CONSTITUTIONAL SAFEGUARDS AGAINST ARBITRARY ACTIONS IN BANGLADESH: AN OVERVIEW

- Mr. S. M. Saiful Hoque

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Published On - May 17, 2016 [Vol. 4, Jan - Jun, 2016]

ABSTRACT:

Administration of justice is indispensable to peace and justice. The flaws in the legal system of Bangladesh made a scope for violation of these constitutional rights which may increase further due to the political nepotism and administrative corruption. The arbitrary actions are creating serious violations of fundamental rights and personal liberty of an individual. This paper is an effort to analyze on the constitutional provisions against arbitrary actions in Bangladesh. This paper effort is based on secondary data, various statutory provisions and the dissenting judgments given by the Supreme Court of Bangladesh, India, and USA. 

Keywords: arbitrary actions, constitutional safeguards, other laws, and violations in Bangladesh

INTRODUCTION:

Bangladesh is a country, whereas the supremacy of the Constitution prevails in every sphere of human life. The Constitution of the People’s Republic of Bangladesh has mandated to its people to be free from all forms of arbitrary action, threat, arrest, torture, and detention. However, the use of torture, inhuman and degrading treatment in custody is a common incident against the right to life, liberty, and dignity in Bangladesh. The violations of these rights are mostly caused by the arbitrary exercise of power by the state law enforcing forces. Most of these abusive incidents remain unaddressed and not reported duely in the justice process. Sometimes, even victims do not like to report such incidents as there is little hope for remedy or scope for complaint. This paper is an effort to analyze  the Constitutional provisions against arbitrary actions in Bangladesh in light with the dissenting judgments given by the Supreme Court of Bangladesh.

THE SPECIAL POWERS ACT, 1974 AND THE ARBITRARY EXERCISE OF POWER IN BANGLADESH:

Arbitrary arrest, detention, torture and cruelty are few common phenomena as we have seen regularly in the daily newspapers and electronics media. But our Constitution mandates the human right to life, liberty and freedom free from any arbitrary actions. The fundamental human rights are granted via giving judicial enforceability under the Part III of our Constitution. But how much, this reflects the prolonged hope and expectation of the people in Bangladesh?  What are the realities and public experience? What do we expect?  How far those Constitutional remedies against arbitrary actions are enforced?  The Special Powers Act, 1974 is used to suppress anti-government movement and sometimes justifiable movement too. The arbitrary exercises of these powers could be analyzed from the following points of view:

  • Firstly, in Bangladesh without trial six months detention can confer to the detainee. This is not applicable presently anywhere, not even in India and Pakistan (where the time is three months detention).
  • Secondly, preventive detention is a method resorted to in emergencies or during war in USA, UK, and Singapore. But there is no specification in our constitution. That’s why it can be restored even in the time of peace and emergency.
  • Thirdly, there is no fixed and maximum period of detention in our constitution or under the Special Powers Act 1974. In Pakistan, the period of Preventive detention is eight (8) months in a year 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.
  • 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 have been made more draconian than those two.
  • Sixthly, police officer after arresting any person pray before a Magistrate court for remand and in maximum cases police get remand, after which they start physical and mental torture which is a violation of international human rights law.
  • Seventhly, there is nothing entitled against a detention order has been made to appear by a lawyer in any matter connected with the reference to the Advisory Board and its report excepting that part of the report in which opinion of the Advisory Board is specified shall be confidential (Section 11(4) of Special Powers Act 1974).
  • Eighthly, if any person is arrested under general law, it is defined in law for that person to be brought before a Magistrate within 24 hours. However, if someone were to be arrested under the Special Powers Act 1974 that person can be kept in prison for months without being brought before a Magistrate.
  • Ninthly, many suspected people who are not actually criminal, due to wrong information are kept inside the jail. Among them those who are rich come outside through writ of Habeas Corpus in High Court Division but those who are poor have no chance or hope at all.

