The term ‘preventive detention’ is used in contradistinction to the term ‘punitive detention. In other words, it may be said that ‘detention’ may be of two types-punitive detention and preventive detention. Preventive detention means detention of a person without trial and conviction by a court, but merely on suspicion in the minds of the executive authority. “Preventive detention is an abnormal measure whereby the executive is authorized to impose restraints upon the liberty of a man who may not have committed a crime but who, it is apprehended, is about to commit acts that are prejudicial to public safety etc’. ‘ Punitive detention on the other hand, means the detention of a person only after trial for committing a crime and after his guilt has been established in a competent court of justice. According to justice Vinan Bose, preventive detention has three special features.
The first is that it is detention and not imprisonment; the second is that it is detention by the executive without trial or inquiry by a court; and the third is that the object is preventive and not punitive. According to Chief Justice Badrul Haider Chowdhury, preventive detention means detention the aim of this is to prevent a person from doing something which is likely to endanger the public peace or safety or causing public disorder.
Preventive detention is a system in which the citizens of a country can be arrested without being told the grounds for the arrest. This sort of system is followed in Bangladesh. No one can be arrested without being told the grounds for such an arrest. If arrested the person has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought before the nearest magistrate within 24 hours. However, there is an exception to this general provision. Under preventive detention, the government can imprison a person for some time. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. But preventive detention can be extended only for three months. After three months such a case is brought before an advisory board for review.
Laws authorizing the detention of a person without trial were considered necessary by the British Indian Government to suppress subversive political activities of the people in the subcontinent but after achieving independence the Governments of India and Pakistan continued these laws. The framers of the Constitutions of both India and Pakistan, however, provided certain limitations of the powers of the legislature as well as the executive in their attempt to detain a person without trial. In Bangladesh, these limitations have been provided in the Constitution by amending Article 33. Clauses (4), (5) and (6) which have been inserted by this Amendment contain the limitations. Before examining the nature of the Constitutional protection of the restrictive laws, the origin of such laws may be considered.
Article 33 as originally adopted did not leave any scope for preventive detention. Preventive detention, though an evil, is a necessity for State security and by the Constitution (Second Amendment) Act, 1973 the old Article 33 was replaced by the present one providing that the above rights will not be available in the case of persons arrested or detained under any law providing for preventive detention. Preventive detention has three distinguishing features – (i) it is detention and not imprisonment, (ii) it curtails the liberty of a person by executive order without any preceding trial or inquiry and (iii) its object is preventive and not punitive.
Under Article 32 a law providing for preventive detention must both substantively and procedurally be free from arbitrariness and unreasonableness and must not be vague or disproportionate to the mischief sought to be remedied. In order to protect the individuals from arbitrary or high-handed arrest and detention by the executive, clauses (4) and (5) of Article 33 provide two important safeguards –
(i) approval by Advisory Board and
(ii) Communication of the grounds of detention. Both these safeguards are to be observed by the detaining authority. It is immaterial whether the constitutional safeguards are incorporated in the law as even if not so incorporated, it would be deemed to be incorporated in the law as superimposed by the Constitution.
B. NATURE OF PREVENTIVE DETENTION
As has been observed in Gopalan’s case ” there is no authoritative definition of the term ‘Preventive Detention;……”. In England, while explaining the nature of detention under Regulation 14B, framed under the Defence of die Realm (Consolidation) Act, 1914, the Judges referred to such expression. Lord Finally characterized it as not a punitive but a precautionary measure. “One of die obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy. When a person on preventively detained, such detention is not punitive.
‘No offence is proved, nor any charge formulated; the justification of such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence’.
The object of such detention is, however, not to inflict punishment for any act done by him but to prevent him from doing it. After observing how precious the personal liberty of the subject is, Lord Atkinson in Halliday’s case found a justification for preventive detention during war, “there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement.
In the same case his lordship defined preventive justice “which consists in restraining a man from committing a crime he may commit but has not yet committed, or doing some act injurious to members of the community which he may do but has not yet done…..”
And such preventive justice proceed “upon the principle that a person should be restrained from doing something which, if free and unfettered, it is reasonably proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof”.
Clause (4) and (5) of Article 33indicate that the preventive detention referred to therein is detention otherwise than by order of Court. There is no scope of judicial review. This kind of preventive detention is quite distinct from the ordered under the provisions of the Criminal Procedure Code. Like the detention pending trial dealt within Clauses (1) and (2) of Article 33, the detention referred to in Clauses (4) and (5) is not punitive detention. The first two clauses, we have seen, lay down the minimum conditions which the legislative sanctioning the arrest and detention of a person not convicted of a crime must comply with and the safeguards provided therein were largely covered by the provisions in the Criminal Procedure Code.
Clause (3) specifically lays down that these safeguards will not be applicable in cases of persons who are for the time being enemy aliens or who are arrested and detained under any law providing for preventive detention. The preventive detention contemplated in Clauses (4) and (5) has reference only to detention made by an order of an executive authority purporting to act under an enactment authorizing such detention.
Chapter VIII of the Criminal Procedure Code contains such provisions as, (a) Taking security for keeping the peace -Section 106; (b) Taking security for keeping the peace even in cases where there has been no conviction – Section 107; (c) Taking security for good behaviour – Section 108. The Court may order detention in prison under Sections 107,117 and 123 of the Code, but though this kind of detention is resorted to as a sort of precautionary measure, it is not a punitive detention. The fact that imprisonment follows as the result of a failure or refusal to give security does not make it a punishment inflicted for a crime.
