Exercising the big stick
BORN in the aftermath of genocide, arbitrary arrests and detentions by the Pakistani government, the Constitution of newly independent Bangladesh included no provision for preventive detention. This was not surprising in view of the fact that ‘[q]uite a few members of the constituent assembly that framed the Constitution [had] suffered detention under different laws of preventive detention before 1972.’1
Part III of the original Constitution provided strong safeguards for civil and political rights, including the right not to be arbitrarily detained. In Article 26(2), it provided that any law that is inconsistent with any provision in Part III would, ‘to the extent of such inconsistency, become void.’ Article 32 added that ‘[n]o person shall be deprived of personal liberty save in accordance with law.’ With Article 33, Part III proceeded to create three safeguards for the rights of detainees: they must be informed of the grounds of their arrest ‘as soon as may be’, they must have a ‘right to consult and be defended by a legal practitioner,’ and must be produced before a magistrate within 24 hours of the arrest.2
The spirit of 1972 did not last long. In September of 1973, only nine months after the Constitution was created, Parliament passed Act XXIV, also known as the Second Amendment Bill. Under the act, Article 26 no longer provided an absolute safeguard of ‘fundamental rights’, but allowed these rights to be circumvented by amendments.3 Furthermore, the addition of Article 33(3) allowed preventive detention and exempted it from constitutional safeguards for arrest and detention.
Parliament was quick to make use of its newly granted authority. Five months later, on 9 February 1974, it enacted the Special Powers Act, 1974.4 The act was purportedly designed to crush black marketers and smugglers said to be responsible for the food shortages throughout the country. As political dissent by left-wing guerrillas intensified, Prime Minister Sheikh Mujibur Rahman cracked down through a series of measures – a printing and press ordinance, a three month ban on strikes, a ban on public gatherings, the declaration of a state of emergency under which civil rights were suspended, and finally, the establishment of one-party rule – that of the Bangladesh Krishak Shramik League (BAKSAL) – in 1975. The Special Powers Act (SPA) proved to be a useful instrument in this process.
The preamble to the SPA states that its purpose is to provide special measures for the ‘prevention of certain prejudicial activities, speedy trials and effective punishment for certain grave offenses and matters connected therewith.’ The act is based on the assumption that the existing Penal Code and Criminal Procedure Code are insufficient to address terrorism and criminal conspiracies. Political commentators, however, maintain that the SPA was in fact a desperate bid to save the administration of the Awami League tormented by factionalism.5
Akey element in the SPA is the fuzzy definition of ‘prejudicial act’. Section 2(f) of the act defines ‘prejudicial act’ as any act that is intended or likely:
‘(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 public;
(viii) to prejudice the economic or financial interest of the state;
Section 2(f) does not provide any guidance as to the burden of proof necessary for the government to conclude that an individual is likely to commit a prejudicial act. As a result, detentions under the SPA are frequently based on allegations unsupported by evidence. Unless the grounds are supported by adequate evidence, they should be found to be illegal.6 According to Quazi Reza-Ul Hoque, ‘[t]here hardly exists any real case when [a] provision containing a "threat to the security of the state" is found to have been properly applied.’7 Most of the detentions under the SPA were found to be invalid because the procedural irregularities or grounds for detentions were insufficient to warrant the assumption that a detainee is likely to commit a ‘prejudicial act.’8
Section 34 of the SPA bars the court’s jurisdiction over any ‘proceeding taken under this act.’ But, an Act of Parliament cannot be exempt from judicial review. The doctrine of constitutional supremacy is enshrined in the Constitution of Bangladesh, Articles 7, 26 and 102(2). This doctrine holds that laws inconsistent with the Constitution are void to the extent of the inconsistency.
