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Re: [chottala.com] No more time to waste!!


 

Dear Asoke Da,

 

 

Please accept the greetings of the victory Day (BIJOY DIBOSH).

 

You wrote in your last e-mail, "I believe our founding leaders did mistakes with regard to those issues".

 

I am politely disagreeing with you.

 

Bangabandhu "did mistakes" - is not fact. It was not so a 'straight forward' or so 'simple' to make an 'equation' or to make a 'comment' on Bangabandhu and his activities.

 

You have to analysis more deeply - keeping alongside all the prevailing & corresponding circumstances, situation (political, social, economical, law & order, administrative etc after our independence until the death of Bangabandhu).

 

We can tell - he (Bangabandhu) put them all his short & long term tasks in a proper order or sequence of priority on the basis of importance & necessary.

 

It is very easy to say but very difficult to achieve! Please read & see the economic conditions of the effected countries after the 2nd World War, including country like UK

 

Asoke Da, which were the top most necessary or importance to Bangabandhu & his government when he returned from Pakistan on 10 January 1972 ?

 

  • To establish a pro people "central administrative structure" in place of a 'anti people', 'weak', 'neglected', 'inexperienced' 'provincial type of administrative structure'

 

  • To reinstate, re-establish, reinstate 1 core 'refugee' (14% of the total population) who forced to live their home, land & every thing

 

  • To establish a regular & full fledged people oriented Army, Navy, Air force & some Para military forces

 

  • To recover all the arms & ammunitions from the possession of different group of freedom fighters and other 'fake' FF & from RAZAKAR - Al Badar - Paki - ML cadres, and from different "SORBO HARA" parties

 

  • To re-establish the damaged, shattered, ruined economy (since 1968, due to Student-Mass movements - upraise during 1968-69, devastating cyclone of 1970 and due to a full fledged armed liberation war (mainly based on guerrilla tactics), thus lots of infrastructure like rail & road bridge - culvert, railway line, road, sea & river port, power station, govt institutions etc were damaged). Bangladesh Bank & all other major banks cash vaults & their money were took away, looted and damaged by Paki - BIHAREE - RAZAKAR - DALAL from the 1st week of   December until their surrender on 16th December, 1971. There were not single cents of foreign currency in January of 1972.

 

  • To get the diplomatic recognition of different countries & world body - like UNO, Commonwealth etc. In spite of veto & conspiracy of China (China used her 1st veto against Bangladesh), Paki, Kingdom of Saudi Arabia, US, due to Bangabandhu's brilliant & intelligent diplomacy (informed & recognised by the than top officials of Ministry of Foreign Affairs, by their recent writings and columns in news paper & in books) Bangladesh got recognition from the most of the countries in a very short time, become member of UNO, Commonwealth, ICO & many other organisation.

 

  • To fight and resist all internal conspiracy, destructive activities, false propagandas (by Vhasanee NAP, different SARBO HARA parties, MUSLIM BANGLA party, overt & covert supporters & active agents of Jamaat - Shibir (ex ICS) - Razakar - Al-Badar - Paki - PDP - Muslim League in business group, in civil & Army bureaucrats groups etc, and to some extent, by some corrupt ruling party leaders - workers and also by 'misguided' & 'infiltrated RAZKAR-Paki agents' within JSD )

 

  • To face & combat the ( USA created ) famine and devastating Flood of 1974

 

  • To reinstate all infrastructures (more than 1000 rail & road bridges (including the than longest & major bridges like Hardinge bridge at Pakshi, Meghna bridge at Bhairab bazaar)

 

  • To reinstate Chittagong Port (many deadly mines were put all around by Paki and many soviet mine cleaner died in that operation in 1972), Chalna (Mongla) port. A lot of damaged ships were sunk around those ports and to their approach route.

 

  • To reinstate thousands of rail line, road, river link.

 

(As a qualified & experienced Civil Engineer you know how much money, time and efforts are required to do these works)

 

  • To start a 'political diplomacy' to arrange for Hajj in 1972, as it was a very sensitive issue (as Saudi Arab, KSA, did not yet recognised Bangladesh until Bangabandhu was killed in 1975, though Pakistan was compelled (through ICO) to recognise Bangladesh a year before), but Pakistan tried her level best, with the help his known DALALs - so that they can claim that Bangladesh has become a "non Muslim or Hindu" state after the independence.

 

  • Trial of Paki war criminals & prisoners. The then Paki Prime Minister Z A Bhutto gave an open & public threat to Bangladesh that if Bangabandhu make trial of any Paki war criminals & prisoners then, he will throw all the Bangalee (stranded in Pakistan) to Arabian Sea. On the other hand many social - political groups, including Maulana Vhasanee also urged to bring back lakh Bangalee (both civil & in military, stranded in Pakistan) in exchange of Paki war criminals & prisoners.

 

  • Still Bangabandhu took some instantaneous sentence action against the top most Paki DALALs, RAZAKARs, Al-Badars & criminals like Muslim League leader Shafiqul Islam (Golam Azam's paternal uncle, live beside the house of Golam Azam in Mogh Bazaar ) & Chief of the notorious "Shanit Committee", collaborator (DALAL) & PDP leader Nurul Amin, collaborator (DALAL) & Razakar & Jamat leader Golam Azam, collaborator (DALAL) & Muslim League leader Khawja Khoeruddin (who contested against Bangabandhu in Dhaka seat in 1970 election), collaborator (DALAL) & PDP leader Mahmud Ali and many other most criminal, RAZAKARs, collaborator (DALAL). Many Paki minded leaders were declared not to get in Bangladesh (& their citizenship of Bangladesh were cancelled). They were allowed to get in & helped to establish politically, economically, and socially - all we know, by Gen Zia & BNP alliance. These MOITTA RAZAKAR< MUZAHIDDA RAZAKAR, DEILLA RAZAKAR, SOBHAN RAZAKAR & other top-medium-small scale Jamat-RAZAKAR-Al Badar either left the Bangladesh or gone in political hibernation. Some of their lower level worker supporters either changed their identity or took shelter or overtly or covertly supporting all anti Awami League - Bangabandhu parties like Vhasanee NAP, JSD and even SARBOHARA Parties!

 

As, above mentioned (and also many other) prevailing & widespread economical-social-political-administrative issues and also other international political issues (due to US-Russia cold war) were most serious & critical.

 

Also those Paki DALALs, criminals, RAZAKARS, Al Badar did not openly or directly created any serious threat & problems, so, Bangabandhu Government gave more importance on above mentioned prevailing economical-social-political-administrative issues and gave comparatively less priority to the trial of all Paki DALALs, criminals, RAZAKARS, Al Badar, as most of them either left Bangladesh or were gone to hibernation or changed their political platforms and did not made any such objectionable comments about our liberation war - which they were doing after 1977 and specially after 2001.

 

In spite of these - Awami League government led by Bangabandhu has started the trials of those killers, rapist & punished (jailed few of them) in spite of these most important works but he was not able to complete them.

 

Asok Da, do you think, Bangabandhu (with very limited resources and with all internal & external conspiracies) should do the trials of those Paki DALALs, criminals, RAZAKARS, Al Badar - at first instance or to solve these burning issue or to take action against above mentioned (and also many other) prevailing & widespread economical - social - political - administrative issues of green Bangladesh.

 

Awami League government led by Bangabandhu has done enormous works in all sectors in spite of many local & international conspiracy (led by collaborator (DALAL), Razakar, Jamat, Muslim League, PDP, NI & Paki minded leaders like Nurul Amin, Golam Azam, Khawja Khoeruddin, Mahmud Ali and many others).

 

I can write pages after page about positive contribution of Bangabandhu (and Awami League) government.

 

I also agree that Awami League Govt have done some mistakes, which are much less than constructive & good one - in both quantity & quality.

 

So, after the independence of Bangladesh - Bangabandhu had took the most right decision, You will agree that other than to trial those DALALs, RAZAKARs and criminals - there were many most important tasks & burning issues ahead of a fresh and green government of Bangladesh, like reconstruction of Bangladesh - in all respect. Pakistani Military & Civil Janta exploited Bangladesh from 1947 to 1970. And before surrendering in 1971 they have made planned destruction of new coming & inevitable Bangladesh in all sectors (economical-political-social-educational-intellectual) to make an "ineffective", "failed" & "unstable" country

 

So, please, Asok Da, I hope that, in this critical situation, you will write & act more wisely, strongly, openly and vigorously, as you have done after 15th August 1975 to till eighties.

 

 

 

Your SAHO JODDHA in BUET

 

 

Anu

 

 

 

 


 
On 12/15/07, Asoke Bose <anjbose@hotmail.com > wrote:

 

Dear Moderator,

 

Our intellectuals were killed by Al-Badar and Al-Shams of Jamat in 1971 at the dawn of independence with a view to get rid of leadership to the newly born country. Our home land was turned into killing fields by those killers in 1971.

 

Freedom fighters were divided after independence and could not hopefully try to bring those killers into justice. Our nation is deprived to be proud for not doing justice with martyrs by bringing known killers under trial for their heinous acts in 1971. Instead killers were given share to rule the country. And this was mostly started after killing of Mujib.

 

All the marshal government gave footings to these ill forces to get money and power. We are divided by those forces and at the same time they are united to infect our social fiber of the nation.

 

Political leadership should realize that we can be divided for political issues and should not be divided for common cause of liberation struggle. Government should come forward to find those enemies and bring them under trial. And those ill forces should not be allowed to get access to politics. Their ill activities in 1971 should be recorded and written in our school books so that new generation can identify those demons and their present accomplices. And we should not forget that they are the common enemies of the nation.

 

I believe our founding leaders did mistakes with regard to those issues and we should be united to find them and bring them to trial for justice and government should take initiative to make us a proud nation.

 

Regards,

 

Ashok Kumar Bose

 

 

 

 



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Re: [chottala.com] Mujibnagar memorial nearly complete

 
How can Government violet the court's verdict without showing any specific causes, Specific reasons??
The government is for the public doing work for the public according to the rules ^ law made by the public representative (MP of parliament).
Police & others administrative forces are the helping & executing hands according to the service rules made by the parliament (MP) to help the government.
The duty of judiciary department is if any complaint raises to the court for trial aginst any person against any authority to give verdict on getting authentic witnesses as per rules & laws made by the Parliament.
Country is now on state of emergency our dear political leaders are doing sleeping works some are in the jails some are staying in abroad for keeping them out of jail & some are doing  secret bargain work to save their illegal money & position there is no any rules & laws making Parliament.
In this situation Present CTG is doing reforming works for conducting fair & neutral election. Why has given the responsibilities to this CTG for making voter list making voter ID for creating neutral administration & for doing other reformation works?
Reasons are well known to all.
So you may call that Bangladesh is now in intensive care in operation hall.
Causes are for the wise less nonsense activities of our so called beloved country leaders & people leader.
Until & unless fair MP for the fair parliament is got by conducting fair & neutral election this emergency state will continue. 
Causes are very clear.
On emergency state judicial department is not free but under the emergency control to give correct lawful verdict.
Government has the legal right on emergency state to violet the court directive.
Now come to the point for thinking wisely what are the solutions??...............
Country needs now some quality policy quality system.........
For this quality system quality policy it requires quality honest people as quality law maker quality leader quality executors...........
For creating quality people it needs to introduce quality process to provide quality education to all for knowing for learning what is democracy?? /////// Democracy  is the process to elect suitable people who can make rules & laws wisely who can rule the .country  honestly perfectly according to the pre made rules.....according to the system..........( if you try to know  try to understand you get is its best solution in Mujib's latest ideology BAKSAL)
Try to know how can solve the people's problems to execute the principle of Kew khabi Kew khabi na.  Ta hobi Na. Ta hobi Na. That means to establish social & economical justice.\
 
Media's duty is not creating news for creating problems. Media's duty is publishing news neutrally what the real news.
Police's duty according to police code is catching the wrong people & placing them in the court for getting trial verdict by the court normal procedure.
It needs Quality people to do to follow.  
Where are they available?? 
 


Syed Aslam <Syed.Aslam3@gmail.com> wrote:
 
 
Mujibnagar Memorial. Located at a distance of about 7 km. from the town of Meherpur
The PROCLAMATION OF INDEPENDENCE was read at the village Baidyanathtola, now Mujibnagar, on 17 April 1971. On this day the first provisional government of Bangladesh took oath here. The Pak army killed 8 persons at village Amjhupi on 18 April 1971.
Mujibnagar memorial nearly complete: official
Sat, Dec 15th, 2007 5:28 pm BdST
 
Dhaka, Dec 15 (bdnews24.com) – The construction of Mujibnagar Liberation War Memorial Complex is nearing completion, officials said Saturday.

The project was taken up to memorialise the place where the government of the newly independent Bangladesh mapped out a constitution and held the first swearing-in ceremony.

Liberation war affairs secretary Abul Kasem Mahbubul Alam told bdnews24.com that the construction of the first phase of the project would be completed in June.

The entire project will cost around Tk 45.25 crore. A giant map of Bangladesh will be installed in the area for which the cost has been estimated at Tk 17 crore.

Some 38 sculptures, dioramas and replicas will also be built at a cost of Tk 8 crore.

The remaining fund will be spent on other related units of the project, including the construction of an administrative building.

A top official with the liberation war affairs ministry said the Awami League government initiated the project in 1996 and started work in 1998.

The cultural affairs ministry was in charge of the project and later shifted it to the liberation war affairs ministry after it was formed in 2002.

Mahbubul Alam told bdnews24.com that they would start the second phase of the project after the completion of the first phase in June.

The second phase includes a number of activities such as supervision of the monument, recruitment of staffers for maintenance and beautification.

bdnews24.com/mk/ahd-ehb/su/ad/1715 hours
April 17
The First Bangladesh Government is Formed in exile. Awami League leaders convene in the district of Meherpur near the Indian border in Jessore, in the village of Baidyanathtala later renamed Mujibnagar, and affirm Sheikh Mujib's March 26 proclamation for an independent Bangladesh. Sheikh Mujibur Rahman is declared the President of the newly formed Republic, and Syed Nazrul Islam the Vice-President. Nazrul Islam assumes the reponsibilities of the Interim President, and appoints Tajuddin Ahmed as the Prime Minsiter to lead the provisional government.

Mujibnagar, April 17, 1971: C-in-C Col. Osmany, Acting President Syed Nazrul Islam, and Prime Minister Tajuddin Ahmed at the swearing in ceremony of the first Bangladesh government.
Tajuddin at Mujibnagar, April 1971 
 

 
Portrait: Architect Jalal Ahmed  
Architect Jalal Ahmad designer of  
Mujibnagar Memorial

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[chottala.com] Arrests on suspicion continue in violation of Supreme Court directives

 
 