An order for detention under the provisions of the Criminal Procedure Code is made by a magistrate for sufficient reasons established by the evidence and after full judicial enquiry. Here the detention can be avoided by giving security, while in preventive detention under an Executive order there is no choice. Preventive detention deprives a person of his right to liberty without the advantages that a person detained under the above provisions of the Code enjoys or to his right of moving the Supreme Court in appropriate cases, and also his right to defense by counsel of his own choice. A detenue under a Preventive Detention law is not required to be produced before any Court. Chapter VHI deals with (1) persons disseminating seditious matter; (2) vagrants and suspected person and (3) habitual offenders.
In Abdul Aziz v. Province of West Pakistan, the Supreme Court of Pakistan considered the , meaning and application of Clauses (1) to (5) of Article 7 of the Constitution of Pakistan, 1956, corresponding to Clauses(l) to (5) of Article 33 of the Constitution of Bangladesh. According to Cornelius J, Clause (1) of Article “7 was “completely new law, of a detailed nature, applying to persons who have been arrested under any existing law” and was not required to be incorporated in every law providing for arrest of person. Clause (2) merely repeated “with higher and all – embracing authority, certain provisions contained in the Criminal Procedure Code regarding production of an arrested person before a Magistrate within a precisely specified period of very short duration and that further must be under orders of a Magistrate”.
This clause does not indicate that “its provisions are to be expressly incorporated in every law which provides for the arrest of persons”. Clause (3) merely saved, from the operation of the first two clauses, persons who were enemy aliens and persons who were under preventive detention. Clause (4) did not contain any words from which one could infer that it sought to include in every statute of the relevant kind, provisions for the appointment and functioning of an Advisory Board. As was observed by Cornelius J, the clause “would be under which the detentions have been ordered”. Clause (5) did not “authorize the making of laws”, nor did it “impose conditions upon the making of laws relating to preventive detention”. It did not require that its provisions were to be incorporated in any law of the relevant kind. Clause (5) of Article 33 enacts positive law, effecting preventive detention, which must be read as supplementing the provisions of any statute existing in the same field.
Externment or banishment is akin to preventive detention insofar as this is also a precautionary measure and its abject is not to punish but to prevent. Its justification is also suspicion or reasonable probability. Even so, it was held that extemment or banishment was not detention, for, the latter meant that the person detained was not at liberty to go anywhere. In this case a person was externed from Delhi under the provisions of the UP. Act I of 1932 (as extended to Delhi) which did not provide for preventive detention.
A person can be preventively detained only under a provision of law. Preventive detention “makes an inroad on the personal liberty of a citizen without the safeguards inherent in a formal trial before a judicial tribunal and … it must be jealously kept within the bounds fixed for it by the Constitution and the relevant law”. If the law under which he is detained is pronounced unconstitutional and invalid he is to be at once set at liberty. Brett LJ observed:
“It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue”.
C. NECESSITY OF PREVENTIVE DETENTION
From the above discussion it is clear that preventive detention is an abnormal measure of curtailing personal liberty of a person. A question is then necessarily obvious- what is the justification or philosophy behind preventive detention?
The philosophy lying behind the preventive detention is the interest and security of the state and nation. National security and interest are more important than the personal liberty of citizens, for the enjoyment of personal liberty itself is dependent on the safe security of the state. This is why in times of grave emergency threatening to the security of the state preventive detention is authorized by law in all democratic countries including England and USA. Justifying the measure Lord Atkinson in R v. Halliday said:
“……….Where preventive justice is put in force some sufferings ad inconveniences may be caused to the suspected persons. This is inevitable. But the suffering is……inflicted for something much more important than his liberty or convenience, namely for securing the public safety and the defence of the realm”.
“……However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement….”.
In the same case Lord Finlay said—
“Any preventive measure even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state”.
As already mentioned in the earlier chapter, all international and regional documents of human rights recognize and make provision for derogation of rights in case of emergency and of national crisis. During the First and the Second World War the British Government was given extensive power by parliament to pass order for preventive detention. The US Congress has also given the executive power to make preventive detention. But this power can be exercised only in times of grave emergency like war or external aggression. Preventive detention is recognized as a war-time measure and not a peace-time measure. In times of peace preventive detention is not at all known in democratic countries.
D. RULE OF LAW AND PREVENTIVE DETENTION
The Act provides for indefinite periods of detention ranging on different intervals without effective safeguards. This arbitrary and malicious exercise of discretion of the government is grossly against the doctrine of rule of law. District Magistrate or Additional District Magistrate can initially issue detention order for 30 days. Later, it can be extended by the approval of the Government. In this respect, the Ministry of Home Affairs plays a vital role. Under this Act, the detainee is not produced in a Court and he/she is deprived to defend him/herself by any legal practitioner. This is a denial of the Constitutional safeguards of arrested and detained person who is not produced, as per the provision of this Act, to the nearest Magistrate within 24 hours from the time of his arrest. So this Act has been described by Gazi Muhammad Shahjahan MP of Bangladesh Nationalist Party (BMP) as “a jungle law framed by the previous Awami League Government in 1974”.
