PREVENTIVE DETENTION

View with images and charts

PREVENTIVE DETENTION A. INTRODUCTION The term 'preventive detention' is used in contradistinction to the term 'punitive detention. In other words, it may be said that 'detention' may be of two types-punitive detention and preventive detention. Preventive detention means detention of a person without trial and conviction by a court, but merely on suspicion in the minds of the executive authority. "Preventive detention is an abnormal measure whereby the executive is authorized to impose restraints upon the liberty of a man who may not have committed a crime but who, it is apprehended, is about to commit acts that are prejudicial to public safety etc'. 1 ' Punitive detention on the other hand, means the detention of a person only after trial for committing a crime and after his guilt has been established in a competent court of justice. According to justice Vinan Bose, preventive detention has three special features.

The first is that it is detention and not imprisonment; the second is that it is detention by the executive without trial or inquiry by a court; and the third is that the object is preventive and not punitive. 2 According to Chief Justice Badrul Haider Chowdhury, preventive detention means detention the aim of which is to prevent a person from doing something which is likely to endanger the public peace or safety or causing public disorder. 3 Preventive detention is a system in which the citizens of a country can be arrested without being told the grounds for the arrest. This sort of system is followed in Bangladesh. No one can be arrested without being told the grounds for such an arrest. If arrested the person has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought before the nearest magistrate within 24 hours. However, there is an exception to this general provision. Under preventive detention, the government can imprison a person for some time. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. But preventive detention can be extended only for three months. After three months such a case is brought before an advisory board for review.

Laws authorizing the detention of a person without trial were considered necessary by the British Indian Government to suppress subversive political activities of the people in the subcontinent but after achieving independence the Governments of India and Pakistan continued these laws. The framers of the Constitutions of both India and Pakistan, however, provided certain 1

1. Brohi, A. K., Ibid, p. 424 2. Quoted by Pirzada, Sharifuddin, 3 3. Chowdhury, Badrul Haider, The Long Ecoes 2

limitations of the powers of the legislature as well as the executive in their attempt to detain a person without trial. In Bangladesh, these limitations have been provided in the Constitution by amending Article 33. Clauses (4), (5) and (6) which have been inserted by this Amendment contain the limitations.

Before examining the nature of the Constitutional protection of the restrictive laws, the origin of such laws may be considered.

Article 33 as originally adopted did not leave any scope for preventive detention. Preventive detention, though an evil, is a necessity for State security and by the Constitution (Second Amendment) Act, 1973 the old Article 33 was replaced by the present one providing that the above rights will not be available in the case of persons arrested or detained under any law providing for preventive detention. Preventive detention has three distinguishing features - (i) it is detention and not imprisonment, (ii) it curtails the liberty of a person by executive order without any preceding trial or inquiry and (iii) its object is preventive and not punitive.

Under Article 32 a law providing for preventive detention must both substantively and procedurally be free from arbitrariness and unreasonableness and must not be vague or disproportionate to the mischief sought to be remedied. In order to protect the individuals from arbitrary or high-handed arrest and detention by the executive, clauses (4) and (5) of Article 33 provide two important safeguards - (i) approval by Advisory Board and (ii) communication of the grounds of detention. Both these safeguards are to be observed by the detaining authority. It is immaterial whether the constitutional safeguards are incorporated in the law as even if not so incorporated, it would be deemed to be incorporated in the law as superimposed by the Constitution. 4 B. NATURE OF PREVENTIVE DETENTION As has been observed in Gopalan's case " there is no authoritative definition of the term ‘Preventive Detention;......". In England, while explaining the nature of detention under Regulation 14B, framed under the Defence of die Realm (Consolidation) Act, 1914, the Judges referred to such expression.

Lord Finally characterised it as not a punitive but a precautionary measure.

"One of die obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy. 5 When a person on preventively detained, such detention is not punitive. ‘No offence is proved, nor any charge formulated; the justification of such detention is suspicion or reasonable probability and not criminal conviction 4

4. Vimal v. Prodhan, AIR 1979 SC 1501; Rawshan Bijaya Shakat Ali Khan v. East Pakistan, 17 DLR 1 5. Rex v. Halliday, (1917) AC at p. 269.

6. Gopalan v. State of Madras, AIR 1950 SC 27.

7. (1917) AC 260.

5

which can only be warranted by legal evidence'. 6 The object of such detention is, however, not to inflict punishment for any act done by him but to prevent him from doing it. After observing how precious the personal liberty of the subject is, Lord Atkinson in Halliday's case found a justification for preventive detention during war, "there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement. 7 In the same case his lordship defined preventive justice "which consists in restraining a man from committing a crime he may commit but has not yet committed, or doing some act injurious to members of the community which he may do but has not yet done....."

And such preventive justice proceed “upon the principle that a person should be restrained from doing something which, if free and unfettered, it is reasonably proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof�.

Clause (4) and (5) of Article 33indicate that the preventive detention referred to therein is detention otherwise than by order of Court. There is no scope of judicial review. This kind of preventive detention is quite distinct from the ordered under the provisions of the Criminal Procedure Code. 8 Like the detention pending trial dealt within Clauses (1) and (2) of Article 33, the detention referred to in Clauses (4) and (5) is not punitive detention. The first two clauses, we have seen, lay down the minimum conditions which the legislative sanctioning the arrest and detention of a person not convicted of a crime must comply with and the safeguards provided therein were largely covered by the provisions in the Criminal Procedure Code.

Clause (3) specifically lays down that these safeguards will not be applicable in cases of persons who are for the time being enemy aliens or who are arrested and detained under any law providing for preventive detention. The preventive detention contemplated in Clauses (4) and (5) has reference only to detention made by an order of an executive authority purporting to act under an enactment authorizing such detention. 9 Chapter VIII of the Criminal Procedure Code contains such provisions as, (a) Taking security for keeping the peace -Section 106; (b) Taking security for 6 7 8

8. Jit Bahadur v. The State, AIR 1953 All 753; Mannava v. Punnaiah, AIR 1957 And. Pra. 90.

9. In considering the justification for similar provisions relating to preventive detention in the Indian Constitution, the Supreme Court of India observed: "That appears to have done because the Constitution recongnises the necessity of preventive detention on extraordinary occasions when control over public order, security of the country, etc., are in danger of breakdown. But while recongnising the need of preventive detention without recourse to the normal procedure according to law, it provides at the same time certain restrictions on the power of detention, both legislative and executive, which it considers as minimun safeguards to ensure that the power of such detention is not illegitimately or arbitrarily used." Pankaj Kumar v. State of West Bengal, AIR 1970 SC97.

9

keeping the peace even in cases where there has been no conviction - Section 107; (c) Taking security for good behaviour - Section 108. The Court may order detention in prison under Sections 107,117 and 123 of the Code, but though this kind of detention is resorted to as a sort of precautionary measure, it is not a punitive detention. The fact that imprisonment follows as the result of a failure or refusal to give security does not make it a punishment inflicted for a crime.

An order for detention under the provisions of the Criminal Procedure Code is made by a magistrate for sufficient reasons established by the evidence and after full judicial enquiry. Here the detention can be avoided by giving security, while in preventive detention under an Executive order there is no choice. Preventive detention deprives a person of his right to liberty without the advantages that a person detained under the above provisions of the Code enjoys or to his right of moving the Supreme Court in appropriate cases, and also his right to defense by counsel of his own choice. A detenue under a Preventive Detention law is not required to be produced before any Court.

Chapter VHI deals with (1) persons disseminating seditious matter; (2) vagrants and suspected person and (3) habitual offenders.

In Abdul Aziz v. Province of West Pakistan , 1 0 the Supreme Court of Pakistan considered the , meaning and application of Clauses (1) to (5) of Article 7 of the Constitution of Pakistan, 1956, corresponding to Clauses(l) to (5) of Article 33 of the Constitution of Bangladesh. According to Cornelius J, Clause (1) of Article "7 was "completely new law, of a detailed nature, applying to persons who have been arrested under any existing law" and was not required to be incorporated in every law providing for arrest of person.

Clause (2) merely repeated "with higher and all - embracing authority, certain provisions contained in the Criminal Procedure Code regarding production of an arrested person before a Magistrate within a precisely specified period of very short duration and that further must be under orders of a Magistrate".

This clause does not indicate that "its provisions are to be expressly incorporated in every law which provides for the arrest of persons". Clause (3) merely saved, from the operation of the first two clauses, persons who were enemy aliens and persons who were under preventive detention. Clause (4) did not contain any words from which one could infer that it sought to include in every statute of the relevant kind, provisions for the appointment and functioning of an Advisory Board. As was observed by Cornelius J, the clause "would be under which the detentions have been ordered". Clause (5) did not "authorize the making of laws", nor did it "impose conditions upon 10

10. PLD 1958 SC 499. These clauses impose on the detaining authority the obligation to furnish the grounds for detention, the obligation to afford (lie detainee the earliest opportunity of making a representation against the order and the obligation to constitute an advisory board and not to keep him in detention for a period longer than six months unless before the expiry of thus period the opinion of the board that there is sufficient cause for such detention. Pankaj Kumar v. State of West Bengal, AIR 1970 SC 97; Khairul Haque v. (Stale of West Bengal, (1969) 2 SC. W.R. 529. The scope and effect of idle corresponding clauses in Article 22 of the Indian Constitution have been considered in Puran Lai v. Union of India, AIR 1958 SC 163; Sk. Abdul Karim v. State of West Bengal, AIR 1969 SC 1028.

the making of laws relating to preventive detention". It did not require that its provisions were to be incorporated in any law of the relevant kind. Clause (5) of Article 33 enacts positive law, effecting preventive detention, which must be read as supplementing the provisions of any statute existing in the same field. 1 1 Externment or banishment is akin to preventive detention insofar as this is also a precautionary measure and its abject is not to punish but to prevent. Its justification is also suspicion or reasonable probability. Even so, it was held that extemment or banishment was not detention, for, the latter meant that the person detained was not at liberty to go anywhere. 1 2 In this case a person was externed from Delhi under the provisions of the UP. Act I of 1932 (as extended to Delhi) which did not provide for preventive detention.

A person can be preventively detained only under a provision of law.

Preventive detention " makes an inroad on the personal liberty of a citizen without the safeguards inherent in a formal trial before a judicial tribunal and ... it must be jealously kept within the bounds fixed for it by the Constitution and the relevant law". If the law under which he is detained is pronounced unconstitutional and invalid he is to be at once set at liberty. Brett LJ observed: “It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue�. 1 3 C. NECESSITY OF PREVENTIVE DETENTION From the above discussion it is clear that preventive detention is an abnormal measure of curtailing personal liberty of a person. A question is then necessarily obvious- what is the justification or philosophy behind preventive detention?

The philosophy lying behind the preventive detention is the interest and security of the state and nation. National security and interest are more important than the personal liberty of citizens, for the enjoyment of personal liberty itself is dependent on the safe security of the state. This is why in times of grave emergency threatening to the security of the state preventive detention is authorized by law in all democratic countries including England and USA. Justifying the measure Lord Atkinson in R v. Halliday said : “..........Where

preventive

justice

is

put

in

force

some

sufferings

11

11. Govt. of East Pakistan v. Rowshan Brjaya, PLD 1966 SC 286.

12. Inderjit Singh v. State of Delhi, AIR 1953 Punj 52.

12 13

13. Enraught's case, (1881) 6 QBD 376. In Ram Krishna v. State of Delhi, AIR 1953 SC 318, the Indian Supreme Court observed: "Preventive detention is a serious invasion of personal liberty and such meagre.

ad

inconveniences may be caused to the suspected persons. This is inevitable.

But the suffering is......inflicted for something much more important than his liberty or convenience, namely for securing the public safety and the defence of the realm”. 1 4 “......However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement....". 1 5 In the same case Lord Finlay said— “Any preventive measure even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state”. 1 6 As already mentioned in the earlier chapter, all international and regional documents of human rights recognize and make provision for derogation of rights in case of emergency and of national crisis. During the First and the Second World War the British Government was given extensive power by parliament to pass order for preventive detention. The US Congress has also given the executive power to make preventive detention. But this power can be exercised only in times of grave emergency like war or external aggression. Preventive detention is recognized as a war-time measure and not a peace-time measure. In times of peace preventive detention is not at all known in democratic countries.

