Preventive detention refers to restraining an individual from probable prejudicial acts. This is not the first law that states this concept, even though such a concept is not instigated from Bangladesh; rather, the idea was originated from the British people. As the original Constitution had no provision relating to preventive detention, the idea was incorporated by the second amendment of the Constitution of Bangladesh. Article 33 of the constitution of Bangladesh is the safeguard against unlawful arrest which also mentions about preventive detention. Then in 1974 the Special Powers Act was enacted to establish preventive detention. In Bangladesh apart from the Article 33 we have Article 102(2) of the Constitution, Section 491 of The Code of Criminal Procedure 1898 and international covenant like ICCPR which are safeguards against unlawful detention. Numerous cases have been found in which political figures and activists were detained without adequate evidence and any legal reason in the name of preventive detention. Other than the right to life, all the fundamental rights of a human being become worthless because of the arbitrary use of preventive detention. The legislature should not forget that the Special Powers Act was enacted for the protection of society and state, not to oppress the individuals who are in different communities or thoughts. So, some reforms should be made.
Section 3 of the Special Powers Act, 1974 gives the ample power to the government to make such order upon satisfaction if anyone is suspected to do credible prejudicial act. This is the biggest drawback of this Act. Because checks and balance of power is missing here. Amending the special powers Act includes precise definition of what are the conditions those threatens public order or national security is needed to prevent arbitrary preventive detention. Under Article 22 of the constitution of India, the maximum period of preventive detention is two years but in Bangladesh neither of the laws prescribed the maximum terms. For this Government can easily oppress opposite political parties by detaining as many months or years as they wish for personal vendettas. In democratic countries, personal liberty is enshrined in constitutions or bills of rights, but exceptions for preventive detention are included in laws to address emergencies, terrorism, or public safety concerns. In the landmark case of Gopalan v. State of Madras, [ AIR 1950 SC 27 ] in India, the court stated about detaining authority’s satisfaction regarding the necessity of detention is conclusive. The courts generally limit their review to ensuring that the authority acted in good faith and followed procedural safeguards, rather than assessing whether the threat was objectively valid. Bangladesh also follows that practice supporting the ‘Subjective satisfaction’ doctrine. The world is grappling with the challenge of balancing personal liberty and preventive detention. However, judicial review can help to ensure that such powers are not exercised arbitrarily. Within a short time frame, mandatory judicial review of detention orders should be added to the Act. Also, the detainees must have access to legal representation to challenge the detention order as early as possible. Currently, advisory board members are two honourable justices from the Supreme Court of Bangladesh and one senior member from the executive. More qualifications need to be incorporated here. They must be neutral, with good morals and character, and unbiased; their past record needs to be checked during appointing them. During serving their part in the following aspect, they must be shown their highest professionalism; otherwise, they should be accountable for any biasness, and SPA, 1974 needs to incorporate the provision of compensation or fine for not showing professionalism.
In reality, the government of Bangladesh, especially under political pressure in the name of safeguarding the state from probable prejudicial acts, is actually suppressing the fundamental rights of the people. In the BLAST vs. Bangladesh Case [55 DLR 363] the honorable Appellate Division gave the direction regarding the steps need to be followed during arresting someone and what steps police needs to follow during remanding someone. The police authority must not violate the provision of Code of Criminal Procedure (section 54 and section 167) and Article 31,32,33,35 of the Constitution of Bangladesh. In this case the Court gave direction to the lawful agencies and what causations need to be followed by the magistrate and tribunal during executing the order of preventive detention. The enforcing authority must be shown their highest professionalism and follow all the rules and regulations during the arrest of someone, thus promoting and respecting human dignity. In the name of remand, they should not torture the arrestee and thus cannot violate the citizen’s derogative rights. All these directions need to be incorporated in the law as early as possible. The provision for specialised training for the police and law enforcement agencies must be incorporated in the SPA, 1974, so that they cannot violate the derogative rights of the detainee.
Also there must be obligations to provide precise and evidence based grounds for detention and it must not be arbitrary or unnecessary detention as observed in the landmark case of Aruna Sen vs. Government of Bangladesh (1975) [27 DLR (HCD)122]. Additionally, an independent oversight body to monitor the use of preventive detention powers could help to prevent the arbitrariness. As per section 101 of the Evidence Act,1872 in case of criminal case one of the popular presumptions is “innocence until proven guilty “. That means an accused or suspected person cannot be punished until it will prove with concrete evidence. As all the prejudicial acts are criminal offences so in case of preventive detention the presumption of this following act needs to be followed strictly. During the detention one cannot be treated inhumanly until the authority gets proper evidence. ‘Doctrine of Proportionality’ can be used to assess whether the preventive detention is justified ensuring actions are proportionate to the threat. Implementing a real-time digital tracking system for all preventive detention cases, accessible to the judiciary and human rights watchdogs is needed as this system would flag prolonged detentions without judicial review and ensure adherence to timelines
Additionally, Bangladesh is a party and acceded to the International Covenant on Civil and Political Rights (ICCPR) on September 6, 2000. The United Nations General Assembly on 16 December 1966 adopted that treaty which came into force on 23 March 1976 where right to compensation stated on Article 9(5) for those people who are unlawfully detained. They have a right to seek compensation from the state or responsible authorities. The legislative authorities should focus on that matter. Detainees often experience the depression and trauma due to uncertainty about the period of preventive detention, and this can lead them to long-term mental health issues. In Bangladesh, during preventive detention, there are not facilities accessible where detainees get psychological support and legal aid. So, the SPA, 1974, needs to incorporate fruitful provision regarding this. When the authority passes any unnecessary detention order or prolonged period of detention, it affects the victim as well as his family members economically, socially, and mentally. The authority should be liable to compensate both the victim and his family members. Bangladesh must revise the Special Powers Act of 1974 to safeguard constitutional rights and ensure compliance with international human rights standards. The reform should be made balancing the national security that also protects individual liberty.
About the Authors :
The authors of this article are Nargis Sultana, an apprentice lawyer at the Dhaka Bar Association and a former student of LL.B. and LL.M. from Jahangirnagar University, and Tasnova Tabassum, an Advocate at the Dhaka Bar Association and also a former student of LL.B. and LL.M. from Jahangirnagar University.