UNDERSTANDING RIGHT TO LIFE AND ARBITRARY ACTIONS:

The Megna Carta, denotes that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land”

The French Declaration of the Rights of Man and of the Citizen states “No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law. Anyone soliciting, transmitting, executing, or causing to be executed, any arbitrary order shall be punished”.

Both these historical documents recognized that there should be a right against arbitrary arrest and imprisonment or detention. In 1948, the right against arbitrary arrest and detention had been recognized by the Universal Declaration of Human Rights, which states that ‘no one shall be subjected to arbitrary arrest, detention or exile’. Thereafter, International Covenant on Civil and Political Rights 1966 (ICCPR), declares: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

The rights against arbitrary actions are the rights and privileges of a person accused. In the modern legal systems, these include the presumption of innocence until proved guilty, trial by jury, representation by counsel, the right to present witnesses and evidence to establish one’s innocence, and the right to cross-examine one’s accusers. Also important are a prohibition against an unreasonable search and seizure, the right to a speedy trial, guarantees of freedom from double jeopardy and of the right to appeal. In short, the accused person can enjoy such kind of rights which are universally acclaimed as the rights of the accused and are given below-

  • Right of due process.
  • Protection from illegal search and seizures.
  • The right to indictment by a grand jury.
  • Protection from double jeopardy.
  • Right to a fair and speedy public trial.
  • Right to trial by jury.
  • Notice of accusations.
  • Right to confront one’s accuser.
  • Right to counsel.
  • Protection from excessive bail and fines, and from cruel and unusual punishment[1].

THE CONSTITUTIONAL SAFEGUARDS AGAINST ARBITRARY ACTIONS IN BANGLADESH

The Constitution of the Peoples Republic of Bangladesh provides safeguards against torture, ill-treatment, arbitrary arrest and detention. Article 11 provides that democracy, human rights, freedoms and respect for human dignity  which shall be fundamental principles of the state policy. Article 27 establishes the right to equality before the law. Article 31 provides for protection of the law, and prohibits actions not taken “in accordance with law.” Article 32 protects the right to life and personal liberty, and Article 33 provides safeguards from arbitrary arrest and detention. Article 35 provides explicitly that, “No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.” In 2003, the High Court gave a judgment in BLAST v Bangladesh case, that in view of Article 35 of the Constitution, “any information which is obtained or extorted by taking an accused on remand and by applying torture, the same information cannot be considered as evidence and cannot be used against him.” In the same judgment, the Court further stated that the very system of taking an accused into remand and extorting information by application of force is, “totally against the spirit and explicit provisions of the Constitution.”

PREVENTIVE   DETENTION AND THE CONSTITUTIONAL SAFEGUARDS IN BANGLADESH

Article 33 of the Constitution confers three constitutional rights upon a person arrested. Clause (1) and (2) states ‘He or she cannot be detained in custody without being informed, as soon as may be of the grounds of his arrest’. ‘He or she has the right to be produced before the nearest magistrate within 24 hours and cannot be detained in custody beyond the period of 24 hours without authority of the magistrate’. He or she has the rights to consult and be defended by a legal practitioner of his choice and clause (3), (4), (5), (6) deals with three constitutional safeguards against detention. Namely:

  • Review by an Advisory Board.
  • Right to the communication of grounds of detention.
  • Right of the fight against the detention.

REVIEW BY AN ADVISORY BOARD:

No law provides for preventive detention to any authority for a period exceeding six months unless a further order from Advisory Board. It consists of three persons, of whom two shall be the person who is, or has been or is qualified to be appointed as, judges of the Supreme Court and the other shall be a person who is a senior officer in service of the republic. If the board gives their opinion that, there are sufficient grounds for such detention only then can the the authority detain the suspect for more than 6 months. If the grounds of detention are not placed before the Advisory Board within 120 days from the date of detention, the detention will be held illegal.

RIGHT TO BE INFORMED THE GROUNDS OF DETENTION:

It is stated in Article 33(5) of our Constitution, in Indian Constitution Article 22(5) and in Pakistan Constitution Article 33(5) that the detaining authority must communicate as early as possible to the detainee about the grounds of detention. According to the Special Powers Act 1974, the grounds must be communicated within 5 days from the date of detention.