D. RULE OF LAW AND PREVENTIVE DETENTION The Act provides for indefinite periods of detention ranging on different intervals without effective safeguards. This arbitrary and malicious exercise of discretion of the government is grossly against the doctrine of rule of law.

District Magistrate or Additional District Magistrate can initially issue detention order for 30 days. Later, it can be extended by the approval of the Government. In this respect, the Ministry of Home Affairs plays a vital role.

Under this Act, the detainee is not produced in a Court and he/she is deprived to defend him/herself by any legal practitioner. This is a denial of the Constitutional safeguards of arrested and detained person who is not produced, as per the provision of this Act, to the nearest Magistrate within 24 hours from the time of his arrest. So this Act has been described by Gazi Muhammad Shahjahan MP of Bangladesh Nationalist Party (BMP) as "a jungle law framed by the previous Awami League Government in 1974". 1 7 In case of detention beyond the period of 6 months, the approval of the 14

14. Quoted by Brohi, A. K., 15. Quoted by , Patwary, A.B.M. Mafizul Islam, Liberty of the People, (Dhaka Institute of Human Rights and Legal Affairs, 1987), p. 29 16 16. Quoyed by, Mumin, F.K.M.A, 17 17. The Daily Star, 25 July 1999 15

Advisory Board comprising of three persons - two persons qualified to be appointed as Supreme Court Judge and one Senior Government Officer is necessary. The detainee can only submit a representation to the Advisory Board against his detention. But it is a very lengthy process and .as such the detainee cannot receive any relief. Under this Act, the detainee may be kept inside the jail for years together subject to the satisfaction of the Advisory Board, because there is no provision in the law for legal representation by the detainee to the Advisory Board and as such he remains in the prison for indefinite period without trial, without Court proceedings. This Act does not provide any compensation in favour of the detainee in case of hi? wrongful detention. That is why this Act was regarded by Justice Abdur Rahman Chowdhuary as the "blackest law of the black laws". 1 8 E. PREVENTIVE DETENTION IN GLOBAL PERSPECTIVE In England, the Executive claimed the right to arrest and imprison persons without triad only in two cases. First, it was claimed in assertion of the prerogative right. Secondly, it was exercised under powers delegated to the Executive by Parliament.

The exercise of the prerogative right was challenged in the case of the Five knights 1 9 where the court held that, although if a cause had been stated, it could examine whether it was sufficient, and free the prisoner if it was not, if no cause at all were stated, other than the King's Special Command, then the subject had no redress. The prisoners were, however, released in 1628. When Parliament opened Coke introduced a Bill to make it unlawful to detain any person for more than three months without trial. Iii the debate that ensued the right of the subject to be immune from detention without being charged with an offence according to law and being found guilty was emphatically reaffirmed. The Bill of Rights, 1688 contains a similar reaffirmation. There was an Act of 1701 of the Scottish Parliament ensuring to Scotsmen similar security. 2 0 In spite of these reaffirmations, in practice, during times of emergency, persons were done by suspending the Habeas Corpus Suspension Acts were the only proper way of proceeding in a national emergency. The Coercion Act of 1881, which gave the Irish Executive an absolute power of arbitrary and preventive arrest and power to detain in prison any person arrested on suspicion for the entire period during which the Act remained in force, served as a model for the Executive in England to assume powers during the two world wars.

In the debate on Regulation 18B of the Defence (General) Regulations, 1939 the government put forward which contradict each other: First, these powers 18

18. Ayeen: Probandha Sankalon, Rajshahi 1999, p. 152 19. State Trials 1 (1627).

20. Mentioned by Lord Shaw in R.v Halliday, (1917) AC 260.

19

20

have been delegated in their wide form to the Executive by Parliament, so the Executive cannot be blamed if it takes advantages of their amplitude, and secondly, the powers are not really arbitrary because Parliament controls their exercise. Professor G.W. Keeton says that, " both arguments can not be right, and conceal the fact that for the period of the war . Our traditional liberties, dating back from Magna Cart, have been swept aside, we have become a police state. " 2 1 Under Regulation 14B made under the Defence of the Realm Acts passed in 1915 (the regulations under the two previous Acts being declared ultra vires by the courts and the third Act being condemned by such eminent persons as Lords Halsbury, Haldane. Bryce and Lore bum) persons could be detained without being brought to trial at all. 2 2 In Rex v. Halliday , Ex parte Zadig , 2 3 the appellant, a naturalized British subject of German origin, who was interned under the regulations applied for a writ of habeas corpus. The question canvassed was whether the Defence of the Realm Act 1914-15 which empowered the executive to make regulations for securing the public safety and the defence of the Realm justified internment of a British subject without trial. Under the regulation the Secretary of State could detain a suspected person on the recommendation of an advisory committee presided over by a judge. The appellant argued that the regulation was ultra vires because, thought the Defence of the Realm Act was sufficiently wide for the making of such a regulation which conferred unrestricted powers still it should be interpreted in favour of the subject. The majority of the Judges, Lord Shaw dissenting, considered that the regulation was not ultra vires.

The Act authorized provisions for prevention and for punishment. Persons who violated the Regulation will incur punishment Persons of hostile origin and association could be detained. Lord Finaly (the Lord Chancellor) said: "Any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state".

During World war II the Emergency Powers (Defence) Act, 1939, gave powers under which the Executive prepared Regulation 18B – “If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations …….. and that by reason thereof it is necessary to 21

21. Mod. L.R., July 1942, 162 at p. 166.

22. It ran -"Where on the recommendation of a competent naval or military authority or of one of the advisory committees hereinbefore mentioned it appears to the Secretary of State that for securing the public safety or the defence of the realm it is expedient in view of the hostile origin or associations of any persons that he shall be subjected to such obligations and restrictions as are hereinbefore mentioned, the Secretary of State may by order require that person...to be interned."

23. (1917) AC 2160.

22

23

exercise control over him, he may make an order against that person directing that he be detained�.

In Liversidge v. Anderson the House of Lords had to consider the scope and meaning of Regulation 18B just referred to. Lord Mangham did not consider the rule that legislation dealing with the liberty must be construed, if possible, in favour of the subject and against the Crown relevant when construing an executive measure which aims at preventing a public danger when the safety of the State is involved.

"The language of the Act of 1939 shows beyond doubt that Defence Regulations may be made which must deprive the subject '"whose detention appears to the Secretary of State to be expedient in the interests of the public safety" of all his liberty of movement while the regulations remain in force.

There can plainly be no presumption applicable to a regulation made under this extraordinary power that the liberty of the person in question will not be interfered with, and equally no presumption that the detention must not be made to depend‌‌.on the unchallengeable opinion of the Secretary of the State. The legislature obviously proceeds on the footing that there may be certain persons against whom no offence is proved nor any charge formulated but as regards whom it may be expedient to authorize the Secretary of State to make an order for detention." 2 4 In both Halliday's as well as Liversidege's case the power with which the Court was concerned was 'to take preventive measures in the nature of internment which will last only for a limited time'. In both cases it was contended that the regulations Safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war in which his Majesty may be engaged, and for maintaining supplies and the services essential to the life of the community.

Sub-Section (2) provides that the Defence Regulation may include regulations " for the detention of persons whose detention appears to the Secretary of State to be expedient in the public safety or the defence of the Realm".

Ought to be read with a limitation in favour of liberty, and in both of them the Judges refused to limit the natural meaning of the words.

Quite confidently and without any hesitation Lords Finlay 2 5 and Atkinson observed in Halliday's case that the war emergency was a sufficient justification for such preventive measures. In the same case Lord Dunedin, concurring with the majority, said that preventive measures in the shape of internment of persons likely to assist the chance of abuse which is always theoretically present when absolute powers in general terms are delegated to an executive body, thinking that the restriction of the powers to the duration of the war was a sufficient safeguard.

24

24. (1942) AC 2106 at p. 219.

25. (1917) AC 260, at p. 269.

25

The same principle has found acceptance in the speeches made by die Judges in Liversidge's case. Lord Maugham's reasons for conferring of powers to exercise preventive detention on his own responsibility on the Home Secretary embody the same precedent. 2 6 Lord Wright did not accept the argument that the evils of the exercise of arbitrary powers of arrest by the executive are great in the circumstances they were conferred and to be exercised. In his opinion also there was no necessity for subjecting all such powers to judicial control. He said: “All the courts to-day, and not least this House, are as jealous as they have ever been in upholding the liberty of the subject. But that liberty is a liberty confined and controlled by law whether common law or statute. It is, in Burke's words, a regulated freedom. It is not an abstract or abstract or absolute freedom. Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty. If an Act of Parliament, or a statutory regulation, like regulation 18B, which has admittedly the force of a statute, because there is no suggestion that it is ultra vires outside the Emergency powers (Defence) Act, under which it was made, is alleged to limit or curtail the liberty of the subject or vest in the executive extraordinary powers of detaining a subject, the only question is what is the precise extent of the powers given.”

In his opinion the answer to that question could only be found by 'scrutinizing the language of the enactment in the light of the circumstances and the general policy and object of the measure'. The English Constitution does not contain a declaration of the guaranteed or absolute rights, yet the courts in England would not countenance any arbitrary, despotic or tyrannous conduct. " The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.

If extraordinary powers are here given, they are given, they are given because the emergency is extraordinary and limited to the period of the emergency."

In conclusion, the English Parliament has so far authorized preventive detention only during such emergency as two World Wars. Lord Macmillan in the same case said: “The liberty which we so justly extol is itself the gift of the law of the land and, as Magna Carta recognized, may by the law be forfeited or abridged. At a time when it is undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country's cause, it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power of enforcing the relatively mild precaution of detention”.

26

26. (1942) AC 206 at p. 219.

F. ORIGIN AND DEVELOPMENT OF PREVENTIVE DETENTION IN THE INDIAN SUB-CONTINENT A brief history of the preventive detention laws will throw some sidelight on the significance of such laws as have been enacted in the Indian SubContinent.

With the Bengal State Prisoners "Regulation HI of 1818 the authority to detain persons without trial came to be first exercised on British India. In the next year the Madras State Prisoners' Regulation II of 1819 and a few years after the Bombay State Prisoners' Regulation XXV of 1827 were promulgated In the case of the Bengal Regulation the Governor General and in the other two cases the Governors of the provinces were authorized to order detention and for this purpose they were invested with wide discretion. Provided the action taken was within the scope of the Regulation, the jurisdiction of a court of law to question the legality was barred.

However, the grounds on which detention could be imposed were limited. The Bengal Regulation provided for detention for "reasons of state, embracing the due maintenance of the alliances formed by the British Government with foreign powers, the preservation of tranquility in the territories of native princes entitled to its 'protection and the security of the British dominions from foreign hostility and from internal commotion." Under the other two Regulations detention could be ordered only on grounds connected with the maintenance of public order. Neither of these Regulations, however, fixed any period for detention, that is, a person could be detained without trial for unlimited time.

These Regulations, no doubt, were motivated by the principle "no detention without statutory authority'. Though there were no provisions made for any advisory council and the detained person was given no right to be heard or informed of the grounds of detention, any representation made by him was to be submitted to the authority concerned.

We need not pause to consider the extension of the Bengal Regulation to the other provinces of British India and their contents and history. But the Defence of India Acts passed during the two world wars require mentioning.

The Defence of India Act, 1915 was to remain in force during the continuation of the war and six months after the cessation of hostilities.

Under the provisions of the Act, rules could be made empowering the civil as well as military authorities to direct any person to reside or remain in any specified area if they considered that reasonable grounds existed for suspecting any person to have acted or was about to act prejudicially to the public safety. Between this enactment and the Defence of India Act, 1939, the Anarchical and Revolutionary Crimes Act, 1919, popularly known as the Rowlatt Act and several Emergency Powers Ordinances under the Government of India Act, 1919, were promulgated. The Defence of India Act, which authorised preventive detention without trial in British India was enacted under the provisions of the Government of India Act, 1935. It continued during the period of World Was II and was in force till six months after the

hostilities ended.

After the establishment of Pakistan the Central Statutes that were passed were Pakistan Public Safety Ordinance XIV of 1949, the Pakistan Public Safety (Amendment) Act XXXVI of 1950, the Pakistan Public Safety Ordinance VI of 1952 and lastly the (Security of Pakistan Act XXXV of 1952. Besides these Central Acts, the Provinces enacted Public Safety Acts and Ordinances whose number exceeded more than a dozen.