With this legal framework in mind, the High Court held in Md Humayun Kabir v. State9 that Section 34 of the SPA does not include a provision allowing the court to exercise its jurisdiction under Article 102(b) of the Constitution.10 Article 102(b) provides that on the application of any person, the High Court, being ‘satisfied that no other equally efficacious remedy is provided by law’, may direct that the person in custody be brought before the court to examine the lawfulness of his detention. It was held that when orders are alleged to be passed in bad faith or in abuse of the act, an investigation of these matters by the court cannot be barred.11
Such an action under Article 102(b) of the Constitution, is referred to as a petition for a writ of habeas corpus ad subjiciendum (or simply, habeas corpus). The court then issues this writ, which is a judicial order directing the detaining authority to produce the detainee before the court for the purpose of testing the legality of his or her detention.
A‘prejudicial act’ is an act intended or likely to cause interference with... the maintenance of law and order under Section 2(f)(v). Conceivably, this could include an act likely to cause the commission of any crime – since committing a crime interferes with ‘law and order’. This leads to the absurd situation in which a person accused of having committed a crime can avail of the procedural safeguards for an accused; however, a person whom the authorities believe must be detained to prevent committing the same crime, can be detained under the SPA and thus denied various rights.
The broad discretion enjoyed by the detaining authorities is aided by the fact that the SPA does not clearly specify the standard of proof necessary for the authority to conclude that an individual is likely to commit a prejudicial act. Section 2(f) merely states the authority must be ‘satisfied’ that it is ‘necessary’.
The High Court held in Mrs Aruna Sen v. Govt of Bangladesh,12 that: ‘Éit is not enough to produce the order showing that such authority was satisfied. When such order is challenged as mala fide or without any basis, the authority who has passed the order must produce before the court material which led to the satisfaction necessary for exercising the power of detaining a person. It will be the duty of the court to examine such materials upon which grounds are based and see whether the detaining authority could upon such materials be reasonably satisfied.’
Despite the High Court judgement, detentions are still usually carried out merely on the subjective satisfaction of the detaining authority.
When the detention order is issued by the district magistrate or additional district magistrate under Section 3(2), these officials must report the fact of the detention order, the grounds on which it is made and any other particulars they believe have a bearing on the matter to the government within 30 days under Section 3(3). Section 3(3) further provides that the detention order can remain in force for longer than 30 days if it has been approved by the government.
In practice, this time limit is often circumvented by releasing and re-arresting the detainee in order to restart the 30-day cycle.
Apart from the requirement that the government must approve a district magistrate’s order for it to remain in force past 30 days, there is no upper time limit for the extension of this order. In fact, if it was the government that issued the order initially, there is not even a 30-day reapproval requirement. The first point for review on the SPA timeline is the advisory board review procedure, which must begin within 120 days. Thus, it is permissible for the length of the initial detention order to be of upto 120 days.
In fact, the government can dictate not just the length of detention order, but also the place of detention and conditions as to discipline and punishment while in detention, under Section 5 of the SPA. This gives the government immense power over the detainee. It should also be noted that Section 6 of the SPA provides that detention orders are not invalid if the detainee is outside the territorial jurisdiction of the person making the order. This gives even more leeway to the detaining authority.
Section 4 of the SPA provides that a detention order may be executed ‘in the manner provided for the execution of warrants of arrest under the Code.’ This refers to the Bangladesh Code of Criminal Procedure which provides that a person executing a warrant of arrest shall notify the person to be arrested of the substance of the warrant, and, if required, show him the warrant.13
This means that under the SPA, it is only the order of detention that must be served on the detainee at the time he is detained.14 There is no requirement that the detainee be heard or that he be informed of the reasons for detention or the materials on which the order is based at the time of detention. It is not until later that the grounds on which the order is based are required to be communicated to the detainee, as an examination of Section 8 will now reveal.
Section 8 of the SPA requires that the grounds on which the detention order has been made be communicated to the detainee. Subsection 1 expresses this shall be done ‘as soon as may be’, a phrase which, despite its imprecision, does convey an air of urgency.
