Preventive detention is the most arguable topics of law in recent time. That’s why a lot of people tried to give a exact definition of it. But there is no authoritative definition of it. In the case A.K. Gopalan v. State of Madras1, the court held that, there is no authoritative definition of Preventive Detention. The word “Preventive” means that restrain, whose object is to prevent probable or possible activity, which is apprehended from a would be detent on ground of his past activities2;
“Detention” means keeping back3. Preventive detention means detention of a person only on suspicion in the mind of the executive authority without trail, without conviction by the court4.
People are taken under detention whey they commit any crime or they are taken under a trial for their criminal activities. That means detention is the result of committing any crime by an individual of a nation .But preventive detention means dissimilar to it. In general law, no people can be arrested without knowing him the reason of arresting and there is a specific time of 24 hours to take him in front of a Magistrate. But in preventive detention a people can be arrested any time without telling him any reason and can be taken in custody for 6 months. So in the general sense, it can be said that Preventive detention is an that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime. Preventive detention is a special form of imprisonment. Most persons held in preventive detention are criminal defendants, but state and federal laws also authorize the preventive detention of persons who have not been accused of crimes, such as certain mentally ill persons.
According to the Webstar’s World Law Dictionary, “preventive detention is a confinement of an accused person pending trial, under terms of a statute authorizing denial of bail to defendants charged with having committed certain offenses and/or are considered to be a danger to themselves or to the public at large.”According to American Heritage Dictionary, “preventive detention is the pretrial imprisonment without the right to bail of a person accused of a felony and judged dangerous to society.”
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” Delhi (1993) at p-48.
Preventive Detention in Bangladesh:
The first constitution of Bangladesh had no provision of preventive detention. It has been added on the constitution by the 2nd amendment of the constitution in 1973.Preventive detention has been legalized in Bangladesh by the article 26 and 33 of the Constitution of Bangladesh. It has been stated in article 33 that “Safeguards as to arrest and detention.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may not be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses and shall apply to any person- (a) who for the time being is an enemy alien; or (b) who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a period exceeding six months unless 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 Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention.
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order.
(6) Parliament may be law prescribes the procedure to be followed by an Advisory Board in an inquiry under clause.”
The Special Power Act 1974 of Bangladesh has also described the provision of preventive detention.
The Parliament on February 9, 1974 enacted the black law, “Special Powers Act, 1974” containing the provisions of preventive detention. The Act says that any person can be arrested and detained by the executive authority if there is apprehension in the mind of the authorities that he may commit “prejudicial act” which means-
Ø To prejudice the sovereignty or defense of Bangladesh;
Ø To prejudice the maintenance of friendly relations of Bangladesh with foreign States;
Ø To prejudice the security of Bangladesh or to endanger public safety or the maintenance of public order;
Ø To create or excite feelings of enmity or hatred between different communities, classes or sections of people;
Ø To interfere with or encourage or incite interference with the administration of law or the maintenance of law and order;
Ø To prejudice the maintenance of supplies and services essential to the community;
Ø To cause fear or alarm to the public or to any section of the people;
Ø To prejudice the economic or financial interests of the State.
So, it is clear that though the first constitution of Bangladesh didn’t have the provision regarding the preventive detention, it has been made as law for some unlawful opportunities taken by the political parties by the 2nd ammendment of constitutin and Special power act 1974.
History of Preventive Detention:
In the case, R. vs. Halliday1, the expression, the word Preventive detention was used in Britain first time. Preventive detention was first introduced in our sub-continent in 1818 by the Bengal State Prisoners Registration iii. The Presidencies of Madras and Bombay made similar regulations in 1819 and 1827. In 1935 through Government of India Act, provided for scope of Preventive detention and under the Defense of India Ordinance was promulgated.
After gaining independence, both India and Pakistan allowed for the continuation of preventive detention laws in their respective constitutions. In India the Preventive detention was enacted in 1950 as named “Preventive Detention Act, 1950”. Afterward it was amended and replaced by Maintenance of Internal Security Act, (MISA) 1971. Preventive detention also introduced by Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) 1974, National Security Act 1980, The Essential Services Maintenance Act (EMS) 1981, and lastly by the Terrorist and Disruptive Activities (Prevention) Act 1985. In Pakistan through Public Safety Ordinance Act 19492, Public Safety Act (Amendment) 19503, Public Safety Ordinance 1952 and lastly The Security of Pakistan Act 19524 were provided Preventive detention in various ways. The constitution of Pakistan of 1956 and 1962 empowered and also constitution of 1973 empowered parliament of Pakistan to enact Preventive detention laws. In Bangladesh the original constitution, there was no provision introducing for Preventive detention. But through 4th amendment by “The Special Powers Act 1974” (9thFebruary) enacted Preventive detention act which was an anti-people black law still continuing.