  
The government's duty is to follow the verdict and directives of the supreme  court.
The police has no  right to conduct arbitrary arrests. The police conduct is in violation
of the Constitution of Bangladesh and international law. Bangladesh constitution
rights pertaining to human security. These
rights inter alia have been elaborated in arti-
cles 31, 32, 33, 35, and 42 of the Constitution.
However, the elaboration of laws in the stat-
ute books by themselves does not necessarily
guarantee their implementation, and evidence
suggests otherwise. Thus, the present study
was undertaken to analyse the implementa-
tion of the legal framework - laws, codes and
legal procedures - relating to human security
to assess their consistency, relevance, simplic-
ity and effectiveness for the benefit of the
general public.
METHODOLOGY
This report is based on primary and second-
ary sources. Originally, the laws dealing with
human security were identified and analysed.
This was followed by an examination of their
implementation in everyday life and applica-
tion by the courts. Data collected using open-
ended questionnaires from poor clients and vic-
tims of abuse was complemented by views
obtained from legal experts through informal
discussions and consultations. Owing to time
constraints, the respondents were chosen on
the basis of purposive sampling. Further views
of legal experts were obtained by way of in-
formal discussion and consultations. In addi-
tion, data on preventive detention cases were
compiled from the records of the Supreme
Court of Bangladesh. Information was also
collected from the Dhaka Metropolitan Mag-
istracy, Police Headquarters and the Prison
Directorate on an informal basis.
1
The Penal Code, 1860. Act XLV of 1860.
2
For example, the Code of Criminal Procedure, 1898, Act 5 of 1898.
Dirk Frans, www.dirkfrans.org
In Search of Justice and Dignity
Human Security in Bangladesh
14
THE CRIMINAL JUSTICE SYSTEM:
INSTITUTIONS AND PRACTICES
Ensuring human security through implemen-
tation of the legal framework at all levels of
society is the raison d'être of the State. The
functions of the State include punishing wrong-
doers and protecting the innocent. The Con-
stitution of the People's Republic of Bangla-
desh provides that "to enjoy the protection of
the law, and to be treated in accordance with
law, and only in accordance with law, is an
inalienable right of every citizen, wherever he
may be, and of every other person for the time
being in Bangladesh, and in particular no ac-
tion detrimental to the life, liberty, body, repu-
tation or property of any person shall be taken
except in accordance with law".
3
The Consti-
tution further provides that "Every person ac-
cused of a criminal offence shall have the right
to a speedy and public trial by an independent
and impartial court or tribunal established by
law". Other rights pertaining to human secu-
rity are specified in articles 32, 33, 35 and 42
of the Constitution.
4
Key laws pertaining to human security
5
:
1. The Penal Code, 1860
2. The Evidence Act, 1872
3. The Code of Criminal Procedure, 1898
4. The Child Marriage Restraint Act, 1929
5. The Muslim Family Law Ordinance,
1961
6. The Children Act, 1974
7. The Muslim Marriage and Divorce
Registration Act, 1974
8. The Dowry Prohibition Act, 1980
9. The Muslim Family Courts Ordinance,
1985
10. The Nari-O-Shishu Nirjatan Daman
(Bishesh Bidhan) Ain, 1995
Ensuring the respect of these laws and ordi-
nances is the primary responsibility of the po-
lice administration, which comprises 530 po-
lice stations. The Police Department is headed
by the Inspector General of the Police, under
the administrative control of the Ministry of
3
Article 31.
4
The text of these articles follows:
Article 32:
No person shall be deprived of life or personal liberty save in accordance with law.
Article 33:
No person who is arrested shall be detained in custody without being informed, as soon as possible, 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.
Article 35:
(1) No person shall be convicted of any offence except for violation of a law in force at the time of the
commission of the act charged as an offence, nor be subjected to a penalty greater than, or different
from, that which might have been inflicted under the law in force at the time of the commission of the
offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) Every person accused of a criminal offence shall have the right to a speedy and public trial by an
independent and impartial court or tribunal established by law.
(4) No person accused of any offence shall be compelled to be a witness against himself.
(5) No person shall be subjected to torture or to cruel, inhumane, or degrading punishment or treatment.
(6) Nothing in clause (3) or clause (5) shall affect the operation on any existing law which prescribes any
punishment or procedure for trial.
Article 42:
Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or
otherwise dispose of property, and no property shall be compulsorily acquired, nationalised or requisitioned
save by authority of law.
5
Since the writing of this report, important new legislation concerning human security has been introduced
including the Women and Children Anti Oppression Act (2000), the Public Safety (Special Enactment)
Act (2000) and the Law and Order Disruption Crimes (Speedy Trial) Act (2002).
Chapter One
Human Security in Bangladesh
15
Home Affairs. In case of violations, the of-
fence is reported to the officer-in-charge of
the police station in the form of a first infor-
mation report (FIR). The police officer in
charge of investigating the case is known as
the Investigating Officer (IO). If a prima
facie
6
case is made against the accused dur-
ing the investigation, the IO submits a charge
sheet (CS) to the court.
The administration of justice is the responsi-
bility of the judiciary, which comprises the
Supreme Court, the Appellate Division and the
High Court at the higher level, followed by a
hierarchy of civil and criminal courts at the
district level; and finally, village courts in rural
areas and conciliatory courts in municipal ar-
eas. The Supreme Court is located in Dhaka.
The Courts of District and Sessions Judge,
Additional District and Sessions Judges, Sub-
ordinate Judge and Assistant Sessions Judge
deal with both civil and criminal cases. The
Court of Assistant Judge (formerly Munsif)
deals only with civil cases. The Courts of Dis-
trict Magistrate, Additional District Magistrate,
Magistrate of First, Second and Third Class
deal with criminal cases only. The Metropoli-
tan Magistracy functioning in four major cit-
ies of the country also deals with criminal cases.
In most criminal cases in the Courts of Mag-
istrates, and to some extent in the Court of
Sessions, some categories of police officials
have to play the role of prosecutors. Besides
police officials, the lawyers appointed as pub-
lic prosecutors (PP) and assistant public pros-
ecutors (APP) also act as prosecutors in the
Court of Sessions.
FUNDAMENTAL RIGHTS AND
PROTECTION UNDER THE
CONSTITUTION
Part III of the Constitution of Bangladesh,
framed in 1972, enumerates certain fundamen-
tal rights. The Constitution states that all ex-
isting laws that are inconsistent with funda-
mental rights shall be declared void, and the
State is forbidden to make any law inconsist-
ent with fundamental rights.
7
The fundamen-
tal rights guaranteed by the Constitution of
1972
8
include: the right to equality before the
law; non-discrimination on grounds of religion,
sex, race, caste or place of birth; equality of
opportunity in public employment; the right to
protection of law; the right to protection of life
and personal liberty; safeguards against ille-
gal arrest and detention; prohibition of forced
labour; protection with respect to trial and pun-
ishment; freedom of movement, association,
thought, conscience, and speech; freedom of
profession; freedom of religion; rights to prop-
erty and protection of home and privacy of
correspondence. However, the enjoyment of
any right is subject to "reasonable" restrictions
imposed by law in the interest of security of
the State, public order, public health, morality
or decency.
The expression "reasonable" used in various
articles of the Constitution implies intelligent
care and deliberation, that is, the choice of a
course that reason dictates. However, legisla-
tion that arbitrarily or excessively invades cer-
tain rights cannot be deemed reasonable. Rea-
sonable is a relative term. What is reasonable
in one given set of circumstances may well be
unreasonable in another different set of
6
'Prima facie' - based on what seems at first to be true or real, without further or deeper investigation.
7
Article 26 of the Constitution of the People's Republic of Bangladesh, 1972.
8
See Articles 27 to 43 of the Constitution of Bangladesh, 1972.
Chapter One
Human Security in Bangladesh
16
circumstances. Thus, there can be no hard and
fast rule for determining the matter that may
be considered for testing the reasonableness
applicable to all cases.
Furthermore, unless the legislation strikes a
balance between the freedoms granted and
the social control permitted by the Constitu-
tion, it must be considered to be wanting. Thus,
the protection of fundamental rights contained
in the Constitution is subject to an important
qualification in that the laws in the interest of
morality or public order may restrict the exer-
cise of fundamental rights.
The Supreme Court of Bangladesh is respon-
sible for enforcing the fundamental rights con-
ferred by the Constitution.
9
Under Article 102,
the High Court Division of the Supreme Court
is empowered to 'give such directions or or-
ders to any person or authority…as may be
appropriate for the enforcement of any of the
fundamental rights'. The Supreme Court is
thus constituted as the protector and guaran-
tor of fundamental rights and it is the constitu-
tional responsibility of the Supreme Court to
protect them in case of infringement.
10
Thus,
for enforcement of rights pertaining to human
security under the Constitution, one has to go
to the High Court Division of the Supreme
Court of Bangladesh. However, because of
the costs involved in this process, the poor
and vulnerable sections of society seldom
get the benefit of the constitutional guar-
antee of the protection of rights. Thus, if
we mean actual and real protection, we need
to consider the provision of legal aid, as
well as measures ensuring that court serv-
ices are accessible to the people.
PREVENTIVE DETENTION LAW AND
ITS APPLICATION
The Special Powers Act of 1974 is the most
favoured legal instrument of the Executive to
detain criminals as well as political opponents.
This Act authorises the Government to detain
any person in order to prevent them from com-
mitting certain prejudicial acts. This is the only
article of law that allows the Government to
preventively detain any person, from a period
of one month or a longer period, often indefi-
nitely with the approval of the Advisory Board.
The Act contains 36 sections,
11
with Section 3
as the principle clause enabling government
to detain any person in custody in the name of
preventive detention.
The frequent use of the Special Powers Act,
albeit more against those who have already
been charged with specific crimes rather than
9
Article 44 of the Constitution of Bangladesh, 1972.
10
Government of Bangladesh v. Ahmed Nazir, 27 DLR (AD) 1975, p.51.
11
Originally the Act contained 36 sections, and a schedule; but after many amendments to the statute,
it has a very different shape at present. Sections 2(d), 2(g), 16, 17 and 18 were deleted by Act No. 18
of 1991, with effect from 26 February 1991. Although in section 3 of the Special Powers (Amendment)
Act (Act 18) of 1991 section 5 was among the deleted sections in the headline, but in the operative
portion section 5 was not deleted, so section 5 remained operative. The first amendment to the Act
was made on 29 July 1974, when death penalty, and 14-year rigorous imprisonment were inserted as
severe measures to ensure peace, harmony and supply of essential commodities. The same amendment
also brought changes to section 25 (sub-section 3 was deleted by Act XVII of 1987) by adding new
sections 25A, 25B, 25C, 25D and 25E. Through the Special Powers Act (Act No. LIX) of 1974,
section 30 was substituted, and new sections 30A, 34A and 34B were inserted into the Act. The
appellate jurisdiction of the High Court was vested to the Appellate Tribunal, ousting the High Court's
jurisdiction, which has again been replaced by the Special Powers (Amendment) Ordinance (Ordinance
No. XXXIII) of 1985, whereby the forum of appeal against any order, judgement or sentence of a
special tribunal came back to the High Court Division of the Supreme Court of Bangladesh.
Chapter One
Human Security in Bangladesh
17
to confine political opponents, nevertheless
clearly indicates the failure of the criminal
justice system to deal with alleged criminals.
Since detention under the Special Powers Act
precludes the possibility of bail, accused "crimi-
nals" are detained under this Act, often after
their arrest on specific criminal charges, to
thwart their successful applications for bail.
The detention of Selim, the alleged master-
mind and instigator of the jail "revolt" in No-
vember 1996, is an example of the failure of
the criminal justice system to deal with alleged
criminals. Selim was "preventively detained"
under the Special Powers Act after he had
already been released on bail by the court on
all four counts of specific crimes for which he
was earlier arrested.
The Act contains provisions outlining: the preju-
dicial acts for which a person can be detained;
the execution of a detention order; communi-
cation of grounds for detention; conditions of
detention; the constitution and procedures of
the Advisory Board; orders for absconding
persons; temporary release of detainees; spe-
cial tribunals to try offenders; punishments;
and revocation of detention orders.
Section 2(f) lists the prejudicial acts (see list
below), for which any person suspected of
committing, may be preventively detained with-
out any charge and trial. It should be noted
that all the grounds listed for preventive de-
tention would be more effectively dealt with
under the provisions of the Penal Code of 1860,
and adjunct laws.
Prejudicial Acts under the Special Powers Act
of 1974
1. To prejudice the sovereignty or defence
of Bangladesh;
2. To prejudice the maintenance of friendly
relations with foreign States;
3. To prejudice the security of Bangladesh
or endanger public safety or the mainte-
nance of public order;
4. To create or excite feelings of enmity or
hatred among various communities,
classes or sections of people;
5. To interfere with, encourage, or incite in-
terference with the administration and
maintenance of law and order;
6. To prejudice the maintenance of supplies
and services essential to the community;
7. To cause fear or alarm to the public or
any section of the public;
8. To prejudice the economic or financial in-
terests of the State.
The definition of 'prejudicial acts' as provided
by the Act is, however, vague and open to
interpretation by Government and its Execu-
tive, i.e. the magistrates and officers serving
in the Ministry of Home Affairs, and may be
interpreted rather widely. The magistrates,
upon the advice of the police and instigation
of the political party in power, frequently use
the legislation to suppress political opposition
leaders and party workers. This has been the
case under all Governments since the Act's
adoption in 1974. The Act constitutes a great
injustice upon the person detained, as the order
is always passed in the absence of the indi-
vidual, without even giving that person the
opportunity to state their case before being
detained.
Chapter One
Human Security in Bangladesh
18
Ruling not issued
Ruling issued
Total
Year
Summarily Rejected
Petition submitted, but not moved
Petition submitted, but withdrawn
Absolute
Discharged
No further move after rule was issued
Dismissed either for default or for non
-
prosecution
Disposed of when no further steps were taken
Pending disposal
Number of petitions made every year
1974
2
7
-
25
56
-
2
3
-
95
1975
2
7
-
14
13
-
-
1
-
37
1976
3
3
4
57
29
-
-
3
-
99
1977
2
2
-
118
108
2
-
3
-
235
1978
1
1
-
17
22
1
-
1
-
43
1979
-
1
-
2
11
1
-
-
-
15
1980
-
3
-
1
16
1
-
-
-
21
1981
-
1
-
6
17
-
-
-
-
24
1982
-
-
-
-
6
-
-
-
-
6
1983
-
-
-
-
-
-
-
-
-
-
1984
-
-
-
-
-
-
-
-
-
-
1985
1
-
-
-
2
-
-
-
-
3
1986
-
-
-
3
2
-
-
-
-
5
1987
1
3
-
16
10
13
6
-
-
49
1988
1
2
-
7
2
-
3
-
-
15
1989
-
1
-
247
(219)
20
(18)
14
(13)
3
(3)
-
-
285
(253)
1990
8
(1)
11
-
1,199
(325)
70
(21)
55
(20)
45
(1)
4
(3)
-
1,392
(371)
1991
8
(2)
18
-
1,920
(31)
29
(11)
38
(13)
23
6
(5)
-
2,042
(62)
1992
23
(1)
30
(1)
2
2,523
(246)
109
(14)
62
(48)
-
276
(1)
-
3,125
(311)
1993
3
(2)
44
1
1,135
(621)
68
(49)
72
(71)
4
(4)
81
(2)
-
1,408
(749)
1994
9
(3)
-
-
686
(136)
184
(24)
156
(156)
8
2
(2)
82
1,127
(321)
1995
1
-
-
36
(1)
3
(1)
75
(75)
-
-
231
346
(77)
Total
65
(9)
134
(1)
7
8,012
(1,579)
877
(138)
490
(396)
94
(8)
380
(13)
313
(10)
10,372
(2,144)
Source: Records of the High Court. Figures in parentheses indicate the status of petitions moved under section
491 of the Criminal Procedure Code of 1898, between 1989 and March 1995.
Table 1.1
Status of habeas corpus petitions moved before the High Court Division of the Supreme Court
of Bangladesh under Article 102 of the Constitution and under Section 491 of the CrPC of 1898
Chapter One
Human Security in Bangladesh
19
PREVENTIVE DETENTION CASES
MOVED BEFORE THE SUPREME
COURT
Data on the numbers of persons preventively
detained by Government since its independ-
ence are not available. It is presumed that in-
dividuals within the Ministry of Home Affairs
destroyed all the relevant documents at dif-
ferent times to conceal the misuse of preven-
tive detention legislation. Therefore, no spe-
cific mention can be made about the actual
number of detentions, either in any particular
district or in the country as a whole. How-
ever, the following data have been compiled
from the available number of cases that came
up before the High Court Division of the Su-
preme Court of Bangladesh by way of writ of
habeas corpus.
12
The total number of cases to come before the
High Court between Independence and 23
March 1995 was 10,372. Of these, only 134
cases were filed, but no further steps taken to
move the Court, and only 7 cases were with-
drawn. The remaining 10,231 cases that were
moved before the Court show a vivid picture
of the Court's rulings on preventive detentions.
Only 165 (0.635 per cent) cases were sum-
marily rejected after a preliminary hearing,
most of them due to technicalities. The number
of cases in which the Court thought there was
prima facie reason to believe that the deten-
tion was either illegal or carried out without
lawful authority was 10,161 (99.32%), in
which rule nisi was issued against the Gov-
ernment. Out of the rule issued cases, 78.3%
were absolute, i.e. the detainees were ordered
to be released; and in only 8.57% cases the
12
habeas corpus is when a person accused asks to hear his/her case before the High Court. The cost of
this process can be anywhere between Tk. 10,000 and 100,000, depending on the advocate engaged.
a
All further per cents are of moved petitions.
Table 1.2
Status of preventive detention cases as moved by writ of habeas corpus before the High
Court Division of the Supreme Court of Bangladesh
Sl. No.
Status of the petition
Number of
petitions
Per cent
01.
Total number of petitions filed with affidavit
10,372
02.
Number of petitions filed, but not moved
134
1.290
03.
Number of petitions filed, but withdrawn
7
0.067
04.
Number of petitions moved
a
10,231
98.640
05.
Number of petitions summarily rejected
165
0.635
06.
Number of petitions in which rule nisi was issued
10,161
99.320
07.
Number of petitions in which rules were absolute
8,012
78.300
08.
Number of petitions where rules were discharged (rejected)
877
8.570
09.
Number of petitions where rule was issued, but no further
move was made:
(a) dismissed either for default or non-prosecution
(b) disposed of
946
94
380
9.470
(0.918)
(3.714)
10.
Pending
313
3.059
Chapter One
Human Security in Bangladesh
20
rules were rejected, i.e. detentions were found
valid by the Court. There were 3.714% cases
pending when the data was collected and in
9.47% of cases it was found that, after issue
of the rule, no further moves were made, so it
may be assumed that the detainees were freed
by the authority. If 9.47% is added to 78.3%,
the result is 87.77%. So, it is clear that the
vast majority of preventive detention cases
that have come before the High Court were
determined to have been made either "ille-
gally", or "without any lawful authority".
Furthermore, since a large number of cases
of preventative detention are not brought to
the High Court, as the expense of moving a
petition and fear of facing the Court prevents
many poor from filing petitions, it can be as-
sumed that the actual numbers of preventive
detention cases are far higher.
The Special Powers Act is a preventive de-
tention statute, as well constituting a puni-
tive statute for trial of some offences that
could be tried under other penal provisions
already in force. Specifically, the prejudi-
cial acts as defined in the Act could just as
easily be dealt with under the provisions of
the Penal Code of 1860, as shown in the
Table 1.3.
Table 1.3
Preventive detention clauses under the Special Powers Act and Penal Code
Prejudicial acts in the Special Powers Act
Compatible provisions in the Penal Code, 1860
Section 2(f)(i), prejudicial to the sovereignty
or Defence
Sections 121-123A, 124A, 128-30 (offences against the State)
Section 2(f)(ii), prejudicial to the
maintenance of friendly relations with foreign
powers
Sections 125, 126 (offences against friendly countries)
Section 2(f)(iii), prejudice, the security of
Bangladesh, endangers public safety or
maintenance of public order
Sections 121-123A, 124A (offences against the State);
141-160 (offences against public tranquillity);
279-291 (public safety)
Section 2(f)(iv), creates or incites hatred,
feelings of enmity between communities,
classes or sections of people
Sections 295-298 (offences relating to religion);
503-506 (criminal intimidation, insult and annoyance);
153A (promoting enmity against classes)
Section 2(f)(v), incites or interferes with the
administration and maintenance of law and
order
Sections 107-120 (abatement); 141-160 (offences against public
tranquillity); 172-190 (contempt of the lawful authority of public servants);
191-229 (false evidence and offences against public justice)
Section 2(f)(vi), prejudices maintenance of
supplies and services essential to the
community
Sections 283 (danger or obstructing in public way or line of navigation)
Section 2(f)(vii), causes fear of alarm in
public
SS 141-160 (offences against public tranquillity)
Section 2(f)(viii), prejudices economic or
financial interests of the State
Sections 230-263A (offences relating to coin and government stamps);
463-477A (offences relating to documents and to trade or property marks),
478-498 (offences relating to trade, property and other marks);
489A-489E (offences relating to currency and bank notes)
Chapter One
Human Security in Bangladesh
21
In addition to duplication in provisions for pre-
ventive detention in the Penal Code of 1860,
Section 54 of the Criminal Procedures Code
allows the police to arrest any individual who
attempts to commit any offence that falls within
the ambit of the Penal Code. In addition, there
are other laws, which also deal with the preju-
dicial acts defined in the SPA.
13
Therefore,
there are people being imprisoned under the
Special Powers Act (SPA) who could be tried
according to the relevant penal provisions.
Sections 54, 107, 123, and 151 of the Criminal
Procedure Code of 1898 allow detention for a
limited period of time. However, section 167
allows for detention of up to 90 days in order
to allow further investigation.
It is important to note that the majority of pre-
ventive detention cases are not brought to the
Court, as many detainees are either too poor
to afford legal costs, unable to communicate
with their relatives or friends, or in fear of fac-
ing the High Court. Of the preventive deten-
tion cases that do reach the Court, nearly 90
per cent are found to have been brought ei-
ther "without lawful authority" or "in an un-
lawful manner". It would not be an exag-
geration to say that the Special Powers Act
of 1974 is one of the most inhumane secu-
rity laws in Bangladesh which should be
repealed immediately.
Here, it should be mentioned that leaders from
all political parties have pledged to repeal the
Act when in opposition, or in the run-up to elec-
tions, and have then failed to repeal the act
once elected to power.
INVESTIGATION BY THE POLICE
IN THE CRIMINAL JUSTICE SYSTEM
The police enjoy wide discretionary powers,
which may lead to serious miscarriages of jus-
tice.
There are several ways in which the police
can abuse their discretionary powers. Investi-
gations at the scene of the crime are conducted
by different levels of police - sometimes they
are carried out independently by ASI and SI
(Assistant Sub-Inspector) but in other cases,
by investigating officers under the direct su-
pervision of senior police officers. Therefore,
the quality of investigations and the serious-
ness with which investigations are carried out
varies considerably. Furthermore, the police
have the power to search any place to locate
evidence connected with the crime and crimi-
nals. In many cases it has been reported that
searches seem to be carried out merely to
humiliate and harass citizens.
14
The problem
is compounded by the power of the police to
arrest anybody on the pretext of suspicion,
under the SPA.
The negative image and credibility of the po-
lice in the eyes of the public is of serious con-
cern. Society would like to see an effective
police force arresting real culprits and not a
police force abusing its power through arbi-
trary arrests. It is a commonly held belief that
the police will arrest anybody at the scene of
crime if they are unable to apprehend the real
culprits. The situation at present is such that
many people will run away from the scene of
a crime when they see the police. This
avoidance is not so much an expression of
13
Arms Act of 1878 (Act XI of 1878); Explosive Substance Act of 1908 (Act VI of 1908).
14
Personal interview.
Chapter One
Human Security in Bangladesh
22
non-cooperation with the police, but more a
desire to avoid a greater calamity or harass-
ment under the pretext of criminal justice ad-
ministration.
In order to achieve an efficient police in-
vestigation system of criminal cases, it is
suggested that the investigation procedure
be made more transparent and account-
able. A separate bureau of investigation
should be established to deal only with in-
vestigation of cases, and not the day-to-
day maintenance of law and order.
KEY ANTI-POOR LEGAL PRACTICES
Bail justice system
The right to bail is recognised in every civi-
lised society as a fundamental human right.
The Criminal Procedure Code of 1898 elabo-
rates the regulations related to the granting of
bails and bonds in criminal cases in sections
496 to 502. According to the provisions laid
down in the Code, a person released on bail is
required to execute a personal bond and fur-
nish the bond of a surety
15
for a fixed sum
identified by the court. Even in bailable of-
fences,
16
where the accused is entitled to se-
cure bail as a matter of right, the Court does
not grant bail unless the accused is able to
obtain a surety. Consequently, the poor, who
do not possess sufficient means to furnish bail
bonds and are unable to obtain a surety, are
denied the right to bail and remain in detention
until the case is heard. In some cases, people
have been detained for long periods and may
even spend the maximum term of imprison-
ment under the relevant penal provision, be-
fore their trial is completed.
Further, if a person is accused of a bailable of-
fence, the magistrate may not release him on
bail; and when he is accused of a non-bailable
offence, he may be set free on bail when there is
reason to believe that he may not be responsible
for the offence. Such wide discretion provides
scope for influencing the magistrate and free-
ing the criminal to influence the whole sce-
nario.
Through discussions with some lawyers, assist-
ant public prosecutors and special public pros-
ecutors, it has become apparent that bail bonds
are not properly executed. The Sureties are not
always properly interviewed, or their credibility
investigated. Bail bonds, i.e. Bangladesh form