In case of detention beyond the period of 6 months, the approval of the Advisory Board comprising of three persons – two persons qualified to be appointed as Supreme Court Judge and one Senior Government Officer is necessary. The detainee can only submit a representation to the Advisory Board against his detention. But it is a very lengthy process and .as such the detainee cannot receive any relief. Under this Act, the detainee may be kept inside the jail for years together subject to the satisfaction of the Advisory Board, because there is no provision in the law for legal representation by the detainee to the Advisory Board and as such he remains in the prison for indefinite period without trial, without Court proceedings. This Act does not provide any compensation in favour of the detainee in case of hi? wrongful detention. That is why this Act was regarded by Justice Abdur Rahman Chowdhuary as the “blackest law of the black laws”.
E. PREVENTIVE DETENTION IN GLOBAL PERSPECTIVE
In England, the Executive claimed the right to arrest and imprison persons without triad only in two cases. First, it was claimed in assertion of the prerogative right. Secondly, it was exercised under powers delegated to the Executive by Parliament.
The exercise of the prerogative right was challenged in the case of the Five knights where the court held that, although if a cause had been stated, it could examine whether it was sufficient, and free the prisoner if it was not, if no cause at all were stated, other than the King’s Special Command, then the subject had no redress. The prisoners were, however, released in 1628. When Parliament opened Coke introduced a Bill to make it unlawful to detain any person for more than three months without trial. Iii the debate that ensued the right of the subject to be immune from detention without being charged with an offence according to law and being found guilty was emphatically reaffirmed. The Bill of Rights, 1688 contains a similar reaffirmation. There was an Act of 1701 of the Scottish Parliament ensuring to Scotsmen similar security.
In spite of these reaffirmations, in practice, during times of emergency, persons were done by suspending the Habeas Corpus Suspension Acts were the only proper way of proceeding in a national emergency. The Coercion Act of 1881, which gave the Irish Executive an absolute power of arbitrary and preventive arrest and power to detain in prison any person arrested on suspicion for the entire period during which the Act remained in force, served as a model for the Executive in England to assume powers during the two world wars.
In the debate on Regulation 18B of the Defence (General) Regulations, 1939 the government put forward which contradict each other: First, these powers have been delegated in their wide form to the Executive by Parliament, so the Executive cannot be blamed if it takes advantages of their amplitude, and secondly, the powers are not really arbitrary because Parliament controls their exercise. Professor G.W. Keeton says that,
” both arguments can not be right, and conceal the fact that for the period of the war . Our traditional liberties, dating back from Magna Cart, have been swept aside, we have become a police state. “
Under Regulation 14B made under the Defence of the Realm Acts passed in 1915 (the regulations under the two previous Acts being declared ultra vires by the courts and the third Act being condemned by such eminent persons as Lords Halsbury, Haldane. Bryce and Lore bum) persons could be detained without being brought to trial at all.
In Rex v. Halliday, Ex parte Zadig, the appellant, a naturalized British subject of German origin, who was interned under the regulations applied for a writ of habeas corpus. The question canvassed was whether the Defence of the Realm Act 1914-15 which empowered the executive to make regulations for securing the public safety and the defence of the Realm justified internment of a British subject without trial. Under the regulation the Secretary of State could detain a suspected person on the recommendation of an advisory committee presided over by a judge. The appellant argued that the regulation was ultra vires because, thought the Defence of the Realm Act was sufficiently wide for the making of such a regulation which conferred unrestricted powers still it should be interpreted in favour of the subject. The majority of the Judges, Lord Shaw dissenting, considered that the regulation was not ultra vires.
The Act authorized provisions for prevention and for punishment. Persons who violated the Regulation will incur punishment Persons of hostile origin and association could be detained. Lord Finaly (the Lord Chancellor) said:
“Any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state”.
During World war II the Emergency Powers (Defence) Act, 1939, gave powers under which the Executive prepared Regulation 18B – “If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations …….. And that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained”.
In Liversidge v. Anderson the House of Lords had to consider the scope and meaning of Regulation 18B just referred to. Lord Mangham did not consider the rule that legislation dealing with the liberty must be construed, if possible, in favour of the subject and against the Crown relevant when construing an executive measure which aims at preventing a public danger when the safety of the State is involved.
“The language of the Act of 1939 shows beyond doubt that Defence Regulations may be made which must deprive the subject ‘”whose detention appears to the Secretary of State to be expedient in the interests of the public safety” of all his liberty of movement while the regulations remain in force. There can plainly be no presumption applicable to a regulation made under this extraordinary power that the liberty of the person in question will not be interfered with, and equally no presumption that the detention must not be made to depend…….on the unchallengeable opinion of the Secretary of the State. The legislature obviously proceeds on the footing that there may be certain persons against whom no offence is proved nor any charge formulated but as regards whom it may be expedient to authorize the Secretary of State to make an order for detention.”
In both Halliday’s as well as Liversidege’s case the power with which the Court was concerned was ‘to take preventive measures in the nature of internment which will last only for a limited time’. In both cases it was contended that the regulations Safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war in which his Majesty may be engaged, and for maintaining supplies and the services essential to the life of the community.
Sub-Section (2) provides that the Defence Regulation may include regulations “for the detention of persons whose detention appears to the Secretary of State to be expedient in the public safety or the defence of the Realm”.
Ought to be read with a limitation in favour of liberty, and in both of them the Judges refused to limit the natural meaning of the words.
