HUMAN RIGHTS FEATURES

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On 6 September 1999, the Cabinet of the Government of Bangladesh endorsed in principle the draft Public Security (Special Provision) Bill 1999. While the details of the proposal are not public, the Government has indicated that the Bill provides for Special Tribunals and stern punishment for specified crimes including extortion, hijacking, property damage and arson--acts that are already criminal under the Bangladesh Penal Code. The Government has made no secret of the fact that the Bill is aimed at the arrest and detention of so-called "terrorists" and enemies of the state of Bangladesh. Inevitably, these so-called "terrorists" will include members of the political opposition to the Awami League Government.

The threat posed by Public Security (Special Provision) Bill should be considered in light of Bangladesh's experience with national security legislation. The Suppression of Terrorism Act 1992--under which over 6,900 people were detained and subject to summary trials--lapsed in 1994. The Public Security (Special Provision) Bill simply appears to be its latest reincarnation. Indeed, Bangladesh's short history has been littered with preventive detention and anti-terrorism laws--the most well established and draconian of which is the Special Powers Act 1974.

Preventive detention laws have existed on the sub-continent since British colonial rule in the nineteenth century. After gaining independence, both India and Pakistan allowed for the continuation of preventive detention laws in their respective constitutions. As a result, during the struggle for independence from Pakistan, Bengali freedom fighters were arbitrarily arrested and detained on a routine basis. Upon Independence, the political leadership of Bangladesh declared its commitment to ending this practice, and the Constitution of Bangladesh, promulgated on 6 December 1972, did not provide for preventive detention. However, the pledge was short-lived.

In September 1973, the Parliament passed the Second Amendment Bill which amended Article 33 of the Constitution of Bangladesh and authorised Parliament to pass preventive detention laws. While the inserted provision did provide for some safeguards--such as the production of the detainee before an Advisory Board within six months of his or her detention--the effect of the amendment was to open the way for wide-scale arbitrary detentions.

Five months after the adoption of the Second Amendment Act, the Special Powers Act 1974 (the Act) was passed. The Act was purportedly designed to crush "black marketeers." However, it was immediately used to neutralise political opponents. The primary targets of the Act were suspected members and sympathisers of the radical left and Jumma activists in the Chittagong Hill Tracts (CHTs). Over the following 25 years, successive governments have continued to use the Special Powers Act to control freedom of expression and to suppress political opposition. The limited safeguards provided in the Act have also allowed District Administrators to use it as a tool of intimidation against suspected political opponents and their families and against people engaged in personal feuds with the authorities.

While political opposition parties have repeatedly promised to repeal the law if elected, the law has been maintained when various groups have come to power. For example, during the rule of the Bangladesh Nationalist Party (BNP) from 1991-1996, thousands of members of the Awami League were arrested under the Special Powers Act. During her election campaign, Prime Minister Sheikh Hasina undertook to repeal the Act if elected. In March 1997, Prime Minister Hasina announced there was no plan to repeal the Act; its utility to past governments justified its existence. Not surprisingly, the Awami League Government has extensively used the Act to detain BNP activists.

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 are 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 only hope for most detainees are the few lawyers who are willing and prepared to file habeas corpus petitions before the High Court Division of the Supreme Court of Bangladesh on a pro bono basis. The cost of legal fees for filing such petitions extends to over Tk. 10,000 (or $US 200), which is well outside the financial reach of most people detained under the Act. As a result, only around half of those detained are ever able to take their cases before the High Court Division of the Supreme Court of Bangladesh. Review is limited. The High Court Division holds the only hope for the speedy release of detainees. From 1974 to March 1995, 10,372 petitions of habeas corpus were moved before the High Court in Dhaka. More recent figures indicate that in 10,651 (or 99.3%) cases, the court found that there was a prima facie reason to believe that the detention was illegal. Ultimately, detention was found to be valid in only 8.57% of cases. While the Supreme Court of Bangladesh in Bilkis Akhte.

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.

One of the latest targets under the Act are suspected opponents of the 2 December 1997 Peace Accord in the CHTs. On 12 April 1999, Dipayan Khisa and Usain Marma, students in the CHT, were arrested without a warrant by the Bandarban Thana Police. They were produced before the local Magistrate and remanded for three days, after which time they were sent to Bandarban District Jail. On 16 April 1999, the two students were served with orders and grounds of detention under the Special Powers Act. They were detained on the grounds that they were members of an armed terrorist group and had distributed leaflets that incited hatred against Bangladesh. Both students were fortunately able to secure the services of a lawyer who filed writ petitions No. 1375 and No. 1376 in the High Court Division of the Supreme Court. On 14 June 1999, the court found that their detention was illegal and ordered their release. Both of them had been illegally detained for two months and were nevertheless denied compensat

The proposed Public Security (Special Provision) Bill would provide the Government of Bangladesh with yet another avenue for abuse of due process and the suppression of political opposition. In a region characterised by widespread human rights abuses excused in the name of "national security," the Special Powers Act is already one of the most resilient limits on democracy. Until the Government of Bangladesh genuinely commits to securing fair democratic processes for responding to dissent, the Special Powers Act will remain an accepted tool of government and an albatross around the neck of a country that aspires to be a mature democracy.

The proposed Public Security (Special Provision) Bill threatens to take Bangladesh further down the road away from democracy. The continuation, if not amplification, of abuses under the Special Powers Act indicate the experience that will likely be suffered under the Public Security (Special Provision) Bill if it passes into law.

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