Star Law Report
Repealing special powers act
Dr. Md. Shahjahan Mondol
Recently the Caretaker Government has reanimated section 16 of the Special Powers Act of 1974 which was inactivated by section 3 of Act No. 18 of 1991 (with effect from 20 February 1991). Through such animation freedom of press has been suspended to a considerable extent although some offences have been made punishable. Intellectuals have urged the government to apply this Act in the present form with utmost care and caution. In present situation this S. P. Act seems to be much necessary for the government for arresting the corrupt and other suspects with a view to getting the offenders punished. People are feeling pleased to see the drastic action against the so called leaders and their lankeys devouring people's wealth mostly earned by the sweat and blood of the poor peasants and weavers and workers need of Bangladesh. So at present, during the continuation of 'Emergency', there is understandably an acute for applying the Act in view of paving the path to a free, fair, neutral and credible election.
But the Special Powers Act of 1974 has been condemned since its very inception by every opposition party for its anti-human rights nexus, though the party in power has always cared it less. The opposition promised several times to repeal the Act upon going to power. But when it got majority and formed government it became reluctant to repeal the Act and conversely tried very sincerely to catch and detain their opposition activists under this Act. It forgot its stipulation to repeal the Act.
It is not the task of the government to violate human rights of the people or to snatch their fundamental rights. But in some transitional period, such rights need to be held up for better interest of the nation. For example during the 1st world war England enacted the Defence of Realm Consolidation Act in 1914. The USA enacted in 1950 the Internal Security Act. These two Acts violated human and fundamental rights of the people of the two countries at the said times. In the same line the suspension of human and fundamental rights and arrangement for punishment of the corrupts and other offenders through the Special Powers Act are not only recognized but also praised by the people.
To achieve two purposes the Special Powers Act was passed which have been enumerated in the preamble to the Act, viz. (i) to prevent certain prejudicial acts and (ii) to try speedily some grave offenders and award appropriate punishment therefor and to take special measures for the same.
But none can defy the anti-human rights and fundamental rights characteristics of the S. P. Act of 1974. For this reason in peace time there remains no necessity of sustaining a law like this. We may look on how the Act is ultra vires to human rights instruments like the Universal Declaration of Human Rights of 1948 (UDHR), the International Covenant on Civil and Political Rights of 1966 (ICCPR), the International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR) and other international instruments that have been ratified by Bangladesh and to uphold and implement which the country is obliged.
Comparison of the Special Powers Act with international human rights norms
(i) Section 3 of the Special Powers Act provides that if a District Magistrate or an Additional District Magistrate becomes satisfied as to any person's intent to do a prejudicial act he may order for arrest of the person. Mere satisfaction of the Magistrate has been made enough for the order of detention. But article 9 of the UDHR has unequivocally declared that no one shall be subjected to arbitrary arrest, detention or exile. Simultaneously article 9 of the ICCPR (ratified on 6 September 2000) provides that everyone has the right to liberty and security of his/her person. No one shall be subjected to arbitrary arrest or detention.
(ii) Section 8 of the Special Powers Act provides that the arresting and detaining authority may inform the detenu the cause of his arrest within 15 days from the arrest. And even for public safety he may not be so informed.
We may follow article 33(1) of the Constitution, which provides that the rights to be given to a person arrested under a general law are not to be allowed for a person arrested under a law providing for preventive detention. These rights not allowed for a person arrested under a law providing for preventive detention like the Special Powers Act, are: (a) right to be informed of the cause of arrest as soon as possible after the arrest and (b) right not be detained if no cause is informed as soon as possible after the arrest. It might be argued here that as the Special Powers Act is a law providing for preventive detention so the detenu has no right to be informed of the cause of his arrest as soon as possible, and therefore not informing him the cause as such is no violation of the Constitution. We also agree with this opinion that it is no such violation of the Constitution but it is undoubtedly admissible that it is a violation of article 9 of the UDHR and article 9 of the ICCPR.
(iii) Section 10 of the S.P. Act is also an infringement of article 9 of the UDHR. For this section 10 provides for that the government can detain a person without trial for a time of 120 days. Not only this, the Act contains the provision of detaining a person firstly from 120 days to 170 days and lastly for an uncertain length of time i. e. lifelong. Such detention is called preventive detention. Lord Atkinson has clearly defined it as the detention of a person without trial in a court of law, by an order of the executive not with a view to bringing a criminal charge against him but with the intention of preventing him from engaging in activities prejudicial to the safety and security of the state (in Rex vs. Halliday, the Law Reports, A.C. 1917, 273 ). Preventive detention may be called an extra ordinary method; because the detenu is arrested and detained only on the plea and speculation of his doing any act subversive of or against the safety of the security of the state and without any proof against him.