Quite confidently and without any hesitation Lords Finlay and Atkinson observed in Halliday’s case that the war emergency was a sufficient justification for such preventive measures. In the same case Lord Dunedin, concurring with the majority, said that preventive measures in the shape of internment of persons likely to assist the chance of abuse which is always theoretically present when absolute powers in general terms are delegated to an executive body, thinking that the restriction of the powers to the duration of the war was a sufficient safeguard.
The same principle has found acceptance in the speeches made by die Judges in Liversidge’s case. Lord Maugham’s reasons for conferring of powers to exercise preventive detention on his own responsibility on the Home Secretary embody the same precedent. Lord Wright did not accept the argument that the evils of the exercise of arbitrary powers of arrest by the executive are great in the circumstances they were conferred and to be exercised. In his opinion also there was no necessity for subjecting all such powers to judicial control. He said:
“All the courts to-day, and not least this House, is as jealous as they have ever been in upholding the liberty of the subject. But that liberty is a liberty confined and controlled by law whether common law or statute. It is, in Burke’s words, a regulated freedom. It is not an abstract or abstract or absolute freedom. Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty. If an Act of Parliament, or a statutory regulation, like regulation 18B, which has admittedly the force of a statute, because there is no suggestion that it is ultra vires outside the Emergency powers (Defence) Act, under which it was made, is alleged to limit or curtail the liberty of the subject or vest in the executive extraordinary powers of detaining a subject, the only question is what is the precise extent of the powers given.”
In his opinion the answer to that question could only be found by ‘scrutinizing the language of the enactment in the light of the circumstances and the general policy and object of the measure’. The English Constitution does not contain a declaration of the guaranteed or absolute rights, yet the courts in England would not countenance any arbitrary, despotic or tyrannous conduct.
“The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are here given, they are given, they are given because the emergency is extraordinary and limited to the period of the emergency.”
In conclusion, the English Parliament has so far authorized preventive detention only during such emergency as two World Wars. Lord Macmillan in the same case said:
“The liberty which we so justly extol is itself the gift of the law of the land and, as Magna Carta recognized, may by the law be forfeited or abridged. At a time when it is undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country’s cause, it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power of enforcing the relatively mild precaution of detention”.
ORIGIN AND DEVELOPMENT OF PREVENTIVE DETENTION IN THE INDIAN SUB-CONTINENT
A brief history of the preventive detention laws will throw some sidelight on the significance of such laws as have been enacted in the Indian Sub- Continent.
With the Bengal State Prisoners “Regulation HI of 1818 the authority to detain persons without trial came to be first exercised on British India. In the next year the Madras State Prisoners’ Regulation II of 1819 and a few years after the Bombay State Prisoners’ Regulation XXV of 1827 were promulgated In the case of the Bengal Regulation the Governor General and in the other two cases the Governors of the provinces were authorized to order detention and for this purpose they were invested with wide discretion. Provided the action taken was within the scope of the Regulation, the jurisdiction of a court of law to question the legality was barred.
However, the grounds on which detention could be imposed were limited. The Bengal Regulation provided for detention for “reasons of state, embracing the due maintenance of the alliances formed by the British Government with foreign powers, the preservation of tranquility in the territories of native princes entitled to its ‘protection and the security of the British dominions from foreign hostility and from internal commotion.” Under the other two Regulations detention could be ordered only on grounds connected with the maintenance of public order. Neither of these Regulations, however, fixed any period for detention, that is, a person could be detained without trial for unlimited time.
These Regulations, no doubt, were motivated by the principle “no detention without statutory authority’. Though there were no provisions made for any advisory council and the detained person was given no right to be heard or informed of the grounds of detention, any representation made by him was to be submitted to the authority concerned.
We need not pause to consider the extension of the Bengal Regulation to the other provinces of British India and their contents and history. But the Defence of India Acts passed during the two world wars require mentioning. The Defence of India Act, 1915 was to remain in force during the continuation of the war and six months after the cessation of hostilities. Under the provisions of the Act, rules could be made empowering the civil as well as military authorities to direct any person to reside or remain in any specified area if they considered that reasonable grounds existed for suspecting any person to have acted or was about to act prejudicially to the public safety. Between this enactment and the Defence of India Act, 1939, the Anarchical and Revolutionary Crimes Act, 1919, popularly known as the Rowlatt Act and several Emergency Powers Ordinances under the Government of India Act, 1919, were promulgated. The Defence of India Act, which authorized preventive detention without trial in British India was enacted under the provisions of the Government of India Act, 1935. It continued during the period of World Was II and was in force till six months after the hostilities ended.
After the establishment of Pakistan the Central Statutes that were passed were Pakistan Public Safety Ordinance XIV of 1949, the Pakistan Public Safety (Amendment) Act XXXVI of 1950, the Pakistan Public Safety Ordinance VI of 1952 and lastly the (Security of Pakistan Act XXXV of 1952. Besides these Central Acts, the Provinces enacted Public Safety Acts and Ordinances whose number exceeded more than a dozen.