The Security of Pakistan Act, 1952 made provisions for communicating grounds of detention to the detained person, enabling him to make representation and setting up an Advisory Board. The life of this Act was extended several times by Acts and Ordinances, and this Act was amended on several occasions, the last being Security of Pakistan (Amendment) Act, 1965. On September 6, 1965 when hostility started between India and Pakistan, the President of Pakistan promulgated the Defence of Pakistan Ordinance XXIII of 1965 in exercise the Powers conferred by Clause (4) of Article 30 read with Clause (2) of Article 131 of the Constitution. Section 3(1) and (2) empowered the Central Government to make rules which among other matters could provide for "The apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain as the case may be, suspects, on grounds appearing to such authority to be reasonable, of being hostile origin, or of having acted, acting, being about to act, or of being likely to act in a manner prejudicial to the external affairs, the security, the public safety or interest, or the defence of Pakistan or any part thereof, including the maintenance of supplies and services essential to the life of the community, and the maintenance to the maintenance of public order, or the efficient prosecution of war, or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner, the prohibition of such person from entering or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything."

The Defence of Pakistan Rules, 1965 which were framed under the Ordinance conferred extensive powers of detention on the Central Government and also gave wide powers of arrest and detention to the police officer or any other officer empowered in this behalf by general or special order of the Central Government. 2 7 In Bangladesh, laws relating to preventive detention were enacted subsequent to the amendment of Article 33 of the Constitution. The Special Powers Act, 1974 which came into force on February 9,1974 has incorporated the requirements laid down in this Article.

After independence the Constitution of Bangladesh was adopted on 4 November 1972 and it come to force on 16 December 1972. As mentioned in the preceding chapter, taking the bitter experience of arbitrary arrest and 27

27. Rules 32 (b), 202 and 204.After the Proclamation of Emergency on December 28, 1974 Emergency Rules framed in pursuance of the Emergency Powers Ordinance, 1974 contain similar provisions.

detention under various preventive laws during the 23 year history of Pakistan into serious consideration the Constitution makers didn’t want to leave any scope for preventive detention. As a result, in the original Constitution of Bangladesh on provision was embodied allowing preventive detention. But only after 9 months of its life by the Constitution (Second Amendment) Act Article 33 dealing with safeguards as to arrest or detention was substituted in the line with Article 22 of the Indian Constitution so as to allow for laws to be made on preventive detention. Under the authority of this amended provision of Article 33 the parliament in February 1974 enacted the most hated and democracy destroying draconian law - the Special Powers Act, 1974 providing for preventive detention for all times.

G. ADVISORY BOARD The constitution of an Advisory Board for the purpose of reporting to the government its opinion whether a person should be detained for more than six months may be said to have been 'introduced for the very reason that review by the law courts was excluded*. This is, no doubt, a special procedure but this shows that the person detained has not been left without any safeguard.

Further, this elaborate provision for safeguarding the detained person's interests may be regarded as an argument against holding that absolute discretion has been conferred on the government. "The setting up of an Advisory Board to determine whether such detention is justified is considered as sufficient safeguard against arbitrary detention under any law of preventive detention. 2 8 The Advisory Board stands perhaps midway between the court and the executive. It has the power of going through the records of a case but it will not be bound to hear any arguments addressed by a counsel on behalf of a detained person. If it reports against detaining a person any further he will be at once set free. And no law can be passed for detention of a person exceeding six months unless the Board reports before the end of such a period that he may be detained for a longer period.

Thus, in a case decided under the Constitution of Pakistan, 1956 it was held that the constitution provisions limiting detention without trial to a period not exceeding the period mentioned therein, unless in the opinion of the Advisory Board sufficient cause for such detention exists, need not be inserted into every statute. "Clause (4) of Article 7 of the Constitution of Pakistan 1956 (which corresponds to Clause (4) of Article 33) does not hit a statute of the relevant kind either on the point of competence or that of content, but applies in respect of the operation of such statute. The clause like every other clause in Article 7, contains nothing in the way of a direction obliging the insertion of its provisions in every statute of the relevant kind.

The clause imposes a condition upon die power of detention without trial 28

28. Puran Lai v. Union of India, AIR 1958 SC 163.

29. Abdul Aziz v. Province of West Pakistan, PLD 1958 SC 499. If, after receiving the report of the Board, the Government wants to detain a person beyond six months, it has merely to confirm the order of detention, and this would result in an automatic continuation of his detention. Dattaraya v.

State of Bombay, AIR 1952 SC 181; Ujjal Mondal v. State of West Bengal, AIR 1972 SC 1446.

vested in authorities under existing law, viz., that the satisfaction of the detaining authority regarding the need for detaining a particular person shall not by itself be sufficient for continuing that detention beyond an initial period of three months, unless an Advisory Board, as prescribed, has concurred in the opinion held by the detaining authority in that respect. 2 9 On the arrest of Sayyid Abul Maudoodi and forty -three other members of the Jama'at-i- Islami under Section 3 of the West Pakistan Maintenance of Public Order Ordinance No. XXXI of 1960, objections were raised as to its validity on two grounds. Inter alia, that the Ordinance was repugnant to the Constitution and, secondly, thai the constitution of the Advisory Board was illegal. It was held that the limitation imposed by the provisions similar to Clause (4) of Article 33 would be effective if die detention exceeded three months, la such a case the Advisory Board must be satisfied not only with regard to preventive detention but also in respect of the tune-limit.

Disagreeing with the majority views of the Indian Supreme Court which were based more on administrative expediency than the proper construction of the corresponding provisions of Article 22 of the Indian Constitution, Yakub Ali J said: "A case of preventive detention is required to be referred to be referred to the Board only if the Government expresses an intention to detain a person for a period exceeding three months and not otherwise. The Board is cognisant of the fact if it concurs with the order, the person concerned may be detained for an indefinite period. What appeals to the mind of the Board in forming its opinion is, therefore, not only the justification of preventive detention but a possible lifelong incarceration. How can it then be said that the mind of the Board must remain indifferent to the time factor and it is for the detaining authority alone to determine it after the Board has expressed its satisfaction." 3 0 If the order of detention is only for two months there is no scope for the Advisory Board to determine the "sufficiency of cause for his detention" and so the argument that a detainee is not entitled to pray for a writ of habeas corpus unless his case is referred to the Advisory Board is not tenable. 3 1 Clause (4) of Article 33 contemplates detention for a specific period. Thus, an order of detention which did not specify any period, but merely stated "till further orders was held defective. 3 2 H. PREVENTIVE DETENTION IN BANGLADESH AND VIOLATION OF HUMAN RIGHTS Article 33 of the Constitution guarantees that a person arrested be informed 29 30

30. Rahmat Elahi v. Govt. of West Pakistan, PLD 1965 Lah 112 at p. 120.

31. Maulvi Farid Ahmad v. Government of West Pakistan, PLD 1965 Lah 135. Whether the period of detention is for more or less than six months, the Government is under a constitutional obligation to consider the representation of the person detained before such a reference is made, J.N. Roy v.

State of West Bengal, AIR, 1972 SC 2143.

32 32. Govt. of East Pakistan v. Rowshan Bijaya, PLD 1966 SC 286.

31

of the grounds for detention; provided access to a legal practitioner of her/his choice; and brought before a court of competent jurisdiction within 24 hours of arrest. Throughout the year, how-ever, law enforcement agencies arrested and detained persons arbitrarily under section 54 of the Criminal Procedure Code (Cr PC), 1898 the Special Powers Act, 1974 and the Public Safety Act, 2000.

Section 54 of the Cr PC empowers the police to detain any individual on nine grounds of reasonable suspicion' of criminal activity with out any order from a magistrate or a warrant. The Code however provides of specific legal safeguards. Under section 162, forced confessions are inadmissible in evidence unless admitted by the accused before a magistrate, who accepts it as being given voluntarily. Section 163 of the Code prohibits the police from making any inducement, threat or promise during investigation, while section 164 protects the detainee's right to remain silent in case s/he wishes not to confess.

Even though three different governments were in office during the year, there was little change in the nature of police excesses and there was no decrease in arbitrary arrests and detention during the terms of the two elected governments. The administration functioned somewhat neutrally only during the three-month Caretaker regime. In its last year, the AL rule was marked by numerous incidents of arrest, detention and persecution of political opponents. Soon after the Caretaker Government took office, police arrested hundreds of armed cadres associated with the major political parties for the purpose of confiscation of illegal firearms. Under the BNP led Four- Party Alliance, which took office on 10 October, the number of arms cadres were arrested.

H. 1. Arbitrary arrest under Repressive Laws Notwithstanding the safeguards given in the laws, section 54 Cr. PC is frequently misused by the law-enforcement agencies. In many incidents person initially detained under section 54 of the Cr PC were subsequently given prolonged detention under other repressive laws such as the SPA or the PSA. Newspaper reports have quoted numerous instances of persons languishing in prison without trial for years, on grounds of reasonable doubt.

H. 2. Arrests under Section 54 The police sometimes use Section 54 to harass and intimidate members of the political opposition and their families. Or detain opposition activists prior to and during general strikes, without citing any legal authority and hold them until after the event. Newspapers have reported instances of police detaining persons to extract money or for personal vendetta.

On 1 July 2001 a report published by the office of the Chief Metropolitan Magistrate, Dhaka revealed that in 11 out eleven police stations of Dhaka city, 17,338 persons were detained, all of whom had been arrested under section 54 of the Cr PC. Police sought remand for all the detainees but the

court accepted their plea for 6,503 persons only. Only 113 of remanded detainees confessed their guilt to the police. The report also held that punitive actions had been taken against as many as 85,000 police personnel for abuse of power and alleged implication in criminal activities.

Quoting sources in the Ministry of Home Affairs, another news item reported that over the last twelve months, Dhaka Police lodged 3,917 GED (general diary) and arrested 6,178 persons under section 54 of the Cr PC. In most cases, the detainees had been identified as 'wanted criminals', 'extortionists', 'muggers', drug addicts' and 'persons dangerous for peace and tranquility'. Of those arrested, 619 were detained under the SPA. Cases were proved only against four detainees and the court ordered release of the remaining 6,174 detainees. In May 2001, Mr. Shoilendro Kumar Adhikari, the learned Chief Metropolitan Magistrate of Dhaka, held a meeting with all the magistrates under his jurisdiction and directed them to grant immediate bail to detainees under section 54 Cr. PC unless specific charges were brought under any other law. A month after this directive was circulated to the police departments; the metropolitan police stations in Dhaka showed a decrease in arrests. However, the scenario remained unchanged across other parts of the country.

H. 3. Incidences of Arrest / Detention under Section 54 5 February 1992, the Daily Star reported that a Nigerian citizen was arrested in March 1992 and, after a three year trial, was sentenced to two months of imprisonment. On completion of the prison terms, he remained a prisoner in Dhaka Central Jail. Nineteen-year-old Nigerian citizen Goddyu Ochendo was arrested in connection with drug smuggling along with an American, Elieda MacCord, in 1992 in June 1993, Goddyu was acquitted of drug smuggling.

But on 13 July 1993, he was charged with using an'invalid' passport. He completed a two-year prison term on 31 May 1995 in the passport case. He then complained to the CMM Court that he could not go home as his lawyer defrauded him of his money. He had deposited US$1, 421 with his lawyer during the trial, but he alleged that the lawyer did not return the dollars. The lawyer then filed a revision case denying the allegation. In a recent prayer to the Home Ministry, Goddyu gave up his claim to the dollars and begged for release.....even after five months. Goddyu was one of the 27 foreigners who were detained for years at the Dhaka Central Jail even often completing prison terms. Of them, thirteen were from India, one from Pakistan, ten from Myanmar and three from Africa.

7 February 2001, the Daily Ittefaq reported that police sent a motor garage owner to jail under Section 54 of the CrPC, in the Fokirhat area under Bagerhat District. A gang of local hoodlums abducted the ill-fated garage owner, named Keramot Ah. Police rescued him later from the local Polli Mongol Samity (village welfare association), his hands and legs tied with strong ropes. But police later on arrested him and sent him to jail. None of the abductors, however, were arrested by the police.

