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

ON 6 September 1999, the Pabinet of the Government of Bangladesh endorsed in principle a draft Public Security (Special Provision) Bill 1999. The Government has indicated that the Bill provides for Special Tribunals and stern punishment for specified crimes including extortion. hi-Jacking, breaking vehicles, damaging public and private property, obstruction in tender submission, realising ransom, creating barriers to traffic movement, arson and bombing. The proposed Act empowers the public prosecutors to file cases against newspapers for publishing baseless reports against any VIP. The proposed Act will have provisions for Special Tribunals and stern punishment.

All the crimes referred in the proposed Public Security (Special Provision) Bill 1999 are already criminal under the Bangladesh Penal Code. The Government has made no secret of the fact that the Bill is aimed at the arrest and detention of "terrorists" and enemies of the state of Bangladesh. The track record of the existing Draconian laws indicates that the proposed Public Security (Special Provision) Bill. 1999 will be used against political opponents of the Awami League Government. The opposition political parties and human rights NGOs have expressed opposition to the proposed Act.

The Suppression of Terrorism Act 1992 — under which over 6.900 people were detained and subjected to summary trials — lapsed in 1994. the Public Security (Special Provision) Bill simply appears to be its latest reincarnation. Indeed. Bangladesh's short his-' tory is littered with preventive detention and anti-terrorism legislation — the most well established and Draconian of which is the Special Powers Act 1974

Preventive detention laws have existed on the Indian subcontinent since British colonial rule in the nineteenth cen-tury. Upon attaining Independence, both India and Pakistan allowed for preventive detention legislation in their respective constitutions.

As a result, during the struggle for independence from Pakistan. Bengali freedom fighters were routinely arbitrarily arrested and. detained. Upon Independence, the political leadership of Bangladesh declared its commitment to ending arbitrary arrests and de-tention and when the Constitution of Bangladesh was promulgated on 6 December 1972. it did not provide for preventive detention. This pledge was short-lived.

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

Five months after the enactment of the Second Amendment Act. the Special Powers Act 1974 (the Act) was passed. The Act was purportedly designed to crush "black marketeers". however it was immediately used to detain political opponents. The primary targets of the Act were suspected members and sympathisers of the radical left and Jumma activists in the Chittagong Hill Tracts. For the past 25 years, successive governments have used the Special Powers Act to

control Freedom of Expression and suppress political opposition. The limited safeguards provided in the Act mean that it is also used by District Administrators as a tool of intimidation against the families of suspected opponents, and Ble engaged in personal > with the authorities.

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

The Special Powers Act provides for the detention of individuals to prevent the commission of "prejudicial acts" against the State. Section 2 (f) of the Act. provides that "prejudicial acts" include prejudicing the sovereignty, or security of Bangladesh, creating or exciting feelings of enmity and hatred between different communities and interference with the

maintenance of law and order. The Act does not provide any guidance on the burden of proof necessary for the government to' conclude that an individual is likely to commit a prejudicial act. As a result, detentions under the Special Powers Act are based on allegations unsupported by evidence.

Detention under the Act is generally made at the behest of the District Magistrate or Additional District Magistrate in the area. In most districts the District Magistrate is also the District Administrator, as Article 115 of the Constitution of Bangladesh provides that subordinate courts are under the control of the Executive. The failure of the separation of powers has meant that detentions are often politically motivated within districts. The • Ministry of Home Affairs must then, within 30 days, provide a report stating the grounds upon which the person has been detained. The Act allows for initial detention of a period of one month, after the said period an Advisory Board can extend the detention for a -further six months, and then again for six months, indefinitely. Detainees are denied the right to legal representation before the Advisory Board.

The only hope for most detainees are the few lawyers who are prepared to file petitions of habeas corpus before the High Court Division of the Supreme Court of Bangladesh on a pro bono basis. The cost of legal fees for filing such petitions extends

to over Tk 10,000 (or ($US 200); well outside the financial reach of most people detained under the Act. As a result, only around half of those detained are ever able to take their cases before the High Court Division of the Supreme Court of Bangladesh. Ironically, the High Court Division holds the only hope for the speedy release of detainees. From 1974 to March 1995. 10.372 petitions of habeas corpus were moved before the High Court in Dhaka. In 10.651 (or 90.3%) cases, the court found that there was prima facie reason to believe that the detention was illegal. Ultimately detention was found to be valid in only 8.57% of cases. While the Supreme Court of Bangladesh in the case of Bilkis Akhter Hossain i> Bangladesh and others held that courts have the power to order compensation in the case of illegal detention under the Act. cases of compensation are rare and are limited to high profile political cases.

Further, the frequency with which the Special Powers Act has been used, has increased drastically since its introduction. In 1974, a total of 513 individuals were detained under the Act. In the six months from January to June 1999. 6.650 individuals had been detained pursuant to its provisions. All types of people are detained under the Special Powers Act — politicians, students, the families of opposition leaders and personal enemies of police per- • sonnel and Administrators. However, the most easily de-

fined recent targets are suspected opponents of the 2 December 1997 Peace Accord in the Chittagong Hill Tracts (CHTs).

On 12 April 1999. Dipayan Khisa and Usain Marma, students in the CHT were arrested without a warrant by the Bandarban Thana Police. They were produced before the local Magistrate and remanded for three days, after which time they were sent to Bandarban District Jail. On 16 April 1999 Dipayan Khisa and Usain Marma were served with identical orders and grounds of detention under the Special Powers Act. They were detained orj the grounds that they were members of an armed terrorist group, and had distributed leaflets that incited hatred against Bangladesh. Both students were able to secure the services of a lawyer who filed writ petitions 1375 and 1376 of 1999 in the High Court Division of the Supreme Court of Bangladesh. On 14 Jpne 1999 the court found that their detention was illegal and ordered the release of Dipayan Khisa and Usain Marma. Both had been illegally detained for two months, and were denied compensation. Their experience is shared by thousands of others each year.

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

Courtesy: Human Rights Features.

A Joint initiative SAARDC andHRDC