Adilur Rahman Khan
Under the colonial rule of the British and Pakistanis, laws, such as the Indian Safety Act, Defence of Pakistan Ordinance, etc., sanctioned preventive detention, the seizure of property and restrictions on the press - all in the name of protecting the security of the State.
The struggle against colonial rule and for independence was deeply imbued with the aspiration to ensure the right of all women and men to a life of human dignity and to enjoyment of their fundamental human rights and freedoms. It envisaged a democratic society allowing for the full exercise of political freedoms. Within a year of independence, on 16 December 1972, the Constitution of Bangladesh came into effect. It guaranteed the fundamental rights to life, to liberty, to security of the person, to freedom of assembly, freedom of speech and expression, freedom of thought and conscience, freedom of property and freedom of religion. The Constitution allowed no scope for derogations from these fundamental rights.
Twenty-six years later we face a bitter reality: the aspirations of the liberation struggle remain largely unfulfilled, and democratic rights are unprotected. Moreover, the survival of millions is threatened by vicious poverty. The security of the people, to live with dignity, to enjoy access to food, shelter, health and education, cannot be ensured, and yet, in the name of national security, the Bangladeshi State continues to deploy repressive laws to violate the peoples political rights. Such laws violate their right to life, to liberty and to security of the person. They are discriminatory in their application, and they violate all safeguards against arrest and detention and the prohibition of torture or cruel, degrading or inhuman punishment. Such laws may be found in the following: Articles 33, 141A, 141B and 141C of the Constitution of Bangladesh; special laws, such as the Special Powers Act of 1974 and the Special Security Forces Act of 1986; and ordinary criminal laws, such as Section 505A of the Penal Code of 1860 and Section 99A of the Code of Criminal Procedure of 1898.
Proclamation of a State of Emergency
The Second Amendment inserted a new section, Part IXA, in the Constitution in 1973. This empowers the president under Article 141A to proclaim a state of emergency if he is satisfied that "the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance." He may make such a proclamation prior to the occurrence of any war, aggression or disturbance if he is "satisfied that there is an imminent danger thereof." The president may, pursuant to Article 141B, also make laws or take executive actions curtailing certain fundamental rights, such as the right to freedom of movement, freedom of assembly, freedom of association, freedom of speech and expression, freedom of thought and conscience, the right to property and the right to a profession or trade. He is further invested with the power under Article 141C to suspend the right to appeal to the courts for the enforcement of any of the fundamental rights guaranteed in the Constitution.
Some level of accountability is ensured, however, by the requirement that the prime minister must countersign any proclamation of a state of emergency and any order to suspend the enforcement of fundamental rights and that no such declaration shall remain valid beyond 120 days unless ratified by Parliament. However, given the reality of majority parliamentary politics in the country, the ruling party has effectively been handed a constitutional weapon to attack the fundamental rights highlighted above in the name of internal or national security, its main victims being the people of Bangladesh.
The Removal of Safeguards on Arrest and Detention
Amendments to Article 33 of the Constitution restricted the safeguards available to those under arrest and detention. The right of any person in custody to be informed "as soon as may be" of the grounds of arrest, to consult and be defended by a lawyer of ones choice and to be produced before a magistrate within 24 hours of arrest or detention is denied to enemy aliens and those in preventive detention.
Article 33 further limits the rights of any person in preventive detention. It is specified that detainees must be informed of the grounds of their preventive detention as soon as possible and given the "earliest opportunity" to make a representation against the order. However, this is qualified by a further provision which enables the enforcing authority to refuse to disclose such facts as it considers to be against the public interest. Effectively then detainees will be unable to discover the grounds for their detention.
Special Powers Act of 1974
Constitutional limitations on the right to liberty have been supplemented by specific legislation - the Special Powers Act of 1974 (SPA) - which provides for preventive detention. The use and abuse of the SPA in the name of protecting security interests has resulted in a steady pattern of human rights violations.
The SPA was enacted to "take special measures" for the "prevention of prejudicial activities, for more speedy trials and effective punishment of grave offences." It defines a "prejudicial act" as "any act which is intended or likely" to have the following consequences:
To prejudice the sovereignty or defence of Bangladesh;
To prejudice the maintenance of friendly relations with Bangladesh;
To prejudice the security of Bangladesh or to endanger public safety or the maintenance of public order;
To create or excite feelings of enmity or hatred between different communities, classes or sections of people;
To interfere with or encourage or incite interference with the administration of law or the maintenance of law and order;
To prejudice the maintenance of supplies and services essential to the community;
To cause fear or alarm to the public or to any section of the public;
To prejudice the economic or financial interests of the State.
These expansive definitions of "prejudicial acts" allow considerable scope for their abuse by the authorities.
The SPA allows the authorities to detain any person on the above grounds. Such detention can extend to six months and may extend beyond this period if so sanctioned by the Advisory Board. The authorities must supply the detainee with the grounds of detention "at the time of his detention or as soon thereafter as is reasonably practicable" but within a maximum period of 15 days. Pursuant to Article 33(4) of the Constitution, the detainee must be produced before the Advisory Board within 120 days from the date of the order, and the board shall, after due investigation, including affording a hearing to the detainee, submit its report to the government within a period of 170 days from the date of detention. There is no right to legal representation before the Advisory Board though. In practice, the detainee is rarely even brought before the Advisory Board.