(iv) Section 11 of the Act, in this modern day of civilization, provides that the detenu shall have no right to defend himself through a lawyer and not only that, our sacred Constitution has supported this view. But this provision of not allowing to defend oneself and to produce one's statement is ultra vires to the principle of natural justice, for one of the preconditions of natural justice is Audi Alterum Partem -- none shall be condemned unheard. This provision of the Act is also against article 11(1) of the UDHR which provides that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
(v) Section 16 of the Act has created much obstacle to the freedom of expression through the banishment of many newspapers. It violates the right of the people to freedom of thought, expression and conscience. Section 16 also violates articles 18 and 19 of the UDHR and simultaneously article 39 of the Constitution. Article 18 of the UDHR says, everyone has the right to freedom of thought, conscience …, and article 19 says, everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Again article 39(1) of our Constitution provides that freedom of thought and conscience is guaranteed. But the honourable Court in Mujaffar Khan v. the State (PLD 1959) observed: Press is the mouth-piece of public opinion… It has to work as a link between the parliament which frames the legislation and the public which express their hope and aspirations through it.
(vi) Section 20 of the Act has made hindrance to form political party based on religion. whereas article 20(1) of the UDHR has provided that everyone has the right to freedom of peaceful assembly and association. It is to be mentioned that political parties are generally formed on ground of any particular spirit or for the achievement of any particular aim and target. Article 20(1) of the UDHR did not say that no party should be formed on ground of any particular ideal, spirit or aim. The only precondition imposed by article 20(1) on the formation of an assembly or association is that it should be peaceful. Therefore section 20 has also infringed article 20(1) of the UDHR.
(vii) Whenever the question arises as to whether a person has to be detained for more than 6 months, the positive opinion of the Advisory becomes necessary. That means without such opinion the government may detain him for an uncertain time which is less than 6 months, as per its sweet-will. This provision also is against article 9 of the UDHR. Of course, many people like Justice Kayani has opined on the necessity of the opinion of the Advisory Board when one has to be detained for more than 3 months [in Ghulam Muhammad Khan Loondkor v. the State, PLD (WP) 1957, Lah., 497].
But people think that a person should not be detained without trial even for 3 days. Of course 24 hours might be so allowed for the purpose of arresting and producing a person to the nearest Magistrate as provided by article 33 of the Constitution.
It is proved and undisputed that the Special Powers Act of 1974 is ultra vires to human rights norms and instruments. Different governments of Bangladesh have manipulated it. Almost all the parties in power have harassed the opponent through the Act. In the regime of Awami League government during 1974-'75, of Ziaur Rahman government during 1975-'81 and of Ershad government during 1982-'90 a number of more than two lakh people were arrested and detained under this Act. During 1992 only in the month of July a number of 4,500 persons were detained under this Act. According to a report of the US State Department in 1997 a number of 3,498 persons were detained under this Act. Detention is still going on.
In the developed countries any preventive detention law may be enacted during emergency like war or foreign attack but as soon as the necessity is over the law is banned, even in some cases its duration is mentioned. The Special Powers Act of 1974 was enacted after the Indian Maintenance of Internal Security Act of 1971. But section 13 of that Indian law was not incorporated in our Act for according to that section 13 no person could be detained for more than one year, but there is no such limitation in our Act.
The worst Acts in India commonly named as TADA Acts (a) The Terrorist Affected Areas (Special Courts) Act, 1984, (b) The Terrorists and Disruptive Activities (Prevention) Act, 1985 and (c) The Terrorists and Disruptive Activities (Prevention Act), 1987 were enacted for the purpose of containing the separatist-movement of the Sikhs of Punjab. In view of containing the freedom movement of Muslims of Jammu and Kashmir some further provisions were added thereto. But the Indian government was compelled by the criticism and pressure of the people to withdraw the Acts on 23 May 1995. Therefore the Special Powers Act may also be repealed.
The present Caretaker Government is successfully moving ahead towards holding a free and fair general election. It has already done a lot of admirable works. Its success in bringing tremendous changes in the social and political life of Bangladesh has raised the hope of actualizing many tasks undone by the previous governments. Therefore it is also very eagerly hoped that it shall positively take necessary action to repeal the Special Powers Act of 1974 just before handing over power to the elected government. Because it is well proved that no party-government will be willing to do it. If any government undergoes any necessity in future it might enact it again, but during peace-time this law should not prevail for it goes against human rights. If the Caretaker Government repeals the Act before handing over power to elected government the international community will know that such a law has been abolished in Bangladesh and our international relations with other countries and international organizations shall be strengthened and it would be in line with article 25(1) the Constitution of Bangladesh which provides: the State shall base its international relations on the principles of respect for international law and the principles enunciated in the United Nations Charter.
The writer is Associate Professor, Law Department, Islamic University Kushtia.