18 February 2001, Jugantor ' Panama Faruque', a cadre of the Jabo League

(youth front of the ruling Awami League), kidnapped Aminul Islam from his residence in Barisal.

The Jabo League gang mercilessly beat him with lethal weapons. The police rescued Aminul Islam; instead of arresting the oppressors, they arrested Aminul Islam under Section 54 of the CrPC and applied for his remand from the Court.

14 March 2000, Jugantor reported that a ten to twelve year old boy Noor Hossain was detained in jail. He stayed there for nine months without any charges. Family sources informed that members of Khulna police suddenly entered their home on 1 June 2000 and arrested Noor. Neither Noor nor his parents were told why the boy was kept in prison.

30 March, Jugantor reported that eleven party activists of the Islami Chattro Shibir (student wing of Jamat-Islami ) were arrested on March 25 under Section 54 of the CrPC and given one month's detention in Dhaka Central Jail. Their detention was on grounds of suspicion that they had been secretly planning to overthrow the AL Government.

3 July 1998, Janakantha reported that Mohammadpur Thana police arrested Jalal along with two other youths, Tanvir and Habib, on 3 December, 1997 under section 54 of the CrPC. They were sent to the court and while the two others had been charged under the Arms Act, Jalal’s name did not appear in the charge sheet. Nevertheless he was detained in the prison for four years, without trail. Recently, the matter was heard by the Fifth Additional Metropolitan Sessions judge Aminul Islam, the learned judge found that Jalal was not an accused in the Arms Act case under Mohammadpur Thana. Jalal arid the two others were granted bail on 22 December 1997 but no date was fixed for his appearance before the Court. As a result, although the two accused were freed, the order for Jalal’s release had to await the Court hearing. The Judge ordered his immediate release and termed the prolonged detention as a 'regrettable incident. Even though he committed no offence, Jalal’s confinement was prolonged due to police excesses. He received no compensation. 19 July, Janakantha reported that on the order of the Caretaker government police (lid massive operations. On the first day, police in Naogoan, Rajshahi couldn't arrest any terrorist, but twelve people were arrested under section 54.

On 23 July 1999, Sangbad reported that on 19 July, in chattra league's meeting, Chatra Dal and Shibir jointly caused bomb explosions Chatra Dal District Vice-President Amirul Islam and another leader Khokon was arrested with 38 bore revolver at the time of the incident. For unkown reason, Amirul was shown to be arrested under section 54 and Khokon was arrested under the Arms Act. 4 August 2003, Ittefaq reported that on 25 July, Golam Mostafa Mostu (25), of the Kamalpur village of Mithamoin thana, was arrested under section 54 when he was seen moving suspiciously and was sent to jail.

30 October 2000, Jugantor reported that Ratan Molla a charge sheeted criminal for attempting to murder and keeping explosives (case no 77/463), was arrested by the police. But he was shown to be arrested under section 54 and the police asked for a detention order. Ratan Mollah and his associate's satbbed a person named Enayet Hossiain Howlader 8 December 2003, Bhorer Kagoj reported that on 4 December despite having specifically complained JCD leader Nasir was arrested under section 54 Nasir along with his gang demanded a toll from a shop in front of Shutrapur thana and lock the shop. Three days after the following incidents police arrested arid detained him.

I. PREDENTIVE DETENTION UNDER SPECIAL POWERS ACT, 1974 In the original Constitution of Bangladesh, which was enacted in 1972, there was no provision relating to special powers for preventive detention, proclamation of emergency and suspension of fundamental rights. Rather, rights to protection from arrest and rights against detention were guaranteed under articles 31 and 32 of the Constitution. Though there were laws in different countries of the Indian subcontinent regarding preventive detention, the frames of the Constitution of Bangladesh carefully avoided such type of oppressive provision. 3 3 Originally Article 33 did not leave any scope for preventive detention. But in 1973, this Article was replaced by the Second Amendment under which a person can be arrested and detained. 3 4 So according to the above Amendment, the fundamental rights discussed earlier are not available to the persons arrested or detained under preventive detention. The laws relating to preventive detention are enacted subsequent to the Amendment of Article 33 of the Constitution.

The SPA that came into force on February 9, 1974, was the result of the amendment of Article 33 of the Constitution Clause 3 of Article 33 specifically lays down that these safeguards as to arrest and detention under clause (1) and (2) will not be applicable in cases of persons who are enemy aliens or who are arrested and detained under any law providing for preventive detention i.e. under the SPA. The SPA empowers a District Magistrate to order detention of any individual for 30 days to prevent any act likely to prejudice the security of the count.

The law also cvers other offences which include haoarding or black marketeering and smuggling. The law provides that the magistrate lias to ingorm die detainee of the grounds for detention within 15days and that the grounds for detention must be approved by the government within 30 days of detention. If these requirements cannot be fulfilled the detainee must be released following 30 days of detention. But in practive these provisions arte hardly complied with. In most cases, fresh detention orders are issued before the expiry of 30 days (Hid the detainees are not assigned grounds for the derention. This law is most nakedly used to persecute political opponents.

33

33. M. Faiz Uddin and M.A. Hannan, Protection of Human Rights in Criminal Justice; Bangladesh Perspective, Research Project 1998, RU. 34 34. Article 33 has been substituted by Act XXIV of 1973, section for the original Article 33

Under the Constitution the detainees can appeal against their detention to the Supreme Court.

Cases filed under the SPA can be examined by an Advisory Board composed of two person who have been, or are qualified to be high court judges and one civil servant. The board is to sit every four months, and review SPA cases.

However the detainees are not allowed to be represented by a lawyer before the Advisory Board. Relatives can visit detenues. The detainee remains imprisoned if the government can adequately defend its order, but if the contrary is proved, the detainee has to release. In most habeas corpus petitions the High Court Division release the detenues and declares the detention orders made without legal authority. But this is not true in the case of poor citizens. In several cases, detenues who were either too poor or unable to consult legal counsel had to serve prolonged detention.

As to magistrates are subordinate to administrative control of the executive they are reluctant to dismiss let alone quash a case under the SPA since most cases are political in nature and the government itself becomes the complainant.

A Parliamentary Sub-Committee report published in September 2000 admitted that the State lost over 80 per sent of cases filed under the Special Powers Act. On 11 April the Prothom Alo quoted a leading jurist as saving. Due to misapplication the Court declares 99 per sent of the detention orders under the SPA illegal and void. Hence we can say that misapplication and abuse is the main feature of this law. This opinion also corroborates that of another Parliamentary Sub-Committee which found that the cases under the SPA generally were so weak and vague that the Court had no alternative but to release the detenues. The US Report on Human Rights Practices in Bangladesh, 2001 claimed that a total of 755 persons had been detained under the SPA between January and June 2001. The Daily Star, of 30 November, reported that some 8,000 cases were filed under the Special Power Act,1974.

The BNP had promised to scrap the SPA in the first hundred days. Senior leaders of the Four Party Alliance stated in public that they were considering the repeal of the law and the Prime Minister issued some directives to the concerned ministries, and many steps for scrapping the SPA were taken.

However, it may be noted that a number of arrests under this law were reduced.

I. 1. Drawbacks and abuses of the Special Powers Act Since under this law a person can be detained up to six months without the approval of the Advisory Board and up to indefinite period with the approval of the Advisory Board. This has been indiscriminately termed as a black and repressive law. All the political parties, since the enactment of the law, describing it as a repressive law, have been demanding its repeal, but for 25 years from its enactment, nothing has been done for repealing such anti-

humanitarian law under which many innocent men and women had been and are being detained mostly on the political ground.

Detention is of two types under Constitutional law, (i) punitive detention and (ii) preventive detention. Punitive detention is imposed by a Court of law while the preventive detention is imposed by executive authority i.e. by District Magistrate (DM) or Additional District Magistrate (ADM). Punitive detention,is given to a person for committing a crime or wrong but preventive detention is awarded for preventing the accused from committing prejudicial acts. Suspicion or reasonable possibility of the impending commission of prejudicial acts is sufficient for preventive detention. Section 3 of the SPA gives power to the executive authority to arrest and detain someone on the subjective satisfaction of the concerned executive officer. If the concerned officer is personally satisfied that there is sufficient cause of suspicion against any person of committing any of the acts prohibited by the SPA, he can give order for preventive detention. The Executive Officers may quite likely abuses the power and as such he is not free from controversy. He is not accountable to anyone for awarding preventive detention. Political leaders very often exert influence upon the Magistrate or Additional Magistrate and also on the police officers so that they exercise subjective satisfaction for detaining political opponents. 3 5 It is a hard reality that in most of the cases the Magistrate try to serve the vindictive desire of the ruling party.

Whatever may be the expressed purpose of this Act, the inner intention is to crush the opposition parties So the power of the preventive detention under this Act has been greatly abused for the last 30 years, as the ruling parties have also acknowledged it. Hundreds and thousands of political leaders and workers have been and are being detained under this law for a long period without any trial. This law, in actual practice, negates all the avowed commitment and spirit of the constitution, particularly the fundamental rights guaranteed by it. 3 6

I. 2. Prominent Arrests under the Special Powers Act, 1974 Jatiya Party Chairman Ershad was detained on 20 November 2000. According to the press, the Court ordered his release upon payment of a fine of Taka 27.50 million in a corruption case; he had served a five-year term and had to serve another three months for failure to pay the fine. Maulana Azizul Haq, Chairman of the Islami Oikkyo Jote, a member of the four-party alliance, was re-arrested on 1 March, inside prison, after the Court granted him bail in a different case. Numerous court cases were Hied against opposition MPs and party activists on charges ranging from corruption to murder.

Eleven members of the Jamat-i-Islami were arrested on 18 June under the SPA, after holding a meeting with the US based National Democratic Institute Institute (NDI) to discuss training for election polling agents. NDI had held virtually the same meeting with other political parties. At the time of the 35

35. Dhaka Courier, 13 August 1999, p. 16-17 36. Ibid

36

arrest, police told Jamat members that they were under arrest for 'subversive, secret meetings with foreigners. Grounds for detention were later listed as conspiring to commit.

I. 3. Judicial Relief Under the Special Pow ers Act, 1974 Under the SPA, an aggrieved person, on account of his/her preventive detention, can file an application (writ of habeas corpus) under Article 102 of the Constitution in the High Court Division and 95% of such cases are declared by the High Court Division as illegal and framed unlawfully. 3 7 The judiciary has, in innumerable cases, acted as a "bulwark against illegal detention". Detainees have been released by orders of the High Court Division following the filing of writ of habeas corpus or the initiation of proceedings under Section 491 of the CrPC of 1898. In the vast majority of such cases, the Court has found the grounds of detention to be vague, indefinite and lacking in material particulars. 3 8 But after release of the detainee on High Court Division order, in most of the cases he is detained again and so on and so forth. 3 9 In this way, the numbers of detainees always remain higher than the numbers of released persons. Besides, in many cases, the poor detainees cannot bear the expenses of the cost of writ petition So they remain inside the jail for years and in some cases some detainees die during detention without knowing the 'offence' on account of which they were arrested and detained. 4 0 So there is no doubt, a repressive and antihumanitarian law from which the nation is striving hard to be freed.

I. 4. Some remarkable cases under the Special Pow ers Act, 1974 A very recent case of detention will surely manifest the ugliest application of this Act. Azaduddin, Chairman of number 7 Char-Alexander Union Parishad, PS. Ramgati of Laxmipur district and a freedom fighter, was arrested under the Special Powers Act. He was also earlier arrested and detained twice under this Act, in 1996. In the present case, a High Court Division Bench Consisting of Kazi A.T. Monowaruddin, J. and Muhammad Zoinul Abedeen, 4 1 J. declared the detention of Azaduddin as illegal and without lawful authority and ordered his immediate release. He was arrested for political jealousy and rivalry. The High Court Division in the earlier cases also declared his detention as illegal. In each time he has been detained by the order of the DM (Deputy Commissioner of Laxmipur District) on the same grounds. The High Court Division, on l" September 1999, ordered not only release of Azaduddin but also ordered the DM to pay compensation personally to Azaduddin of Tk. 10,000.00 (ten thousand taka) to be deposited in the High Court Division within 30 days from the date of order and as because the said DM repeatedly detained the said Chairman on the same unreasonable grounds, the learned judges treated it as contempt of court, and the victim is allowed to file a suit of contempt of court against the said DM. The Court also ordered the 37

37. Dhaka Courier, 13 August, 1999 38. Adilur Rahman Khan, State of Human Rights; National Security Laws in bangladesh. The Daily star, 30 January 2000, 39 39. Features of The Daily Star, 2 July 2000 40 40. Supra note 28 above at 42 41 41. The Daily Star, 30 September 1999 38

Secretary of the Ministry of Home to make an enquiry about those executive officers who repeatedly ordered illegal detention in the country and to take action against them. The Government sought leave petition to the Appellate Division against the order of the High Court Division, but it was rejected.