The Security of Pakistan Act, 1952 made provisions for communicating grounds of detention to the detained person, enabling him to make representation and setting up an Advisory Board. The life of this Act was extended several times by Acts and Ordinances, and this Act was amended on several occasions, the last being Security of Pakistan (Amendment) Act, 1965. On September 6, 1965 when hostility started between India and Pakistan, the President of Pakistan promulgated the Defence of Pakistan Ordinance XXIII of 1965 in exercise the Powers conferred by Clause (4) of Article 30 read with Clause (2) of Article 131 of the Constitution. Section 3(1) and (2) empowered the Central Government to make rules which among other matters could provide for –
“The apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain as the case may be, suspects, on grounds appearing to such authority to be reasonable, of being hostile origin, or of having acted, acting, being about to act, or of being likely to act in a manner prejudicial to the external affairs, the security, the public safety or interest, or the defence of Pakistan or any part thereof, including the maintenance of supplies and services essential to the life of the community, and the maintenance to the maintenance of public order, or the efficient prosecution of war, or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner, the prohibition of such person from entering or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything.”
The Defence of Pakistan Rules, 1965 which were framed under the Ordinance conferred extensive powers of detention on the Central Government and also gave wide powers of arrest and detention to the police officer or any other officer empowered in this behalf by general or special order of the Central Government. In Bangladesh, laws relating to preventive detention were enacted subsequent to the amendment of Article 33 of the Constitution. The Special Powers Act, 1974 which came into force on February 9,1974 has incorporated the requirements laid down in this Article.
After independence the Constitution of Bangladesh was adopted on 4 November 1972 and it come to force on 16 December 1972. As mentioned in the preceding chapter, taking the bitter experience of arbitrary arrest and detention under various preventive laws during the 23 year history of Pakistan into serious consideration the Constitution makers didn’t want to leave any scope for preventive detention. As a result, in the original Constitution of Bangladesh on provision was embodied allowing preventive detention. But only after 9 months of its life by the Constitution (Second Amendment) Act Article 33 dealing with safeguards as to arrest or detention was substituted in the line with Article 22 of the Indian Constitution so as to allow for laws to be made on preventive detention. Under the authority of this amended provision of Article 33 the parliament in February 1974 enacted the most hated and democracy destroying draconian law – the Special Powers Act, 1974 providing for preventive detention for all times.
G. 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. Further, this elaborate provision for safeguarding the detained person’s interests may be regarded as an argument against holding that absolute discretion has been conferred on the government. “The setting up of an Advisory Board to determine whether such detention is justified is considered as sufficient safeguard against arbitrary detention under any law of preventive detention.
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.
Thus, in a case decided under the Constitution of Pakistan, 1956 it was held that the constitution provisions limiting detention without trial to a period not exceeding the period mentioned therein, unless in the opinion of the Advisory Board sufficient cause for such detention exists, need not be inserted into every statute. “Clause (4) of Article 7 of the Constitution of Pakistan 1956 (which corresponds to Clause (4) of Article 33) does not hit a statute of the relevant kind either on the point of competence or that of content, but applies in respect of the operation of such statute. The clause like every other clause in Article 7, contains nothing in the way of a direction obliging the insertion of its provisions in every statute of the relevant kind. The clause imposes a condition upon die power of detention without trial vested in authorities under existing law, viz., that the satisfaction of the detaining authority regarding the need for detaining a particular person shall not by itself be sufficient for continuing that detention beyond an initial period of three months, unless an Advisory Board, as prescribed, has concurred in the opinion held by the detaining authority in that respect.
On the arrest of Sayyid Abul Maudoodi and forty -three other members of the Jama’at-i- Islami under Section 3 of the West Pakistan Maintenance of Public Order Ordinance No. XXXI of 1960, objections were raised as to its validity on two grounds. Inter alia, that the Ordinance was repugnant to the Constitution and, secondly, thai the constitution of the Advisory Board was illegal. It was held that the limitation imposed by the provisions similar to Clause (4) of Article 33 would be effective if die detention exceeded three months, la such a case the Advisory Board must be satisfied not only with regard to preventive detention but also in respect of the tune-limit. Disagreeing with the majority views of the Indian Supreme Court which were based more on administrative expediency than the proper construction of the corresponding provisions of Article 22 of the Indian Constitution, Yakub Ali J said:
“A case of preventive detention is required to be referred to be referred to the Board only if the Government expresses an intention to detain a person for a period exceeding three months and not otherwise. The Board is cognizant of the fact if it concurs with the order, the person concerned may be detained for an indefinite period. What appeals to the mind of the Board in forming its opinion is, therefore, not only the justification of preventive detention but a possible lifelong incarceration. How can it then be said that the mind of the Board must remain indifferent to the time factor and it is for the detaining authority alone to determine it after the Board has expressed its satisfaction.”
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 pray 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. Thus, an order of detention which did not specify any period, but merely stated “till further orders was held defective.
H. PREVENTIVE DETENTION IN BANGLADESH AND VIOLATION OF HUMAN RIGHTS
Article 33 of the Constitution guarantees that a person arrested be informed of the grounds for detention; provided access to a legal practitioner of her/his choice; and brought before a court of competent jurisdiction within 24 hours of arrest. Throughout the year, how-ever, law enforcement agencies arrested and detained persons arbitrarily under section 54 of the Criminal Procedure Code (Cr PC), 1898 the Special Powers Act, 1974 and the Public Safety Act, 2000.
Section 54 of the Cr PC empowers the police to detain any individual on nine grounds of reasonable suspicion’ of criminal activity with out any order from a magistrate or a warrant. The Code however provides of specific legal safeguards. Under section 162, forced confessions are inadmissible in evidence unless admitted by the accused before a magistrate, who accepts it as being given voluntarily. Section 163 of the Code prohibits the police from making any inducement, threat or promise during investigation, while section 164 protects the detainee’s right to remain silent in case s/he wishes not to confess.
