Public Safety Act (Special Provision) 2000:
Necessity or a Sense of False Security

by Sharif Atiqur Rahman

The Public Safety Act (Special Provision) 2000 has become the most controversial Act of recent times in Bangladesh. Both the position and opposition parties have presented arguments for and against the PSA. Public opinion has been divided on this Act as many doubt whether this Act would ensure safety and security of the people at all. This write-up is about the concerns and observations raised by the people on the said Act.

Controversial Issues of the Public Safety Act

The write-up identifies the following areas of the Public Safety (Special Provision) Act 2000 as controversial.

Lack of Transparency in Formulating the Bill

1. a. The bill was brought in as a supplementary agenda on a Thursday, a Private Members day, which is not according to general practice. Customarily a government bill is never presented on a private members day; it is reserved for members, on their individual capacity, to move bills.
2. On the same day, the bill was sent to the Parliamentary Standing Committee on Home Ministry, whose session was called on a 24 hours notice which was quite unusual.
3. The Committee approved the bill in spite of a 'note of dissent' by the opposition. Normally when there is such a 'note of dissent', the report of the Standing Committee contains the full explanation of the reasons for such a dissent. But in another deviation from the norm, the report only contained a brief mention of it without any explanation.
4. An important law like the PSA, which was at the centre of all sorts of controversy and attention, was presented and passed in the Jatiya Sangsad just within two working days. This rushed upon passage through the parliament raises question about the transparency of the law.
5. The bill was passed in the parliament in the absence of the majority of the members. Only 136 out of 330 were present. Among those 136, only 4 were from the opposition.

Necessity of the PSA

It was argued on part of those opposing the bill that there was no necessity to enact such a "tough law". There are plethora of laws existing in Bangladesh, which are sufficient to curb crime and terrorism from the society. Instead of creating new law, the amendment of the Penal Code and Criminal Procedure Code, making the police department and criminal justice system corruption free and free from political influence are desirable. Enactment of tough laws to combat crime is almost synonymous with failure of governance. Whenever a government fails or is failing to improve the 'law and order' situation, it takes recourse to 'tough laws' to camouflage its failure, without realising that this camouflage ultimately compounds the problems of governance.

It was also argued that much power for the application of the PSA lies with the police. The corruption and inefficiency of the police force in exercising its power and responsibilities is a well-known fact. Far from becoming a people's force, the police have turned out to be a force of the ruling party. When the law enforcing agencies are corrupt and not free from external influences, it is meaningless to empower those agencies with any 'tough law'.

Political opponents of the present regime and various human rights groups fear that, like previous similar Acts, the PSA would do nothing other than suppressing the voice of the dissidents. This they fear, will happen in the name of 'public security', and public bashing will become routine work with the help of corrupt administration, bad governance, and political criminalisation.

On the other hand, those supporting the Act opined that the existing laws of the country are not adequate to combat the crimes of 21st century. The Penal code was formulated in 1860 and the Criminal Procedure Code in 1898. Such old laws are inadequate to tackle the current situation. Besides, the government on numerous occasions, affirmed that the PSA will not be abused or used with political motive; the Act will only deal with specific offences like hijacking, extortion, tender collection, smashing cars, damaging properties, impeding the movement of transports, abduction, demanding and realising ransom, creating panic, instituting false case etc.

Classifying the PSA Bill as a Money Bill

The most controversial issue related to the PSA is whether classifying the PSA Bill as a 'money bill' is right or wrong.

The explanation for classifying the PSA as a 'money bill' has been that since the implementation of the provisions of the bill will entail spending money from the public account of the Republic to set up new special tribunals for ensuring speedy trials of the eight categories of heinous crimes, therefore this is categorised as a Money Bill. But this is a weak explanation as there is no legislation which does not involve government expenditures. Therefore all those Bills cannot be termed as Money Bills.

Taking the relevant articles of the constitution and rules of procedure of the Jatiya Sangsad into consideration, it is clear that the provisions concerning Money bills deal with the annual budget and matters related to it that may subsequently arise. To use this loophole to pass a bill which deals with our fundamental freedoms is nothing less than considering the people fools, the Constitution as nothing more than a scrap of paper, and the President, who has to assent to it, as nothing more than a robot.

It is alleged from those who are opposing the bill that the government has knowingly and wilfully classified the PSA Bill as a money bill to expedite the legislative process and to limit the options available to the President to have the bill amended by returning it to the parliament for reconsideration. This kind of attitude rises question about the true intention of the law. When the government does not even want the President to offer his considered opinion on a question of law, apprehensions about authoritarian rule may not be unfounded.

The government defended its position by saying that the President himself termed the bill as a money bill in his note to the Cabinet Secretary and after the bill was passed in the parliament it was certified as a money bill by the Speaker of the Jatiya Sangsad. A further controversy was raised when an unsigned fax message from the Press Secretary of the 'Bangabhaban' stated that it was wrong to believe that the President has termed the bill as a money bill. Later in a statement Law & Parliamentary Affairs Minister Mr. Abdul Matin Khasru reaffirmed the government's position and termed the issue whether it is a money bill or not, as a 'dead issue'.