RIGHTS OF REPRESENTATION AGAINST THE ORDER OF DETENTION:

It is the rights of the arrested person to engage counsel and the counsel will help the person to defend him. Article 33(1) of our constitution provides that the detaining authority must afford the detainee the earliest opportunity of making a representation against his detention. The person arrested has a right to have a purposeful interview with the legal practitioner in private i.e. without the presence of the police or jail staff.

JUDICIAL CONTROL AND SATISFACTIONS OF THE DETAINING AUTHORITY:

The question of a person being detained under the law of preventive detention is left to be determined upon the subjective satisfaction of the detaining authority. In the case of Habibullah Khan vs. S.A. Ahmed, the Appellate Division of the Supreme Court of Bangladesh 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 for the public interest. As the High Court in the case of Ranabir Das vs. Ministry of Home Affairs  Observed, “A detention order is made malafide when it is made contrary to the object and purpose of the Act or when the detaining authority permits him to be influenced by conditions which he ought not to permit”. This satisfaction is a matter into the existence of which the courts will not set on foot any inquiry unless it is alleged that the order of detention is a malafide one. In Krishna Gopal vs. Govt. of Bangladesh, the Appellate Division held that an order which is going to deprive a man of personal liberty cannot be allowed to be dealt with in a careless manner, and if it is done so, the court will be justified in interfering with such order. The court held the detention order unlawfully.

INTERNATIONAL LEGAL INSTRUMENTS AGAINST ARBITRARY ACTIONS

Under international law, the right to freedom from torture is a nonderogable right. In other words, it is absolute, and exceptions to this right cannot be justified under any circumstances. Bangladesh ratified the Convention Against Torture[2] (CAT) in 1998 and the International Covenant on Civil and Political Rights (ICCPR) in 2000. According to Article 1 of the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT), torture means: “… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by a public official or any other person acting in official capacity.” Therefore, Bangladesh has international treaty obligations to prohibit torture and hold perpetrators of torture accountable. Its ratification of these instruments shows at least a nominal commitment towards the protection of its citizens from torture by state officials. It has also entered a reservation to article 14(1) of CAT, which offers a scope for the victim to obtain compensation. Although as an elected member of the Human Rights Council, Bangladesh has promised to ensure regular submission of reports to the UN Treaty Bodies, it has failed to date to submit its initial reports as required under CAT and ICCPR.

REMEDIES AGAINST PREVENTIVE DETENTION

Though the Government generally used this preventive detention against the opposition but there are so many steps to get justice against preventive detention in Bangladesh. They are-

WRIT OF HABEAS CORPUS:

If any person illegally detained then any person in favor of him can file a writ of Habeas Corpus under articles 44 & 102(b) (1) of our constitution. The victim himself, or his father, or his wife, or his son, or his sister, or his relative, or even his friends can apply for this on any specific grounds. The High Court Division of Bangladesh may take cognizance of a writ of Habeas Corpus only on the following grounds-

  • Detaining by Governments unlawful authority.
  • Failure to state the grounds within time.
  • Failure to give a chance to defend himself.
  • Lack of nexus with the reason of detention.
  • Not to produce the detainee before the advisory board within a specific time.
  • Mixing good grounds with bad grounds.
  • Retrospective issuance of orders. and
  • Failure to submit essential documents before a court or not in proper time.

SUO MOTO RULE:

The Suo Moto rule is a general concept amongst the legal practitioners. It is exercised by High Court Division’s judges if any illegal or inhuman matters happen and it comes to the knowledge of the court through newspaper or report publishing or any other sources.

COMPENSATION FOR WRONGFUL ARREST:

Article 9(5) of the International Covenant on Civil and Political Rights 1966 states “Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to get compensation.” But there is no provision for payment of compensation for illegal detention under the preventive detention law or other such laws in Bangladesh. Bangladesh Supreme Court does not usually give directions of compensation except in some exceptional cases like “Bilkis Akhter Hossain vs. the Government”. Here the court directed the government to pay one lakh to the each detainee as compensation for illegal detention.