No. 3990, High Court criminal process form No.
58B, and form No. XLII of schedule V of the
CrPC are in most cases a mere formality. All
these can be arranged for money around the court
premises. When it comes to a poor person, whose
ostensible means barely allow him to survive, he
either cannot arrange a genuine surety, or gain a
false one from the touts. Such a system is there-
fore absolutely contrary to his human security.
Thus, the entire system of monetary bail is
anti-poor, since it is not possible for a man
to furnish a bail bond due to poverty, while
a rich man, accused of a similar crime, can
buy freedom from arrest by furnishing a bail
bond.
15
The surety undertakes to pay the amount to the court in case the person released on bail does not
present himself during the investigation or on the hearing date in accordance with the terms of the
bond.
16
Offences under the Penal Code have been classified into bailable and non-bailable offences according
to the nature and gravity of the offence. Section 4(b) of the Code of Criminal Procedure 1898 reads
as follows: "bailable offence" means an offence shown as bailable in the second schedule, or which is
made bailable under any other law in force for the time being; and "non-bailable offence" means any
other offence.
Chapter One
Human Security in Bangladesh
23
In the absence of official figures, it is nearly
impossible to estimate the number of bail cases
coming before the courts every day. Accord-
ing to informal estimates of Dhaka Court offi-
cials, only about 4 to 5 per cent of the accused
in GR cases (which are usually non-bailable)
are released on bail. However, there does not
seem to be any data on the number of ac-
cused who are denied bail after due proce-
dure. Many accused are not represented by
lawyers. The number of under-trial prisoners
in the country (some 25 to 30,000 at any given
time
17
), may lead to the conclusion that many
under-trial prisoners could have been released
on bail, had they been properly represented
by lawyers. The case for granting bail or at
least proper representation for seeking bail, is
all the more necessary since only about 25 per
cent of cases result in conviction. The remain-
ing 75 per cent of the accused are released as
not guilty,
18
after spending many years languish-
ing in prison without trial.
TRIAL OF RAPE AND OTHER
SEXUAL OFFENCES
The impact of the criminal justice system on
victims of rape and other sexual offences de-
serves considerable attention. Greater focus
needs to be paid to female victims of sexual
offences in the context of a changing social
system and increasing incidence of such of-
fences. A woman who is raped undergoes a
traumatic experience on at least two occasions
- first when she is raped and second during
the subsequent trial. There is a need to reas-
sess the legal procedures regarding: (a) evi-
dence as to the past sexual history of the rape
victim; (b) corroboration of the prosecutors'
testimony; and (c) appeals against acquittal.
Evidence of a rape victim's
sexual history
To what extent the past sexual experience of
a rape victim should be allowed to be used as
evidence in court is an important question. The
offence of rape is sexual intercourse with a
female without her free consent or with her
consent if she is below the statutory age of
consent.
19
The past sexual history of the vic-
tim may be used by the prosecution in two
ways: first, as evidence of her past sexual
experience with the accused; and second, as
evidence of sexual experiences with other per-
sons. Evidence with regard to past sexual his-
tory with the accused is allowed under the
provisions of sections 8,9,11 and 14 of the
17
See chapter V.
18
See chapter IV.
19
See section 375 of the Penal Code of 1860.
Case Study: Serving jail sentence before
conclusion of a case
In 1992, an appeal was filed in the High Court Division of
the Supreme Court of Bangladesh against a conviction and
sentence for ten years' rigorous imprisonment. However, a
ten-year period had lapsed before the appeal could be heard.
Shawkat (not the actual name) was released from jail in
1997, after serving the full sentence against which an appeal
was pending for about six years. Mahboob (not the actual
name) is still in jail since appealing against his ten-year
sentence in 1991 (vide criminal appeal no. 20/1991) in the
High Court Division of the Supreme Court of Bangladesh.
The appeal has not yet been heard although he completed
serving the ten-year sentence. He is still in jail in default of
paying the fine. Hundreds of cases are pending a hearing
in similar situations.
Box 1.1
Chapter One
Human Security in Bangladesh
24
Evidence Act of 1872 and with regard to show-
ing passion under section 14. However, the
most damaging and stringent provision in this
regard is embodied in section 155(4) of the
Evidence Act, under which evidence as to the
general immoral character of the victim in a
prosecution for rape or attempt to ravish may
be given.
20
The rationale for inclusion of such
evidence is that a woman who is of general
immoral character may have consented to the
sexual act with the accused. It is humiliating
for a rape victim to be questioned on her sexual
history who, in addition to the trauma and in-
dignity of describing her ordeal, must also bear
the humiliation of revealing her sexual history
during the trial. In this context, it is not sur-
prising that most rape cases go unreported.
Thus there is sufficient justification for abro-
gation of section 155(4) of the Evidence Act.
However, if abrogation of the provision is not
considered desirable on a juridical basis, it may
be amended so as to exclude evidence as to
past sexual experience of the victim with per-
sons other than the accused, and to exclude
evidence as to sexual experiences with the ac-
cused where she is within the statutory age of
consent.
Corroboration of the prosecutrix's
testimony
There is no provision in the Evidence Act re-
quiring corroboration of testimony of the pros-
ecutrix in the prosecution for rape or an at-
tempt to ravish. However, section 114, illus-
tration (b) of the Evidence Act prescribes a
rule of presumption relating to an accomplice's
evidence, namely that "an accomplice is un-
worthy of credit, unless he is corroborated
in material particulars". Another provision
of the Evidence Act that should be kept in mind
is section 133, which provides that "a convic-
tion is not illegal even if it is based on the
uncorroborated testimony of an accom-
plice".
The word "accomplice" has not been defined
in the Evidence Act. The dictionary meaning
of the word is "a guilty associate in a crime,
a partner in crime". An accomplice as de-
fined by the Lahore High Court is a person
who knowingly or voluntarily co-operates with
or aids and assists another in the commission
of a crime.
21
In a case of prosecution for rape, a woman
who has been raped is not an accomplice, but
a victim of the offence.
22
Accordingly, the pro-
visions of the Evidence Act with regard to the
corroboration of the testimony of an accom-
plice should not apply to the testimony of a
woman who has been raped. When the com-
plainant is a competent witness, and her cred-
ibility has not otherwise been impeached, why
should her evidence be viewed with doubt, dis-
belief or suspicion? Therefore, to bring clarity
and certainty in this area, legislative reform is
required.
Appeals against acquittal
Generally, appeals against conviction for rape
are common, however, very few appeals are
20
Section 155(4) reads as follows: "The credit of a witness may be impeached in the following ways by
the adverse party, or, with the consent of the court, by the party who calls him:…(4) when a man is
prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally
immoral character."
21
Ismail Hussan Ali v. Emperor, AIR 1947, Lah 220.
22
Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54.
Chapter One
Human Security in Bangladesh
25
made against a ruling of acquittal of the ac-
cused. The reason seems to be that convic-
tions for rape are generally against men, who
dominate society and who, if sentenced, will
suffer punishment. In addition, the victim of
the offence, a woman who has already suf-
fered crime at the hands of the accused and
has faced humiliation during the trial court, may
not have any more energy to fight an appeal
against acquittal. Furthermore, the State as a
prosecutor often does not take the initiative to
make an appeal on her behalf. It is therefore,
argued here that there is a need for legis-
lation incorporating a provision requiring
the State to file appeals against acquittal
in rape cases which are fit for appeal; and
in all other cases the prosecuting authority
should record a certificate to the effect that
the case is not fit for appeal. Cases that
are not fit for appeal should be sent to the
State Attorney General, who shall give his
opinion before the time prescribed for ap-
peal expires.
SAFE CUSTODY PRACTICE AND
ITS LEGAL BASIS
Women and girls who are victims of, or wit-
nesses to, violent offences are imprisoned in
many cases on the grounds that they will be in
"safe custody" for their own protection.
23
However, orders to place women in "safe cus-
tody" are issued by magistrates solely exer-
cising their judicial discretion, and do not have
any basis in law. The only reference to the
term "safe custody" is found in section 466 of
the 1898 Code of Criminal Procedure that re-
lates to provision of safe custody for the men-
tally impaired. Thus, Section 167 of the CrPC,
read with clause (14) of schedule III of the
CrPC provides for the "Power to authorise
detention (not being detention in the cus-
tody of the police) of the person during a
police investigation."
However, it should be noted that Section 167
only deals with the question of detention pend-
ing trial/investigation of the accused, and does
not relate to detention of the victim/witness.
Often, parents or guardians bring charges of
child abduction against the husband of a daugh-
ter who has married against their wishes. In
such cases, judges, in the absence of any other
alternatives, send these girls to jails for "safe
custody" until their real age is determined.
Recently, a few legal aid and human rights or-
ganisations (ASK, BLAST, BNWLA and
BMP) have offered facilities to shelter these
girls on an ad hoc basis for limited cases. It
should be remembered that, if allegations
are indeed correct, these women are vic-
tims of serious crimes, and not criminals,
and there is no justification for confining
them in prison.
Thus, the practice of placing women and
girls in "safe custody", against their will,
is illegal, having no basis in any law, in-
cluding the provisions of the Code of Crimi-
nal Procedure of 1898. Furthermore, the
practice of placing women and girls in "safe
custody" is unconstitutional, constituting a
grave violation of the fundamental rights
to equality, equal protection of the law, and
personal liberty as guaranteed under arti-
cles 27, 28 and 32 of the Constitution.
23
A 1997 report revealed that there are 269 persons in safe custody in 54 jails of the country; Source:
Daily Bhorer Kagoj (a Bengali daily), Dhaka, 5.4.1997.
Chapter One
Human Security in Bangladesh
26
In February 1997, three human rights organi-
sations
24
filed a writ petition (writ petition No.
1157/97) challenging the continuing practice
of placing women and girls in safe custody.
The High Court by a rule nisi, instructed the
Government to show cause within two weeks
as to why Sufia Begum, a detained woman
kept in "safe custody" in Barguna jail, should
not be brought before the Court so that it could
establish that she was not being held in cus-
tody without lawful authority or in an unlawful
manner. The detainee was subsequently re-
leased, and the writ petition was infracted, so
the legal validity of "safe custody" in this case
could not be tested. Therefore, there is a need
for legislative reform or a judicial pronounce-
ment on this issue.
While it is essential that effective steps be
taken to ensure the protection of victims/
witnesses, it is also true that incarceration
in prison is a grave violation of the right to
personal liberty. In cases where the woman
concerned is 18 or older, and is therefore
an adult in the eyes of the law, she should
be released. In the case of minor girls, mag-
istrates should instruct that they be placed
in the custody of their legal guardians,
where appropriate, or in the custody of es-
tablished human rights/women's rights or-
ganisation or shelter homes established by
the Government.
ARREST WITHOUT WARRANT
Section 54 of the Criminal Procedure Code
continues to be one of the most abused provi-
sions of the legal system. This section author-
ises the police to arrest any person on the ba-
sis of "reasonable suspicion" that he or she
has committed, or is about to commit, a crime.
The grounds for arrest without warrant under
Section 54 include the following:
Grounds for arrests without warrant
1. There exists a complaint against the
person of having committed a cognisable
offence;
2. Suspected housebreaker, where the burden
lies with the suspect;
3. Proclaimed as an offender under any law
in Bangladesh;
4. Suspected to have stolen property in his
possession;
5. Obstructs a police officer in the
performance of his duty, or has escaped
from lawful custody;
6. Suspected of being a deserter from any
disciplinary forces;
7. Offence committed outside Bangladesh
and sought under Fugitive Offenders Act
of 1881;
8. If a convict commits a breach of any rule
laid down for him when he was punished
twice for the same offence, as stipulated
in section 565 of the CrPC, the magistrate
or presiding judge may order him to remain
within a certain vicinity for not more than
five years;
9. When a requisition has been issued for
arrest by another police officer to arrest
without warrant.
24
Bangladesh Legal Aid and Services Trust, Ain-O-Shalish Kendro and Bangladesh Mahila Parishad.
Chapter One
Human Security in Bangladesh
27
This section has long served as a license for
police discretion, who are able to arrest any
one, almost anywhere, at any time. The pa-
rameters of police power of arrest have not
been clearly defined by the courts, nor have
any objective criteria been laid down to estab-
lish what constitutes "reasonable suspicion".
The Dhaka, Chittagong, Khulna and Rajshahi
Metropolitan Police Ordinances also have pro-
visions for arrest without warrant by a police
officer in sections 100, 103, 104 and 104, re-
spectively. Such wide and arbitrary powers
provided to the police constitute the most mis-
used authority vested in any government of-
fice in Bangladesh.
If the rule (CrPC, section 62) requiring police
officers to report to magistrates cases of all
persons arrested without warrant is followed
strictly, and magistrates review the cases regu-
larly, human security violations of innocent
people can be reduced significantly. It is cur-
rently estimated that in eight out of every ten
cases, police have not found any evidence to
warrant keeping the person in detention. Laws
should make it binding on the part of a police
officer to account for indiscriminate arrests
of innocent people, and the State should com-
pensate citizens for gross violations of their
human rights.
DISPOSSESSION OF IMMOVABLE
PROPERTY
Section 9 of the Specific Relief Act of 1877
provides for 'summary remedy' to a person
who, without consent, has been dispossessed
of immovable property, otherwise than in due
course of law. This law provides a special and
speedy remedy for a particular kind of griev-
ance, i.e. to replace in possession a person
who has been evicted from immovable prop-
erty of which he had previously been in pos-
session, otherwise than by process of law. If
a plaintiff can prove his previous possession,
he may recover possession from the defend-
ant who dispossessed him without reference
to any question of title. Even where the per-
son ousting him claims a superior title, the per-
son dispossessed is entitled to be restored to
possession if he can prove his previous pos-
session, and can take action within six months
from the date when the dispossession occurred.
The objective is to prevent persons from tak-
ing the law into their own hands, however good
their title may be. Thus, under Section 9 of the
Special Relief Act, questions of title are irrel-
evant and the only determining factors are (a)
whether the plaintiff was in possession of the
disputed property within six months previous
to the institution of the suit; and (b) whether
he was deprived of that possession by the de-
fendant otherwise than in due course of law.
It is immaterial whether such possession was
without title. The effect of this section, there-
fore, is that if a justifiable summary suit is
brought within six months, the plaintiff who
was dispossessed otherwise than in due course
of law, is entitled to be reinstated, even if the
Chapter One
Human Security in Bangladesh
28
defendant who dispossessed him is the true
owner, or someone claiming on his behalf.
This provision allows for major abuses as peo-
ple may illegally possess property through
force or influence and get evicted, in order to
repossess the property by operation of the
law.
25
Thus, a person with a genuine title has
to fight a civil suit for many years to establish
his title to the property and regain possession.
INADEQUATE ENFORCEMENT OF
PUBLIC NUISANCE LAW
Section 268 of the Penal Code deals with public
nuisance and states that:
"A person is guilty of a public nuisance
who commits any act or is guilty of an
illegal omission which causes any
common injury, danger, annoyance to
the public or to the people in general,
who dwell or occupy property in the
vicinity, or which must necessarily cause
injury, obstruction, danger, or
annoyance to persons who may have
occasion to use any public right."
However, Section 133 of the CrPC, which
deals with conditional order for removal of nui-
sance by the magistrate, is seldom applied in
Bangladesh. Occupying footpaths with mer-
chandise, throwing garbage on the main roads
and streets, raising footpaths, and setting-up
markets within dangerous proximity to high-
ways all constitute public nuisance and ham-
per human security, but are rarely challenged.
The Dhaka Metropolitan Police Ordinance of
1976 (sections 72A and 73) specifically bars
and provides for punishment when someone
occupies a public place with building materi-
als, or slaughters animals in public places. Simi-
lar provisions are embodied in the Chittagong,
Khulna and Rajshahi Metropolitan Police
Ordinances. However, despite these legal pro-
visions, the actual level of enforcement is ex-
tremely low. The enforcement of the laws to
improve the situation requires the authori-
ties' immediate attention.
VAGRANCY ACT
There are a large number of vagrants in Bang-
ladesh despite the stigma attached to this way
of life. Since Bangladesh is one of the poorest
countries in the world, many people live in ex-
treme poverty and many are homeless and des-
titute. The Vagrancy Act was the first piece
of legislation that sought to control the activi-
ties of vagrants for the purpose of training
them for employment. The Act defines a va-
grant as one who is (a) found asking for alms
in public; (b) wandering about; or (c) remains
in public places in such a condition or manner
that it appears that he/she survives by asking
for alms.
A specially appointed magistrate has the power
to brand a person as a vagrant. The vagrant is
not represented by lawyer before the magis-
trate. Once classified as a vagrant by the
magistrates, that person becomes subject to
the Vagrancy Act. The Act contains various
provisions for punishment of vagrants. In ad-
dition, before being declared a vagrant by the
magistrate, a person may also be imprisoned
with hard labour or charged fines for refusing
25
Personal interview
Chapter One
Human Security in Bangladesh
29
to accompany a police officer. A vagrant can
be detained in a vagrant home for an unspeci-
fied period of time.
The Vagrancy Act is a piece of social welfare
legislation, however, the way it is implemented
demonstrates how social welfare legislation
may be used to achieve non-social welfare
ends. For instance, it has been suggested that
the motivation underlying the implementation
of the Vagrancy Act is largely political.
26
Thus,
some would claim that this Act is implemented
mainly in urban areas, with the aid of police, in
order to keep vagrants off the main streets to
convey the impression that the economy is
healthy. In addition, the law is rarely enforced,
and usually only in order to 'clean up' the streets
or to curb begging. However, these 'political
reasons' behind its implementation should not
detract from the reality that there are genuine
vagrants in real need of some kind of care
and treatment.
Section 55(1) of the CrPC provides that:
"Any officer in charge of a station may,
in like manner, arrest or cause to be
arrested…(b) any person within the lo-
cal limits of such station who has no
ostensible means of subsistence, or who
cannot give a satisfactory account of
himself."
The main purpose of the Vagrancy Law un-
der the colonial period was to prevent the in-
flux of vagrants into large cities where colo-
nial rulers lived. However, the law remains in
force today, when large numbers of people live
below the subsistence level. In addition, ask-
ing a person to provide proof of identification
and address seems of little relevance in Bang-
ladesh, where no properly functioning system
of birth registration or identification exists.
According to Article 33(1) of the Constitution
and Section 61 of the CrPC, any person arrested
must be brought before the nearest magistrate
within 24 hours. Article 109 further provides that
any authorized magistrate may force a vagrant
to execute a bond with surety to avoid being sub-
ject to vagrancy regulations, which is nearly im-
possible for the homeless and destitute.
THE 'IMPLEMENTATION GAP'
Whilst the evidence in this chapter points to
considerable loopholes in laws and procedures,
which are often outdated, as well as a limited
awareness and knowledge of human security
laws and rights among the population (see
Chapter 2), the overwhelming conclusion is the
existence of a pervasive implementation
gap.
The implementation of legal frameworks for
ensuring human security (especially for the poor
and the disadvantaged) is seriously flawed, and
has failed to address rising crime and violence.
Both the training and skills of law enforce-
ment and legal prosecution officials are not
keeping pace with the needs, leading to a huge
backlog of cases clogging the judicial system.
The rising number of court cases takes longer
to settle, and end with a lower rate of convic-
tion (20%).
27
An increasingly large proportion
of prisoners are under trial prisoners, also
contributing to the ever-expanding prisoner
26
Personal interview.
27
In 1996, out of 55,490 cases the police submitted under charge sheets, trials for 4,395 cases were
completed. A conviction was obtained in 872 cases (20%); acquittals in 3,523 cases (80%); and 51,095
cases remained under trial (Source: Police Report).
Chapter One
Human Security in Bangladesh
30
population. Lawlessness and disorder in the
country are therefore increasing.
A pervasive anti-poor attitude among most
police personnel, combined with high
incidences of corruption have virtually priva-
tised state security services in favour of the
rich and the influential, leaving the vast major-
ity of human security violations against the poor
unattended (see Chapter 3). Similarly, pros-
ecution and court services are expensive and
time-consuming due to lengthy investigations,
frequent adjournments, harassment and irregu-
lar attendance of witnesses, procedural com-
plexities, and corrupt practices in the court
systems resulting in the vast majority of poor
complainants and victims not continuing with
their cases (see Chapter 4).
A comparative analysis of figures of 1931 and
1996 on warrants of arrest, charge sheets sub-
mitted, and disposal of court cases shows the
continuing trends in police efficiency and court
services vividly (see Table 1.4).
Source: Annual Police Administration Reports (1931-1935, 1986-1990, 1996, 1997).
Table 1.4
Comparative performance of police and courts in execution of warrants of arrest,
submission of charge sheets to courts, and disposal of GR, CR cases, 1931-1996.
Cases pending
Activities
1931
%
1986
%
1990
%
1996
%
Execution of Arrest warrants:
Received
Pending Execution
81,962
4,055
4.9
81,500
29,852
36.6
82,997
33,332
40.2
292,801
85,086
29.0
Charge sheets submitted:
Charge- Sheeted
Pending Investigation
18,050
2,417
13.4
87,225
38,344
43.9
88,152
52,758
59.8
48,189
27,312
56.7
Disposal of GR and CR
cases:
Received in Courts
Pending Disposal
107,681
5,981
5.6
191,270
72,735
38.0
191,635
141,649
73.9
102,086
51,095
50.0
Chapter One
Human Security in Bangladesh
31
FINDINGS AND RECOMMENDATIONS
Findings
1. The criminal laws of Bangladesh dealing
with human security are hostile to the poor
and disadvantaged sections of the soci-
ety, despite constitutional guarantees to the
contrary. Many laws are open to interpre-
tation and to the use of discretionary
power.
2. Limited available information on the
number of preventive detention cases
makes it difficult to assess the true extent
of use and abuse of specific laws and their
effect on human security.
3. Many laws and practises of the criminal
justice system are 'anti-poor' having a
more harmful effect on the poor and dis-
advantaged. Consequently, many citizens,
especially the poor, do not feel adequately
protected.
4. The current bail justice system favours the
wealthy and influential and penalizes those
without money or influence. Thus, the poor
and underprivileged groups in society are
over-represented in prisons whereas many
wealthy or privileged individuals guilty of
crimes manage to escape the process of
law.
5. The legal grounds for arrest without war-
rant are too broad and allow the police to
exercise a high degree of discretion. Most
preventive detention cases never reach the
courts, however, of those that do, almost
90% are found to be illegal or have been
processed without lawful authority.
6. Victims of rape and other sexual violence
continue to be further victimized by a le-
gal system which discriminates against
victims and protects the guilty.
7. The current practice of placing women and
girls in "safe custody" has no firm legal
basis.
8. Laws relating to the dispossession of im-
movable property, public nuisance, and va-
grants are not implemented in-line with
their original intent, and often discriminate
against and harm the poor.
9. In addition to considerable loopholes in
laws and procedures relating to human
security and lack of awareness on human
security issues amongst the population,
there is a severe implementation gap.
Recommendations
The findings of this study suggest that spe-
cific steps must be taken to improve the laws
and legal procedures to make them equally ap-
plicable to all citizens of Bangladesh, includ-
ing the poor, and to provide human security to
all. Specifically:
1. The Special Powers Act of 1974 should
be repealed as provisions to deal with most
offences under the Act are already pro-
vided for under the Penal Code and other
laws.
2. Review of the Evidence Act should be un-
dertaken to determine its effectiveness and
practicality, in particular with reference to
Chapter One
Human Security in Bangladesh
32
legal procedures harmful to women vic-
tims of rape, and necessary revisions
should be made. For example, Section
155(4), allowing evidence as to the past
sexual experience of an alleged rape vic-
tim with persons other than the accused,
add to the humiliation of the victim, and
should be amended.
3. A review of sections of the Penal Code,
Criminal Procedure Code, and police regu-
lations should be undertaken to determine
the appropriateness and practicality of
procedures of reporting and investigation
of complaints by the police and submis-
sion of charge sheets.
4. Clear rules should be established to de-
termine the parameters for police power
of arrest and to minimise the use of dis-
cretion. Specifically, objective criteria
should be established to determine the
basis for "reasonable suspicion" for ar-
rest without warrant, under the Article 54.
5. The practice of placing girls and women
in prison in the name of "safe custody"
should be discontinued. Women illegally
detained under this provision should be
released and for minor girls, who are wit-
nesses/victims of abduction, adequate
shelter should be provided pending the trial,
preferably with their legal guardian, and
failing this, appropriate measures should
be taken to provide protected shelter with
