29 DLR 15.

[30]Md.Golam Hossain v. State, 54(1991) BLD 37.

[31] S. R. O. No. 15. – Ain/2007

[32] Ordinance No. 1 of 2007

[33] Act No. xlv of 1860

[34] Act No. xi of 1878

[35] Act No. vi of 1908

[36] Act No. vii of 1974

[37] Act No. xiv of 1974

[38] Act No. xx of 1990

[39] Ch. Perelman, ‘The Safeguarding and Foundation of Human Rights’, Journal of Law and Philosophy, Vol. 1 (1982), pp. 119-129.

[40] Munn v People of Illinois, 94 US 113 (per field J) as cited in Mahmudul Islam, Constitutional Law of Bangladesh”, ibid, p. 187

[41] Vikram v. Bihar, AIR 1988 SC 1782. ibid

[42] Francis Caralie v Union Territory, AIR 1981. ibid.

[43] H.P v. Uned Ram, AIR 1987. ibid.

[44] Ramsharan v. India, AIR 1989. as cited in Mahmudul Islam, ibid.

[45] Dhaka Tribune, (Bangladesh) ‘Arrest spree punishes prisons’ [http://www.dhakatribune.com/bangladesh/2015/feb/08/arrestspreepunishesprisons#sthash.hdF1Fswe.dpuf, last visited January 19, 2016.]

[46] The Bangladesh Today, Dhaka(Bangladesh), 19^th February 2005

[47] Article 5

[48] Golam Azom v. Bnagladesh, 46 DLR 29

[49] (1991)11 BLD 553

[50]  2 MLR 1997 113

[51] 31 DLR(AD) 1979

[52] 45 DLR (AD) (1993)

[53] 41 DLR 508

[54] (2012) 7 SCC 181

[55] 42 DLR (HCD) 346