In the case Habiba Mahmud v. Bangladesh 4 2 is involving the detention under Section 8 of the SPA. It was held that 'grounds' of detention must include facts as well. It was also held that under the provision to Article 33 (5) of the Constitution, the Government has the Constitutional protection not to disclose anything in public interest. In such a case, the High Court Division will decide on the question of public interest privilege. The Court is to hold a balance between the state's need to prevent prejudicial activities and the citizen's right to personal liberty.

In the case Nasima Begum v. Bangladesh 4 3 held if it is manifest from the petition for judicial review that the cause or manner of detention stands adequately explained and justified, then the respondent need not file an affidavit in opposition to it and may support the detention orally on the petition itself. But if the petition contains allegations of fact, which if unrefuted supports the petitioner's case for illegality of detention then the order will be invalid.

Nasrin KaderSiddiqui v. Bangladesh 4 4 held that where a prisoner is in custody on the basis of an order of conviction, the onus of the respondent is discharged as soon as the return relating to the appellant's custody shows that there is an order of conviction justifying the custody. However the warrant of commitment issued by someone not authorised by law can hardly prove the conviction .

In farzana Huq v. Bangladesh 4 5 (writ petition No 271 of 1990) Sanaul Huq Niru was arrested and detained first on 13 September 1987 under the SPA. His detention was, challenged in writ petition no. 187 of 1988 and the court declared the detention illegal and directed the release of detainee on l0 May 1988. But Niru was not released. Another fresh order of detention was served against him on 29 September 1988. Niru was not placed before the Advisory Board within the statutory period of 120 days. The High Court Division again declared the detention order illegal and directed his release. But Niru was not released; rather another fresh detention order (third time) was served and it was challenged by another writ petition (writ petition No. 989 of 1989).

Again the Court declared the detention illegal and directed the detainee's release. But even this time Niru was not released; rather another fresh detention order was issued. The matter came up before a Division Bench of the High Court Division (writ perition No. 270 of 1990).

The Court said: "The least can be said is that the detaining authority is paying little regard to 42

42.

43.

44 44.

45 45.

43

45 DLR (AD) (1993) 89 49 DLR (AD) (1997) 102 44 DLR (AD) (1992) 16 43 DLR (1991) 501; The Daily Star 25 July 1999

the order of the court. It is unfortunate that the authority which is obligated under Article 32 of the Constitution to protect the liberty of the citizens and further required under Article 112 thereof to act in aid of the courts order should flout the laws by resorting to authoritarian acts ... we are satisfied that the detention is illegal and the detainee shall be set at liberty forthwith."

In another case, 4 leading members of the BNP in March 1997, were arrested and detained in which the High Court Division Bench ruled that the detention order under SPA of 1974, was illegal and ordered that each of them be awarded Tk. 100000.00 (one hundred thousand taka) as compensation. 4 6 Mrs Bilkish Akhtar Hossain filed a writ petition against the detention of her husband Dr. Khondokar Mosharrof Hossain, who was one of the 4 BNP leaders and was arrested under the SPA. Md. Mozammel Haque, J. and Md. Hasan Ameen, J. of the High Court Division of the Supreme Court of Bangladesh in the judgement of Bilkish Akhtar v. Banglades 4 7 said – "To detain a person means (o curtail his Fundamental right of liberty, right of movement mid right to speak When without trial such fundamental rights guarantied by the constitution are curtailed and invaded by the discretionary action of the detaining authority, the very next moment the aggrieved citizen is entitled to seek relief under the Constitution in view of the provision of Article 44 read with Article 102 of (he constitution. Right to liberty, right to movement and right to freedom are so much valuable fundamental rights of each citizen that no authority can take it away without due course of law... In the instant case it appears that the detainee's rights of freedom of movement (Article 36), the right of freedom of assemble (Article-37) and right to protection of life and personal liberty (Article 32) as guaranteed by the constitution have been invaded by the detaining authority with malafide intention under the garb of the Special Powers Act ... Therefore, we assess such reasonable and rational lumpsum monetary compensation of TK 1,000,00 00 (Taka one hundred thousand only) to be paid by the Respondent Nos. I and 2 to the detainee considering the above reasons and sufferings of the detainee and his social position."

The repressive character of the SPA and the consequent sufferings of the detainees as a result of improper application; of this Act and moreover the helplessness of the judicial authorities is seen from the findings of some of cases disposed of by the Supreme Court of Bangladesh. In one case, the Appellate Division observed: 4 8 "We have accordingly no doubt that the framers of the Constitution intended to empower the High Court Division to pass appropriate order in the case of illegal or improper deprivation of liberty of person and the power to do so is not at al fettered because of the absence of nomenclature of the nature of writ in the Constitution".

46

46. Main Stream Law Reports, Vol II, 1997: The Daily Star 30 January 47. Main Stream Law Reports, Vol II, 1997 48 48. The daily Star, 25 July 1999 47

J. ARRESTS UNDER THE PUBLIC SAFERT ACT, 2000 Since its enactment on 15 February, 2000, the PSA came under serious criticism from lawyers, journalists, human right activists and political thinkers as a repressive legislation that would be used to harass political opponents. Under all three successive regimes, numerous arrests were made under the PSA. An alarming number of arrests and cases were filed under PSA in 2000 and 2001. Ironically, many leaders and activists of the Awami League were arrested under the PSA after the elections on 1 October by the BNP led government. The party, which vehemently protested against the enactment of the PSA, began to use and abuse the law to detain and prosecute opposition activists immediately after it took office on 11 October.

After the first writ, the PSA came under further challenge from a BNP MP (currently Foreign Minister), M Murshed Khan, in a writ filed on 12 January, 2001, following a case filed against him under the PSA on charges of looting a sweetmeat shop in Chittagong City, on 25 December, 2000.

Arbitrary Arrest for 'Safe Custody': Until 2001, prisons continued to be used to keep women and children in safe custody. Since there was no separate provision for safe custody inmates, this implied that they had to stay with convicts in overcrowded prisons and unlike the prisoners they had no entitlement for clothes or soap, thus being deprived of their basic needs.

Newspaper scans during the first six months of the year showed that as of 1 July 2001, a total of 258 women and 97 children were in safe custody throughout the country. Of the fourteen women and four children who remained in safe custody as of 31 July, eight were detained since last year.

These women and children had to share toilets, bedding and other facilities with criminal offenders. It is often difficult for them to access their families, families, consult with a legal practitioner in order to obtain their release. No incident of custodial rape was reported during the year. But numerous incidents of women and children detained in safe custody were reported in newspapers.

K. REPORTS OF WOMEN AND CHILDREN KEPT IN SAFE CUSTADY 5 January 1999, Sangbad reported that 27 Rohingya woman and children were arrested by Jessore Police on 21 March, 1998 while they were being trafficked to India. The Court ordered them transferred to safe custody.

Eventually, two human rights organizations, namely Saviour and Human Rights, pleaded for their bail. They were released on bail after three years.

13 January 2002, Banglabazar Potrika reported that nine women including their children and the trafficker were rescued by police. The Court sent them into safe custody in Khulna Jail. Even after nine months, they had not been released.

17 February 2003, Janakantha reported that 33 women were arrested by the

Cox's Bazar Police and sent to the jail in the name of safe custody. They were kept in a room, which had space for two inmates. With 33 persons sharing this little space, they could neither eat nor sleep.

26 April 2001, Save the Children (UK) in Bangladesh took a seven-year-old girl from the government vagrant home at Mirpur. She was virtually a prisoner in the name of safe custody.

28 April 2003, Daily Star reported that Narayangonj Bandar police picked up a dumb girl from a local road on 27 May last year for suspicious movement and detained her. When the girl was produced in magistrate's court police were asked to trace her parents and hand her over to them. As they were to do so, she was sent to Narayangonj Jail on 7 June and later shifted to the Dhaka Jail. Finally, after a year, the magistrate ordered that she be given into the custody of the vagrant home.

11 October 2001, Ittefeq reported that two adolescent girls of Mymensingh were detained in safe custody in prison. In the first incident, Sumaiya Khatun and another girl (not named) from Bhutalir Char village under Sadar Thana, were kidnapped by some mastans on 23 April. She was rescued by local people and sent to the Shonatola police station on 25 April The latter detained her under safe custody in Bogra Jail.

13 December 2001, Jugantor reported that duty traffic police found a girl named Baby (8) along, rescued her and took her to Sadar police station. PO sent her to court and without finding her guardians; the court sent her into safe custody.

23 December 2003, Bhorer Kagoj reported that Shireen (15) and Yasmin (16) from a private shelter home fled to Boalia police station. Staff of the private shelter home hurriedly took them to court, from where they were sent to Rajshahi Central Jail. OC of Boalia thana Shahidul said he had started investigations into the matter.

L. REMEDIAL BANGLADESH

MEASURES

IN

THE CONSTITUTION

OF

There is a scope for enforcement of fundamental rights by High Court Division on the strength of Article 102 of our Constitution. The power of the High Court Division of Bangladesh to secure enforcement of the right envisaged under PART-III is circumscribed by the expression "person aggrieved" in so far as it relates to writ of certiorari and mandamus. In other words, for successful enforcement the petitioner has to satisfy the High Court Division that his fundamental rights are infringed. Though not infrequently writ petitions fail on the plea of conservative doctrine of locus standi yet in recent years the High Court Division of Bangladesh has gradually widening the scope of writ jurisdiction for securing the right lost or impaired with. But in order to protect and enforce the fundamental human rights, the State should act according to its commitment being a member state the United

Nations and widen the scope of writ jurisdiction by suitable amendments of the Constitution and other laws.

In this context I may say that the framers of Constitution of India seem to be liberal in widening the scope of writ jurisdiction of the High Court under Article 226 of the Indian Constitution. In the event of breach or invasion upon the fundamental rights under this Article, the High Court has power to issue order or writs to any person or authority for enforcement of any of right conferred by PART-HI or for any other purpose. Absence of the expression" for any other purpose" and use of the expression" person aggrieved" in Article 102(1) of the Constitution of die People's Republic of Bangladesh restrict the power of judicial review of administrative action of our High Court Division for enforcement of fundamental rights impaired and for such restriction writ petitions fail on the plea of conservative doctrine of locus standi. Such restriction needs be abandoned by suitable amendment in the Constitution.

Whatever limitation is put on the Judges by the expression "person aggrieved" the judges of Bangladesh must strive to interpret the fundamental rights against the background of the social, cultural and economic conditions and should not only confine to stress the civil and political right but as well should act to secure economic. Social and cultural rights. In this context it may be quoted the General Assembly Resolution No. 43/181 to which Bangladesh is a signatory. Article 2 says"........The main objective of the strategy is to facilitate adequate shelter for all by the year 2000, the main focus should therefore be on improving the situation of the disadvantaged and the poor." Again 25(1) of the Universal Declaration of Human Rights states" Everyone has a right to standard of living adequate for the health and well being of himself and his ' amily including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."