NGOs or through special government fa-
cilities. Legislative reform and judicial pro-
nouncements on this issue are also needed.
Chapter One
guarantees a set of rights pertaining to safeguard against arbitrary arrests and detensions.
These rights inter alia have been elaborated in articles 31, 32, 33, 35 and 45 of the
constitution. Sadly, the arbitrary arrests and detention by the police has become endemic
in Bangladesh.
ute books by themselves does not necessarily
suggests otherwise. Thus, the present study
was undertaken to analyse the implementa-
tion of the legal framework - laws, codes and
legal procedures - relating to human security
to assess their consistency, relevance, simplic-
ity and effectiveness for the benefit of the
general public.
METHODOLOGY
This report is based on primary and second-
ary sources. Originally, the laws dealing with
human security were identified and analysed.
This was followed by an examination of their
implementation in everyday life and applica-
tion by the courts. Data collected using open-
ended questionnaires from poor clients and vic-
tims of abuse was complemented by views
obtained from legal experts through informal
discussions and consultations. Owing to time
constraints, the respondents were chosen on
the basis of purposive sampling. Further views
of legal experts were obtained by way of in-
formal discussion and consultations. In addi-
tion, data on preventive detention cases were
compiled from the records of the Supreme
Court of Bangladesh. Information was also
collected from the Dhaka Metropolitan Mag-
istracy, Police Headquarters and the Prison
Directorate on an informal basis.
1
The Penal Code, 1860. Act XLV of 1860.
2
For example, the Code of Criminal Procedure, 1898, Act 5 of 1898.
Dirk Frans, www.dirkfrans.org
In Search of Justice and Dignity
Human Security in Bangladesh
14
THE CRIMINAL JUSTICE SYSTEM:
INSTITUTIONS AND PRACTICES
Ensuring human security through implemen-
tation of the legal framework at all levels of
society is the raison d'être of the State. The
functions of the State include punishing wrong-
doers and protecting the innocent. The Con-
stitution of the People's Republic of Bangla-
desh provides that "to enjoy the protection of
the law, and to be treated in accordance with
law, and only in accordance with law, is an
inalienable right of every citizen, wherever he
may be, and of every other person for the time
being in Bangladesh, and in particular no ac-
tion detrimental to the life, liberty, body, repu-
tation or property of any person shall be taken
except in accordance with law".
3
The Consti-
tution further provides that "Every person ac-
cused of a criminal offence shall have the right
to a speedy and public trial by an independent
and impartial court or tribunal established by
law". Other rights pertaining to human secu-
rity are specified in articles 32, 33, 35 and 42
of the Constitution.
4
Key laws pertaining to human security
5
:
1. The Penal Code, 1860
2. The Evidence Act, 1872
3. The Code of Criminal Procedure, 1898
4. The Child Marriage Restraint Act, 1929
5. The Muslim Family Law Ordinance,
1961
6. The Children Act, 1974
7. The Muslim Marriage and Divorce
Registration Act, 1974
8. The Dowry Prohibition Act, 1980
9. The Muslim Family Courts Ordinance,
1985
10. The Nari-O-Shishu Nirjatan Daman
(Bishesh Bidhan) Ain, 1995
Ensuring the respect of these laws and ordi-
nances is the primary responsibility of the po-
lice administration, which comprises 530 po-
lice stations. The Police Department is headed
by the Inspector General of the Police, under
the administrative control of the Ministry of
3
Article 31.
4
The text of these articles follows:
Article 32:
No person shall be deprived of life or personal liberty save in accordance with law.
Article 33:
No person who is arrested shall be detained in custody without being informed, as soon as possible, 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.
Article 35:
(1) No person shall be convicted of any offence except for violation of a law in force at the time of the
commission of the act charged as an offence, nor be subjected to a penalty greater than, or different
from, that which might have been inflicted under the law in force at the time of the commission of the
offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) Every person accused of a criminal offence shall have the right to a speedy and public trial by an
independent and impartial court or tribunal established by law.
(4) No person accused of any offence shall be compelled to be a witness against himself.
(5) No person shall be subjected to torture or to cruel, inhumane, or degrading punishment or treatment.
(6) Nothing in clause (3) or clause (5) shall affect the operation on any existing law which prescribes any
punishment or procedure for trial.
Article 42:
Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or
otherwise dispose of property, and no property shall be compulsorily acquired, nationalised or requisitioned
save by authority of law.
5
Since the writing of this report, important new legislation concerning human security has been introduced
including the Women and Children Anti Oppression Act (2000), the Public Safety (Special Enactment)
Act (2000) and the Law and Order Disruption Crimes (Speedy Trial) Act (2002).
Chapter One
Human Security in Bangladesh
15
Home Affairs. In case of violations, the of-
fence is reported to the officer-in-charge of
the police station in the form of a first infor-
mation report (FIR). The police officer in
charge of investigating the case is known as
the Investigating Officer (IO). If a prima
facie
6
case is made against the accused dur-
ing the investigation, the IO submits a charge
sheet (CS) to the court.
The administration of justice is the responsi-
bility of the judiciary, which comprises the
Supreme Court, the Appellate Division and the
High Court at the higher level, followed by a
hierarchy of civil and criminal courts at the
district level; and finally, village courts in rural
areas and conciliatory courts in municipal ar-
eas. The Supreme Court is located in Dhaka.
The Courts of District and Sessions Judge,
Additional District and Sessions Judges, Sub-
ordinate Judge and Assistant Sessions Judge
deal with both civil and criminal cases. The
Court of Assistant Judge (formerly Munsif)
deals only with civil cases. The Courts of Dis-
trict Magistrate, Additional District Magistrate,
Magistrate of First, Second and Third Class
deal with criminal cases only. The Metropoli-
tan Magistracy functioning in four major cit-
ies of the country also deals with criminal cases.
In most criminal cases in the Courts of Mag-
istrates, and to some extent in the Court of
Sessions, some categories of police officials
have to play the role of prosecutors. Besides
police officials, the lawyers appointed as pub-
lic prosecutors (PP) and assistant public pros-
ecutors (APP) also act as prosecutors in the
Court of Sessions.
FUNDAMENTAL RIGHTS AND
PROTECTION UNDER THE
CONSTITUTION
Part III of the Constitution of Bangladesh,
framed in 1972, enumerates certain fundamen-
tal rights. The Constitution states that all ex-
isting laws that are inconsistent with funda-
mental rights shall be declared void, and the
State is forbidden to make any law inconsist-
ent with fundamental rights.
7
The fundamen-
tal rights guaranteed by the Constitution of
1972
8
include: the right to equality before the
law; non-discrimination on grounds of religion,
sex, race, caste or place of birth; equality of
opportunity in public employment; the right to
protection of law; the right to protection of life
and personal liberty; safeguards against ille-
gal arrest and detention; prohibition of forced
labour; protection with respect to trial and pun-
ishment; freedom of movement, association,
thought, conscience, and speech; freedom of
profession; freedom of religion; rights to prop-
erty and protection of home and privacy of
correspondence. However, the enjoyment of
any right is subject to "reasonable" restrictions
imposed by law in the interest of security of
the State, public order, public health, morality
or decency.
The expression "reasonable" used in various
articles of the Constitution implies intelligent
care and deliberation, that is, the choice of a
course that reason dictates. However, legisla-
tion that arbitrarily or excessively invades cer-
tain rights cannot be deemed reasonable. Rea-
sonable is a relative term. What is reasonable
in one given set of circumstances may well be
unreasonable in another different set of
6
'Prima facie' - based on what seems at first to be true or real, without further or deeper investigation.
7
Article 26 of the Constitution of the People's Republic of Bangladesh, 1972.
8
See Articles 27 to 43 of the Constitution of Bangladesh, 1972.
Chapter One
Human Security in Bangladesh
16
circumstances. Thus, there can be no hard and
fast rule for determining the matter that may
be considered for testing the reasonableness
applicable to all cases.
Furthermore, unless the legislation strikes a
balance between the freedoms granted and
the social control permitted by the Constitu-
tion, it must be considered to be wanting. Thus,
the protection of fundamental rights contained
in the Constitution is subject to an important
qualification in that the laws in the interest of
morality or public order may restrict the exer-
cise of fundamental rights.
The Supreme Court of Bangladesh is respon-
sible for enforcing the fundamental rights con-
ferred by the Constitution.
9
Under Article 102,
the High Court Division of the Supreme Court
is empowered to 'give such directions or or-
ders to any person or authority…as may be
appropriate for the enforcement of any of the
fundamental rights'. The Supreme Court is
thus constituted as the protector and guaran-
tor of fundamental rights and it is the constitu-
tional responsibility of the Supreme Court to
protect them in case of infringement.
10
Thus,
for enforcement of rights pertaining to human
security under the Constitution, one has to go
to the High Court Division of the Supreme
Court of Bangladesh. However, because of
the costs involved in this process, the poor
and vulnerable sections of society seldom
get the benefit of the constitutional guar-
antee of the protection of rights. Thus, if
we mean actual and real protection, we need
to consider the provision of legal aid, as
well as measures ensuring that court serv-
ices are accessible to the people.
PREVENTIVE DETENTION LAW AND
ITS APPLICATION
The Special Powers Act of 1974 is the most
favoured legal instrument of the Executive to
detain criminals as well as political opponents.
This Act authorises the Government to detain
any person in order to prevent them from com-
mitting certain prejudicial acts. This is the only
article of law that allows the Government to
preventively detain any person, from a period
of one month or a longer period, often indefi-
nitely with the approval of the Advisory Board.
The Act contains 36 sections,
11
with Section 3
as the principle clause enabling government
to detain any person in custody in the name of
preventive detention.
The frequent use of the Special Powers Act,
albeit more against those who have already
been charged with specific crimes rather than
9
Article 44 of the Constitution of Bangladesh, 1972.
10
Government of Bangladesh v. Ahmed Nazir, 27 DLR (AD) 1975, p.51.
11
Originally the Act contained 36 sections, and a schedule; but after many amendments to the statute,
it has a very different shape at present. Sections 2(d), 2(g), 16, 17 and 18 were deleted by Act No. 18
of 1991, with effect from 26 February 1991. Although in section 3 of the Special Powers (Amendment)
Act (Act 18) of 1991 section 5 was among the deleted sections in the headline, but in the operative
portion section 5 was not deleted, so section 5 remained operative. The first amendment to the Act
was made on 29 July 1974, when death penalty, and 14-year rigorous imprisonment were inserted as
severe measures to ensure peace, harmony and supply of essential commodities. The same amendment
also brought changes to section 25 (sub-section 3 was deleted by Act XVII of 1987) by adding new
sections 25A, 25B, 25C, 25D and 25E. Through the Special Powers Act (Act No. LIX) of 1974,
section 30 was substituted, and new sections 30A, 34A and 34B were inserted into the Act. The
appellate jurisdiction of the High Court was vested to the Appellate Tribunal, ousting the High Court's
jurisdiction, which has again been replaced by the Special Powers (Amendment) Ordinance (Ordinance
No. XXXIII) of 1985, whereby the forum of appeal against any order, judgement or sentence of a
special tribunal came back to the High Court Division of the Supreme Court of Bangladesh.
Chapter One
Human Security in Bangladesh
17
to confine political opponents, nevertheless
clearly indicates the failure of the criminal
justice system to deal with alleged criminals.
Since detention under the Special Powers Act
precludes the possibility of bail, accused "crimi-
nals" are detained under this Act, often after
their arrest on specific criminal charges, to
thwart their successful applications for bail.
The detention of Selim, the alleged master-
mind and instigator of the jail "revolt" in No-
vember 1996, is an example of the failure of
the criminal justice system to deal with alleged
criminals. Selim was "preventively detained"
under the Special Powers Act after he had
already been released on bail by the court on
all four counts of specific crimes for which he
was earlier arrested.
The Act contains provisions outlining: the preju-
dicial acts for which a person can be detained;
the execution of a detention order; communi-
cation of grounds for detention; conditions of
detention; the constitution and procedures of
the Advisory Board; orders for absconding
persons; temporary release of detainees; spe-
cial tribunals to try offenders; punishments;
and revocation of detention orders.
Section 2(f) lists the prejudicial acts (see list
below), for which any person suspected of
committing, may be preventively detained with-
out any charge and trial. It should be noted
that all the grounds listed for preventive de-
tention would be more effectively dealt with
under the provisions of the Penal Code of 1860,
and adjunct laws.
Prejudicial Acts under the Special Powers Act
of 1974
1. To prejudice the sovereignty or defence
of Bangladesh;
2. To prejudice the maintenance of friendly
relations with foreign States;
3. To prejudice the security of Bangladesh
or endanger public safety or the mainte-
nance of public order;
4. To create or excite feelings of enmity or
hatred among various communities,
classes or sections of people;
5. To interfere with, encourage, or incite in-
terference with the administration and
maintenance of law and order;
6. To prejudice the maintenance of supplies
and services essential to the community;
7. To cause fear or alarm to the public or
any section of the public;
8. To prejudice the economic or financial in-
terests of the State.
The definition of 'prejudicial acts' as provided
by the Act is, however, vague and open to
interpretation by Government and its Execu-
tive, i.e. the magistrates and officers serving
in the Ministry of Home Affairs, and may be
interpreted rather widely. The magistrates,
upon the advice of the police and instigation
of the political party in power, frequently use
the legislation to suppress political opposition
leaders and party workers. This has been the
case under all Governments since the Act's
adoption in 1974. The Act constitutes a great
injustice upon the person detained, as the order
is always passed in the absence of the indi-
vidual, without even giving that person the
opportunity to state their case before being
detained.
Chapter One
Human Security in Bangladesh
18
Ruling not issued
Ruling issued
Total
Year
Summarily Rejected
Petition submitted, but not moved
Petition submitted, but withdrawn
Absolute
Discharged
No further move after rule was issued
Dismissed either for default or for non
-
prosecution
Disposed of when no further steps were taken
Pending disposal
Number of petitions made every year
1974
2
7
-
25
56
-
2
3
-
95
1975
2
7
-
14
13
-
-
1
-
37
1976
3
3
4
57
29
-
-
3
-
99
1977
2
2
-
118
108
2
-
3
-
235
1978
1
1
-
17
22
1
-
1
-
43
1979
-
1
-
2
11
1
-
-
-
15
1980
-
3
-
1
16
1
-
-
-
21
1981
-
1
-
6
17
-
-
-
-
24
1982
-
-
-
-
6
-
-
-
-
6
1983
-
-
-
-
-
-
-
-
-
-
1984
-
-
-
-
-
-
-
-
-
-
1985
1
-
-
-
2
-
-
-
-
3
1986
-
-
-
3
2
-
-
-
-
5
1987
1
3
-
16
10
13
6
-
-
49
1988
1
2
-
7
2
-
3
-
-
15
1989
-
1
-
247
(219)
20
(18)
14
(13)
3
(3)
-
-
285
(253)
1990
8
(1)
11
-
1,199
(325)
70
(21)
55
(20)
45
(1)
4
(3)
-
1,392
(371)
1991
8
(2)
18
-
1,920
(31)
29
(11)
38
(13)
23
6
(5)
-
2,042
(62)
1992
23
(1)
30
(1)
2
2,523
(246)
109
(14)
62
(48)
-
276
(1)
-
3,125
(311)
1993
3
(2)
44
1
1,135
(621)
68
(49)
72
(71)
4
(4)
81
(2)
-
1,408
(749)
1994
9
(3)
-
-
686
(136)
184
(24)
156
(156)
8
2
(2)
82
1,127
(321)
1995
1
-
-
36
(1)
3
(1)
75
(75)
-
-
231
346
(77)
Total
65
(9)
134
(1)
7
8,012
(1,579)
877
(138)
490
(396)
94
(8)
380
(13)
313
(10)
10,372
(2,144)
Source: Records of the High Court. Figures in parentheses indicate the status of petitions moved under section
491 of the Criminal Procedure Code of 1898, between 1989 and March 1995.
Table 1.1
Status of habeas corpus petitions moved before the High Court Division of the Supreme Court
of Bangladesh under Article 102 of the Constitution and under Section 491 of the CrPC of 1898
Chapter One
Human Security in Bangladesh
19
PREVENTIVE DETENTION CASES
MOVED BEFORE THE SUPREME
COURT
Data on the numbers of persons preventively
detained by Government since its independ-
ence are not available. It is presumed that in-
dividuals within the Ministry of Home Affairs
destroyed all the relevant documents at dif-
ferent times to conceal the misuse of preven-
tive detention legislation. Therefore, no spe-
cific mention can be made about the actual
number of detentions, either in any particular
district or in the country as a whole. How-
ever, the following data have been compiled
from the available number of cases that came
up before the High Court Division of the Su-
preme Court of Bangladesh by way of writ of
habeas corpus.
12
The total number of cases to come before the
High Court between Independence and 23
March 1995 was 10,372. Of these, only 134
cases were filed, but no further steps taken to
move the Court, and only 7 cases were with-
drawn. The remaining 10,231 cases that were
moved before the Court show a vivid picture
of the Court's rulings on preventive detentions.
Only 165 (0.635 per cent) cases were sum-
marily rejected after a preliminary hearing,
most of them due to technicalities. The number
of cases in which the Court thought there was
prima facie reason to believe that the deten-
tion was either illegal or carried out without
lawful authority was 10,161 (99.32%), in
which rule nisi was issued against the Gov-
ernment. Out of the rule issued cases, 78.3%
were absolute, i.e. the detainees were ordered
to be released; and in only 8.57% cases the
12
habeas corpus is when a person accused asks to hear his/her case before the High Court. The cost of
this process can be anywhere between Tk. 10,000 and 100,000, depending on the advocate engaged.
a
All further per cents are of moved petitions.
Table 1.2
Status of preventive detention cases as moved by writ of habeas corpus before the High
Court Division of the Supreme Court of Bangladesh
Sl. No.
Status of the petition
Number of
petitions
Per cent
01.
Total number of petitions filed with affidavit
10,372
02.
Number of petitions filed, but not moved
134
1.290
03.
Number of petitions filed, but withdrawn
7
0.067
04.
Number of petitions moved
a
10,231
98.640
05.
Number of petitions summarily rejected
165
0.635
06.
Number of petitions in which rule nisi was issued
10,161
99.320
07.
Number of petitions in which rules were absolute
8,012
78.300
08.
Number of petitions where rules were discharged (rejected)
877
8.570
09.
Number of petitions where rule was issued, but no further
move was made:
(a) dismissed either for default or non-prosecution
(b) disposed of
946
94
380
9.470
(0.918)
(3.714)
10.
Pending
313
3.059
Chapter One
Human Security in Bangladesh
20
rules were rejected, i.e. detentions were found
valid by the Court. There were 3.714% cases
pending when the data was collected and in
9.47% of cases it was found that, after issue
of the rule, no further moves were made, so it
may be assumed that the detainees were freed
by the authority. If 9.47% is added to 78.3%,
the result is 87.77%. So, it is clear that the
vast majority of preventive detention cases
that have come before the High Court were
determined to have been made either "ille-
gally", or "without any lawful authority".
Furthermore, since a large number of cases
of preventative detention are not brought to
the High Court, as the expense of moving a
petition and fear of facing the Court prevents
many poor from filing petitions, it can be as-
sumed that the actual numbers of preventive
detention cases are far higher.
The Special Powers Act is a preventive de-
tention statute, as well constituting a puni-
tive statute for trial of some offences that
could be tried under other penal provisions
already in force. Specifically, the prejudi-
cial acts as defined in the Act could just as
easily be dealt with under the provisions of
the Penal Code of 1860, as shown in the
Table 1.3.
Table 1.3
Preventive detention clauses under the Special Powers Act and Penal Code
Prejudicial acts in the Special Powers Act
Compatible provisions in the Penal Code, 1860
Section 2(f)(i), prejudicial to the sovereignty
or Defence
Sections 121-123A, 124A, 128-30 (offences against the State)
Section 2(f)(ii), prejudicial to the
maintenance of friendly relations with foreign
powers
Sections 125, 126 (offences against friendly countries)
Section 2(f)(iii), prejudice, the security of
Bangladesh, endangers public safety or
maintenance of public order
Sections 121-123A, 124A (offences against the State);
141-160 (offences against public tranquillity);
279-291 (public safety)
Section 2(f)(iv), creates or incites hatred,
feelings of enmity between communities,
classes or sections of people
Sections 295-298 (offences relating to religion);
503-506 (criminal intimidation, insult and annoyance);
153A (promoting enmity against classes)
Section 2(f)(v), incites or interferes with the
administration and maintenance of law and
order
Sections 107-120 (abatement); 141-160 (offences against public
tranquillity); 172-190 (contempt of the lawful authority of public servants);
191-229 (false evidence and offences against public justice)
Section 2(f)(vi), prejudices maintenance of
supplies and services essential to the
community
Sections 283 (danger or obstructing in public way or line of navigation)
Section 2(f)(vii), causes fear of alarm in
public
SS 141-160 (offences against public tranquillity)
Section 2(f)(viii), prejudices economic or
financial interests of the State
Sections 230-263A (offences relating to coin and government stamps);
463-477A (offences relating to documents and to trade or property marks),
478-498 (offences relating to trade, property and other marks);
489A-489E (offences relating to currency and bank notes)
Chapter One
Human Security in Bangladesh
21
In addition to duplication in provisions for pre-
ventive detention in the Penal Code of 1860,
Section 54 of the Criminal Procedures Code
allows the police to arrest any individual who
attempts to commit any offence that falls within
the ambit of the Penal Code. In addition, there
are other laws, which also deal with the preju-
dicial acts defined in the SPA.
13
Therefore,
there are people being imprisoned under the
Special Powers Act (SPA) who could be tried
according to the relevant penal provisions.
Sections 54, 107, 123, and 151 of the Criminal
Procedure Code of 1898 allow detention for a
limited period of time. However, section 167
allows for detention of up to 90 days in order
to allow further investigation.
It is important to note that the majority of pre-
ventive detention cases are not brought to the
Court, as many detainees are either too poor
to afford legal costs, unable to communicate
with their relatives or friends, or in fear of fac-
ing the High Court. Of the preventive deten-
tion cases that do reach the Court, nearly 90
per cent are found to have been brought ei-
ther "without lawful authority" or "in an un-
lawful manner". It would not be an exag-
geration to say that the Special Powers Act
of 1974 is one of the most inhumane secu-
rity laws in Bangladesh which should be
repealed immediately.
Here, it should be mentioned that leaders from
all political parties have pledged to repeal the
Act when in opposition, or in the run-up to elec-
tions, and have then failed to repeal the act
once elected to power.
INVESTIGATION BY THE POLICE
IN THE CRIMINAL JUSTICE SYSTEM
The police enjoy wide discretionary powers,
which may lead to serious miscarriages of jus-
tice.
There are several ways in which the police
can abuse their discretionary powers. Investi-
gations at the scene of the crime are conducted
by different levels of police - sometimes they
are carried out independently by ASI and SI
(Assistant Sub-Inspector) but in other cases,
by investigating officers under the direct su-
pervision of senior police officers. Therefore,
the quality of investigations and the serious-
ness with which investigations are carried out
varies considerably. Furthermore, the police
have the power to search any place to locate
evidence connected with the crime and crimi-
nals. In many cases it has been reported that
searches seem to be carried out merely to
humiliate and harass citizens.
14
The problem
is compounded by the power of the police to
arrest anybody on the pretext of suspicion,
under the SPA.
The negative image and credibility of the po-
lice in the eyes of the public is of serious con-
cern. Society would like to see an effective
police force arresting real culprits and not a
police force abusing its power through arbi-
trary arrests. It is a commonly held belief that
the police will arrest anybody at the scene of
crime if they are unable to apprehend the real
culprits. The situation at present is such that
many people will run away from the scene of
a crime when they see the police. This
avoidance is not so much an expression of
13
Arms Act of 1878 (Act XI of 1878); Explosive Substance Act of 1908 (Act VI of 1908).
14
Personal interview.
Chapter One
Human Security in Bangladesh
22
non-cooperation with the police, but more a
desire to avoid a greater calamity or harass-
ment under the pretext of criminal justice ad-
ministration.
In order to achieve an efficient police in-
vestigation system of criminal cases, it is
suggested that the investigation procedure
be made more transparent and account-
able. A separate bureau of investigation
should be established to deal only with in-
vestigation of cases, and not the day-to-
day maintenance of law and order.
KEY ANTI-POOR LEGAL PRACTICES
Bail justice system
The right to bail is recognised in every civi-
lised society as a fundamental human right.
The Criminal Procedure Code of 1898 elabo-
rates the regulations related to the granting of
bails and bonds in criminal cases in sections
496 to 502. According to the provisions laid
down in the Code, a person released on bail is
required to execute a personal bond and fur-
nish the bond of a surety
15
for a fixed sum
identified by the court. Even in bailable of-
fences,
16
where the accused is entitled to se-
cure bail as a matter of right, the Court does
not grant bail unless the accused is able to
obtain a surety. Consequently, the poor, who
do not possess sufficient means to furnish bail
bonds and are unable to obtain a surety, are
denied the right to bail and remain in detention
until the case is heard. In some cases, people
have been detained for long periods and may
even spend the maximum term of imprison-
ment under the relevant penal provision, be-
fore their trial is completed.
Further, if a person is accused of a bailable of-
fence, the magistrate may not release him on
bail; and when he is accused of a non-bailable
offence, he may be set free on bail when there is
reason to believe that he may not be responsible
for the offence. Such wide discretion provides
scope for influencing the magistrate and free-
ing the criminal to influence the whole sce-
nario.
Through discussions with some lawyers, assist-
ant public prosecutors and special public pros-
ecutors, it has become apparent that bail bonds
are not properly executed. The Sureties are not
always properly interviewed, or their credibility
investigated. Bail bonds, i.e. Bangladesh form
No. 3990, High Court criminal process form No.