Even though three different governments were in office during the year, there was little change in the nature of police excesses and there was no decrease in arbitrary arrests and detention during the terms of the two elected governments. The administration functioned somewhat neutrally only during the three-month Caretaker regime. In its last year, the AL rule was marked by numerous incidents of arrest, detention and persecution of political opponents. Soon after the Caretaker Government took office, police arrested hundreds of armed cadres associated with the major political parties for the purpose of confiscation of illegal firearms. Under the BNP led Four- Party Alliance, which took office on 10 October, the number of arms cadres were arrested.
H. 1. Arbitrary arrest under Repressive Laws
Notwithstanding the safeguards given in the laws, section 54 Cr. PC is frequently misused by the law-enforcement agencies. In many incidents person initially detained under section 54 of the Cr PC were subsequently given prolonged detention under other repressive laws such as the SPA or the PSA. Newspaper reports have quoted numerous instances of persons languishing in prison without trial for years, on grounds of reasonable doubt.
H. 2. Arrests under Section 54
The police sometimes use Section 54 to harass and intimidate members of the political opposition and their families. Or detain opposition activists prior to and during general strikes, without citing any legal authority and hold them until after the event. Newspapers have reported instances of police detaining persons to extract money or for personal vendetta.
On 1 July 2001 a report published by the office of the Chief Metropolitan Magistrate, Dhaka revealed that in 11 out eleven police stations of Dhaka city, 17,338 persons were detained, all of whom had been arrested under section 54 of the Cr PC. Police sought remand for all the detainees but the court accepted their plea for 6,503 persons only. Only 113 of remanded detainees confessed their guilt to the police. The report also held that punitive actions had been taken against as many as 85,000 police personnel for abuse of power and alleged implication in criminal activities.
Quoting sources in the Ministry of Home Affairs, another news item reported that over the last twelve months, Dhaka Police lodged 3,917 GED (general diary) and arrested 6,178 persons under section 54 of the Cr PC. In most cases, the detainees had been identified as ‘wanted criminals’, ‘extortionists’, ‘muggers’, drug addicts’ and ‘persons dangerous for peace and tranquility’. Of those arrested, 619 were detained under the SPA. Cases were proved only against four detainees and the court ordered release of the remaining 6,174 detainees. In May 2001, Mr. Shoilendro Kumar Adhikari, the learned Chief Metropolitan Magistrate of Dhaka, held a meeting with all the magistrates under his jurisdiction and directed them to grant immediate bail to detainees under section 54 Cr. PC unless specific charges were brought under any other law. A month after this directive was circulated to the police departments; the metropolitan police stations in Dhaka showed a decrease in arrests. However, the scenario remained unchanged across other parts of the country.
H. 3. Incidences of Arrest / Detention under Section 54
5 February 1992, the Daily Star reported that a Nigerian citizen was arrested in March 1992 and, after a three year trial, was sentenced to two months of imprisonment. On completion of the prison terms, he remained a prisoner in Dhaka Central Jail. Nineteen-year-old Nigerian citizen Goddyu Ochendo was arrested in connection with drug smuggling along with an American, Elieda MacCord, in 1992 in June 1993; Goddyu was acquitted of drug smuggling. But on 13 July 1993, he was charged with using an’invalid’ passport. He completed a two-year prison term on 31 May 1995 in the passport case. He then complained to the CMM Court that he could not go home as his lawyer defrauded him of his money. He had deposited US$1, 421 with his lawyer during the trial, but he alleged that the lawyer did not return the dollars. The lawyer then filed a revision case denying the allegation. In a recent prayer to the Home Ministry, Goddyu gave up his claim to the dollars and begged for release…..even after five months. Goddyu was one of the 27 foreigners who were detained for years at the Dhaka Central Jail even often completing prison terms. Of them, thirteen were from India, one from Pakistan, ten from Myanmar and three from Africa.
7 February 2001, the Daily Ittefaq reported that police sent a motor garage owner to jail under Section 54 of the CrPC, in the Fokirhat area under Bagerhat District. A gang of local hoodlums abducted the ill-fated garage owner, named Keramot Ah. Police rescued him later from the local Polli Mongol Samity (village welfare association), his hands and legs tied with strong ropes. But police later on arrested him and sent him to jail. None of the abductors, however, were arrested by the police.
18 February 2001, Jugantor ‘ Panama Faruque’, a cadre of the Jabo League (youth front of the ruling Awami League), kidnapped Aminul Islam from his residence in Barisal.
The Jabo League gang mercilessly beat him with lethal weapons. The police rescued Aminul Islam; instead of arresting the oppressors, they arrested Aminul Islam under Section 54 of the CrPC and applied for his remand from the Court.
14 March 2000, Jugantor reported that a ten to twelve year old boy Noor Hossain was detained in jail. He stayed there for nine months without any charges. Family sources informed that members of Khulna police suddenly entered their home on 1 June 2000 and arrested Noor. Neither Noor nor his parents were told why the boy was kept in prison.
30 March, Jugantor reported that eleven party activists of the Islami Chattro Shibir (student wing of Jamat-Islami ) were arrested on March 25 under Section 54 of the CrPC and given one month’s detention in Dhaka Central Jail. Their detention was on grounds of suspicion that they had been secretly planning to overthrow the AL Government.