It is seen that recently High Court Division in exercise of its power under Article 102 of the Constitution has issued Rule upon the Govt. in a writ petition to show cause as to why they should not be restrained from evicting the city dwellers, the disadvantaged group of the people of the society from Agargaon area in the city of Dhaka till an alternative arrangement for their shelters is made available. The Court also issued an ad-interim injunction against the authority That writ petition was moved by a public-spirited citizen styling the petition as a public interest litigation. [Tie learned Judges, it seems while acting upon the petition were imbued with die: idea of protecting the fundamental right to shelter by applying the test of human right norms in die back ground of the spirit of the General Assembly Resolution No. 43/181 and Article 25(1) of the Universal Declaration of Human Rights. Similarly Rule was also issued by the same Bench presided over by A.M. Mahmudur Rahman-J sitting with K M. Hasan J. Upon the relevant Govt. and other authorities to show cause as to why the restraint of a convicted prisoner in bar-fetters (dandaberi)at the Dhaka

Central Jail should not be declared to be without lawful authority. The learned Judges of the High Court Division also directed the authority to produce the prisoners before the Court within the time fixed by it. The Rule was issued on the facts as stated by the petitioners, public-spirited citizens that "Raju Ahmed Pannu, a convicted prisoner in Dhaka Central jail has allegedly been shackled in bar fetters since March, 1993, for a continuous period of 33 months. The bar fetters consist of two iron rings revented to each ankle, from each of which and iron rod extends up to an interlocking from ring at about the mid-thigh level. The fetters prevent pannu from walking or lying down without continuous pain and discomfort."

It was urged that the shacking of the prisoner in bar fetters amounted to cruel, degrading and inhuman punishment and such act was manifestly violative of both constitutional right and Jail Code; the laws permitting the use of fetters are unconstitutional and violative of international human rights standard. The same Bench of the High Court Division also issued Rule for stopping discrimination in affording opportunity to different political parties in focusing their political views to the notion through the state run Bangladesh Television. These actions were taken on the strength of constitutional conferment of power of Judicial review under Bangladesh Constitution as remedial measures.

The recent trends on the part of the Appellate Division of the Supreme Court of Bangladesh is encouraging. Recently it has widen the scope of public interest litigation in a zeal to protect the fundamental rights of the disadvantaged and disabled group of the people. Such exercise is demonstrated in the case of Dr. Mohiuddin Faruque v. The Govt. of Bangladesh . Dr. Faroque, General Secretary of Bangladesh Environmental Lawyers Association, unsuccessfully moved a writ petition before the same Bench of the High Court Division under Article 102 of the Constitution which failed on the plea of standing. On appeal the Appellate Division took a contrary view holding that the petitioner is an "aggrieved person". By this decision the Superior Court in Bangladesh seems to have given legal recognition of public interest litigation in our country.

In delivering the judgment my Lord Jastice Mustafa Kamal J, observed, "In so far as it concerns public wrong or public injury or invasion of fundamental rights of an indeterminate number of people, any member of the public, being is citizen, suffering the common injury of common invasion in common with others or any citizen or indigenous association, as distinguished from a local component of foreign organization espousing that particular cause is a person aggrieved and has the right to invoke the jurisdiction under Article 102". The case of Kazi Mukhlesur Rahman v. Bangladesh, popularly known as Berubari case is the earliest decision on fundamental rights. In this case the petitioner, a citizen of Bangladesh, prayed before the High Court Division for declaration that agreement (called Delhi Treaty) between the Government of Bangladesh and India signed on May 16, 1974 by the Prime Ministers of the two countries involving cession of Bangladesh territory to India was without lawful authority.

He sought the declaration in Writ Petition under Article 102(2) (a) (ii) of the Constitution of the People's Republic of Bangladesh. It failed before the High Court Division. In a certificated appeal before the Division. In a certificated appeal before the Supreme Court the contention, inter alia, of the Bangladesh was that a citizen cannot be allowed to move the court before the obligations under the treaty were performed. The Supreme Court repelled the contention on the ground that signing of the treaty has resulted in an impending threat to the appellant's right as citizen and decided the appeal on merit.

It was held by the Supreme Court that a treaty involving determination of boundary of Bangladesh by the Prime Minister acting under Article 55(2) of the Constitution of Bangladesh can only be concluded by necessary enactment, and in the case of cession of territory by amending Article 2 (a) of the Constitution taking recourse to Article 142 of the Constitution. This decision of the Supreme Court seems to the writer is the first case of the Public Interest Litigation or Social Action Litigation inasmuch as the cause championed by the petitioner assumed the character of social Action litigation in that he championed the same for the citizens of Bangladesh having different social and financial disadvantage or in other words, he, in a zeal to protect the right of the citizens, moved the court including his own right.

The Supreme Court of Bangladesh in the Case of Hamidul Huq Chowdhury V. Bangladesh again demonstrated its disapproval to arbitrary deprivation of citizen's right to property for political motivation, And to protect such fundamental rights of a citizen acting arbitrarily from political motives under an enactment without following any rationale and without a permissible classification is contrary to the Fundamental Rights conferred by the Constitution of the People's Republic of Bangladesh. The case of Nirmal Kanti Das, offers an example of enforcement of fundamental right. The High Court Division held that non-application of Section 5(d) of the Family Courts Ordinance, 1985 on the ground of religion to a Hindu wife offends the equality clause of Article 28 of our Constitution and that a Hindu wife is entitled to sue her husband for enforcement of her right to maintenance and The Muslim Family laws Ordinance, 1961 does not debar her to bring such suit for enforcement of such right.

The case of Dalia Parveen v. Bangladesh Biman Corporation and another oners an instance of violation of fundamental right and the remedial measures for its enforcement under Article 102 of our Constitution. Dalia Parveen joined Bangladesh Biman in 1981 and she subsequently was absorbed on permanent basis as stewardess. By amendment of service law governing the age of the stewardesses and stewards the age of stewardesses was reduced from 57 years to 35 years while the age of the stewards was reduced to 45 years. Dalia challenged the amendment reducing her age unequally with her male colleagues on the ground of violation of Article 28 of the Constitution of Bangladesh in that discriminate^ there is reduction of the age between the male and female. Article 28 says – "28. The State shall not discriminate against any citizen on the ground of

religion, cast, sex or place of birth."

BIBLIOGRAPHY A.

BOOKS

A. B. Kalaiah, Human Rights in International Law (1986).

A. H. Roberton, Human Rights in the World, (1972).

A. T. B. M. Abbas, Farakka Barrage O' Bangladesh, 1988, University Press Limited, Dhaka ASK, Ain O Salish Kendro, Human Rights in Bangladesh. 1999 ASK, Ain O Salish Kendro, Human Rights in Bangladesh. 2000 ASK, Ain O Salish Kendro, Human Rights in Bangladesh. 2001 ASK, Ain O Salish Kendro, Human Rights in Bangladesh. 2002 ASK, Ain O Salish Kendro, Human Rights in Bangladesh. 2003 ASK, Ain O Salish Kendro, Human Rights in Bangladesh. 2004 Alston Philip, 'The Universal Declaration at 35 : Western and PassĂŠ or Alive and Universal' in International Commission of Jurists, 31 (1983).

Anthony D' Amato, 'The Concept of Human Rights in International Law' in : Columbia Law Review, 82 (1982).

Ashist Nandy, "Human Rights Today : View from the West and South", The Times of India, December 29, 1994, p. 12.

Basu, Durga Das, Comparative Constitutional Law, New Delhi: Prentice Hall of India Private Limited, 1984.

Brownite, Ian, Basic Documents on Human Rights, Oxford Clarendon Press, 1981.

Batliwala, Srilatha - Women's Empowerment in South Asia, 1994, FAO, & Asian South Pacific Bureau of Adult Education (ASPBAE) Batra, Manjula, Protection of Human Rights m Criminal Justice Administration. 1989, Deep & Deep Publications, New Delhi Batra, T. S. Human Rights A Critique, 1979, Metropolitan Book Company Ltd., New Delhi Beddard Ralph, Human Rights and Europe, London Sweet and Maxwell, 1980.

Birundha Varadarajan, Dhulsi & Saradha Krishnamoorthy, 1993 Environmental implications

of Leather Tanneries, Divi Publishers & Distributors, Delhi B. K. Jagdish Chandra, "Question of Economy, Environment and Survival", Purity, (May, 1994) p. 2.

Bangladesh Unnayan Parishad (BUP), Centre for Environment & Resource Studies (CEARS), New Zealand, Climate Research Unit (CRU), UK - Bangladesh ; Greenhouse Effect & Climate Change, 1993.

Boyle, Kevin and Hunnum, H., Individual Applications under the European Convention on Human Rights : And the Concept of Administrative Practice', American Journal of International Law 68 (1974).

Boyle, Kevin and Hunnum, H., 'The Donelly Case, Administrative Practice And Domestic Remedies under the European Convention : One Step Forward And Two Steps Back', American Journal of international Law, 71 (1977).

Brownlie, I. (ed.), Basic Documents on Human Rights (Oxford, 1st ed. 1971, 2nd ed. 1981).

Chandra, Dr, Satish, Individual Petition in International Law, New Delhi: Deep & Deep Publications, 1985.

Chowdhury, Justice Abdur Rahman, Democracy, Rule of Law and Human Rights, Dhaka: University of Dhaka, 1993.

Carey, J., UN Protection of Civil and Political Rights (New York, 1970).

Castberg, S., The European Convention on Human Rights (Leyden, 1974).

Chaudhari & Chaturvedi - Law of Fundamental Rights, 1995, 4th Edition, Law Publishers (INDIA) Pvt. Ltd., Allahabad Chhaangani, R.C., Legal Status of Illegal Immigrants under Nigerian Law' Indian Journal of International Law, 22 (1982).

Chitkara, M.G. - Human Rights ; Commitment & Betrayal, 1996, APH Publishing Corporation, New Delhi Chowdhury, Chief Justice Badrul Haider - The Long Echoes, 1990, Dhaka Cladwell, Mary Ellen, "Well Being : Its Place, Among Human Rights", in Toward World Order and Human Dignity Ed. Reisman, W. M. and Weston, B.H., The Free Press, New York. 1976.

Cleveland, Harlan, "The Internationalization of Internal Affairs' in Human Dignity Ed. Henkin, A. M., Aspen Institute for Humanistic Studies, New York, 1979.

Curbir Singh, "The Religion-Polities Nexus", The Tribune November 4,1992, p, 6.

D. K. Thussu, "Human Rights and Wrongs, The Tribune, December 29, 1994, p. 8.

Dag Hammarskjöld, 'Liberty and Law in International Life' in International Law in a Changing World, Oceana Publications, Inc., 1963.

Dalai Lama, Freedom in Exile, (1990).

Dickstein, H. L., 'National Environmental Hazards and International Law', The International and Comparative Law Quarterly, 23 (1974).

Dobson, Christopher, Black-September: Its Short Violent History, Macmillan, New York, 1974.

Dr. N. A Noor Muhammad, "The Human Rights Programme of the United Nations And the Domestic Jurisdiction Clause" A.I.R. 1958 Journal Section p. 89.

Dr. Satischandra, Civil and Political Rights of the Aliens, Deep and Deep Publications, New Delhi, 1982.

Drost, N. Pieter, Human Rights As Legal Rights, A.W. Sijthoft-Leyden, 1965.

Drzemezewski, Andrew, "The Sui Generis Nature of the European Convention on Human Rights', The International and Comparative Law Quarterly, 29 (1980).

Duffy, P.J. Article 3 of the European Convention on Human Rights', "The I.C.LQ.. 32 (1983).

Dunn, F.S. 'International Law and Private Property Rights', in: Essays on International Law From the Columbia Law Review, New York, (1965).

Encyclopedia of Ecology, Environment and Pollution Control, Vol. 5, Environmental Pollution Ecology (1992) Ed. by Ram Swarup, S.N. Mishra and V.P. Jauhari.

Environment And Development, Annual News Letter (1993-94), p. 33.

Errabbi, B. – Right to Travel under the Constitution, 1986, Eastern Book Company, Lucknow Fareed Kazmi. Human Rights : Myth and Reality, (1987).

Farooque, Mohiuddin & Rezwana Hasan - Laws Regulating Environment in Bangladesh, 1996, Bangladesh Environmental Lawyers Association (BELA) Fawcett, J.E. S., 7The Application of The European Convention on Human Rights (Oxford, 1969).

Fawcett, J.E.S., Reform of the European Convention on Human Rights' in Public Law, (1983).

Fazal Mahmood, "Human Rights violations in Pakistan", The Tribune, January 7, 1995, p. 10.

Fazal. Dr. M. A. - Judicial Control of Administrative Action in India, Pakistan & Bangladesh, 1990, Second Edition, The Law Book Company (P) Ltd., Allahabad.

FBI Law Enforcement Bulletin (US) 1979, Vol. 48, No. 4, Law Enforcement Policy and Ego Defence of the Hostage.