58B, and form No. XLII of schedule V of the
CrPC are in most cases a mere formality. All
these can be arranged for money around the court
premises. When it comes to a poor person, whose
ostensible means barely allow him to survive, he
either cannot arrange a genuine surety, or gain a
false one from the touts. Such a system is there-
fore absolutely contrary to his human security.
Thus, the entire system of monetary bail is
anti-poor, since it is not possible for a man
to furnish a bail bond due to poverty, while
a rich man, accused of a similar crime, can
buy freedom from arrest by furnishing a bail
bond.
15
The surety undertakes to pay the amount to the court in case the person released on bail does not
present himself during the investigation or on the hearing date in accordance with the terms of the
bond.
16
Offences under the Penal Code have been classified into bailable and non-bailable offences according
to the nature and gravity of the offence. Section 4(b) of the Code of Criminal Procedure 1898 reads
as follows: "bailable offence" means an offence shown as bailable in the second schedule, or which is
made bailable under any other law in force for the time being; and "non-bailable offence" means any
other offence.
Chapter One
Human Security in Bangladesh
23
In the absence of official figures, it is nearly
impossible to estimate the number of bail cases
coming before the courts every day. Accord-
ing to informal estimates of Dhaka Court offi-
cials, only about 4 to 5 per cent of the accused
in GR cases (which are usually non-bailable)
are released on bail. However, there does not
seem to be any data on the number of ac-
cused who are denied bail after due proce-
dure. Many accused are not represented by
lawyers. The number of under-trial prisoners
in the country (some 25 to 30,000 at any given
time
17
), may lead to the conclusion that many
under-trial prisoners could have been released
on bail, had they been properly represented
by lawyers. The case for granting bail or at
least proper representation for seeking bail, is
all the more necessary since only about 25 per
cent of cases result in conviction. The remain-
ing 75 per cent of the accused are released as
not guilty,
18
after spending many years languish-
ing in prison without trial.
TRIAL OF RAPE AND OTHER
SEXUAL OFFENCES
The impact of the criminal justice system on
victims of rape and other sexual offences de-
serves considerable attention. Greater focus
needs to be paid to female victims of sexual
offences in the context of a changing social
system and increasing incidence of such of-
fences. A woman who is raped undergoes a
traumatic experience on at least two occasions
- first when she is raped and second during
the subsequent trial. There is a need to reas-
sess the legal procedures regarding: (a) evi-
dence as to the past sexual history of the rape
victim; (b) corroboration of the prosecutors'
testimony; and (c) appeals against acquittal.
Evidence of a rape victim's
sexual history
To what extent the past sexual experience of
a rape victim should be allowed to be used as
evidence in court is an important question. The
offence of rape is sexual intercourse with a
female without her free consent or with her
consent if she is below the statutory age of
consent.
19
The past sexual history of the vic-
tim may be used by the prosecution in two
ways: first, as evidence of her past sexual
experience with the accused; and second, as
evidence of sexual experiences with other per-
sons. Evidence with regard to past sexual his-
tory with the accused is allowed under the
provisions of sections 8,9,11 and 14 of the
17
See chapter V.
18
See chapter IV.
19
See section 375 of the Penal Code of 1860.
Case Study: Serving jail sentence before
conclusion of a case
In 1992, an appeal was filed in the High Court Division of
the Supreme Court of Bangladesh against a conviction and
sentence for ten years' rigorous imprisonment. However, a
ten-year period had lapsed before the appeal could be heard.
Shawkat (not the actual name) was released from jail in
1997, after serving the full sentence against which an appeal
was pending for about six years. Mahboob (not the actual
name) is still in jail since appealing against his ten-year
sentence in 1991 (vide criminal appeal no. 20/1991) in the
High Court Division of the Supreme Court of Bangladesh.
The appeal has not yet been heard although he completed
serving the ten-year sentence. He is still in jail in default of
paying the fine. Hundreds of cases are pending a hearing
in similar situations.
Box 1.1
Chapter One
Human Security in Bangladesh
24
Evidence Act of 1872 and with regard to show-
ing passion under section 14. However, the
most damaging and stringent provision in this
regard is embodied in section 155(4) of the
Evidence Act, under which evidence as to the
general immoral character of the victim in a
prosecution for rape or attempt to ravish may
be given.
20
The rationale for inclusion of such
evidence is that a woman who is of general
immoral character may have consented to the
sexual act with the accused. It is humiliating
for a rape victim to be questioned on her sexual
history who, in addition to the trauma and in-
dignity of describing her ordeal, must also bear
the humiliation of revealing her sexual history
during the trial. In this context, it is not sur-
prising that most rape cases go unreported.
Thus there is sufficient justification for abro-
gation of section 155(4) of the Evidence Act.
However, if abrogation of the provision is not
considered desirable on a juridical basis, it may
be amended so as to exclude evidence as to
past sexual experience of the victim with per-
sons other than the accused, and to exclude
evidence as to sexual experiences with the ac-
cused where she is within the statutory age of
consent.
Corroboration of the prosecutrix's
testimony
There is no provision in the Evidence Act re-
quiring corroboration of testimony of the pros-
ecutrix in the prosecution for rape or an at-
tempt to ravish. However, section 114, illus-
tration (b) of the Evidence Act prescribes a
rule of presumption relating to an accomplice's
evidence, namely that "an accomplice is un-
worthy of credit, unless he is corroborated
in material particulars". Another provision
of the Evidence Act that should be kept in mind
is section 133, which provides that "a convic-
tion is not illegal even if it is based on the
uncorroborated testimony of an accom-
plice".
The word "accomplice" has not been defined
in the Evidence Act. The dictionary meaning
of the word is "a guilty associate in a crime,
a partner in crime". An accomplice as de-
fined by the Lahore High Court is a person
who knowingly or voluntarily co-operates with
or aids and assists another in the commission
of a crime.
21
In a case of prosecution for rape, a woman
who has been raped is not an accomplice, but
a victim of the offence.
22
Accordingly, the pro-
visions of the Evidence Act with regard to the
corroboration of the testimony of an accom-
plice should not apply to the testimony of a
woman who has been raped. When the com-
plainant is a competent witness, and her cred-
ibility has not otherwise been impeached, why
should her evidence be viewed with doubt, dis-
belief or suspicion? Therefore, to bring clarity
and certainty in this area, legislative reform is
required.
Appeals against acquittal
Generally, appeals against conviction for rape
are common, however, very few appeals are
20
Section 155(4) reads as follows: "The credit of a witness may be impeached in the following ways by
the adverse party, or, with the consent of the court, by the party who calls him:…(4) when a man is
prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally
immoral character."
21
Ismail Hussan Ali v. Emperor, AIR 1947, Lah 220.
22
Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54.
Chapter One
Human Security in Bangladesh
25
made against a ruling of acquittal of the ac-
cused. The reason seems to be that convic-
tions for rape are generally against men, who
dominate society and who, if sentenced, will
suffer punishment. In addition, the victim of
the offence, a woman who has already suf-
fered crime at the hands of the accused and
has faced humiliation during the trial court, may
not have any more energy to fight an appeal
against acquittal. Furthermore, the State as a
prosecutor often does not take the initiative to
make an appeal on her behalf. It is therefore,
argued here that there is a need for legis-
lation incorporating a provision requiring
the State to file appeals against acquittal
in rape cases which are fit for appeal; and
in all other cases the prosecuting authority
should record a certificate to the effect that
the case is not fit for appeal. Cases that
are not fit for appeal should be sent to the
State Attorney General, who shall give his
opinion before the time prescribed for ap-
peal expires.
SAFE CUSTODY PRACTICE AND
ITS LEGAL BASIS
Women and girls who are victims of, or wit-
nesses to, violent offences are imprisoned in
many cases on the grounds that they will be in
"safe custody" for their own protection.
23
However, orders to place women in "safe cus-
tody" are issued by magistrates solely exer-
cising their judicial discretion, and do not have
any basis in law. The only reference to the
term "safe custody" is found in section 466 of
the 1898 Code of Criminal Procedure that re-
lates to provision of safe custody for the men-
tally impaired. Thus, Section 167 of the CrPC,
read with clause (14) of schedule III of the
CrPC provides for the "Power to authorise
detention (not being detention in the cus-
tody of the police) of the person during a
police investigation."
However, it should be noted that Section 167
only deals with the question of detention pend-
ing trial/investigation of the accused, and does
not relate to detention of the victim/witness.
Often, parents or guardians bring charges of
child abduction against the husband of a daugh-
ter who has married against their wishes. In
such cases, judges, in the absence of any other
alternatives, send these girls to jails for "safe
custody" until their real age is determined.
Recently, a few legal aid and human rights or-
ganisations (ASK, BLAST, BNWLA and
BMP) have offered facilities to shelter these
girls on an ad hoc basis for limited cases. It
should be remembered that, if allegations
are indeed correct, these women are vic-
tims of serious crimes, and not criminals,
and there is no justification for confining
them in prison.
Thus, the practice of placing women and
girls in "safe custody", against their will,
is illegal, having no basis in any law, in-
cluding the provisions of the Code of Crimi-
nal Procedure of 1898. Furthermore, the
practice of placing women and girls in "safe
custody" is unconstitutional, constituting a
grave violation of the fundamental rights
to equality, equal protection of the law, and
personal liberty as guaranteed under arti-
cles 27, 28 and 32 of the Constitution.
23
A 1997 report revealed that there are 269 persons in safe custody in 54 jails of the country; Source:
Daily Bhorer Kagoj (a Bengali daily), Dhaka, 5.4.1997.
Chapter One
Human Security in Bangladesh
26
In February 1997, three human rights organi-
sations
24
filed a writ petition (writ petition No.
1157/97) challenging the continuing practice
of placing women and girls in safe custody.
The High Court by a rule nisi, instructed the
Government to show cause within two weeks
as to why Sufia Begum, a detained woman
kept in "safe custody" in Barguna jail, should
not be brought before the Court so that it could
establish that she was not being held in cus-
tody without lawful authority or in an unlawful
manner. The detainee was subsequently re-
leased, and the writ petition was infracted, so
the legal validity of "safe custody" in this case
could not be tested. Therefore, there is a need
for legislative reform or a judicial pronounce-
ment on this issue.
While it is essential that effective steps be
taken to ensure the protection of victims/
witnesses, it is also true that incarceration
in prison is a grave violation of the right to
personal liberty. In cases where the woman
concerned is 18 or older, and is therefore
an adult in the eyes of the law, she should
be released. In the case of minor girls, mag-
istrates should instruct that they be placed
in the custody of their legal guardians,
where appropriate, or in the custody of es-
tablished human rights/women's rights or-
ganisation or shelter homes established by
the Government.
ARREST WITHOUT WARRANT
Section 54 of the Criminal Procedure Code
continues to be one of the most abused provi-
sions of the legal system. This section author-
ises the police to arrest any person on the ba-
sis of "reasonable suspicion" that he or she
has committed, or is about to commit, a crime.
The grounds for arrest without warrant under
Section 54 include the following:
Grounds for arrests without warrant
1. There exists a complaint against the
person of having committed a cognisable
offence;
2. Suspected housebreaker, where the burden
lies with the suspect;
3. Proclaimed as an offender under any law
in Bangladesh;
4. Suspected to have stolen property in his
possession;
5. Obstructs a police officer in the
performance of his duty, or has escaped
from lawful custody;
6. Suspected of being a deserter from any
disciplinary forces;
7. Offence committed outside Bangladesh
and sought under Fugitive Offenders Act
of 1881;
8. If a convict commits a breach of any rule
laid down for him when he was punished
twice for the same offence, as stipulated
in section 565 of the CrPC, the magistrate
or presiding judge may order him to remain
within a certain vicinity for not more than
five years;
9. When a requisition has been issued for
arrest by another police officer to arrest
without warrant.
24
Bangladesh Legal Aid and Services Trust, Ain-O-Shalish Kendro and Bangladesh Mahila Parishad.
Chapter One
Human Security in Bangladesh
27
This section has long served as a license for
police discretion, who are able to arrest any
one, almost anywhere, at any time. The pa-
rameters of police power of arrest have not
been clearly defined by the courts, nor have
any objective criteria been laid down to estab-
lish what constitutes "reasonable suspicion".
The Dhaka, Chittagong, Khulna and Rajshahi
Metropolitan Police Ordinances also have pro-
visions for arrest without warrant by a police
officer in sections 100, 103, 104 and 104, re-
spectively. Such wide and arbitrary powers
provided to the police constitute the most mis-
used authority vested in any government of-
fice in Bangladesh.
If the rule (CrPC, section 62) requiring police
officers to report to magistrates cases of all
persons arrested without warrant is followed
strictly, and magistrates review the cases regu-
larly, human security violations of innocent
people can be reduced significantly. It is cur-
rently estimated that in eight out of every ten
cases, police have not found any evidence to
warrant keeping the person in detention. Laws
should make it binding on the part of a police
officer to account for indiscriminate arrests
of innocent people, and the State should com-
pensate citizens for gross violations of their
human rights.
DISPOSSESSION OF IMMOVABLE
PROPERTY
Section 9 of the Specific Relief Act of 1877
provides for 'summary remedy' to a person
who, without consent, has been dispossessed
of immovable property, otherwise than in due
course of law. This law provides a special and
speedy remedy for a particular kind of griev-
ance, i.e. to replace in possession a person
who has been evicted from immovable prop-
erty of which he had previously been in pos-
session, otherwise than by process of law. If
a plaintiff can prove his previous possession,
he may recover possession from the defend-
ant who dispossessed him without reference
to any question of title. Even where the per-
son ousting him claims a superior title, the per-
son dispossessed is entitled to be restored to
possession if he can prove his previous pos-
session, and can take action within six months
from the date when the dispossession occurred.
The objective is to prevent persons from tak-
ing the law into their own hands, however good
their title may be. Thus, under Section 9 of the
Special Relief Act, questions of title are irrel-
evant and the only determining factors are (a)
whether the plaintiff was in possession of the
disputed property within six months previous
to the institution of the suit; and (b) whether
he was deprived of that possession by the de-
fendant otherwise than in due course of law.
It is immaterial whether such possession was
without title. The effect of this section, there-
fore, is that if a justifiable summary suit is
brought within six months, the plaintiff who
was dispossessed otherwise than in due course
of law, is entitled to be reinstated, even if the
Chapter One
Human Security in Bangladesh
28
defendant who dispossessed him is the true
owner, or someone claiming on his behalf.
This provision allows for major abuses as peo-
ple may illegally possess property through
force or influence and get evicted, in order to
repossess the property by operation of the
law.
25
Thus, a person with a genuine title has
to fight a civil suit for many years to establish
his title to the property and regain possession.
INADEQUATE ENFORCEMENT OF
PUBLIC NUISANCE LAW
Section 268 of the Penal Code deals with public
nuisance and states that:
"A person is guilty of a public nuisance
who commits any act or is guilty of an
illegal omission which causes any
common injury, danger, annoyance to
the public or to the people in general,
who dwell or occupy property in the
vicinity, or which must necessarily cause
injury, obstruction, danger, or
annoyance to persons who may have
occasion to use any public right."
However, Section 133 of the CrPC, which
deals with conditional order for removal of nui-
sance by the magistrate, is seldom applied in
Bangladesh. Occupying footpaths with mer-
chandise, throwing garbage on the main roads
and streets, raising footpaths, and setting-up
markets within dangerous proximity to high-
ways all constitute public nuisance and ham-
per human security, but are rarely challenged.
The Dhaka Metropolitan Police Ordinance of
1976 (sections 72A and 73) specifically bars
and provides for punishment when someone
occupies a public place with building materi-
als, or slaughters animals in public places. Simi-
lar provisions are embodied in the Chittagong,
Khulna and Rajshahi Metropolitan Police
Ordinances. However, despite these legal pro-
visions, the actual level of enforcement is ex-
tremely low. The enforcement of the laws to
improve the situation requires the authori-
ties' immediate attention.
VAGRANCY ACT
There are a large number of vagrants in Bang-
ladesh despite the stigma attached to this way
of life. Since Bangladesh is one of the poorest
countries in the world, many people live in ex-
treme poverty and many are homeless and des-
titute. The Vagrancy Act was the first piece
of legislation that sought to control the activi-
ties of vagrants for the purpose of training
them for employment. The Act defines a va-
grant as one who is (a) found asking for alms
in public; (b) wandering about; or (c) remains
in public places in such a condition or manner
that it appears that he/she survives by asking
for alms.
A specially appointed magistrate has the power
to brand a person as a vagrant. The vagrant is
not represented by lawyer before the magis-
trate. Once classified as a vagrant by the
magistrates, that person becomes subject to
the Vagrancy Act. The Act contains various
provisions for punishment of vagrants. In ad-
dition, before being declared a vagrant by the
magistrate, a person may also be imprisoned
with hard labour or charged fines for refusing
25
Personal interview
Chapter One
Human Security in Bangladesh
29
to accompany a police officer. A vagrant can
be detained in a vagrant home for an unspeci-
fied period of time.
The Vagrancy Act is a piece of social welfare
legislation, however, the way it is implemented
demonstrates how social welfare legislation
may be used to achieve non-social welfare
ends. For instance, it has been suggested that
the motivation underlying the implementation
of the Vagrancy Act is largely political.
26
Thus,
some would claim that this Act is implemented
mainly in urban areas, with the aid of police, in
order to keep vagrants off the main streets to
convey the impression that the economy is
healthy. In addition, the law is rarely enforced,
and usually only in order to 'clean up' the streets
or to curb begging. However, these 'political
reasons' behind its implementation should not
detract from the reality that there are genuine
vagrants in real need of some kind of care
and treatment.
Section 55(1) of the CrPC provides that:
"Any officer in charge of a station may,
in like manner, arrest or cause to be
arrested…(b) any person within the lo-
cal limits of such station who has no
ostensible means of subsistence, or who
cannot give a satisfactory account of
himself."
The main purpose of the Vagrancy Law un-
der the colonial period was to prevent the in-
flux of vagrants into large cities where colo-
nial rulers lived. However, the law remains in
force today, when large numbers of people live
below the subsistence level. In addition, ask-
ing a person to provide proof of identification
and address seems of little relevance in Bang-
ladesh, where no properly functioning system
of birth registration or identification exists.
According to Article 33(1) of the Constitution
and Section 61 of the CrPC, any person arrested
must be brought before the nearest magistrate
within 24 hours. Article 109 further provides that
any authorized magistrate may force a vagrant
to execute a bond with surety to avoid being sub-
ject to vagrancy regulations, which is nearly im-
possible for the homeless and destitute.
THE 'IMPLEMENTATION GAP'
Whilst the evidence in this chapter points to
considerable loopholes in laws and procedures,
which are often outdated, as well as a limited
awareness and knowledge of human security
laws and rights among the population (see
Chapter 2), the overwhelming conclusion is the
existence of a pervasive implementation
gap.
The implementation of legal frameworks for
ensuring human security (especially for the poor
and the disadvantaged) is seriously flawed, and
has failed to address rising crime and violence.
Both the training and skills of law enforce-
ment and legal prosecution officials are not
keeping pace with the needs, leading to a huge
backlog of cases clogging the judicial system.
The rising number of court cases takes longer
to settle, and end with a lower rate of convic-
tion (20%).
27
An increasingly large proportion
of prisoners are under trial prisoners, also
contributing to the ever-expanding prisoner
26
Personal interview.
27
In 1996, out of 55,490 cases the police submitted under charge sheets, trials for 4,395 cases were
completed. A conviction was obtained in 872 cases (20%); acquittals in 3,523 cases (80%); and 51,095
cases remained under trial (Source: Police Report).
Chapter One
Human Security in Bangladesh
30
population. Lawlessness and disorder in the
country are therefore increasing.
A pervasive anti-poor attitude among most
police personnel, combined with high
incidences of corruption have virtually priva-
tised state security services in favour of the
rich and the influential, leaving the vast major-
ity of human security violations against the poor
unattended (see Chapter 3). Similarly, pros-
ecution and court services are expensive and
time-consuming due to lengthy investigations,
frequent adjournments, harassment and irregu-
lar attendance of witnesses, procedural com-
plexities, and corrupt practices in the court
systems resulting in the vast majority of poor
complainants and victims not continuing with
their cases (see Chapter 4).
A comparative analysis of figures of 1931 and
1996 on warrants of arrest, charge sheets sub-
mitted, and disposal of court cases shows the
continuing trends in police efficiency and court
services vividly (see Table 1.4).
Source: Annual Police Administration Reports (1931-1935, 1986-1990, 1996, 1997).
Table 1.4
Comparative performance of police and courts in execution of warrants of arrest,
submission of charge sheets to courts, and disposal of GR, CR cases, 1931-1996.
Cases pending
Activities
1931
%
1986
%
1990
%
1996
%
Execution of Arrest warrants:
Received
Pending Execution
81,962
4,055
4.9
81,500
29,852
36.6
82,997
33,332
40.2
292,801
85,086
29.0
Charge sheets submitted:
Charge- Sheeted
Pending Investigation
18,050
2,417
13.4
87,225
38,344
43.9
88,152
52,758
59.8
48,189
27,312
56.7
Disposal of GR and CR
cases:
Received in Courts
Pending Disposal
107,681
5,981
5.6
191,270
72,735
38.0
191,635
141,649
73.9
102,086
51,095
50.0
Chapter One
Human Security in Bangladesh
31
FINDINGS AND RECOMMENDATIONS
Findings
1. The criminal laws of Bangladesh dealing
with human security are hostile to the poor
and disadvantaged sections of the soci-
ety, despite constitutional guarantees to the
contrary. Many laws are open to interpre-
tation and to the use of discretionary
power.
2. Limited available information on the
number of preventive detention cases
makes it difficult to assess the true extent
of use and abuse of specific laws and their
effect on human security.
3. Many laws and practises of the criminal
justice system are 'anti-poor' having a
more harmful effect on the poor and dis-
advantaged. Consequently, many citizens,
especially the poor, do not feel adequately
protected.
4. The current bail justice system favours the
wealthy and influential and penalizes those
without money or influence. Thus, the poor
and underprivileged groups in society are
over-represented in prisons whereas many
wealthy or privileged individuals guilty of
crimes manage to escape the process of
law.
5. The legal grounds for arrest without war-
rant are too broad and allow the police to
exercise a high degree of discretion. Most
preventive detention cases never reach the
courts, however, of those that do, almost
90% are found to be illegal or have been
processed without lawful authority.
6. Victims of rape and other sexual violence
continue to be further victimized by a le-
gal system which discriminates against
victims and protects the guilty.
7. The current practice of placing women and
girls in "safe custody" has no firm legal
basis.
8. Laws relating to the dispossession of im-
movable property, public nuisance, and va-
grants are not implemented in-line with
their original intent, and often discriminate
against and harm the poor.
9. In addition to considerable loopholes in
laws and procedures relating to human
security and lack of awareness on human
security issues amongst the population,
there is a severe implementation gap.
Recommendations
The findings of this study suggest that spe-
cific steps must be taken to improve the laws
and legal procedures to make them equally ap-
plicable to all citizens of Bangladesh, includ-
ing the poor, and to provide human security to
all. Specifically:
1. The Special Powers Act of 1974 should
be repealed as provisions to deal with most
offences under the Act are already pro-
vided for under the Penal Code and other
laws.
2. Review of the Evidence Act should be un-
dertaken to determine its effectiveness and
practicality, in particular with reference to
Chapter One
Human Security in Bangladesh
32
legal procedures harmful to women vic-
tims of rape, and necessary revisions
should be made. For example, Section
155(4), allowing evidence as to the past
sexual experience of an alleged rape vic-
tim with persons other than the accused,
add to the humiliation of the victim, and
should be amended.
3. A review of sections of the Penal Code,
Criminal Procedure Code, and police regu-
lations should be undertaken to determine
the appropriateness and practicality of
procedures of reporting and investigation
of complaints by the police and submis-
sion of charge sheets.
4. Clear rules should be established to de-
termine the parameters for police power
of arrest and to minimise the use of dis-
cretion. Specifically, objective criteria
should be established to determine the
basis for "reasonable suspicion" for ar-
rest without warrant, under the Article 54.
5. The practice of placing girls and women
in prison in the name of "safe custody"
should be discontinued. Women illegally
detained under this provision should be
released and for minor girls, who are wit-
nesses/victims of abduction, adequate
shelter should be provided pending the trial,
preferably with their legal guardian, and
failing this, appropriate measures should
be taken to provide protected shelter with
NGOs or through special government fa-