3 July 1998, Janakantha reported that Mohammadpur Thana police arrested Jalal along with two other youths, Tanvir and Habib, on 3 December, 1997 under section 54 of the CrPC. They were sent to the court and while the two others had been charged under the Arms Act, Jalal’s name did not appear in the charge sheet. Nevertheless he was detained in the prison for four years, without trail. Recently, the matter was heard by the Fifth Additional Metropolitan Sessions judge Aminul Islam, the learned judge found that Jalal was not an accused in the Arms Act case under Mohammadpur Thana. Jalal arid the two others were granted bail on 22 December 1997 but no date was fixed for his appearance before the Court. As a result, although the two accused were freed, the order for Jalal’s release had to await the Court hearing. The Judge ordered his immediate release and termed the prolonged detention as a ‘regrettable incident. Even though he committed no offence, Jalal’s confinement was prolonged due to police excesses. He received no compensation. 19 July, Janakantha reported that on the order of the Caretaker government police (lid massive operations. On the first day, police in Naogoan, Rajshahi couldn’t arrest any terrorist, but twelve people were arrested under section 54.
On 23 July 1999, Sangbad reported that on 19 July, in chattra league’s meeting, Chatra Dal and Shibir jointly caused bomb explosions Chatra Dal District Vice-President Amirul Islam and another leader Khokon was arrested with 38 bore revolver at the time of the incident. For unkown reason, Amirul was shown to be arrested under section 54 and Khokon was arrested under the Arms Act.
4 August 2003, Ittefaq reported that on 25 July, Golam Mostafa Mostu (25), of the Kamalpur village of Mithamoin thana, was arrested under section 54 when he was seen moving suspiciously and was sent to jail.
30 October 2000, Jugantor reported that Ratan Molla a charge sheeted criminal for attempting to murder and keeping explosives (case no 77/463), was arrested by the police. But he was shown to be arrested under section 54 and the police asked for a detention order. Ratan Mollah and his associate’s satbbed a person named Enayet Hossiain Howlader
8 December 2003, Bhorer Kagoj reported that on 4 December despite having specifically complained JCD leader Nasir was arrested under section 54 Nasir along with his gang demanded a toll from a shop in front of Shutrapur thana and lock the shop. Three days after the following incidents police arrested arid detained him.
I. PREENTIVE DETENTION UNDER SPECIAL POWERS ACT, 1974
In the original Constitution of Bangladesh, which was enacted in 1972, there was no provision relating to special powers for preventive detention, proclamation of emergency and suspension of fundamental rights. Rather, rights to protection from arrest and rights against detention were guaranteed under articles 31 and 32 of the Constitution. Though there were laws in different countries of the Indian subcontinent regarding preventive detention, the frames of the Constitution of Bangladesh carefully avoided such type of oppressive provision. Originally Article 33 did not leave any scope for preventive detention. But in 1973, this Article was replaced by the Second Amendment under which a person can be arrested and detained. So according to the above Amendment, the fundamental rights discussed earlier are not available to the persons arrested or detained under preventive detention. The laws relating to preventive detention are enacted subsequent to the Amendment of Article 33 of the Constitution.
The SPA that came into force on February 9, 1974, was the result of the amendment of Article 33 of the Constitution Clause 3 of Article 33 specifically lays down that these safeguards as to arrest and detention under clause (1) and (2) will not be applicable in cases of persons who are enemy aliens or who are arrested and detained under any law providing for preventive detention i.e. under the SPA.
The SPA empowers a District Magistrate to order detention of any individual for 30 days to prevent any act likely to prejudice the security of the count. The law also cvers other offences which include haoarding or black marketeering and smuggling. The law provides that the magistrate lias to ingorm die detainee of the grounds for detention within 15days and that the grounds for detention must be approved by the government within 30 days of detention. If these requirements cannot be fulfilled the detainee must be released following 30 days of detention. But in practive these provisions arte hardly complied with. In most cases, fresh detention orders are issued before the expiry of 30 days (Hid the detainees are not assigned grounds for the derention. This law is most nakedly used to persecute political opponents. Under the Constitution the detainees can appeal against their detention to the Supreme Court.
Cases filed under the SPA can be examined by an Advisory Board composed of two people who have been, or are qualified to be high court judges and one civil servant. The board is to sit every four months, and review SPA cases. However the detainees are not allowed to be represented by a lawyer before the Advisory Board. Relatives can visit detenues. The detainee remains imprisoned if the government can adequately defend its order, but if the contrary is proved, the detainee has to release. In most habeas corpus a petition the High Court Division release the detenues and declares the detention orders made without legal authority. But this is not true in the case of poor citizens. In several cases, detenues who were either too poor or unable to consult legal counsel had to serve prolonged detention.
As to magistrates are subordinate to administrative control of the executive they are reluctant to dismiss let alone quash a case under the SPA since most cases are political in nature and the government itself becomes the complainant.
A Parliamentary Sub-Committee report published in September 2000 admitted that the State lost over 80 per sent of cases filed under the Special Powers Act. On 11 April the Prothom Alo quoted a leading jurist as saving. Due to misapplication the Court declares 99 per sent of the detention orders under the SPA illegal and void. Hence we can say that misapplication and abuse is the main feature of this law. This opinion also corroborates that of another Parliamentary Sub-Committee which found that the cases under the SPA generally were so weak and vague that the Court had no alternative but to release the detenues. The US Report on Human Rights Practices in Bangladesh, 2001 claimed that a total of 755 persons had been detained under the SPA between January and June 2001. The Daily Star, of 30 November, reported that some 8,000 cases were filed under the Special Power Act,1974.