However, subsection 2 goes on to provide the detainee shall be informed ‘of the grounds of his detention at the time he is detained or as soon thereafter as is practicable, but not later than fifteen days from the date of detention.’ In practice, it is only this 15-day limit that the authorities have noted, with detainees frequently not being provided with the grounds of their detention until 14 days after their arrest, if at all. This despite the courts’ opinion that ‘[t]he detaining authority is under an obligation to [provide] definite grounds as well as adequate particulars to the detenu so as to enable him to make a meaningful representation against the detention.’15
The High Court has held that detention orders are rendered illegal by imprecise grounds being issued to the detainee16 as it is detrimental to the detainee’s ability to make an effective representation against his order of detention.
The courts have also declared detention orders illegal when the authority has not provided sufficient and concrete details of the grounds of detention to justify the necessity of detention. One detention was held to be illegal as the date when the allegedly prejudicial act occurred was not stated in the grounds of detention.17 Another detention was rendered illegal due to lack of details regarding the time, place and nature of the act.18
Article 14(2) of the ICCPR states: ‘Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.’
By its very nature, preventative detention runs contrary to the presumption of innocence. A person is not ‘proved guilty’ when he is issued with a detention order; the authority must merely be satisfied he would otherwise commit a ‘prejudicial act’. Thus, according to Article 14(2), the detainee should be presumed innocent at this stage. However, by permitting the imprisonment of a person as a pre-emptive strike, the SPA operates in reverse – it presumes guilt, imprisons the person and then deals with questions of potential innocence later.
Section 8(1) permits the detaining authority, when communicating the grounds, to withhold facts that it considers to be ‘against the public interest to disclose.’ However, section 8 of the SPA provides no guidelines for determining whether the information is against the public interest. The determination is left entirely to the detaining authority, and thus is purely subjective. Once the exception is invoked, it cannot be challenged. This exception is simply another tool to enable the authorities to carry out arbitrary detentions.
In practice, the grounds that are served upon a detainee are often vague and unclear. In fact, it is common for Section 8 to be completely disregarded, and the grounds for detention not to be communicated to the detainee at all.19 Some detainees cannot read Bengali, and thus cannot understand the grounds of their detention.
Any person may, at any time following a detention, challenge the lawfulness of this detention before the High Court through a petition for a writ of habeas corpus based on Article 102(b) of the Constitution of Bangladesh.20
Most of the detentions under the SPA were found invalid because of procedural irregularities or because the evidence was insufficient to warrant the assumption that a detainee was likely to commit a ‘prejudicial act’.21 In one case the court went so far as to assert that ‘there hardly exists any real case when the provision containing a "threat to the security of the state" is found to have been properly applied.’
Although a habeas corpus court procedure provides a much fairer hearing for the accused than the SPA Advisory Board procedure, it is not enough to rely on this procedure to ensure the protection of the detainee. First, it must be noted that the knowledge and expense necessary to file a petition of habeas corpus means that few detainees actually have the opportunity to be heard by the High Court.22 The cost of legal fees for filing such petitions extends to over Tk. 10,000, which is well beyond the financial reach of most people detained under the act. As a result, only around half of those detained are ever able to bring their cases before the High Court.
Second, any protection for detainees provided by the courts is at best a ‘band-aid’ remedy and will remain so unless the draconian law itself is amended. In fact, the government has also employed devious methods to circumvent the decisions of the court. For example, in the case of Farzana Huq v. Bangladesh,23 the High Court declared the detention illegal as the grounds furnished were too vague. However, only hours later the individual was simply re-arrested on the same vague grounds.24
Section 10 of the SPA provides that the government must, within 120 days of the detention order, place the grounds on which the detention order has been made and any representation made by the detainee, before an advisory board consisting of three persons, ‘of whom two shall be persons who are, or have been, or are qualified to be appointed as, judges of the [High Court] and the other shall be a person who is a senior officer in the service of the Republic.’ The government appoints one of these members as the chairman.
Under Section 11 of the SPA, the advisory board must consider the material placed before it and call for any further information that it deems necessary from the government or the detainee. The advisory board must also give the detainee an opportunity to be heard in person.