The SPA has been widely used to detain opposition activists, especially the members of Jatiyo Shomajtantirik Dol and the Shorbohara Party (two radical left-wing parties) under the first Awami League and BAKSAL regimes of Sheik Mujibur Rahman. It has also been disproportionately deployed against the hill people of the Chittagong Hill Tracts. With the passage of years, its use has increased rapidly. According to Amnesty International (AI), 35,000 people were detained under the first Awami League and BAKSAL regimes during the period from 1972 to August 1975, 100,000 under Lt. Gen. Ziaur Rahman between 1975 to 1981 and 150,000 under Lt. Gen. Ershad during 1982 to 1990. No accurate figures were made available of the number of people who remained under preventive detention during Begum Khaleda Zias regime from 1991 to 1996. Reportedly, however, 3,600 are being held under the present regime of Sheik Hasina, which took office in June 1996.
The judiciary though 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 writs of habeas corpus or the initiation of proceedings under Section 491 of the Criminal Procedure Code 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. In other cases, orders of release have been given for the following reasons:
Failure to inform the detainee of her or his right to representation;
Failure to state the grounds for detention within the statutory period of 15 days;
Lack of a nexus between the order of detention and the grounds of detention, e.g., the order states that a person has been detained "to prevent him from acting in a manner against the protection of public safety and law and order" while the grounds specify "preventing him from acting against the economic or financial interests of the State";
Failure to produce the detainees before the Advisory Board within a specified time; and
Retrospective issuance of orders.
On 12 March 1997, Sheik Hasina, the present prime minister of Bangladesh, ruled out the possibility of scrapping the SPA in Parliament. She was replying to a question asked by an opposition member of Parliament, who called the act "a jungle law framed by the previous Awami League government" (Daily Star, 12 March 1997). Ironically, a High Court Division Bench recently ruled that the detentions of four opposition Bangladesh Nationalist Party (BNP) leaders under the SPA were illegal and held that each be given one lakh takas (US,959) as cost.
The Special Security Force Ordinance of 1986
The Presidential Security Force Ordinance (PSFO) established a security force which is to be under the direct command of the president and controlled and administered by a director who may be invested with the powers of the chief of army staff in respect of operations of the force. The force may seek the assistance of other services, such as law enforcement agencies, paramilitary forces and defence and intelligence agencies.
The force was originally intended to "provide physical security," both to the president wherever he may be and to VIPs (including any head of state or government or any person declared to be a VIP by the government). Following restoration of the parliamentary system, it was renamed the Special Security Force (SSF) whose primary function is to protect the prime minister, the president and other VIPs. Its work also includes "collecting and communicating intelligence affecting the physical security of the prime minister, the president or a VIP" (Section 8). The SSF is now accountable to the prime minister under the present parliamentary system and is given the power to "arrest without warrant . . . any person when there is reason to believe that the presence or movement of such person at or near the place where the prime minister, the president or a VIP is living or staying or through which he is passing or about to pass is prejudicial to the physical security of the prime minister, the president or such VIP; and if such person forcibly resists the endeavour to arrest him or attempts to evade arrest, such officer may use all means necessary to effect the arrest and may, if necessary and after giving such warning as may be appropriate in the circumstances of the case or otherwise so, use force against him as to cause death" (Section 8).
The wide and unfettered powers granted to the authorities above under the Special Security Force Ordinance (SSFO) enacted in 1986 are exacerbated by Section 11 which prevents prosecution for such acts without government sanction.
(i) Section 505A of the Penal Code
In 1991, the SPA provisions relating to restrictions on the freedom of the press (namely, Sections 2d, 3g, 16, 17 and 18) were repealed. Within months, a new section, 505A, was added to the Penal Code. This stated that any person who "by words, written or spoken, or by sign or by visible representation or otherwise does anything or makes, publishes or circulates any statement, remark or report" which threatens national security, public order or friendly relations with foreign nations or the maintenance of essential supplies and services is punishable by seven years of imprisonment.
(ii) Section 99A of the Code of Criminal Procedure
If the administration considers any publication to be prejudicial to the security of the State, it may take action under Section 99A of the Code of Criminal Procedure to ban and seize all copies of that publication. In recent years, the government has banned several publications, including Radar and Satellite, which contained reports on human rights violations in the Chittagong Hill Tracts.
The following intelligence agencies operate to protect internal or national security: National Security Intelligence (NSI), Directorate of General Forces Intelligence (DGFI), Special Branch (SB) and, more recently, the SSF. The NSI, DGFI and SSF are directly accountable only to the prime minister. The NSI was created by a cabinet decision in 1972; there is no statutory basis to its creation. The SB, however, is a part of the police and reports to the Home Ministry.
These agencies are intimately involved in the application of national security legislation. In many cases, detainees have been illegally kept in the custody of the intelligence services for interrogation purposes. Moreover, many cases have been reported of custodial violence against political activists by members of the intelligence services. The surveillance of political, socio-cultural, development and human rights organisations is also conducted by such agencies. Non-governmental organisations (NGOs) require prior clearance by the NSI and SB to initiate projects or appoint staff. These agencies have placed themselves in a position beyond the reach of the law. There is no scope to discuss their activities in the national Parliament.
The writer is an advocate in the High Court Division of the Supreme Court of Bangladesh and is a member of the South Asian Peace Initiative.
Posted on 2001-08-23