cilities. Legislative reform and judicial pro-
nouncements on this issue are also needed.
Chapter One
rights pertaining to human security. These
rights inter alia have been elaborated in arti-
cles 31, 32, 33, 35, and 42 of the Constitution.
However, the elaboration of laws in the stat-
ute books by themselves does not necessarily
guarantee their implementation, and evidence
suggests otherwise. Thus, the present study
was undertaken to analyse the implementa-
tion of the legal framework - laws, codes and
legal procedures - relating to human security
to assess their consistency, relevance, simplic-
ity and effectiveness for the benefit of the
general public.
METHODOLOGY
This report is based on primary and second-
ary sources. Originally, the laws dealing with
human security were identified and analysed.
This was followed by an examination of their
implementation in everyday life and applica-
tion by the courts. Data collected using open-
ended questionnaires from poor clients and vic-
tims of abuse was complemented by views
obtained from legal experts through informal
discussions and consultations. Owing to time
constraints, the respondents were chosen on
the basis of purposive sampling. Further views
of legal experts were obtained by way of in-
formal discussion and consultations. In addi-
tion, data on preventive detention cases were
compiled from the records of the Supreme
Court of Bangladesh. Information was also
collected from the Dhaka Metropolitan Mag-
istracy, Police Headquarters and the Prison
Directorate on an informal basis.
1
The Penal Code, 1860. Act XLV of 1860.
2
For example, the Code of Criminal Procedure, 1898, Act 5 of 1898.
Dirk Frans, www.dirkfrans.org
In Search of Justice and Dignity
Human Security in Bangladesh
14
THE CRIMINAL JUSTICE SYSTEM:
INSTITUTIONS AND PRACTICES
Ensuring human security through implemen-
tation of the legal framework at all levels of
society is the raison d'être of the State. The
functions of the State include punishing wrong-
doers and protecting the innocent. The Con-
stitution of the People's Republic of Bangla-
desh provides that "to enjoy the protection of
the law, and to be treated in accordance with
law, and only in accordance with law, is an
inalienable right of every citizen, wherever he
may be, and of every other person for the time
being in Bangladesh, and in particular no ac-
tion detrimental to the life, liberty, body, repu-
tation or property of any person shall be taken
except in accordance with law".
3
The Consti-
tution further provides that "Every person ac-
cused of a criminal offence shall have the right
to a speedy and public trial by an independent
and impartial court or tribunal established by
law". Other rights pertaining to human secu-
rity are specified in articles 32, 33, 35 and 42
of the Constitution.
4
Key laws pertaining to human security
5
:
1. The Penal Code, 1860
2. The Evidence Act, 1872
3. The Code of Criminal Procedure, 1898
4. The Child Marriage Restraint Act, 1929
5. The Muslim Family Law Ordinance,
1961
6. The Children Act, 1974
7. The Muslim Marriage and Divorce
Registration Act, 1974
8. The Dowry Prohibition Act, 1980
9. The Muslim Family Courts Ordinance,
1985
10. The Nari-O-Shishu Nirjatan Daman
(Bishesh Bidhan) Ain, 1995
Ensuring the respect of these laws and ordi-
nances is the primary responsibility of the po-
lice administration, which comprises 530 po-
lice stations. The Police Department is headed
by the Inspector General of the Police, under
the administrative control of the Ministry of
3
Article 31.
4
The text of these articles follows:
Article 32:
No person shall be deprived of life or personal liberty save in accordance with law.
Article 33:
No person who is arrested shall be detained in custody without being informed, as soon as possible, 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.
Article 35:
(1) No person shall be convicted of any offence except for violation of a law in force at the time of the
commission of the act charged as an offence, nor be subjected to a penalty greater than, or different
from, that which might have been inflicted under the law in force at the time of the commission of the
offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) Every person accused of a criminal offence shall have the right to a speedy and public trial by an
independent and impartial court or tribunal established by law.
(4) No person accused of any offence shall be compelled to be a witness against himself.
(5) No person shall be subjected to torture or to cruel, inhumane, or degrading punishment or treatment.
(6) Nothing in clause (3) or clause (5) shall affect the operation on any existing law which prescribes any
punishment or procedure for trial.
Article 42:
Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or
otherwise dispose of property, and no property shall be compulsorily acquired, nationalised or requisitioned
save by authority of law.
5
Since the writing of this report, important new legislation concerning human security has been introduced
including the Women and Children Anti Oppression Act (2000), the Public Safety (Special Enactment)
Act (2000) and the Law and Order Disruption Crimes (Speedy Trial) Act (2002).
Chapter One
Human Security in Bangladesh
15
Home Affairs. In case of violations, the of-
fence is reported to the officer-in-charge of
the police station in the form of a first infor-
mation report (FIR). The police officer in
charge of investigating the case is known as
the Investigating Officer (IO). If a prima
facie
6
case is made against the accused dur-
ing the investigation, the IO submits a charge
sheet (CS) to the court.
The administration of justice is the responsi-
bility of the judiciary, which comprises the
Supreme Court, the Appellate Division and the
High Court at the higher level, followed by a
hierarchy of civil and criminal courts at the
district level; and finally, village courts in rural
areas and conciliatory courts in municipal ar-
eas. The Supreme Court is located in Dhaka.
The Courts of District and Sessions Judge,
Additional District and Sessions Judges, Sub-
ordinate Judge and Assistant Sessions Judge
deal with both civil and criminal cases. The
Court of Assistant Judge (formerly Munsif)
deals only with civil cases. The Courts of Dis-
trict Magistrate, Additional District Magistrate,
Magistrate of First, Second and Third Class
deal with criminal cases only. The Metropoli-
tan Magistracy functioning in four major cit-
ies of the country also deals with criminal cases.
In most criminal cases in the Courts of Mag-
istrates, and to some extent in the Court of
Sessions, some categories of police officials
have to play the role of prosecutors. Besides
police officials, the lawyers appointed as pub-
lic prosecutors (PP) and assistant public pros-
ecutors (APP) also act as prosecutors in the
Court of Sessions.
FUNDAMENTAL RIGHTS AND
PROTECTION UNDER THE
CONSTITUTION
Part III of the Constitution of Bangladesh,
framed in 1972, enumerates certain fundamen-
tal rights. The Constitution states that all ex-
isting laws that are inconsistent with funda-
mental rights shall be declared void, and the
State is forbidden to make any law inconsist-
ent with fundamental rights.
7
The fundamen-
tal rights guaranteed by the Constitution of
1972
8
include: the right to equality before the
law; non-discrimination on grounds of religion,
sex, race, caste or place of birth; equality of
opportunity in public employment; the right to
protection of law; the right to protection of life
and personal liberty; safeguards against ille-
gal arrest and detention; prohibition of forced
labour; protection with respect to trial and pun-
ishment; freedom of movement, association,
thought, conscience, and speech; freedom of
profession; freedom of religion; rights to prop-
erty and protection of home and privacy of
correspondence. However, the enjoyment of
any right is subject to "reasonable" restrictions
imposed by law in the interest of security of
the State, public order, public health, morality
or decency.
The expression "reasonable" used in various
articles of the Constitution implies intelligent
care and deliberation, that is, the choice of a
course that reason dictates. However, legisla-
tion that arbitrarily or excessively invades cer-
tain rights cannot be deemed reasonable. Rea-
sonable is a relative term. What is reasonable
in one given set of circumstances may well be
unreasonable in another different set of
6
'Prima facie' - based on what seems at first to be true or real, without further or deeper investigation.
7
Article 26 of the Constitution of the People's Republic of Bangladesh, 1972.
8
See Articles 27 to 43 of the Constitution of Bangladesh, 1972.
Chapter One
Human Security in Bangladesh
16
circumstances. Thus, there can be no hard and
fast rule for determining the matter that may
be considered for testing the reasonableness
applicable to all cases.
Furthermore, unless the legislation strikes a
balance between the freedoms granted and
the social control permitted by the Constitu-
tion, it must be considered to be wanting. Thus,
the protection of fundamental rights contained
in the Constitution is subject to an important
qualification in that the laws in the interest of
morality or public order may restrict the exer-
cise of fundamental rights.
The Supreme Court of Bangladesh is respon-
sible for enforcing the fundamental rights con-
ferred by the Constitution.
9
Under Article 102,
the High Court Division of the Supreme Court
is empowered to 'give such directions or or-
ders to any person or authority…as may be
appropriate for the enforcement of any of the
fundamental rights'. The Supreme Court is
thus constituted as the protector and guaran-
tor of fundamental rights and it is the constitu-
tional responsibility of the Supreme Court to
protect them in case of infringement.
10
Thus,
for enforcement of rights pertaining to human
security under the Constitution, one has to go
to the High Court Division of the Supreme
Court of Bangladesh. However, because of
the costs involved in this process, the poor
and vulnerable sections of society seldom
get the benefit of the constitutional guar-
antee of the protection of rights. Thus, if
we mean actual and real protection, we need
to consider the provision of legal aid, as
well as measures ensuring that court serv-
ices are accessible to the people.
PREVENTIVE DETENTION LAW AND
ITS APPLICATION
The Special Powers Act of 1974 is the most
favoured legal instrument of the Executive to
detain criminals as well as political opponents.
This Act authorises the Government to detain
any person in order to prevent them from com-
mitting certain prejudicial acts. This is the only
article of law that allows the Government to
preventively detain any person, from a period
of one month or a longer period, often indefi-
nitely with the approval of the Advisory Board.
The Act contains 36 sections,
11
with Section 3
as the principle clause enabling government
to detain any person in custody in the name of
preventive detention.
The frequent use of the Special Powers Act,
albeit more against those who have already
been charged with specific crimes rather than
9
Article 44 of the Constitution of Bangladesh, 1972.
10
Government of Bangladesh v. Ahmed Nazir, 27 DLR (AD) 1975, p.51.
11
Originally the Act contained 36 sections, and a schedule; but after many amendments to the statute,
it has a very different shape at present. Sections 2(d), 2(g), 16, 17 and 18 were deleted by Act No. 18
of 1991, with effect from 26 February 1991. Although in section 3 of the Special Powers (Amendment)
Act (Act 18) of 1991 section 5 was among the deleted sections in the headline, but in the operative
portion section 5 was not deleted, so section 5 remained operative. The first amendment to the Act
was made on 29 July 1974, when death penalty, and 14-year rigorous imprisonment were inserted as
severe measures to ensure peace, harmony and supply of essential commodities. The same amendment
also brought changes to section 25 (sub-section 3 was deleted by Act XVII of 1987) by adding new
sections 25A, 25B, 25C, 25D and 25E. Through the Special Powers Act (Act No. LIX) of 1974,
section 30 was substituted, and new sections 30A, 34A and 34B were inserted into the Act. The
appellate jurisdiction of the High Court was vested to the Appellate Tribunal, ousting the High Court's
jurisdiction, which has again been replaced by the Special Powers (Amendment) Ordinance (Ordinance
No. XXXIII) of 1985, whereby the forum of appeal against any order, judgement or sentence of a
special tribunal came back to the High Court Division of the Supreme Court of Bangladesh.
Chapter One
Human Security in Bangladesh
17
to confine political opponents, nevertheless
clearly indicates the failure of the criminal
justice system to deal with alleged criminals.
Since detention under the Special Powers Act
precludes the possibility of bail, accused "crimi-
nals" are detained under this Act, often after
their arrest on specific criminal charges, to
thwart their successful applications for bail.
The detention of Selim, the alleged master-
mind and instigator of the jail "revolt" in No-
vember 1996, is an example of the failure of
the criminal justice system to deal with alleged
criminals. Selim was "preventively detained"
under the Special Powers Act after he had
already been released on bail by the court on
all four counts of specific crimes for which he
was earlier arrested.
The Act contains provisions outlining: the preju-
dicial acts for which a person can be detained;
the execution of a detention order; communi-
cation of grounds for detention; conditions of
detention; the constitution and procedures of
the Advisory Board; orders for absconding
persons; temporary release of detainees; spe-
cial tribunals to try offenders; punishments;
and revocation of detention orders.
Section 2(f) lists the prejudicial acts (see list
below), for which any person suspected of
committing, may be preventively detained with-
out any charge and trial. It should be noted
that all the grounds listed for preventive de-
tention would be more effectively dealt with
under the provisions of the Penal Code of 1860,
and adjunct laws.
Prejudicial Acts under the Special Powers Act
of 1974
1. To prejudice the sovereignty or defence
of Bangladesh;
2. To prejudice the maintenance of friendly
relations with foreign States;
3. To prejudice the security of Bangladesh
or endanger public safety or the mainte-
nance of public order;
4. To create or excite feelings of enmity or
hatred among various communities,
classes or sections of people;
5. To interfere with, encourage, or incite in-
terference with the administration and
maintenance of law and order;
6. To prejudice the maintenance of supplies
and services essential to the community;
7. To cause fear or alarm to the public or
any section of the public;
8. To prejudice the economic or financial in-
terests of the State.
The definition of 'prejudicial acts' as provided
by the Act is, however, vague and open to
interpretation by Government and its Execu-
tive, i.e. the magistrates and officers serving
in the Ministry of Home Affairs, and may be
interpreted rather widely. The magistrates,
upon the advice of the police and instigation
of the political party in power, frequently use
the legislation to suppress political opposition
leaders and party workers. This has been the
case under all Governments since the Act's
adoption in 1974. The Act constitutes a great
injustice upon the person detained, as the order
is always passed in the absence of the indi-
vidual, without even giving that person the
opportunity to state their case before being
detained.
Chapter One
Human Security in Bangladesh
18
Ruling not issued
Ruling issued
Total
Year
Summarily Rejected
Petition submitted, but not moved
Petition submitted, but withdrawn
Absolute
Discharged
No further move after rule was issued
Dismissed either for default or for non
-
prosecution
Disposed of when no further steps were taken
Pending disposal
Number of petitions made every year
1974
2
7
-
25
56
-
2
3
-
95
1975
2
7
-
14
13
-
-
1
-
37
1976
3
3
4
57
29
-
-
3
-
99
1977
2
2
-
118
108
2
-
3
-
235
1978
1
1
-
17
22
1
-
1
-
43
1979
-
1
-
2
11
1
-
-
-
15
1980
-
3
-
1
16
1
-
-
-
21
1981
-
1
-
6
17
-
-
-
-
24
1982
-
-
-
-
6
-
-
-
-
6
1983
-
-
-
-
-
-
-
-
-
-
1984
-
-
-
-
-
-
-
-
-
-
1985
1
-
-
-
2
-
-
-
-
3
1986
-
-
-
3
2
-
-
-
-
5
1987
1
3
-
16
10
13
6
-
-
49
1988
1
2
-
7
2
-
3
-
-
15
1989
-
1
-
247
(219)
20
(18)
14
(13)
3
(3)
-
-
285
(253)
1990
8
(1)
11
-
1,199
(325)
70
(21)
55
(20)
45
(1)
4
(3)
-
1,392
(371)
1991
8
(2)
18
-
1,920
(31)
29
(11)
38
(13)
23
6
(5)
-
2,042
(62)
1992
23
(1)
30
(1)
2
2,523
(246)
109
(14)
62
(48)
-
276
(1)
-
3,125
(311)
1993
3
(2)
44
1
1,135
(621)
68
(49)
72
(71)
4
(4)
81
(2)
-
1,408
(749)
1994
9
(3)
-
-
686
(136)
184
(24)
156
(156)
8
2
(2)
82
1,127
(321)
1995
1
-
-
36
(1)
3
(1)
75
(75)
-
-
231
346
(77)
Total
65
(9)
134
(1)
7
8,012
(1,579)
877
(138)
490
(396)
94
(8)
380
(13)
313
(10)
10,372
(2,144)
Source: Records of the High Court. Figures in parentheses indicate the status of petitions moved under section
491 of the Criminal Procedure Code of 1898, between 1989 and March 1995.
Table 1.1
Status of habeas corpus petitions moved before the High Court Division of the Supreme Court
of Bangladesh under Article 102 of the Constitution and under Section 491 of the CrPC of 1898
Chapter One
Human Security in Bangladesh
19
PREVENTIVE DETENTION CASES
MOVED BEFORE THE SUPREME
COURT
Data on the numbers of persons preventively
detained by Government since its independ-
ence are not available. It is presumed that in-
dividuals within the Ministry of Home Affairs
destroyed all the relevant documents at dif-
ferent times to conceal the misuse of preven-
tive detention legislation. Therefore, no spe-
cific mention can be made about the actual
number of detentions, either in any particular
district or in the country as a whole. How-
ever, the following data have been compiled
from the available number of cases that came
up before the High Court Division of the Su-
preme Court of Bangladesh by way of writ of
habeas corpus.
12
The total number of cases to come before the
High Court between Independence and 23
March 1995 was 10,372. Of these, only 134
cases were filed, but no further steps taken to
move the Court, and only 7 cases were with-
drawn. The remaining 10,231 cases that were
moved before the Court show a vivid picture
of the Court's rulings on preventive detentions.
Only 165 (0.635 per cent) cases were sum-
marily rejected after a preliminary hearing,
most of them due to technicalities. The number
of cases in which the Court thought there was
prima facie reason to believe that the deten-
tion was either illegal or carried out without
lawful authority was 10,161 (99.32%), in
which rule nisi was issued against the Gov-
ernment. Out of the rule issued cases, 78.3%
were absolute, i.e. the detainees were ordered
to be released; and in only 8.57% cases the
12
habeas corpus is when a person accused asks to hear his/her case before the High Court. The cost of
this process can be anywhere between Tk. 10,000 and 100,000, depending on the advocate engaged.
a
All further per cents are of moved petitions.
Table 1.2
Status of preventive detention cases as moved by writ of habeas corpus before the High
Court Division of the Supreme Court of Bangladesh
Sl. No.
Status of the petition
Number of
petitions
Per cent
01.
Total number of petitions filed with affidavit
10,372
02.
Number of petitions filed, but not moved
134
1.290
03.
Number of petitions filed, but withdrawn
7
0.067
04.
Number of petitions moved
a
10,231
98.640
05.
Number of petitions summarily rejected
165
0.635
06.
Number of petitions in which rule nisi was issued
10,161
99.320
07.
Number of petitions in which rules were absolute
8,012
78.300
08.
Number of petitions where rules were discharged (rejected)
877
8.570
09.
Number of petitions where rule was issued, but no further
move was made:
(a) dismissed either for default or non-prosecution
(b) disposed of
946
94
380
9.470
(0.918)
(3.714)
10.
Pending
313
3.059
Chapter One
Human Security in Bangladesh
20
rules were rejected, i.e. detentions were found
valid by the Court. There were 3.714% cases
pending when the data was collected and in
9.47% of cases it was found that, after issue
of the rule, no further moves were made, so it
may be assumed that the detainees were freed
by the authority. If 9.47% is added to 78.3%,
the result is 87.77%. So, it is clear that the
vast majority of preventive detention cases
that have come before the High Court were
determined to have been made either "ille-
gally", or "without any lawful authority".
Furthermore, since a large number of cases
of preventative detention are not brought to
the High Court, as the expense of moving a
petition and fear of facing the Court prevents
many poor from filing petitions, it can be as-
sumed that the actual numbers of preventive
detention cases are far higher.
The Special Powers Act is a preventive de-
tention statute, as well constituting a puni-
tive statute for trial of some offences that
could be tried under other penal provisions
already in force. Specifically, the prejudi-
cial acts as defined in the Act could just as
easily be dealt with under the provisions of
the Penal Code of 1860, as shown in the
Table 1.3.
Table 1.3
Preventive detention clauses under the Special Powers Act and Penal Code
Prejudicial acts in the Special Powers Act
Compatible provisions in the Penal Code, 1860
Section 2(f)(i), prejudicial to the sovereignty
or Defence
Sections 121-123A, 124A, 128-30 (offences against the State)
Section 2(f)(ii), prejudicial to the
maintenance of friendly relations with foreign
powers
Sections 125, 126 (offences against friendly countries)
Section 2(f)(iii), prejudice, the security of
Bangladesh, endangers public safety or
maintenance of public order
Sections 121-123A, 124A (offences against the State);
141-160 (offences against public tranquillity);
279-291 (public safety)
Section 2(f)(iv), creates or incites hatred,
feelings of enmity between communities,
classes or sections of people
Sections 295-298 (offences relating to religion);
503-506 (criminal intimidation, insult and annoyance);
153A (promoting enmity against classes)
Section 2(f)(v), incites or interferes with the
administration and maintenance of law and
order
Sections 107-120 (abatement); 141-160 (offences against public
tranquillity); 172-190 (contempt of the lawful authority of public servants);
191-229 (false evidence and offences against public justice)
Section 2(f)(vi), prejudices maintenance of
supplies and services essential to the
community
Sections 283 (danger or obstructing in public way or line of navigation)
Section 2(f)(vii), causes fear of alarm in
public
SS 141-160 (offences against public tranquillity)
Section 2(f)(viii), prejudices economic or
financial interests of the State
Sections 230-263A (offences relating to coin and government stamps);
463-477A (offences relating to documents and to trade or property marks),
478-498 (offences relating to trade, property and other marks);
489A-489E (offences relating to currency and bank notes)
Chapter One
Human Security in Bangladesh
21
In addition to duplication in provisions for pre-
ventive detention in the Penal Code of 1860,
Section 54 of the Criminal Procedures Code
allows the police to arrest any individual who
attempts to commit any offence that falls within
the ambit of the Penal Code. In addition, there
are other laws, which also deal with the preju-
dicial acts defined in the SPA.
13
Therefore,
there are people being imprisoned under the
Special Powers Act (SPA) who could be tried
according to the relevant penal provisions.
Sections 54, 107, 123, and 151 of the Criminal
Procedure Code of 1898 allow detention for a
limited period of time. However, section 167
allows for detention of up to 90 days in order
to allow further investigation.
It is important to note that the majority of pre-
ventive detention cases are not brought to the
Court, as many detainees are either too poor
to afford legal costs, unable to communicate
with their relatives or friends, or in fear of fac-
ing the High Court. Of the preventive deten-
tion cases that do reach the Court, nearly 90
per cent are found to have been brought ei-
ther "without lawful authority" or "in an un-
lawful manner". It would not be an exag-
geration to say that the Special Powers Act
of 1974 is one of the most inhumane secu-
rity laws in Bangladesh which should be
repealed immediately.
Here, it should be mentioned that leaders from
all political parties have pledged to repeal the
Act when in opposition, or in the run-up to elec-
tions, and have then failed to repeal the act
once elected to power.
INVESTIGATION BY THE POLICE
IN THE CRIMINAL JUSTICE SYSTEM
The police enjoy wide discretionary powers,
which may lead to serious miscarriages of jus-
tice.
There are several ways in which the police
can abuse their discretionary powers. Investi-
gations at the scene of the crime are conducted
by different levels of police - sometimes they
are carried out independently by ASI and SI
(Assistant Sub-Inspector) but in other cases,
by investigating officers under the direct su-
pervision of senior police officers. Therefore,
the quality of investigations and the serious-
ness with which investigations are carried out
varies considerably. Furthermore, the police
have the power to search any place to locate
evidence connected with the crime and crimi-
nals. In many cases it has been reported that
searches seem to be carried out merely to
humiliate and harass citizens.
14
The problem
is compounded by the power of the police to
arrest anybody on the pretext of suspicion,
under the SPA.
The negative image and credibility of the po-
lice in the eyes of the public is of serious con-
cern. Society would like to see an effective
police force arresting real culprits and not a
police force abusing its power through arbi-
trary arrests. It is a commonly held belief that
the police will arrest anybody at the scene of
crime if they are unable to apprehend the real
culprits. The situation at present is such that
many people will run away from the scene of
a crime when they see the police. This
avoidance is not so much an expression of
13
Arms Act of 1878 (Act XI of 1878); Explosive Substance Act of 1908 (Act VI of 1908).
14
Personal interview.
Chapter One
Human Security in Bangladesh
22
non-cooperation with the police, but more a
desire to avoid a greater calamity or harass-
ment under the pretext of criminal justice ad-
ministration.
In order to achieve an efficient police in-
vestigation system of criminal cases, it is
suggested that the investigation procedure
be made more transparent and account-
able. A separate bureau of investigation
should be established to deal only with in-
vestigation of cases, and not the day-to-
day maintenance of law and order.
KEY ANTI-POOR LEGAL PRACTICES
Bail justice system
The right to bail is recognised in every civi-
lised society as a fundamental human right.
The Criminal Procedure Code of 1898 elabo-
rates the regulations related to the granting of
bails and bonds in criminal cases in sections
496 to 502. According to the provisions laid
down in the Code, a person released on bail is
required to execute a personal bond and fur-
nish the bond of a surety
15
for a fixed sum
identified by the court. Even in bailable of-
fences,
16
where the accused is entitled to se-
cure bail as a matter of right, the Court does
not grant bail unless the accused is able to
obtain a surety. Consequently, the poor, who
do not possess sufficient means to furnish bail
bonds and are unable to obtain a surety, are
denied the right to bail and remain in detention
until the case is heard. In some cases, people
have been detained for long periods and may
even spend the maximum term of imprison-
ment under the relevant penal provision, be-
fore their trial is completed.
Further, if a person is accused of a bailable of-
fence, the magistrate may not release him on
bail; and when he is accused of a non-bailable
offence, he may be set free on bail when there is
reason to believe that he may not be responsible
for the offence. Such wide discretion provides
scope for influencing the magistrate and free-
ing the criminal to influence the whole sce-
nario.
Through discussions with some lawyers, assist-
ant public prosecutors and special public pros-
ecutors, it has become apparent that bail bonds
are not properly executed. The Sureties are not
always properly interviewed, or their credibility
investigated. Bail bonds, i.e. Bangladesh form
No. 3990, High Court criminal process form No.
58B, and form No. XLII of schedule V of the
CrPC are in most cases a mere formality. All