Following this ‘fact-finding’, the board must submit a report to the government within 120 days from the date of detention. This report shall specify the unanimous or majority opinion of the advisory board ‘as to whether or not there is sufficient cause for the detention of the person concerned.’ This specific ‘opinion’ is the only part of the report that is made public. The proceedings of the advisory board and the remainder of its report are confidential. Section 11 even goes so far as to stipulate that a detainee is not entitled to representation by any legal practitioner in any matter connected to the reference to the advisory board.
Section 12 of the SPA describes the ramifications of the advisory board’s opinion. If the advisory board is of the opinion there is not ‘sufficient cause’ for the detention of a person, the government must revoke the detention order and release the person. However, if the board reports that, in its opinion, there is ‘sufficient cause’ for detention, section 12 states the government may confirm the detention order and continue detention ‘for such period as it thinks fit.’ This extended detention order must be reviewed once every six months by the advisory board, at which time the detainee must have the opportunity to be heard in person.
The entire procedure, however, is contrary to international standards of minimum rights for an accused person. First, the procedure laid down under the SPA allows a person to be detained for an extremely long period – 120 days – before the order is reviewed by an ‘independent’ body. Article 9(3) of the ICCPR states: ‘[a]nyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to a trial within a reasonable time or to release.’ The same article further provides that it shall not be the general rule that persons awaiting trial shall be detained in custody. Additionally, the minimum guarantees for an accused person provided in the ICCPR (article 14(3)), stipulate that the person by tried without undue delay.
Second, Article 14(1) of the ICCPR provides that in the determination of any criminal charge against a person, or of his or her rights and obligations in a suit at law, the person shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Additionally, the minimum guarantees for accused persons outlined under Article 14(3)(b)) – ability to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them – are blatantly violated.
However, all the material placed before the advisory board is provided by the government. Although detainees have an opportunity to present a submission in writing, they cannot call for evidence to support their assertions. The material placed before the advisory board by the government, remains with the government. Detainees are not permitted access to this information. Thus, as detainees are unaware of the evidence against them, they are not in a position to effectively rebut it.
Third, when the board reaches a decision, the SPA stipulates that the decision is to be submitted in a report to the government. Detainees are only permitted access to the final opinion of the board. All other proceedings of the board are kept confidential. This impairs their ability to prepare an appeal.
Fourth, the SPA denies detainees the facility to consult or be defended by a legal practitioner in any matter related to the advisory board (under Section 11).25 The denial of legal counsel to detainees is a clear travesty of justice. Furthermore, the constitution of the advisory board is questionable. During the reign of the Awami League government, when the SPA was first introduced, the advisory board’s opinion was simply a ‘rubber-stamped copy of the executive’s decision.’26
The advisory board must submit its final opinion in a report to the government within 170 days from the date of detention. However, if it is of the opinion that there is sufficient cause for detention it is not mandatory for the government to ‘confirm’ and ‘continue’ the detention order. Yet if the government does ‘confirm’ the detention order, it can extend the order for such a period as the government ‘thinks fit’. It is clearly absurd for the board to consider and make a determination on the facts provided to them, and then to hand the question of length of detention back to the government. This simply reinforces the government’s complete and unchecked discretion over the detainee. Finally, there is no provision for detainees to appeal against a decision of the advisory board.
Article 9(5) of the ICCPR provides that a person who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. The SPA makes no provision for compensation. However, the High Court has held that it has such power. In Bilkis Akhter Hossain v. Bangladesh and Others, it was held that courts have the power to order compensation in the case of illegal detention under the SPA. While this is a positive step, there have been no orders for compensation made since this case.
Under Section 19 of the SPA, the government may issue an order that an association suspend all its activities for up to six months if it is ‘satisfied’ that ‘there is danger that the association may act in a manner or be used for purposes prejudicial to the maintenance of public order.’ The government must hear from the person(s) concerned before issuing the order.