Finch. George A, 'The International Rights of Man' in American Journal of international Law, 35(1941).

Fisher. D.D., Reporting Under the Covenant on Civil and Political Rights : The First Five Years of the Human Rights Committee AJIL, 76 (1982).

Frank, Thomas M. and Fairly, H. Scott, 'Procedural Due Process in Human Rights FactFinding By International Agencies' in American Journal of International Law, 74 (1980).

Friedmann, W., The Changing Dimensions of International Law From the Columbia Law Review, New York, 1965.

Fritj of Capra; The Turning Point, Science, Society and the Raising Culture (1983).

Gaziul Hoque, Abu Nasr Md. - Mass Media Laws And Regulations In Bangladesh, 1992, Asian Mass Communication Research & Information Centre (AMIC), Singapore George Steven Swan,. 'Self-Determination and the United Nations Charter in. Indian Journal of International law 22 (1982).

Gilbert, G.S. 'Rights of Asylum : A Change of Directions' ; The I.C.L.Q., 32 (1983).

Goodrich, L.M., Hambro and Simons, Charter of the United Nations Columbia University Press, 3rd 1969.

Greenberg, J., Race, and Sex Religious Discrimination in International Law' in. Theodor Meron (Ed.), Human Rights in International Law, Vol. II, (1984).

Gurbir Singh, "The Religion-Politics Nexus". The Tribune, November 4,1992. p. 4.

Hannum, Hurst Guide to International Human Rights Practice, London: Macmillan Press, 1984.

Hossain, Hamida, Human Rights in Bangladesh 2001, Dhaka: Ain-o-Salish Kendra, 2002.

Hamid, Shamim - Why Women Count? 1996, University Press Limited, Dhaka Hartly, T.C, 'The International Scope of the Community Provisions Concerning Free Movement of Worker's in European Law and Individual, Ed. Jacobs, F.G. (1976).

Henkin, AH., Ed. Human Dignity : The Internationalization of Human Rights, Aspen Institute for Humanistic Studies, New York, 1979.

Hingorani, R.C., 'Human Rights in Developing Countries' in : Indian Bar Review, X (1983).

Hingorani, R.C., International Law Through United Nations, N.M. Tripati Private Ltd., 1972.

His Holiness The XlVth Dalai lama, On the Environment, (1994),

Human Rights follow Peace - The Sunday Tribune, December 11, 1994, p. 9.

Humphrey, John P., 'Human Rights and the Peace of Nations', International Commission of Jurists, 39(1983).

Humphrey, P. John, 'The International Law of Human Rights in the Middle Twentieth Century' in The Present State of International Law and Other Essays, Ed. Dr. Maarten Bos. Kulwer, The Netherlands, 1973.

Hussain, T - Land Rights in Bangladesh ,1995, University Press Limited, Dhaka Islam, Mahmudul, Constitutional Law of Bangladesh Second Edition, Dhaka: Mollick Brothers, 2002.

International Commission of Jurists, The Rule of Law and Human Rights; Principles and Definitions (Geneva, 1966).

Islam, Mahmudul – Constitutional Law of Bangladesh, 1995, Bangladesh Institute of Law & International Affairs (BILIA) J.A.C. Gutteridge, War and Human Rights, published in Human Rights (1970).

Jacobs, F G , The European Convention on Human Rights (Oxford, 1975) Jagmohan : Terrorism and human Rights," The Tribune, March 1,1994, p. 8.

Jain, N.P., 'U.N. Charter in a Changing World Situation' in Indian Journal of International Law, 18(1978).

Jain, S.N., Child and the Law, N.M. Tripati Private Ltd., Bombay, 1979.

Jakson in, "Independent Kashmir", by Jagmohan, Indian Express, March 2,1994, p. 6.

Jean S. Picket, The Development of International International Laws in Changing World, (1963), p. 194.

Humanitarian Law", published in

Jenks, C, Human Rights; International Labour Standards (New York, 1960) Jenks, Wilfred, Social Justice in Law of Nations; The ILO Impact After 50 Years, Oxford University Press, 1970.

Jenks, Wilfred, The International Protection of Trade Union Freedom London, Stevens, 1957.

Jennings, Law of the Constitution, 5th Ed. Joardar, Md. Mahbubul Hoque - Antarjatik Ainer Dristite Manobadhikar, 1988, Bangla Academy, Dhaka Joyce, J. A., Human Rights; International Documents (3 vols., Alphen aan den Rijn, 1978).

Justice T.K. Thommen, Human Rights Commission, Indian Bar Review, Vol. XV (1) 1993.

Justice V.R. Krishna Iyer, Human Rights and inhuman Wrongs, (1990).

Justice V.R. Krishna Iyer, Human Rights and the Law. Kalshoven, Frits, Constrains on the Waging of War, Geneva: International Committee of the Red Cross, 1987.

Kelly, Alfred H., The American Constitution; Its Origins and Developments, New Delhi: TaTa Mc-Graw Hill Publishing Company Ltd., 1986.

Kalshoven, Frits, Constrains on the Waging of War, Geneva: International Committee of the Red Cross, 1987.

Kelly, Alfred H., The American Constitution; Its Origins and Developments, New Delhi: TaTa Mc-Graw Hill Publishing Company Ltd., 1986.

K.F. Rustamji, "Peace at the cost of Human Rights", The Tribune, December 10, 1994, p. 10.

K.F. Rustamji, "Police Discipline it is Police responsibly", The Tribune, January 7, 1995, p.

10.

K.P. Saksena, Human Rights (1994).

Kamal, Justice Mustafa – Bangladesh Constitutions; Trends & Issues-Kamini; Kumar Dutta.

Memorial Law Lectures, 1994, Dhaka University Karel, Vasak, 'The European Convention on Human Rights-Beyond the Frontiers of Europe",I.C.L.Q., 12(1963).

Kelsen, Hans, The Law of United Nations, London : Stevens and Sons, 1951.

Khan, Shirazul Alam & Zillur Rahman Khan – Constitution and Constitutional Issues Comparative Studies Analysis & Prospects University Press Ltd., Dhaka Kobetz, Hichard W. and H.H.A. Cooper, Target Terrorism, International Association of Chiefs of Police, P.O. Box 2315, Washington, DC, 20013 U.S.A., 1978.

Krenz Frank, The Refugee as a Subject of International Comparative LawQuarterly, 15 (1966).

Law' The International and

Krishna Iyer, V.R. - Environmental Protection & Legal Defence, 1992, Sterling Publishers Pvt. Ltd., New Delhi Kulshrestha, S.K. – Fundamental Rights & The Supreme Court, Rawat Publications, Jaipur & New Delhi Kumar, R – Environmental Pollution and Health Hazards in India, 1987, Ashish Publishing House, New Delhi

Lauterpachet, H., International Law and Human Rights (London, 1950; reprinted 1968).

Leary, Verginia, International Labour Conventions and National Law The Effectiveness of the Automatic Incorporation of Treaties in National Legal Systems, Maritinus Nijhoff Publishers (1982).

Lillich, R. and Newman, F. (eds.), International Human Rights: Problems of Law and Policy, (Boston, 1979).

Lord Caradon, Race Poverty and Population, Published in Human Rights (1970) Ed. by Sir Francis Vallet.

Luard, E. (ed), The International Protection of Human Rights (New York, 1967).

Lung Chuchen, Self Determination As Human Rights in Toward World Order and Human Dignity, Ed. Reisman. W. M. and Weston, B.H., The Free Press, New York, 1976.

Marasinghe; M. Lakman; Third World Legal Studies: 1985 Ontario: University of Windsor, 1985.

Munim F. K. M. A, Rights of Citizen under the Constitution and Law, Dhaka: The Bangladesh Institute of Law and International Affairs, 1975.

M. Cappelletti, Vindicating the Public Interest through the Courts: A Comparativist’s Contribution’ in M. Cappelletti and B. Garth (eds.), Access to Justice; Emerging Issues and Perspective (vol. Ill), (Sijthoff: 1979) M.V. Naidy "National Security and Civil Liberties; definitions and delimitation in Theory and Practice:, published in Human Rights, (1994). p. 84, edited by K.P. Saksena.

Madsen-Atiegrahi, The Status of Refugees in International Law, AW. Sijthoff-Leydon, 1966.

Mahatma Gandhi quoted in Mr. Justice C.S. Dharamadhikari, "The Role of Voluntary Groups, in Democratic Societies", A.I.R. 1986 Journal Section 49.

Maynard. P.D., The Legal Competence of the U.N. High Commissioner for Refugees', The I.C.L.Q., 31,(1982).

Mc Dougal M.S. and Gerhard, Bebr, "Human Rights in the United Nations" in American Journal of International Law, 58, (1964).

McColumn, R.B., Terrorism and Human Rights Issues, Terrorism Vol. 10(1), 1987.

McDougal, M.S., Lasswell, H.D. and Lung-chuchen, 'Human Rights and World Public Order: A Framework For Policy-Oriented Inquiry', in American Journal of International Law, 63 (1969).

McDougal, M.S., Lasswell, H.D. and Lung-Chuchen, The Protection of Aliens From Discrimination and World Public Order Responsibility of States Conjoined with Human Rights, American Journal of International Law, 70 (1976).

McNair, and Lauterpacht, H., Ed., Annual Digest of International Law Cases (1927-28).

Longmans, Greens and Co., 1931.

Moses Moskowitz, Human Rights and World Order (1958).

Mr. Jan Martenson, Under-Secretary-General for Human Rights and Director-General of the United Nations Office at Geneva, in his key Note address, during the Third World Congress, convened at New Delhi from December 10-15,1990.

Munim, F.K.M.A. - Rights of the Citizen Under the Constitution & Law, 1975, Bangladesh Institute of Law & International Affairs, Dhaka Munir, Justice Muhammad – Constitution of the Islamic Republic of Pakistan, 1996, PLD Publishers, Lahore Myres SMC Dougal and Gerhard Belar, Human Rights in United Nations 58 JIL (1964).

N Haksar, "The concept of public Interest Litigation: A Decade of struggle", in Shakti, A Journal of Women's studies, 1985 vol. 2 No. 1,37.

N.R. Madhava Menon, "Legal aid and Justice for the poor" published in Law and PovertyCritical Essays, edited by Upendra Baxi, (1988) p. 34.

N.R. Madhava Menon, Mediation-Concept and Techniques in Support of Resolution of Disputes.

Nagendra Singh, Human Rights and the Future of Mankind (1981).

Natalie Kaufman Hevener, International Law and the Status of Women, Westview Press /Boulder, Colorado (1983).

Noorani, A.G., "Civil Liberties: Human Rights and Scientific Advance " in Economic and Political Weekly XVII 41 (1983).

Noorani, A.G., "Civil Liberties: India’s Report to U.N. on Human Rights” in Economic and Political Weekly, XIX (1984).

Noorani, A.G., "Doctors and Human Rights" in : Economic and Political Weekly, XVIII 43 (1983).

Patwari A.B.M. Mafizul Islam, European Convention on Human Rights and the United Kingdom, Dhaka: University of Dhaka 1992.

Patwari, Dr. A.BM.M. Mofizul Islam, Human Rights and Principles of Legal Assistance: 1993, Dhaka: Humanist and Ethical Association of Bangladesh, 1993.

Pictet , Jean. Humanitarian Law and the Protection of War Victims, Geneva: Henry Dunant Institute, 1974.

Pir Zada S. Sharifuddin, Fundamental Rights and Constitutional Remedies in Pakistan,

Lahore: All Pakistan Legal Decisions, 1966.

Pagels Elaine, The Roots and Origins of Human Rights' in Human Dignity, Ed., Henkin, A.H., Aspen Institute For Humanistic Studies, New York, 1979.

Palharya, J.P., V.K. Siriah & Shobha Malviya - Environmental Impact of Sewage & Effluent Disposal on the River System, 1993, Ashish Publishing House, New Delhi Pandita in 'The gun must be silenced in Kashmir', by Sunhash Kirpekar, The Times of India, March3, 1994, p. 8.