these can be arranged for money around the court
premises. When it comes to a poor person, whose
ostensible means barely allow him to survive, he
either cannot arrange a genuine surety, or gain a
false one from the touts. Such a system is there-
fore absolutely contrary to his human security.
Thus, the entire system of monetary bail is
anti-poor, since it is not possible for a man
to furnish a bail bond due to poverty, while
a rich man, accused of a similar crime, can
buy freedom from arrest by furnishing a bail
bond.
15
The surety undertakes to pay the amount to the court in case the person released on bail does not
present himself during the investigation or on the hearing date in accordance with the terms of the
bond.
16
Offences under the Penal Code have been classified into bailable and non-bailable offences according
to the nature and gravity of the offence. Section 4(b) of the Code of Criminal Procedure 1898 reads
as follows: "bailable offence" means an offence shown as bailable in the second schedule, or which is
made bailable under any other law in force for the time being; and "non-bailable offence" means any
other offence.
Chapter One
Human Security in Bangladesh
23
In the absence of official figures, it is nearly
impossible to estimate the number of bail cases
coming before the courts every day. Accord-
ing to informal estimates of Dhaka Court offi-
cials, only about 4 to 5 per cent of the accused
in GR cases (which are usually non-bailable)
are released on bail. However, there does not
seem to be any data on the number of ac-
cused who are denied bail after due proce-
dure. Many accused are not represented by
lawyers. The number of under-trial prisoners
in the country (some 25 to 30,000 at any given
time
17
), may lead to the conclusion that many
under-trial prisoners could have been released
on bail, had they been properly represented
by lawyers. The case for granting bail or at
least proper representation for seeking bail, is
all the more necessary since only about 25 per
cent of cases result in conviction. The remain-
ing 75 per cent of the accused are released as
not guilty,
18
after spending many years languish-
ing in prison without trial.
TRIAL OF RAPE AND OTHER
SEXUAL OFFENCES
The impact of the criminal justice system on
victims of rape and other sexual offences de-
serves considerable attention. Greater focus
needs to be paid to female victims of sexual
offences in the context of a changing social
system and increasing incidence of such of-
fences. A woman who is raped undergoes a
traumatic experience on at least two occasions
- first when she is raped and second during
the subsequent trial. There is a need to reas-
sess the legal procedures regarding: (a) evi-
dence as to the past sexual history of the rape
victim; (b) corroboration of the prosecutors'
testimony; and (c) appeals against acquittal.
Evidence of a rape victim's
sexual history
To what extent the past sexual experience of
a rape victim should be allowed to be used as
evidence in court is an important question. The
offence of rape is sexual intercourse with a
female without her free consent or with her
consent if she is below the statutory age of
consent.
19
The past sexual history of the vic-
tim may be used by the prosecution in two
ways: first, as evidence of her past sexual
experience with the accused; and second, as
evidence of sexual experiences with other per-
sons. Evidence with regard to past sexual his-
tory with the accused is allowed under the
provisions of sections 8,9,11 and 14 of the
17
See chapter V.
18
See chapter IV.
19
See section 375 of the Penal Code of 1860.
Case Study: Serving jail sentence before
conclusion of a case
In 1992, an appeal was filed in the High Court Division of
the Supreme Court of Bangladesh against a conviction and
sentence for ten years' rigorous imprisonment. However, a
ten-year period had lapsed before the appeal could be heard.
Shawkat (not the actual name) was released from jail in
1997, after serving the full sentence against which an appeal
was pending for about six years. Mahboob (not the actual
name) is still in jail since appealing against his ten-year
sentence in 1991 (vide criminal appeal no. 20/1991) in the
High Court Division of the Supreme Court of Bangladesh.
The appeal has not yet been heard although he completed
serving the ten-year sentence. He is still in jail in default of
paying the fine. Hundreds of cases are pending a hearing
in similar situations.
Box 1.1
Chapter One
Human Security in Bangladesh
24
Evidence Act of 1872 and with regard to show-
ing passion under section 14. However, the
most damaging and stringent provision in this
regard is embodied in section 155(4) of the
Evidence Act, under which evidence as to the
general immoral character of the victim in a
prosecution for rape or attempt to ravish may
be given.
20
The rationale for inclusion of such
evidence is that a woman who is of general
immoral character may have consented to the
sexual act with the accused. It is humiliating
for a rape victim to be questioned on her sexual
history who, in addition to the trauma and in-
dignity of describing her ordeal, must also bear
the humiliation of revealing her sexual history
during the trial. In this context, it is not sur-
prising that most rape cases go unreported.
Thus there is sufficient justification for abro-
gation of section 155(4) of the Evidence Act.
However, if abrogation of the provision is not
considered desirable on a juridical basis, it may
be amended so as to exclude evidence as to
past sexual experience of the victim with per-
sons other than the accused, and to exclude
evidence as to sexual experiences with the ac-
cused where she is within the statutory age of
consent.
Corroboration of the prosecutrix's
testimony
There is no provision in the Evidence Act re-
quiring corroboration of testimony of the pros-
ecutrix in the prosecution for rape or an at-
tempt to ravish. However, section 114, illus-
tration (b) of the Evidence Act prescribes a
rule of presumption relating to an accomplice's
evidence, namely that "an accomplice is un-
worthy of credit, unless he is corroborated
in material particulars". Another provision
of the Evidence Act that should be kept in mind
is section 133, which provides that "a convic-
tion is not illegal even if it is based on the
uncorroborated testimony of an accom-
plice".
The word "accomplice" has not been defined
in the Evidence Act. The dictionary meaning
of the word is "a guilty associate in a crime,
a partner in crime". An accomplice as de-
fined by the Lahore High Court is a person
who knowingly or voluntarily co-operates with
or aids and assists another in the commission
of a crime.
21
In a case of prosecution for rape, a woman
who has been raped is not an accomplice, but
a victim of the offence.
22
Accordingly, the pro-
visions of the Evidence Act with regard to the
corroboration of the testimony of an accom-
plice should not apply to the testimony of a
woman who has been raped. When the com-
plainant is a competent witness, and her cred-
ibility has not otherwise been impeached, why
should her evidence be viewed with doubt, dis-
belief or suspicion? Therefore, to bring clarity
and certainty in this area, legislative reform is
required.
Appeals against acquittal
Generally, appeals against conviction for rape
are common, however, very few appeals are
20
Section 155(4) reads as follows: "The credit of a witness may be impeached in the following ways by
the adverse party, or, with the consent of the court, by the party who calls him:…(4) when a man is
prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally
immoral character."
21
Ismail Hussan Ali v. Emperor, AIR 1947, Lah 220.
22
Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54.
Chapter One
Human Security in Bangladesh
25
made against a ruling of acquittal of the ac-
cused. The reason seems to be that convic-
tions for rape are generally against men, who
dominate society and who, if sentenced, will
suffer punishment. In addition, the victim of
the offence, a woman who has already suf-
fered crime at the hands of the accused and
has faced humiliation during the trial court, may
not have any more energy to fight an appeal
against acquittal. Furthermore, the State as a
prosecutor often does not take the initiative to
make an appeal on her behalf. It is therefore,
argued here that there is a need for legis-
lation incorporating a provision requiring
the State to file appeals against acquittal
in rape cases which are fit for appeal; and
in all other cases the prosecuting authority
should record a certificate to the effect that
the case is not fit for appeal. Cases that
are not fit for appeal should be sent to the
State Attorney General, who shall give his
opinion before the time prescribed for ap-
peal expires.
SAFE CUSTODY PRACTICE AND
ITS LEGAL BASIS
Women and girls who are victims of, or wit-
nesses to, violent offences are imprisoned in
many cases on the grounds that they will be in
"safe custody" for their own protection.
23
However, orders to place women in "safe cus-
tody" are issued by magistrates solely exer-
cising their judicial discretion, and do not have
any basis in law. The only reference to the
term "safe custody" is found in section 466 of
the 1898 Code of Criminal Procedure that re-
lates to provision of safe custody for the men-
tally impaired. Thus, Section 167 of the CrPC,
read with clause (14) of schedule III of the
CrPC provides for the "Power to authorise
detention (not being detention in the cus-
tody of the police) of the person during a
police investigation."
However, it should be noted that Section 167
only deals with the question of detention pend-
ing trial/investigation of the accused, and does
not relate to detention of the victim/witness.
Often, parents or guardians bring charges of
child abduction against the husband of a daugh-
ter who has married against their wishes. In
such cases, judges, in the absence of any other
alternatives, send these girls to jails for "safe
custody" until their real age is determined.
Recently, a few legal aid and human rights or-
ganisations (ASK, BLAST, BNWLA and
BMP) have offered facilities to shelter these
girls on an ad hoc basis for limited cases. It
should be remembered that, if allegations
are indeed correct, these women are vic-
tims of serious crimes, and not criminals,
and there is no justification for confining
them in prison.
Thus, the practice of placing women and
girls in "safe custody", against their will,
is illegal, having no basis in any law, in-
cluding the provisions of the Code of Crimi-
nal Procedure of 1898. Furthermore, the
practice of placing women and girls in "safe
custody" is unconstitutional, constituting a
grave violation of the fundamental rights
to equality, equal protection of the law, and
personal liberty as guaranteed under arti-
cles 27, 28 and 32 of the Constitution.
23
A 1997 report revealed that there are 269 persons in safe custody in 54 jails of the country; Source:
Daily Bhorer Kagoj (a Bengali daily), Dhaka, 5.4.1997.
Chapter One
Human Security in Bangladesh
26
In February 1997, three human rights organi-
sations
24
filed a writ petition (writ petition No.
1157/97) challenging the continuing practice
of placing women and girls in safe custody.
The High Court by a rule nisi, instructed the
Government to show cause within two weeks
as to why Sufia Begum, a detained woman
kept in "safe custody" in Barguna jail, should
not be brought before the Court so that it could
establish that she was not being held in cus-
tody without lawful authority or in an unlawful
manner. The detainee was subsequently re-
leased, and the writ petition was infracted, so
the legal validity of "safe custody" in this case
could not be tested. Therefore, there is a need
for legislative reform or a judicial pronounce-
ment on this issue.
While it is essential that effective steps be
taken to ensure the protection of victims/
witnesses, it is also true that incarceration
in prison is a grave violation of the right to
personal liberty. In cases where the woman
concerned is 18 or older, and is therefore
an adult in the eyes of the law, she should
be released. In the case of minor girls, mag-
istrates should instruct that they be placed
in the custody of their legal guardians,
where appropriate, or in the custody of es-
tablished human rights/women's rights or-
ganisation or shelter homes established by
the Government.
ARREST WITHOUT WARRANT
Section 54 of the Criminal Procedure Code
continues to be one of the most abused provi-
sions of the legal system. This section author-
ises the police to arrest any person on the ba-
sis of "reasonable suspicion" that he or she
has committed, or is about to commit, a crime.
The grounds for arrest without warrant under
Section 54 include the following:
Grounds for arrests without warrant
1. There exists a complaint against the
person of having committed a cognisable
offence;
2. Suspected housebreaker, where the burden
lies with the suspect;
3. Proclaimed as an offender under any law
in Bangladesh;
4. Suspected to have stolen property in his
possession;
5. Obstructs a police officer in the
performance of his duty, or has escaped
from lawful custody;
6. Suspected of being a deserter from any
disciplinary forces;
7. Offence committed outside Bangladesh
and sought under Fugitive Offenders Act
of 1881;
8. If a convict commits a breach of any rule
laid down for him when he was punished
twice for the same offence, as stipulated
in section 565 of the CrPC, the magistrate
or presiding judge may order him to remain
within a certain vicinity for not more than
five years;
9. When a requisition has been issued for
arrest by another police officer to arrest
without warrant.
24
Bangladesh Legal Aid and Services Trust, Ain-O-Shalish Kendro and Bangladesh Mahila Parishad.
Chapter One
Human Security in Bangladesh
27
This section has long served as a license for
police discretion, who are able to arrest any
one, almost anywhere, at any time. The pa-
rameters of police power of arrest have not
been clearly defined by the courts, nor have
any objective criteria been laid down to estab-
lish what constitutes "reasonable suspicion".
The Dhaka, Chittagong, Khulna and Rajshahi
Metropolitan Police Ordinances also have pro-
visions for arrest without warrant by a police
officer in sections 100, 103, 104 and 104, re-
spectively. Such wide and arbitrary powers
provided to the police constitute the most mis-
used authority vested in any government of-
fice in Bangladesh.
If the rule (CrPC, section 62) requiring police
officers to report to magistrates cases of all
persons arrested without warrant is followed
strictly, and magistrates review the cases regu-
larly, human security violations of innocent
people can be reduced significantly. It is cur-
rently estimated that in eight out of every ten
cases, police have not found any evidence to
warrant keeping the person in detention. Laws
should make it binding on the part of a police
officer to account for indiscriminate arrests
of innocent people, and the State should com-
pensate citizens for gross violations of their
human rights.
DISPOSSESSION OF IMMOVABLE
PROPERTY
Section 9 of the Specific Relief Act of 1877
provides for 'summary remedy' to a person
who, without consent, has been dispossessed
of immovable property, otherwise than in due
course of law. This law provides a special and
speedy remedy for a particular kind of griev-
ance, i.e. to replace in possession a person
who has been evicted from immovable prop-
erty of which he had previously been in pos-
session, otherwise than by process of law. If
a plaintiff can prove his previous possession,
he may recover possession from the defend-
ant who dispossessed him without reference
to any question of title. Even where the per-
son ousting him claims a superior title, the per-
son dispossessed is entitled to be restored to
possession if he can prove his previous pos-
session, and can take action within six months
from the date when the dispossession occurred.
The objective is to prevent persons from tak-
ing the law into their own hands, however good
their title may be. Thus, under Section 9 of the
Special Relief Act, questions of title are irrel-
evant and the only determining factors are (a)
whether the plaintiff was in possession of the
disputed property within six months previous
to the institution of the suit; and (b) whether
he was deprived of that possession by the de-
fendant otherwise than in due course of law.
It is immaterial whether such possession was
without title. The effect of this section, there-
fore, is that if a justifiable summary suit is
brought within six months, the plaintiff who
was dispossessed otherwise than in due course
of law, is entitled to be reinstated, even if the
Chapter One
Human Security in Bangladesh
28
defendant who dispossessed him is the true
owner, or someone claiming on his behalf.
This provision allows for major abuses as peo-
ple may illegally possess property through
force or influence and get evicted, in order to
repossess the property by operation of the
law.
25
Thus, a person with a genuine title has
to fight a civil suit for many years to establish
his title to the property and regain possession.
INADEQUATE ENFORCEMENT OF
PUBLIC NUISANCE LAW
Section 268 of the Penal Code deals with public
nuisance and states that:
"A person is guilty of a public nuisance
who commits any act or is guilty of an
illegal omission which causes any
common injury, danger, annoyance to
the public or to the people in general,
who dwell or occupy property in the
vicinity, or which must necessarily cause
injury, obstruction, danger, or
annoyance to persons who may have
occasion to use any public right."
However, Section 133 of the CrPC, which
deals with conditional order for removal of nui-
sance by the magistrate, is seldom applied in
Bangladesh. Occupying footpaths with mer-
chandise, throwing garbage on the main roads
and streets, raising footpaths, and setting-up
markets within dangerous proximity to high-
ways all constitute public nuisance and ham-
per human security, but are rarely challenged.
The Dhaka Metropolitan Police Ordinance of
1976 (sections 72A and 73) specifically bars
and provides for punishment when someone
occupies a public place with building materi-
als, or slaughters animals in public places. Simi-
lar provisions are embodied in the Chittagong,
Khulna and Rajshahi Metropolitan Police
Ordinances. However, despite these legal pro-
visions, the actual level of enforcement is ex-
tremely low. The enforcement of the laws to
improve the situation requires the authori-
ties' immediate attention.
VAGRANCY ACT
There are a large number of vagrants in Bang-
ladesh despite the stigma attached to this way
of life. Since Bangladesh is one of the poorest
countries in the world, many people live in ex-
treme poverty and many are homeless and des-
titute. The Vagrancy Act was the first piece
of legislation that sought to control the activi-
ties of vagrants for the purpose of training
them for employment. The Act defines a va-
grant as one who is (a) found asking for alms
in public; (b) wandering about; or (c) remains
in public places in such a condition or manner
that it appears that he/she survives by asking
for alms.
A specially appointed magistrate has the power
to brand a person as a vagrant. The vagrant is
not represented by lawyer before the magis-
trate. Once classified as a vagrant by the
magistrates, that person becomes subject to
the Vagrancy Act. The Act contains various
provisions for punishment of vagrants. In ad-
dition, before being declared a vagrant by the
magistrate, a person may also be imprisoned
with hard labour or charged fines for refusing
25
Personal interview
Chapter One
Human Security in Bangladesh
29
to accompany a police officer. A vagrant can
be detained in a vagrant home for an unspeci-
fied period of time.
The Vagrancy Act is a piece of social welfare
legislation, however, the way it is implemented
demonstrates how social welfare legislation
may be used to achieve non-social welfare
ends. For instance, it has been suggested that
the motivation underlying the implementation
of the Vagrancy Act is largely political.
26
Thus,
some would claim that this Act is implemented
mainly in urban areas, with the aid of police, in
order to keep vagrants off the main streets to
convey the impression that the economy is
healthy. In addition, the law is rarely enforced,
and usually only in order to 'clean up' the streets
or to curb begging. However, these 'political
reasons' behind its implementation should not
detract from the reality that there are genuine
vagrants in real need of some kind of care
and treatment.
Section 55(1) of the CrPC provides that:
"Any officer in charge of a station may,
in like manner, arrest or cause to be
arrested…(b) any person within the lo-
cal limits of such station who has no
ostensible means of subsistence, or who
cannot give a satisfactory account of
himself."
The main purpose of the Vagrancy Law un-
der the colonial period was to prevent the in-
flux of vagrants into large cities where colo-
nial rulers lived. However, the law remains in
force today, when large numbers of people live
below the subsistence level. In addition, ask-
ing a person to provide proof of identification
and address seems of little relevance in Bang-
ladesh, where no properly functioning system
of birth registration or identification exists.
According to Article 33(1) of the Constitution
and Section 61 of the CrPC, any person arrested
must be brought before the nearest magistrate
within 24 hours. Article 109 further provides that
any authorized magistrate may force a vagrant
to execute a bond with surety to avoid being sub-
ject to vagrancy regulations, which is nearly im-
possible for the homeless and destitute.
THE 'IMPLEMENTATION GAP'
Whilst the evidence in this chapter points to
considerable loopholes in laws and procedures,
which are often outdated, as well as a limited
awareness and knowledge of human security
laws and rights among the population (see
Chapter 2), the overwhelming conclusion is the
existence of a pervasive implementation
gap.
The implementation of legal frameworks for
ensuring human security (especially for the poor
and the disadvantaged) is seriously flawed, and
has failed to address rising crime and violence.
Both the training and skills of law enforce-
ment and legal prosecution officials are not
keeping pace with the needs, leading to a huge
backlog of cases clogging the judicial system.
The rising number of court cases takes longer
to settle, and end with a lower rate of convic-
tion (20%).
27
An increasingly large proportion
of prisoners are under trial prisoners, also
contributing to the ever-expanding prisoner
26
Personal interview.
27
In 1996, out of 55,490 cases the police submitted under charge sheets, trials for 4,395 cases were
completed. A conviction was obtained in 872 cases (20%); acquittals in 3,523 cases (80%); and 51,095
cases remained under trial (Source: Police Report).
Chapter One
Human Security in Bangladesh
30
population. Lawlessness and disorder in the
country are therefore increasing.
A pervasive anti-poor attitude among most
police personnel, combined with high
incidences of corruption have virtually priva-
tised state security services in favour of the
rich and the influential, leaving the vast major-
ity of human security violations against the poor
unattended (see Chapter 3). Similarly, pros-
ecution and court services are expensive and
time-consuming due to lengthy investigations,
frequent adjournments, harassment and irregu-
lar attendance of witnesses, procedural com-
plexities, and corrupt practices in the court
systems resulting in the vast majority of poor
complainants and victims not continuing with
their cases (see Chapter 4).
A comparative analysis of figures of 1931 and
1996 on warrants of arrest, charge sheets sub-
mitted, and disposal of court cases shows the
continuing trends in police efficiency and court
services vividly (see Table 1.4).
Source: Annual Police Administration Reports (1931-1935, 1986-1990, 1996, 1997).
Table 1.4
Comparative performance of police and courts in execution of warrants of arrest,
submission of charge sheets to courts, and disposal of GR, CR cases, 1931-1996.
Cases pending
Activities
1931
%
1986
%
1990
%
1996
%
Execution of Arrest warrants:
Received
Pending Execution
81,962
4,055
4.9
81,500
29,852
36.6
82,997
33,332
40.2
292,801
85,086
29.0
Charge sheets submitted:
Charge- Sheeted
Pending Investigation
18,050
2,417
13.4
87,225
38,344
43.9
88,152
52,758
59.8
48,189
27,312
56.7
Disposal of GR and CR
cases:
Received in Courts
Pending Disposal
107,681
5,981
5.6
191,270
72,735
38.0
191,635
141,649
73.9
102,086
51,095
50.0
Chapter One
Human Security in Bangladesh
31
FINDINGS AND RECOMMENDATIONS
Findings
1. The criminal laws of Bangladesh dealing
with human security are hostile to the poor
and disadvantaged sections of the soci-
ety, despite constitutional guarantees to the
contrary. Many laws are open to interpre-
tation and to the use of discretionary
power.
2. Limited available information on the
number of preventive detention cases
makes it difficult to assess the true extent
of use and abuse of specific laws and their
effect on human security.
3. Many laws and practises of the criminal
justice system are 'anti-poor' having a
more harmful effect on the poor and dis-
advantaged. Consequently, many citizens,
especially the poor, do not feel adequately
protected.
4. The current bail justice system favours the
wealthy and influential and penalizes those
without money or influence. Thus, the poor
and underprivileged groups in society are
over-represented in prisons whereas many
wealthy or privileged individuals guilty of
crimes manage to escape the process of
law.
5. The legal grounds for arrest without war-
rant are too broad and allow the police to
exercise a high degree of discretion. Most
preventive detention cases never reach the
courts, however, of those that do, almost
90% are found to be illegal or have been
processed without lawful authority.
6. Victims of rape and other sexual violence
continue to be further victimized by a le-
gal system which discriminates against
victims and protects the guilty.
7. The current practice of placing women and
girls in "safe custody" has no firm legal
basis.
8. Laws relating to the dispossession of im-
movable property, public nuisance, and va-
grants are not implemented in-line with
their original intent, and often discriminate
against and harm the poor.
9. In addition to considerable loopholes in
laws and procedures relating to human
security and lack of awareness on human
security issues amongst the population,
there is a severe implementation gap.
Recommendations
The findings of this study suggest that spe-
cific steps must be taken to improve the laws
and legal procedures to make them equally ap-
plicable to all citizens of Bangladesh, includ-
ing the poor, and to provide human security to
all. Specifically:
1. The Special Powers Act of 1974 should
be repealed as provisions to deal with most
offences under the Act are already pro-
vided for under the Penal Code and other
laws.
2. Review of the Evidence Act should be un-
dertaken to determine its effectiveness and
practicality, in particular with reference to
Chapter One
Human Security in Bangladesh
32
legal procedures harmful to women vic-
tims of rape, and necessary revisions
should be made. For example, Section
155(4), allowing evidence as to the past
sexual experience of an alleged rape vic-
tim with persons other than the accused,
add to the humiliation of the victim, and
should be amended.
3. A review of sections of the Penal Code,
Criminal Procedure Code, and police regu-
lations should be undertaken to determine
the appropriateness and practicality of
procedures of reporting and investigation
of complaints by the police and submis-
sion of charge sheets.
4. Clear rules should be established to de-
termine the parameters for police power
of arrest and to minimise the use of dis-
cretion. Specifically, objective criteria
should be established to determine the
basis for "reasonable suspicion" for ar-
rest without warrant, under the Article 54.
5. The practice of placing girls and women
in prison in the name of "safe custody"
should be discontinued. Women illegally
detained under this provision should be
released and for minor girls, who are wit-
nesses/victims of abduction, adequate
shelter should be provided pending the trial,
preferably with their legal guardian, and
failing this, appropriate measures should
be taken to provide protected shelter with
NGOs or through special government fa-
cilities. Legislative reform and judicial pro-
nouncements on this issue are also needed.
Chapter One
 