It is unclear how this ‘satisfaction’ could be challenged in court, as there is no legal basis to challenge the action of an authority. This provides the government with excessive discretion to declare associations illegal on a mere suspicion of prejudicial activities contrary to Article 22(1) of the ICCPR which recognises that every person has the right to freedom of association.
The SPA also provides for the creation of special tribunals under Sections 26 to 31. Special tribunals would have exclusive jurisdiction to try certain offences.27 These include all offences punishable under SPA, and any attempt to commit, or an abatement of, or any preparation for, the commission of these offences.
The ‘offences punishable under the SPA’ are laid down in the other provisions of the SPA, which do not deal with preventive detention orders. These provide for various offences, such as sabotage (Section 15), smuggling (Section 25B) and hoarding or dealing in the black market (Section 25).
Each special tribunal is presided over by a sessions judge, and can take cognisance of an offence on a report submitted in writing by a police officer in the rank of sub-inspector. Summary trials are conducted, and the special tribunals can confer any sentence, including the death penalty, subject to confirmation of the judgment by the High Court Division before it is executed. Trials before the special tribunal may also be held in absentia.
From its inception, the Special Powers Act has been used as a tool by military administrators and allegedly democratic leaders to silence political dissent. According to Amnesty International, the Awami League government of Sheikh Mujibur detained upto 35,000 people under the SPA, mostly for political reasons.28 Under the General Ziaur Rahman regime, more than 100,000 persons were detained under the SPA.29 Under President H.M. Ershad’s regime, the detainees numbered approximately 150,000 and included many opposition party members.30
On 19 November 1990, an alliance of opposition parties, including the BNP and the Awami League, issued a joint declaration calling for the annulment of ‘all laws conflicting with fundamental rights.’ President Ershad himself tried to repeal the SPA shortly before he was overthrown. However, since the decision was not gazetted, it lacked validity.31 Despite the declaration, the BNP chose to ignore Ershad’s actions and continued to use the SPA after its candidate, Begum Khaleda Zia, became prime minister.32
During Begum Zia’s tenure from 1991-1996, out of the 2,688 writs of habeas corpus were moved between August 1991 and June 1992, the High Court gave its judgement in 1,795 of these cases, and declared 1742 of them illegal.33 Similarly, in 1995 the advisory board affirmed only 50-60 per cent of the SPA cases brought before it.34
In her election campaign Sheikh Hasina of the Awami League promised to repeal the SPA if voted into power.35 In March 1997, however, she backtracked by stating that retention of the SPA was justified by its proven usefulness to the previous governments.36 Her foreign secretary went so far as to claim that she had never made any commitment to abolish the SPA.37 By September 1997, after just over a year in power, approximately 3,600 persons were detained under the SPA.38 According to Odhikar, a Dhaka-based human rights organisation, more than 188,000 people were detained in 1999.39 Of the 10,000 political activists arrested in 1999, more than 2,000 were held under the SPA.40
In the case of Nur Islam, a 12-year-old arrested under the SPA, a six kilogramme iron ball was tied to his feet in jail.41 Detainees may also be subjected to ‘tough interrogation’, which could include electric shocks, application of chilli powder in the eyes, insertion of a boiled egg into the anal passage, uprooting of nails, and forcing the detainee to drink urine. A police official admitted to having an interrogation method ‘so effective that anyone would confess in a couple of minutes to anything you want to make him say.’42
Daily physical torture and reduction in food rations are also common punishments for those unable to meet bribe demands.43 These heinous and inhuman acts are in direct violation of the Universal Declaration of Human Rights, the ICCPR, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
1. Habiba Mahmud v. Bangladesh, 45 DLR(AD)(1993)89.
2. Dilara Choudhury, Constitutional Development in Bangladesh, University Press Ltd., Dhaka, 1995, p.180.
3. Article 142 codifies the procedure to amend the constitution: a bill that contains changes to the constitution must first be passed by a two-thirds majority in Parliament. The bill must then be ‘assented to’ by the President before it becomes law. In the process of determining his assent, the President must hold a general referendum. If a majority votes against the enactment of the bill, the President cannot give his assent.