The BNP had promised to scrap the SPA in the first hundred days. Senior leaders of the Four Party Alliance stated in public that they were considering the repeal of the law and the Prime Minister issued some directives to the concerned ministries, and many steps for scrapping the SPA were taken. However, it may be noted that a number of arrests under this law were reduced.
I. 1. Drawbacks and abuses of the Special Powers Act
Since under this law a person can be detained up to six months without the approval of the Advisory Board and up to indefinite period with the approval of the Advisory Board. This has been indiscriminately termed as a black and repressive law. All the political parties, since the enactment of the law, describing it as a repressive law, have been demanding its repeal, but for 25 years from its enactment, nothing has been done for repealing such anti-humanitarian law under which many innocent men and women had been and are being detained mostly on the political ground.
Detention is of two types under Constitutional law, (i) punitive detention and (ii) preventive detention. Punitive detention is imposed by a Court of law while the preventive detention is imposed by executive authority i.e. by District Magistrate (DM) or Additional District Magistrate (ADM). Punitive detention, is given to a person for committing a crime or wrong but preventive detention is awarded for preventing the accused from committing prejudicial acts. Suspicion or reasonable possibility of the impending commission of prejudicial acts is sufficient for preventive detention. Section 3 of the SPA gives power to the executive authority to arrest and detain someone on the subjective satisfaction of the concerned executive officer. If the concerned officer is personally satisfied that there is sufficient cause of suspicion against any person of committing any of the acts prohibited by the SPA, he can give order for preventive detention. The Executive Officers may quite likely abuses the power and as such he is not free from controversy. He is not accountable to anyone for awarding preventive detention. Political leaders very often exert influence upon the Magistrate or Additional Magistrate and also on the police officers so that they exercise subjective satisfaction for detaining political opponents. It is hard realities that in most of the cases the Magistrate try to serve the vindictive desire of the ruling party.
Whatever may be the expressed purpose of this Act, the inner intention is to crush the opposition parties So the power of the preventive detention under this Act has been greatly abused for the last 30 years, as the ruling parties have also acknowledged it. Hundreds and thousands of political leaders and workers have been and are being detained under this law for a long period without any trial. This law, in actual practice, negates all the avowed commitment and spirit of the constitution, particularly the fundamental rights guaranteed by it.
I. 2. Prominent Arrests under the Special Powers Act, 1974
Jatiya Party Chairman Ershad was detained on 20 November 2000. According to the press, the Court ordered his release upon payment of a fine of Taka 27.50 million in a corruption case; he had served a five-year term and had to serve another three months for failure to pay the fine. Maulana Azizul Haq, Chairman of the Islami Oikkyo Jote, a member of the four-party alliance, was re-arrested on 1 March, inside prison, after the Court granted him bail in a different case. Numerous court cases were Hied against opposition MPs and party activists on charges ranging from corruption to murder.
Eleven members of the Jamat-i-Islami were arrested on 18 June under the SPA, after holding a meeting with the US based National Democratic Institute (NDI) to discuss training for election polling agents. NDI had held virtually the same meeting with other political parties. At the time of the arrest, police told Jamat members that they were under arrest for ‘subversive, secret meetings with foreigners. Grounds for detention were later listed as conspiring to commit.
I. 3. Judicial Relief Under the Special Powers Act, 1974
Under the SPA, an aggrieved person, on account of his/her preventive detention, can file an application (writ of habeas corpus) under Article 102 of the Constitution in the High Court Division and 95% of such cases are declared by the High Court Division as illegal and framed unlawfully. 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 writ of habeas corpus or the initiation of proceedings under Section 491 of the CrPC 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. But after release of the detainee on High Court Division order, in most of the cases he is detained again and so on and so forth. In this way, the numbers of detainees always remain higher than the numbers of released persons. Besides, in many cases, the poor detainees cannot bear the expenses of the cost of writ petition So they remain inside the jail for years and in some cases some detainees die during detention without knowing the ‘offence’ on account of which they were arrested and detained. So there is no doubt, a repressive and anti-humanitarian law from which the nation is striving hard to be freed.
I. 4. Some remarkable cases under the Special Powers Act, 1974
A very recent case of detention will surely manifest the ugliest application of this Act. Azaduddin, Chairman of number 7 Char-Alexander Union Parishad, PS. Ramgati of Laxmipur district and a freedom fighter, was arrested under the Special Powers Act. He was also earlier arrested and detained twice under this Act, in 1996. In the present case, a High Court Division Bench Consisting of Kazi A.T. Monowaruddin, J. and Muhammad Zoinul Abedeen, J. declared the detention of Azaduddin as illegal and without lawful authority and ordered his immediate release. He was arrested for political jealousy and rivalry. The High Court Division in the earlier cases also declared his detention as illegal. In each time he has been detained by the order of the DM (Deputy Commissioner of Laxmipur District) on the same grounds. The High Court Division, on l” September 1999, ordered not only release of Azaduddin but also ordered the DM to pay compensation personally to Azaduddin of Tk. 10,000.00 (ten thousand taka) to be deposited in the High Court Division within 30 days from the date of order and as because the said DM repeatedly detained the said Chairman on the same unreasonable grounds, the learned judges treated it as contemp