The present government and it's police force is clearly abusing the laws in violation of
several orders and directives of the supreme  court with impunity. That makes the State
and it's police force more powerful than the supreme  court. When the State (& it's
police) becomes more powerful than the Supreme Court the country becomes a
POLICE-STATE.
 
When police is used to supress the political dissidents in the name of law and order,
or  any other pretext what so ever, the  country turns into a POLICE-STATE.
 
But, according to Ms Dina Khan violation of supreme court orders and directives
is called state of lawful administration. So lawlessness in the name of "rules of law"
continues ...and now Machiavelli lives in Ms Dina Khan  .......long live
Machiavelli ! Mademoiselle Dina Khan will justify everything, of course, by fair means or foul !!!

 
On 12/14/07, dina khan < dina30_khan@yahoo.com > wrote:
 
Police's duty is to arrest the wrong doer people & place them  to the court with specific cases the court & the judicial person's responsibility are to do trial  for giving verdict according to the existing rule against the worong doers either the arrested people or the police according to the rules of law or rules of administration This is not called police state this is called state of lawful administration.

 
Syed Aslam <Syed.Aslam3@gmail.com> wrote:
Do you understand plain language? The news item clearly says that the present
government is abusing the laws in violation of several orders and directives
of the Supreme Court. As a matter of fact, the CTG is resorting to
vigilante justice to pepetuate it's peculiar brand of political brinkmanship.
- Hide quoted text -
 
Basically, you approve the violation of Supreme Court order and directives by the
government. Are you a supported of police-state? [you may have your own justification].
 
__._,_.___

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