Patwari, Dr. ABM Mafizul Islam - Human Rights & Development Overview, Humanist & Ethical Association of Bangladesh Patwari, Dr. ABM Mafizul Islam - Human Rights in Contemporary International Law, 1995, Humanist & Ethical Association in Bangladesh Patwari, Dr. ABM Mafizul Islam - Humanism & Human Rights m the Third World, Edited, 1992, Humanist & Ethical Association of Bangladesh Patwari, Dr. ABM Mafizul Islam - International & Comparative Law of Human Rights, (Bangla Version) 1995, Humanist & Ethical Association of Bangladesh Patwari, Dr. ABM Mafizul Islam - Principle of Human Rights & Legal Aid, (Bangla Version) 1993, Humanist & Ethical Association of Bangladesh Rahman, Ghazi Shamsur, Law Relating to Children in Bangladesh, Dhaka: Bangladesh Shisu Academy, 1981.

R Dhavan, Public Interest Law in India; An Investigative Report, Report to CILAS. (New Delhi: 1981) R.J. Vincent, Human Rights and International Relations (1986).

Rahman, Ghazi Shamsur - Manobadhikar Bhashya, 1994, Bangla Academy, Dhaka Rahman, Ghazi Shamsur - Manobadhikar O' Moulik Odhikar, 1994, Bangladesh Manobadhikar Bastobayan Shangstha, Dhaka.

Rahman. Md. Habibur - On Rights & Remedies -A Collection of Opinions, 1997, The University Press Ltd., Dhaka.

Rahmatullah Khan, "The Legal Status of the Resolutions of the U.N. General Assembly" in Indian Journal of International Law, 19 (1979).

Rahmatullah Khan, Implied Powers of the United Nations, Vikas Publications, 1970.

Ramacharan, B.G., The Good Offices of the United Nations Secretary General in the Field of Human Rights; in : AJIL, 76 (1982).

Ramcharan, B.G. (ed.), Human Rights; Thirty Years after the Universal Declaration (The Hague. 1979).

Richard B. Lillich, Civil Rights in Theodore Meron Human Rights in International Law, Vol.1.

Richard, B. Lillich and Franck, C. Newman, International Human Rights : Problems of Law and Policy, Little Brown and Company, 1979.

Richard, B , Lillich, 'Civil Rights’ in Human Rights in International Law, Vol. I, Ed. Theodore Meron, (1984).

Robertson, A.H. (ed.), Human Rights in National and international Law (Manchester, 1968).

Robertson, A.H. Human Rights in the World (1972).

Robertson, A.H., Human Rights in Europe (2nd ed., Manchester, 1977).

Robertson, A.H., Human Rights in the World (Manchester, 1972).

Roger Stenson Clark, A United Nations High Commissioner For Human Rights, Martinus Nijhoff, The Hague. 1972.

Rosalyn Higgins, The European Convention on Human Rights' in Theodore Meron (Ed.) Human Rights in International Law, Vol. II (1984).

Shelth, D.L. & Mahajan G. Minority Identities and the Nation-State, New Delhi: Oxford University 1999.

Sieghart, Paul, The Lawful Rights of Mankind, New Delhi: Oxford University Press, 1985.

Singh, Nagendra, Enforcement of Human Rights in Peace and War and the future of Humanity, New Delhi: Eastern Law House Private Ltd, 1986.

Sara Hossain, Sahdeen Malik and Bushra Musa (ed.) - Public Interest Litigation in South Asia, Rights in Search of Remedies - The University Press Limited, 1997.

Sastri, L.S. - The Child Marriage Restraint Act, 7929, Addenda - 1992, The law Book Company (P) Ltd., Allahabad Schindler Dietrich and Thomas Jiri, The Law of Armed Conflicts (A Collection of Conventions, Resolutions and Other Documents), AW. Sijthoff-Leiden, Henry Dunant, Geneva 1973.

Schreiber, A., The Inter-American Commission on Human Rights (Leyden, 1970).

Schwelb Egon, Crimes Against Humanity’ in The British Year Book of International Law, 1946 (Oxford).

Schwelb Egon, 'Human Rights and the Teaching of International Law' in American Journal of International Law, 64 (1970).

Schwelb Egon, International Convention on Human Rights’ The I.C.L.Q. 9 (1963).

Schwelb Egon, The International Court of Justice and the Human Rights Clauses of the Charter' in American Journal of International Law, 66 (1972).

Schwelb Egon, 'The Triest Settlement and Human Rights' in AJ.I.L, 49 (1955).

Schwelb Egon, Entry Into Force of the International Conventions on Human Rights and the Optional Protocol to the International Covenant on Civil and Political Rights' A.J.I.L.. 70 (1976).

Schwelb Egon. The International Convention on the Elimination of All Forms Racial Discrimination, The International and Comparative Law Quarterly, 15, (1966).

Schwelb, E., Human Rights and the International Community (Chicago, 1964 Schwelb, E , The Influence of the Universal Declaration of Human Rights on International and National Law (New York, 1959).

Schwelb, Egon, The Law of Treaties and Human Rights', In Towards World Order and Human Dignity, Ed. Reisman, W.M. and Weston, B.H., The Free Press, New York, 1976.

Science. Technology and Human Rights ; The Web of Modernity - in UN. Chronicle XX, (1983).

Shah. Chief Justice Dr. Nasim Hasan Shah - Judgment on the Constitutions and Rule of Law & Martial Law in Pakistan, 1993, Edited by Proff. Dr. MA Mannan, Oxford University Press, Karachi Sharma, B.R. - Freedom of Press Under the Indian Constitution, 1994, Deep & Deep Publications, New Delhi Sharma, Mool Chand - Justice P.N. Bhagawati Court, Constitution & Human Rights, 1995, University Book Traders, Delhi Sher Singh,: "Human Rights v. Killers Rights", The Tribune, November 23,1992, p. 8.

Sohn, L. and Buergenthal, T. (eds), international Protection of Human Rights; Basic Documents (Indianapolis, 1973).

Sohn, L.B., "United Nations Machinery for implementing Human Rights" in AJ.I.L, 62 (1968).

Sohn, L.B., 'Human Rights; Their implementation and Supervision by the United Nations' in Theodore Meron (Ed.) Human Rights in international Law, Vol. II (1984).

Sohn. L.B., The Development of (The Charter of the United Nations, the Present State' in The Present State of international Law and Other Essays.

Sophia Wadia, The Brotherhood of Religions (1944).

Subhash C. Pratap, International Workshop on Human Rights key Note Address, AIR 1992 Journal Section.

Subramanya, T.R., The Rights and Status of the individual in International Law, Deep and Deep, New Delhi (1984).

T. R. Subramanya, Human Rights in international Law (1986).

T.S. Batra, Human Rights; A Critique (1979).

Tripathi. T P , International Action in Abolition of Torture' Journal of the Bar Council of India . IX (1982).

Triumph in Geneva - The Times of India, March 12,1994, p. 8.

Trubeck, D. M. "Economic, Social and Cultural Rights in the Third World; Human Rights Law and Human Needs Programs" in Theodore Meron (Ed.) Human Rights in International Law Vol. I. (1984).

Tyagi. K. Yogesh, Third World Response to Human Rights' in Indian Journal of International Law. 21 (1981).

U. Baxi “Taking suffering seriously; Social Action Litigation in the Supreme Court of India U. Baxi (ed), Law and Poverty: Critical Essays, (New Delhi: 1988), 387 - 89.

U. S. Concerned over human Rights in China - Indian Express, December 19,1994, p 4 Ulrich Kapren, Human Rights in the Constitution of the Western World : Some Interpersonal Trends, pub. in Comparative Constitutional Law (1989).

United Nations, Human Rights; A Compilation of International Instruments (New York.

1978).

United Nations, UN Action in the Field of Human Rights (New York, 1980) Universal Declaration of Human Rights, Arts. 3.5 GA Res. 217 A Un Doc. A/810 at 71, 7273 (1948).

Upendra Baxi, In Human Wrongs and Human Rights (1994).

V R Krishna Iyer, Freedom for Information (1990).

Vallat. F (ed), An Introduction to the Study of Human Rights (London, 1972).

Vasak. K (ed.), The International Dimensions of Human Rights (UNESCO, 1979).

Verway. Wild D, 'The New International Economic Order and the Realization of the Right to Development and Welfare - A Legal Survey, in Indian Journal of International Law, 21 (1981)

Warbrick. Colin, The European Convention on Human Rights the Prevention of Terrorism'.

The International Comparative Law Quarterly, 32 (1983).

Warwick. Mckean, Equality and Discrimination Under International Law, Clarenden Press.

(1983).

Weis. P., 'The International Protection of Refugees' in American Journal of Law, 48 (1954).

Weis. P. Nationality and Statelessness in International Law, London, Stevens and Sons. 1956 Wilson. W. Thomas, 'A Bedrock Consensus on Human Rights' in Human Dignity, Henkin, A.H.. Aspen Institute for Humanistic Studies, New York, 1979.

Wise. E. M., 'Comparative Law and the Protection of Human Rights in The American Journal of international Law, 30 (1982).

Wolf, F., "Human Rights and the International Labour Organization" in Theodore Meron (Ed) Human Rights in International Law, Vol. II, 1984.

Wright, Quincy, "National Courts and Human Rights-The Fuzil Case" A.J.I.L, 45 (1951).

Wright. Quincy, "The Law of Nuremburg Trial’ in International Law in the 20th Century Crofts, New York, 1969.

Zamir, Muhammad - Human Rights Issues & International Law, 1990, The University Press Ltd.. Dhaka

B. Constitutions, Regulations:

Declarations,

Proclamations

Acts,

ordinance.

B.1. Constitutions: The Constitution of the Peoples Republic of Bangladesh, 1972.

The Constitution of India, 1949.

The Constitution of Pakistan, 1962.

The Constitution of Myanmar, 1948.

The Iris Constitution, 1937.

B.2 Declarations: The American Declaration of Independence, 1776.

The French Declaration of Rights, 1791.

The Universal Declaration of Human Rights, 1948.

The Declaration of The European Convention for the Protection of Rights, 1984.

B.3 Proclamations:

Rules

and

The Proclamation of Queen Victoria, 1858.

The Proclamation of Emergency, 1974.

The Proclamation of Emergency, 1981.

B.4 Acts: The Code of Criminal Procedure, 1898 (Act No. V of 1898).

The penal code, 1860 (Act No. XLV of 1860).

The Evidence Act, 1872 (Act No. I of 1872) The Government of India Act, 1915.

The Madras Public Order Act, 1947.

The Punjab Public Safety Act, 1947.

The Frontier Province Act, 1984.

The North West Frontier Public Safety Act, 1948.

The India Prevention of Detention Act, 1950.

The Electoral College Act, 1964.

The Special Powers Act, 1974 (Act No. XIV of 1974).

The Arms Act, 1878 (Act No. XI of 1878).

The Explosive Act, 1884 (Act No. IV of 1884).

The Explosive Substance Act, 1908 (Act No. VI of 1908).

The Cruelty to Women (Deterrent Punishment) Ordinance, 1983 No. LX of 1983).

Antiterrorism Act, 1992 (Act No. XLIV of 1992).

Women and Children Oppression Act, 1995 (ActNo. XVIIlofl995).

Public Safety (Special Enactment) Act, 2000 (Act No. VH of 2000).

Women and Children Anti-Oppression Act, 2000 (Act No. VIII of 2000).

Law and Order Disruption Crimes (Speedy Trial Act, 2002 (Act No. XI of 2002).

The Children Act, 1974 (Act No. XXXIX of 1974).

B.5 Ordinance: The Defence of Pakistan Ordinance 1965 (Ordinance No: XXIII of 1965).

The East Pakistan Public Safety Ordinance, 1958.

The Emergency Power Ordinance, 1974 (Ordinance No: XXVII of 1974).

The Emergency Power Ordinance, 1990 ( Ordinance No. XXI of 1990).

The Frontier Crimes Regulation Ordinance, 1962 (Ordinance No. VIII of 1962).

B.6 Rules The Defence of Pakistan Rules, 1965.

The East Pakistan Security Prisoners Detention Rules, 1965.

The East Pakistan Public Safety (For feiture) Rules, 1969.

B.7 Regulations The Criminal Procedure Temporary Provisions Regulations 1976 (XXVII of 1976).

(Act

Courts Jurisdiction (Restriction) Regulations, 1977 (XXXIV of 1977).

Offence Against the State (Special Provisions) Regulations, 1976 (XIII of 1976).

Political Parties Regulations, 1976 (XXII of 1976).