Preventive Detention
Introduction
Preventive detention is the most debatable topics of law in recent time.?Unlike the constitutions of India and Pakistan, the Constitution of Bangladesh did not originally warrant the exercise of the power of preventive detention under any circumstances. However in 1973, the Constitution of Bangladesh was amended thereby empowering the Parliament to enact laws concerning preventive detention, without stipulating the safeguards necessary for mitigating the harshness of such laws. Furthermore, the 1973 Constitutional Amendment neither confines the power of preventive detention to formally declared periods of emergency nor specifies a maximum time-frame for keeping an individual in preventive custody.
Preventive Detention
The word “Preventive” means that restrain, whose object is to prevent probable or possible activity, which is apprehended from would be detent on ground of his past activities. “Detention” means keeping back. Preventive detention means detention of a person only on suspicion in the mind of the executive authority without trail, without conviction by the court.
People are taken under detention whey they commit any crime or they are taken under a trial for their criminal activities. That means detention is the result of committing any crime by an individual of a nation. But preventive detention means dissimilar to it. In general law, no people can be arrested without knowing him the reason of arresting and there is a specific time of 24 hours to take him in front of a Magistrate. But in preventive detention a people can be arrested any time without telling him any reason and can be taken in custody for 6 months. So in the general sense, it can be said that Preventive detention is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime. Preventive detention is a special form of imprisonment. Most persons held in preventive detention are criminal defendants but state and federal laws also authorize the preventive detention of persons who have not been accused of crimes, such as certain mentally ill persons.
Preventive Detention in Bangladesh
The first constitution of Bangladesh had no provision of preventive detention. It has been added on the constitution by the 2nd amendment of the constitution in 1973. Preventive detention has been legalized in Bangladesh by the article 26 and 33 of the Constitution of Bangladesh. It has been stated in article 33 that “Safeguards as to arrest and detention-
(1) No person who is arrested shall be detained in custody without being informed, as soon as may not be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses?and?shall apply to any person- (a) who for the time being is an enemy alien; or (b) who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be persons who are, or have been, or are qualified to be appointed as, Judges of the Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention.
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order.
(6) Parliament may be law prescribes the procedure to be followed by an Advisory Board in an inquiry under clause.”
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?The Special Power Act 1974 of Bangladesh has also described the provision of preventive detention.
The Parliament on February 9, 1974 enacted the black law, “Special Powers Act, 1974” containing the provisions of preventive detention. The Act says that any person can be arrested and detained by the executive authority if there is apprehension in the mind of the authorities that he may commit “prejudicial act” which means-
So, it is clear that though the first constitution of Bangladesh didn’t have the provision regarding the preventive detention, it has been made as law for some unlawful opportunities taken by the political parties by the 2nd amendment of constitution and Special power act 1974.
Preventive Detention: A Weapon of Oppression in Bangladesh
From 1974 to present, this law is being used at an excessive rate and that’s why now a days it is a weapon to oppression in aspect of this country. Preventive detention is established by the Special Power Act, 1974 and now it is known as Black Law. From, the beginning of this act, it has been as a weapon to oppress other people or political parties.
From 1974 to present, the SPA has been used by successive government to stem the tide of political opposition. There is no reliable figure but various press reports indicates that around 25000 people were detained from February 1974 to August, 1975 under this act and similar number to 1985 – 1987. All the political parties when out of power make serious criticism of the. The present government has not repealed the Special Powers Act, 1974.
The Act provides for the detention of individuals who might commit “prejudicial acts” against the State. Under Section 2(f) of the Act, “prejudicial acts” include undermining the sovereignty or security of Bangladesh, creating or exciting feelings of enmity and hatred between different communities and interfering with the maintenance of law and order. The Act provides no guidance on the burden of proof necessary for the government to conclude that an individual is likely to commit a prejudicial act. As a result, detentions under the Special Powers Act generally rely on allegations with very little evidence.
There is little, if any, institutional checks against abusive use of the Act by Government officials. Detention under the Act is generally performed at the behest of the District Magistrate or Additional District Magistrate in the area. In most districts, the District Magistrate is also the District Administrator, as Article 115 of the Constitution of Bangladesh provides that subordinate courts are to be under the control of the Executive. The failure of the separation of powers has meant that detentions are often politically motivated within the districts. The Ministry of Home Affairs is supposed to provide a report within 30 days stating the grounds for detention of an individual. The Act allows for initial detention of a period of one month, after which time an Advisory Board can indefinitely extend the detention for six-month periods at a time. Additionally, detainees are denied the right to legal representation before the Advisory Board.
The best proof to prove that preventive detention is using as a weapon is that, in a survey it has been found that only in 8.57% of cases, detention was found to be valid.
The frequency, with which the Special Powers Act has been used, has increased drastically since its introduction. In 1974, a total of 513 individuals were detained under the Act. In the first six months of 1999, 6,650 individuals were detained under the Act. Various types of people are detained under the Act–politicians, students, family members of opposition leaders and personal enemies of police personnel and government administrators. This also proves that, now-a-days, it is good weapon to harass the people.
Conclusion
Though preventive detention is a tool of constitution for social needs, but now it is working for others purpose behind its legal or theoretical purpose. The excessive use of laws of preventive detention, affects the liberty of the individual and as well as dangerous for a big community. The law related person should not forget that this law is for the protection of society and state and not for the oppression to the people who are in different community or thought.