1.(1917) AC 260
2.Ordinance xiv of 1949
3.Act xxxvi of 1950
4.Ordinance vi of 1952
As a result, during the struggle for independence from Pakistan, Bengali freedom fighters were arbitrarily arrested and detained on a routine basis. Upon Independence, the political leadership of Bangladesh declared its commitment to ending this practice, and the Constitution of Bangladesh, promulgated on 6 December 1972, did not provide for preventive detention. However, the pledge was short-lived.
In September 1973, the Parliament passed the Second Amendment Bill which amended Article 33 of the Constitution of Bangladesh and authorized Parliament to pass preventive detention laws. While the inserted provision did provide for some safeguards–such as the production of the detainee before an Advisory Board within six months of his or her detention–the effect of the amendment was to open the way for wide-scale arbitrary detentions.
Five months after the adoption of the Second Amendment Act, the Special Powers Act 1974 (the Act) was passed. The Act was purportedly designed to crush “black marketers.” However, it was immediately used to neutralize political opponents.
Preventive Detention; A weapon of Oppression:
Preventive detention has both some advantages and disadvantages as every others law. But, the use of this power should be very limited or it may be a weapon of oppression very easily.
In some third world’s corrupted countries, it has already a weapon to oppress people. In most democratic counties, this law can be used only in emergencies. As for example, in the U.S.A, this law can be used only in emergencies.
The United Kingdom has the same regulation as well as U.S.A. The Court of European Union has declared this law illegal when there is no emergency. CASE: A and others v. United Kingdom. But in third world, it can be used both at the time of emergencies and at peace for example, Bangladesh, Nigeria and so many. When the rule of preventive detention is in used highly, then there is a high chance of misusing it. So, it can be said that, excessive use of it can be harmful for the state and democracy.
There are some specific reasons why it can be said as weapon of oppression.
Firstly, in Bangladesh without trial six months detention can conferred to the detainee. This is a bad process because now here in the world such along period is not found anywhere. In India, this time is three months1 and in Pakistan the initial period of detention is three months.
Secondly, in democratic countries Preventive detention is a method resorted to in emergencies like war2. The western developed countries like USA, UK, and Singapore, it is specifically mentioned that only in time of emergency, Preventive detention is applied for and also for specific purposes, but there is no specification in our constitution and can be restored to in times of both peace and emergency.
1. Article 22(4) of present Indian constitution.
2. Article 10(7) of present Pakistan constitution.
Thirdly, we have not a fixed maximum period of detention not in our constitution or in the Special Powers Act 1974. This is also a negative aspect of Preventive detention. In Pakistan the period of Preventive detention is eight (8) months in a year3 and in India maximum two years.
Fourthly, in Bangladesh a large number of political workers and leaders are detained without trial through the preventive detention under the Special Powers Act 1974 and known as a “Black Law”. But this picture of detention without trial is not found in western countries where this preventive detention also exists.
Fifthly, the Preventive detention under the Special Powers Act is keeping in line with the maintenance of Indian Security Act 1971 and the East Pakistan Public Safety Act 1958. But in Bangladesh the provision relating to Preventive detention made more draconian than those of twos. By 44th amendment the process of Preventive detention made something democratic in Indian constitution.
Sixthly, police officer after arresting any person prays before Magistrate court for remand and in maximum cases police gets remand and starting bodily, mentally torture which is a violation of international human rights law4.
Seventhly, there is nothing entitled against who a detention order has been made to appear by lawyer in any matter connected with the reference to the Advisory Board 5, and its report excepting that part of the report in which opinion of the Advisory Board is specified shall be confidential.
Eighthly, if any person is actually criminal that he or she would be arrested under general law and Magistrate can punish him or her but if it is happen then he or she must bring before Magistrate within 24 hours. But not to bring within 24 hours before Magistrate, a suspected is arrest under the Special Powers Act 1974.Because by this a person without bring before Magistrate can put in prison month after month.
