The Special Powers Act, in the name of safeguarding public safety and sustaining the country’s law and order, has long been operated as an oppressive weapon, infringing on civil liberties and human rights. For years, innocent citizens in Bangladesh have been illegally detained under the pretext of public safety, often to suppress political dissent. This practice violates the principles of natural justice and erodes the rule of law. The Special Powers Act is known as the Preventive Detention Law. Preventive detention refers to the executive branch’s use of a legal weapon to unlawfully take away citizens’ lives and liberties without a court order or trial. This practice is based solely on suspicion. But it’s against the principle of natural justice that “Nobody should be condemned unheard.” In the case of Habibullah Khan vs. S.A. Ahmed, the appellate division held that it is not only that the government is satisfied that the detention is necessary, but it is also for the court to be satisfied that the detention is necessary in the public interest. According to the report named “ Decades of Disappearances” published by Human Rights Watch nearly 6oo people have been detained and disappeared since 2009.
Several legal frameworks, including the Code of Criminal Procedure and the Constitution of the People’s Republic of Bangladesh, address preventive detention. Preventive detention is, however, specifically addressed by the Special Powers Act. Under the guise of public safety, innocent citizens of the country have been forcibly detained for years in an effort to suppress political party opponents. The executive branch may use preventive detention as a legal remedy to hold someone without charge or trial when they have had their freedom and life unlawfully taken away from them. Without any evidence or a trial, the executive authority has been making a lot of arrests based merely on suspicion. The Special Powers Act of 1974 establishes the legal foundation and gives the government broad jurisdiction to apprehend and detain people. Common causes include threats to national security, upholding public order, stopping smuggling, extremism, corruption, drug trafficking, cybercrimes, maintaining public morals, and quelling sedition. The measure explicitly grants the government arbitrary control over incarceration in numerous places. The executive authority is empowered to detain anyone or carry out any prejudiced action pursuant to Section 03 of the legislation. Still, the meaning of prejudiced conduct is not quite clear. This act clearly violates the Constitutional rights of the citizen. Sections 04 and 05 of the Act grant the government the right to detain and imprison individuals, wherever they may be, for any length of time without clear justification. Also, under Section 08 of the act, the executive branch has the ability to withhold the reason for an arrest from the public and to detain an individual for up to six months without a trial. These provisions directly violate Article 33 of the Constitution, which enshrines that any person detained must be informed of the reasons for their arrest and be brought before a magistrate within 24 hours. Preventive detention under the Special Powers Act is also against the constitutional doctrine of proportionality as the act allows the detention of individuals without trial and merely based on suspicion for indefinite periods which can lead to arbitrary and excessive use of power. Such detention often lacks of proper justification that balances the need for public safety with the fundamental rights of the citizens. Without any concrete evidence, the detention under this act disregards the doctrine of proportionality. One single act bestows upon the executive authority such vast power that it causes intolerable tragedy for those who are imprisoned for questioning any act of such executive authority. The country’s residents’ fundamental human rights are flagrantly violated by this act’s provisions, and the government uses specifically its power to oppress its citizens. Our constitution’s preamble refers to the spirit of upholding the Rule of Law. However, every government in Bangladesh uses this act continuously to detain a large number of people to silence critics and violate the fundamental rights mentioned in the Constitution of Bangladesh, articles 31, 32, 33(2), and 33 (5). Bangladesh is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which clearly states in Article 9 that ‘everyone has the right to liberty and security of person’ and ‘no one shall be subjected to arbitrary arrest or detention.’ The Special Powers Act clearly disregards these international obligations. In contrast to our country, the ruling class employs this measure to subjugate and confront its political rival. The executive branch has broad discretionary ability to exercise it, and certain state security agencies, such as the Director General of Foreign Intelligence (DGFI) and National Security Intelligence (NSI), were also involved in the process.
In democratic nations, the practice of preventive detention in times of emergency is widely accepted, indicating that it is a last resort. For instance, it is stated clearly in the USA and the UK that such laws would only be implemented during emergencies. Preventive detention is used in both peacetime and emergency situations because, regrettably, our constitution does not include such things. The Special Powers Act was first enacted in 1974, during a tumultuous post-liberation era, with the goal of addressing widespread unrest and instability. But, given Bangladesh’s recent substantial socioeconomic advancements, it is indefensible to keep applying this harsh law. In an emergency, the act is a necessary evil. This law had to be passed since the social and economic climate at the time was so precarious. However, the time has now altered. The nation’s economy has been growing every day. Digital platforms allow people to connect with everything. However, this act is still in effect. All political parties have advocated for the repeal of the legislation; nevertheless, once gaining power, they chose to utilize it as a means of tightly concentrating their authority.
The statute must be repealed immediately because, as a democratic nation, our constitution places a strong emphasis on defending the fundamental human rights of all of our citizens. An impartial investigation agency must be established right away in order to accurately determine the number of hostages who have disappeared and the current caretaker government must take the initiative to abolish the Act and act swiftly to free the detainees who were detained under its provisions. Under the government’s supervision, an indemnification fund for victims of unjust incarceration should be established. Mandatory rehabilitation programs should also be set up for the victims around the country so they can recover from the trauma of detention and resume a normal life. An act that results in the hardship of thousands of families and leaves a little child searching for their father on the streets for years is unacceptable in a system where the judiciary is an independent body tasked with upholding citizens’ justice.
About the author :
Tarina Akther is a fourth-year LLB student at the University of Chittagong. She currently holds the position of Vice President of Marketing with NILS Bangladesh. An enthusiastic researcher, her interests focus on constitutional law, and she has successfully published a research piece on public interest litigation as part of a department-based research project.