Mahia Rahman and Jeba Mobashwira, Advocacy Interns, Map of Justice
১২ সেপ্টেম্বর, ২০২৪
Introduction:
Safeguards to arrest and detention is an international human right and essential to ensure justice worldwide. Article 33 of the Constitution of the People's Republic of Bangladesh 1972 (Constitution) enunciates specific procedural safeguards against arbitrary arrest and detention.[1] In addition, along with Articles 33, and Article 35, these provisions of the Constitution establish a comprehensive code of arrest, detention, and trial.[2] Any arrest or imprisonment must be evaluated in light of Articles 32 and 33 of the Constitution to determine whether the different provisions that guarantee rights are applicable. Article 33 of the Constitution guarantees several rights concerning safeguards as to arrest and detention. For instance, the immediate right to be informed of the grounds for arrest or detention, the right to consult and be defended by a legal practitioner as per the choice of his/her, the right to be produced within a period of 24 hours of arrest before the nearest magistrate, and the right not to be detained in custody without the authority of a magistrate beyond the said period.[3]
Significance of the Safeguards to Arrest and Detention:
The significance of the provisions concerning safeguards to arrest and detention of the Constitution is safeguarding personal freedom and ensuring justice. This not only safeguards individual liberty and life but also helps maintain a balance of power. It helps to protect individuals from arbitrary detention by authority. The right to consult with and be defended by a lawyer is essential for guaranteeing access to justice and upholding human rights. It also ensures a free and fair trial, effectively limiting the power of the police through preventing unlawful detention beyond 24 hours. To prevent the police’s excessive use of power under section 54 of CrPC regarding arrest, the Supreme Court instructed some guidelines for police and magistrate. According to those guidelines, the identity of the police officer must be disclosed, and the time and place of custody must be provided to the arrestee's relatives within 12 hours.[4]
Judicial Enforceability of the Safeguards against Arbitrary Arrest and Detention:
Article 33 of the Constitution is enshrined under part III of the Constitution, which is known as fundamental rights. As outlined in Part III of the Constitution, fundamental rights can be enforced through the judiciary.[5] Since all existing laws that are inconsistent with Part III, to the extent of such inconsistency, and the State shall not make any law inconsistent with this part,[6] therefore, if there is any unlawful arrest or detention, it violates this fundamental right.
However, these rights are not granted to an enemy alien or a person who is arrested or detained under any law providing for preventive detention.[7] Preventive detention means holding a person in custody without trial because they are seen as a potential threat to public safety or national security, even if they haven't committed a crime. Unlike an arrest, which occurs after a crime has been committed, detention does not require a crime to have taken place. The Constitution allows for preventive detention, which was added through the Second Amendment in 1973.[8] Furthermore, such detention cannot exceed six months under Article 33(4) of the Constitution. The detained person must be promptly informed of the reasons for their detention and given an opportunity to present their case before the Advisory Board.[9]It is worth noting that if the Advisory Board finds sufficient cause, they may authorise the continuation of the detention for a longer period. The question remains: for how long can detention continue? The Constitution is silent here, and this absence of a specific timeframe leaves room for eternal detention. From this point of view, even a lawful arrest can be arbitrary as the provision itself is incompatible with human rights.
Moreover, it is important to note that the procedure for preventive detention is governed by the Special Powers Act of 1974. Section 8(2) of this Act requires that the reasons for detention be provided within 15 days. Detention can be challenged in court if it is deemed to be “without lawful authority” or “in an unlawful manner,” as specified under Article 102(2)(b)(i) of the Constitution.[10] In Abdul Latif Mirza vs Bangladesh and Matiur Rahman and others vs Bangladesh, the Supreme Court observed that —arresting without clear ground,[11] and keeping a person in custody longer than the permitted period is unlawful. [12]
Provision of Safeguards to Arrest and Detention under National and International Legal Instruments:
The High Court Division perceives that Section 54 of the Code of Criminal Procedure, where the police have the power to arrest to a more significant extent, is inconsistent with the provisions of Part III of the Constitution.[13] Furthermore, based on suspicion, it allows arrest, followed by detention in police custody,[14] which leads to arbitrary arrest, detention and custodial torture by law-enforcing agencies, making it a persistent characteristic of the criminal justice system.[15] Moreover, Article 9 of the Universal Declaration of Human Rights (UDHR) enunciates that no one shall be arbitrarily arrested or detained.[16] The right to be free from arbitrary arrest and detention is enshrined under Article 9 of the International Covenant on Civil and Political Rights (ICCPR) as well.[17] Bangladesh is a signatory to ICCPR,[18] and Bangladesh's Constitution reflects most of the Covenant's principles,[19] including safeguards against arbitrary arrest and detention.
However, under Article 33(5) of the Constitution, the grounds for the restrictions on safeguards against arbitrary arrest and detention, such as public order and national security, are sometimes vague enough to allow for violations of the right through preventive detention potentially. According to Article 9(1) of the ICCPR,[20] no one can be denied their freedom unless there are legitimate causes and processes in place. Furthermore, anyone who is arrested must be quickly informed of the charges against them and the reasons for their arrest, according to Article 9(2) of the ICCPR.