Ninthly, many suspected people who are not actually criminal, for wrong information they kept inside the jail. Among them who are rich come outside through writ of Habeas Corpus in High Court Division but those who are poor, they have no chance.
3. Kapur, Anup Chand, Misra, K.K. “Select Constitutions,” New Delhi, (2001) p-103.
4. Article 7 of International Covenant on Civil and Political Rights prohibits torture and ill treatment.
5.Section 11 of The Special Powers Act 1974.
In Aspect of Bangladesh:
From 1974 to present, this law is being used at a excessive rate and that’s why now a days it is a weapon to oppression in aspect of this country. Preventive detention is established by the Special Power Act,1974 and now it is known as Black Law. From, the beginning of this act, it has been as a weapon to oppress other people or political parties.
From 1974-present, the SPA has been used by successive government to stem the tide of political opposition. There are no reliable figure but various press reports indicates that around 25000 people were detained from February 1974 to August,1975 under this act and similar number to 1985 – 1987.All the political parties when out of power make serious criticism of the law and promise in the election manifesto that they would repeal this black law if put into power. For example, the three alliances during the movement for fall of the autocratic Ershad regime had been very vocal that they would introduce the practice of democracy after repealing the Special Powers Act, 1974 which violates human rights. But it is regretting that the Bangladesh Nationalist Party (B.N.P.) which came into power started emphasizing that it is a law of utmost necessity and government cannot work without it. Likewise, Sheikh Hasina, Awami League Chairperson, declared before she came into power through the Parliament election held on 12th June 1996 that she would repeal the law if came to power. But after assuming power she pulled her tone in opposite direction by announcing that its efficacy to past governments justified its existence. Again BNP in its election manifesto in 2001 said that it would scrap this tyrannical law if came to power but it did not. The present government also has not repealed the Special Powers Act, 1974.
The Act provides for the detention of individuals who might commit “prejudicial acts” against the State. Under Section 2(f) of the Act, “prejudicial acts” include undermining the sovereignty or security of Bangladesh, creating or exciting feelings of enmity and hatred between different communities and interfering with the maintenance of law and order. The Act provides no guidance on 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 Special Powers Act generally rely on allegations with very little evidence.
There is little, if any, institutional checks against abusive use of the Act by government officials. Detention under the Act is generally performed at the behest of the District Magistrate or Additional District Magistrate in the area. In most districts, the District Magistrate is also the District Administrator, as Article 115 of the Constitution of Bangladesh provides that subordinate courts are to be under the control of the Executive. The failure of the separation of powers has meant that detentions are often politically motivated within the districts. The Ministry of Home Affairs is supposed to provide a report within 30 days stating the grounds for detention of an individual. The Act allows for initial detention of a period of one month, after which time an Advisory Board can indefinitely extend the detention for six-month periods at a time. Additionally, detainees are denied the right to legal representation before the Advisory Board.
The best proof to prove that preventive detention is using as a weapon is that, in a survey it has been found that only in 8.57% of cases, detention was found to be valid.
The frequency, with which the Special Powers Act has been used, has increased drastically since its introduction. In 1974, a total of 513 individuals were detained under the Act. In the first six months of 1999, 6,650 individuals were detained under the Act. Various types of people are detained under the Act–politicians, students, family members of opposition leaders and personal enemies of police personnel and government administrators. This also proves that, now-a-days, it is good weapon to harass the people.
Though preventive detention is a tool of constitution for social needs, but now it is working for others purpose behind its legal or theoretical purpose. The excessive use of laws of preventive detention, affects the liberty of the individual and as well as dangerous for a big community. The law related person should not forget that this law is for the protection of society and state and not for the oppression to the people who are in different community or thought.
1. The Constitution of Bangladesh
4. Front page of Prothom Alo, 08 December,2002
5. Law Quarterly Review,2004,Vol. – 122
6. Yale Law and Policy Review 2006
8. Law Journal,University of Dhaka,2002
11. BANGLADESH RESEARCH PUBLICATIONS JOURNAL
12. ISSN: 1998-2003 Volume: 1, Issue: 2, Page: 166 -176, July – August, 2008
13. Bangla pedia
14. West Law Webpage