4. Act XIV of 1974, Bangladesh Gazette, Extraordinary, Part V, 9 February 1974.
5. See, for example, Dhaka Daily Star, 6/8/99, ‘Liberation and Beyond: Persona of Sheikh Mujibur Rahman.’
6. Quazi Reza-Ul Hoque, Preventive Detention Legislation and Judicial Intervention in Bangladesh, Bishwa Shahittya Bhavan, Dhaka, 1999, pp. 207-209.
7. Ibid. p. 206.
8. Dhaka Daily Star, 12/5/00, ‘Special Safety Act: People or Regime Security.’
9. 28 DLR (1976) HCD 259, at 265.
10. Md Humayun Kabir v State. 28 DLR (1976) HCD 259, at 265.
11. Md Humayun Kabir v. State. 28 DLR (1976) HCD 259, at 265. Mirza Ali Ashraf v. State. 43 DLR 144 (P88).
12. 27 DLR (1975) HCD 122, at 147.
13. Section 80.
14. Section 4 of the SPA provides: ‘A detention order may be executed... in the manner provided for the execution of warrants of arrest under the Code.’ This refers to Section 80 of the Bangladesh Code of Criminal Procedure, which provides that a warrant must be served on the person being arrested at the time of arrest.
15. Farzana Huq v. Bangladesh 43 DLR 501.
16. Mrs Aruna Sen v. Govt of Bangladesh 27 DLR (1975) HCD 122.
17. As in Ranabir Das v. Ministry of Home Affairs 28 DLR (1976) HCD 48, at 55.
18. Abdul Latif Mirza v. Bangladesh 31 DLR (1979) AD 1, at 13.
19. Quazi Reza-Ul Hoque, Preventive Detention Legislation and Judicial Intervention in Bangladesh, Bishwa Shahittya Bhavan, Dhaka, 1999, p. 245.
20. See Section I (B)(i).
21. Dhaka Daily Star, 12/5/00, ‘Special Safety Act: People or Regime Security.’
22. Democratic Local Sarkar Network (e-mail), A Campaign for ‘Democratic Local Government’ in Bangladesh, 28/2/00.
23. 11 BLD (1991) HCD 533.
24. Op.cit., p. 240; for another example of the use of re-arrest to get around time limits, see Monowara Begum v. Secretary, Ministry of Home Affairs, 41 DLR (1989) 35.
25. As mentioned above, clause (1) of Article 33 of the original constitution of Bangladesh guaranteed a detainee’s right to legal representation. The Second Amendment Bill of 1973 exempted preventive detention from clause (1).
26. Op.cit., p. 248.
27. Listed in the Schedule to the SPA.
28. The National Preparatory Committee for the World Conference on Human Rights Development, Democracy and Human Rights in Bangladesh: A Non-Governmental Perspective, Dhaka, 1993, p. 3.
29. Ibid., p. 13.
31. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh, Perspective Computer and Compose Printing, Dhaka, 1998, p. 266.
32. Dhaka Daily Star, 25/7/99, ‘The Silver Jubilee of the Special Powers Act: A National Shame.’
33. Amnesty International, 1992
35. Holiday, 14/3/97, ‘An Act that Refuses to Disappear.’
36. Dhaka Daily Star, 8/2/98, ‘Tough response to a hard-hitting report.’
38. United States Information Service, 1996 Country Report ‘Bangladesh’, U.S. State Department, Washington, January 1996.
39. Holiday, 31/12/99, ‘Over 10,000 Political Activists arrested in 1999.’
42. Holiday, 14/3/97, ‘An Act That Refuses to Disappear.’
43. ‘Torture and Deaths Under Police and Jail Custody and Jail Situation ’95’ by Akram H. Chawdhury, Secretary General of the Bangladesh Human Rights Commission (BHRC).