Recent Cases of Arbitrary Arrest and Detention:
Practices of arbitrary arrest or detention are pervasive in Bangladesh regardless of the type of government in power, and successive governments have also failed to remedy the issue.[21] Recently, during the Anti-Discrimination Student movement, the right to protection from unlawful arrest and detention was one of the most violated provisions of the Constitution. Between 18th and 30th July, over 10,000 people were arrested[22] unlawfully and detained arbitrarily by law enforcement agencies during peaceful protests. During the movement, the captured video footage clearly illustrates that Abu Sayed was shot by the police causing his death. However, Md Alfi Shahriar Mahim, who tends to be a minor, was arbitrarily arrested for the murder case of Abu Sayeed without any grounds.[23]
Besides, within the military intelligence headquarters, a detention facility named Aynaghor is quite notorious,[24] from where numerous victims were recently released,following their enforced disappearances, including Abdullahil Aman Azmi and Mir Ahmad Bin Quasem.[25] They were arrested without any formal charges or judicial warrants, neither produced before a magistrate as stipulated by law nor were allowed access to family or lawyers.[26] Later on, credible witnesses stated that all of them were detained by law enforcement, but the government refused to acknowledge that they were in custody. Furthermore, opposition activists or those who hold contrary political views from the governmental regime also had to face unlawful detention and beyond quite frequently.[27] All such practices of detention are clear violations of the fundamental right, and constitutional safeguards as to arrest and detention.
Conclusion:
Despite the Constitution of Bangladesh safeguarding fundamental rights, arbitrary arrest and detention have become a daily phenomenon in Bangladesh. Additionally, the preventive detention laws pose a further threat, undermining human rights and justice. Therefore, to protect individuals, it is crucial to take the required initiatives mentioned in the Constitution so that fundamental rights can be ensured by upholding the constitutional and international benchmarks.
[1] The Constitution of the People’s Republic of Bangladesh 1972, art 33.
[2] Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2023), 275.
[3] Section 61, 167 The Code of Criminal Procedure 1898; 55 DLR 363
[4] Bangladesh and others vs. BLAST and others [55 DLR 63]
[5] The Constitution art. 44, 102; ‘Human Rights in the Constitution of Bangladesh’ The Daily Star (Dhaka, 4 November 2022) <https://www.thedailystar.net/supplements/50-years-our-constitution-original-ideals-vs-reality/news/human-rights-the-constitution-bangladesh-3160256> accessed 25 August 2024.
[6] The Constitution of the People’s Republic of Bangladesh 1972, art 26.
[7] ibid, 1.
[8] M Jashim Ali Chowdhury, An Introduction to The Constitutional Law of Bangladesh, (4th edn, Book Zone Publications 2024) 201.
[9] The Constitution of the People’s Republic of Bangladesh 1972, arts 33(4), 33(5), 33(6).
[10] Chowdhury (n 8), 204.
[11] 31 DLR (AD) (1979).
[12] 25 BLD (HCD) 90.
[13] BLAST v Bangladesh (2003) 55 DLR 363.
[14] The Code of Criminal Procedure (Act No. V of 1898), ss 54, 167.
[15] Abdullah Al Faruque and Hussain Mohmmad Fazlul Bari, ‘Arbitrary Arrest and Detention in Bangladesh’ (2019) 19(2) Australian Journal of Asian Law 315.
[16] Universal Declaration of Human Rights (adopted Dec. 10, 1948) UNGA Res 217, UN Doc A/810, art 9.
[17] International Covenant on Civil and Political Rights (adopted on 16 December 1966, entered into force on 23 March 1976) 999 UNTS 171 (ICCPR), art 9.
[18] Mohammad Shahabuddin, ‘The International Covenant on Civil and Political Rights: A Study on Bangladesh Compliance’ (2013) National Human Rights Commission Bangladesh <https://nhrc.portal.gov.bd/sites/default/files/files/nhrc.portal.gov.bd/page/348ec5eb_22f8_4754_bb62_6a0d15ba1513/Study%20Report%20ICCPR.pdf> accessed 25 August 2024.
[19] The Constitution of the People’s Republic of Bangladesh 1972, Part III.
[20] ICCPR, art 9(1).
[21] Faruque and Bari (n 15).
[22] Star Report, ‘Violence centring quota protests: More than 10,000 arrested in 12 days ‘The Daily Star (Dhaka, 30 July 2024) <https://www.thedailystar.net/news/bangladesh/news/violence-centring-quota-protests-more-10000-arrested-12-days-3664881> accessed 25 August 2024.
[23] ‘Abu Sayeed murder: 16-year-old college boy granted bail’ The Business Standard (Dhaka, 1 August 2024) <https://www.tbsnews.net/bangladesh/16-year-old-accused-abu-sayeeds-murder-case-granted-bail-907686> accessed 25 August 2024.
[24] Ethirajan Anbarasan, ‘‘The howls were terrifying’: Imprisoned in the notorious ‘House of Mirrors’’ BBC (5 August 2024) <https://www.bbc.com/news/articles/cdd7nqzj20qo> accessed 25 August 2024.
[25] ‘Sons of Ghulam Azam and Mir Quasem released’ The Daily Star (Dhaka, 7 August 2024) <https://www.thedailystar.net/news/bangladesh/news/sons-ghulam-azam-and-mir-quasem-released-3671126> accessed 25 August 2024.
[26] ‘Bangladesh: End Arbitrary and Secret Arrests’ (Human Rights Watch, 12 October 2016) <https://www.hrw.org/news/2016/10/13/bangladesh-end-arbitrary-and-secret-arrests> accessed 25 August 2024.
[27] ‘Why is the Bangladeshi opposition protesting against Sheikh Hasina’s gov’t?’ Al Jazeera (30 July 2023) <https://www.aljazeera.com/news/2023/7/30/why-is-the-bangladeshi-opposition-protesting-against-sheikh-hasinas-govt> accessed 25 August 2024.