REVIEW BY THE ADVISORY COUNCIL:

We know it well that if the government wants to detain any person for more than six months, he or she will be produced before the Advisory Board consisting three members- two of whom will be High Court judges and another one from a senior civil servant. A person cannot be detained under preventive detention law for more than six months except consent of Advisory Board.

CONCLUSION:

Though the present scenario is different but Bangladesh Constitution safeguards against torture, inhuman treatment, and detention. It has made one of the important fundamental rights under the Constitution law of Bangladesh. Article 35(5) of the Constitution provides that “No person shall be subject to torture or to cruel, inhuman or degrading punishment or treatment. In addition to that, the guidelines given in the judgments of BLAST vs. Bangladesh and Saifuzzaman vs. State are yet to be implemented by the government by undertaking necessary amendments to the relevant provisions of the Cr.PC. The government has filed appeals against these judgments and as a result these cases are still pending in the Appellate Division of the Supreme Court. Implementation of these guidelines requires political will on the part of the government. The National Human Rights Commission of Bangladesh and civil society should vigorously pursue the implementation of these guidelines. As article 33(2) of Bangladesh constitution states clearly that every person who is arrested and detained in custody shall be produced before magistrate court within 24 hours. But the detained person has been deprived of this opportunity and as such this provision should be repealed. There must be constitutional provisions describing the certain limited period when the powers of preventive detention exercised. A judicial review should be held for those who are detained under different preventive detention law. All reasonable opportunities should be provided to a detainee. The government should add a provision in the Constitution for the right to get compensation in peace time if any person is detained unlawfully. At the same time judgment and orders of the Supreme court of Bangladesh should be obeyed entirely, immediately and strictly.

REFERENCES:

  1. The Constitution of the People’s Republic of Bangladesh. Ministry of Law, Justice and Parliamentary Affairs publication.

Books:

  1. D.D. Basu, Shorter Constitution of India ( Nagpur: Wadhwa, 2003).
  • T.M. Cooley, A Treatise on the Constitutional Limitations (Calcutta: Hindustan Law Book Company, 2005).
  1. A.V. Dicey, An Introduction to the Study of the Constitution, 10th ed., 4th Indian Reprint, ( Allahabad: Universal Law Publishing Co., 2003).
  2. Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers, 2002).
  3. M.P Jain., Indian Constitutional Law, 4th ed. (India: Wadhwa and Company Law Publishers, 2002).
  • D. Mahajan, Constitutional Law of Indian, 7th ed.,  (Lacknow: Eastern Book Company, 1998).
  • Latifur Rahman, The Constitution of The People’s Republic of Bangladesh with comments and Case-Laws ( Dhaka: Mullick Brothers, 2004).
  1. S.P. Sathe, Judicial Activism in India (New Delhi: Oxford University Press, 2002).

Articles:

  1. Justice Naimuddin Ahmed, “Public Interest Environmental Litigation in Bangladesh”,  JATI Journal, vol- II, May 2003.
  2. Muhammad Ekramul Haque, “Legal and Constitutional Statues of the Fundamental Principles of State Policy as Embodied in the Constitution of Bangladesh”; The Dhaka University Studies, part – F, vol –14, June 2005.
  • Mohammad Mahbubur Rahman, “ Right to life As A Fundamental Right In the Constitutional frame work to India, Bangladesh & Pakistan: An Appraisal”, The Dhaka University Law Journal Studies, part – F, vol – 8, June 2006.

[1] The Britannica, ‘Right of Accused’, http://www.britannica.com/EBchecked/topic/3114/rights-of-accused, last visited on 20.05.2016.

[2] Hereby CAT

About The Writer

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Mr. S. M. Saiful Hoque

Senior Lecturer, Department of Law, Faculty of Humanities and Social Science, Daffodil International University.

Email: shyful@daffodilvarsity.edu.bd

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