Time Frame for Investigation of Crime

Under this Act, the investigations need to be completed within thirty days. But the investigation department of police is not a separate department. This time period appears rather too short a period for it to do justice to the investigation procedure.

On the other hand, the proverb says - "Justice delayed, justice denied". It has been observed that the existing laws are not suitable enough to give justice within a short period of time. Millions of cases are remained pending in different courts of the country for years. Criminals are availing this opportunity to continue their anti social activities. Under these circumstances a law was needed to ensure justice promptly. Besides, though the PSA initially allows only thirty days for investigation, it has the provision to allow as much as seventy five days for investigation if the tribunal feels necessary. This surely gives enough time to conduct a complete investigation.

Acceptance of Uncorroborated Testimony as Evidence

The PSA provides for uncorroborated testimony of a witness recorded outside the court to be treated as evidence, if such a witness cannot be present during trial. It is apprehended that acceptance of such testimony without cross-examination will lead to the destruction of a foundational pillar of criminal justice system. The amendment to section 14 of the PSA brought about on April 5, adds that the tribunal will not punish any accused based on such testimony alone.

Denial of Bail during the Investigation

The PSA (without the amendments) treats certain specific crimes as non-bailable offences and restricts the power of the tribunals and even the Appellate Court (High Court Division of the Supreme Court) to grant bails. This has been inserted in the Act as the provision of bail has often been misused.

But according to some law specialists this goes against the normal practice of Criminal Procedure Code and will eventually violate fundamental human rights of the under-trial prisoners. Mandatory denial of bail of an accused, who may not be convicted in the subsequent trial, is tantamount to imposition of imprisonment on an innocent person. The President also objected to the above provision.

Accordingly an amendment was brought to the PSA giving the appellate court the power to consider a bail petition after examining the gravity of the offence, related documents and evidences.

The Public Safety Act 2000 and the Bangladesh Penal Code

In a bid to justify enactment of the controversial PSA, Home Minister Mr. Mohammad Nasim claimed in the Jatiya Sangsad on January 27 this year that the country's existing laws have proved inadequate to curb serious crimes as these are not clearly defined in existing laws.

In a study conducted by the legal research wing of the Bangladesh Legal Aid and Services Trust (BLAST), which was later published in a national English daily, it was found that contrary to the government's claims, most of the crimes under the PSA are actually covered by the existing laws. In certain cases, the existing laws are more stringent in terms of punishment to be meted out to a criminal. In case of other crimes some amendments to the existing provisions of the Bangladesh Penal Code (BPC), especially in terms of clearly defining crimes and specifying punishments, would have certainly served the government's pronounced purpose.

Public Opinion on the PSA:

To assess public opinion on the PSA a survey was conducted on 200 respondents. Some salient findings of the public opinion survey are mentioned below -

1. The survey did not find any student who had read all the provisions of the PSA.
2. 64.00 % of the respondents mentioned that they did not know whether any provision of the PSA violated the norms of human rights or not. This sugggests that to majority of the respondents, the concept of human rights are not clear.
3. 46 respondents pointed to the non-bailable provision as a violation of human rights.
4. 58.00 % of the respondents felt that the passing of the PSA in the absence of the opposition was a flow.
5. 71.00 % of the respondents were in favour of accepting bail in some way or other. 23.00 % opined that non-bailable provision is a violation of human rights, 11.00 % felt that it would lead to misuse of the law and 37.0 % opined that there should be some special provisions regarding bail.
6. 86.50 % of the respondents supported the provision that stipulates for punishment for making false cases under the PSA.
7. 64.00 % of the respondents felt that the PSA contains appropriate punishment provision. While 20.00 % asked for more stringent punishments. This suggests that 84.00 % of the respondents did not consider the PSA to be draconian.
8. 60.50 % respondents felt that the process of formulation and approving the PSA was not transparent.
9. The survey found that there was lack of knowledge among the respondents about the PSA (only 36.70 % knew about the provisions of the PSA). Similarly, there was lack of knowledge about the "Suppression of Terrorism Activities 1992", which was another controversial law of that period. Only 31.00 % of the 200 respondents (who knew about the PSA) could make the comparison of the PSA 2000 and the Suppression of Terrorism Activities 1992. This proves the continuing lack of interest among the respondents about the governance of the state.
10. Passing the PSA as the 'money bill' was the most controversial issue. Relevant sections of the constitution were cited in both print and electronic media. Still a significant portion of the respondents were indecisive whether it was a 'money bill' or not.
11. Though 46.00 % of the respondents did not feel the necessity of the PSA, the activities of the opposition political parties was supported by only 24.00 % of respondents. 68.00 % of the respondents did not support their activities. This suggests the failure of the opposition to capitalise on the wrongdoing of the government.
12. Out of 136 respondents who did not support the activities of the opposition political parties against the PSA, 96 respondents suggested that the opposition should make the movement without the hartal and 78 respondents felt that they should use the parliament.

Recommendations
Strict & Impartial Implementation of Laws:

The PSA assumes that tougher laws can improve the 'law and order' situation. But to stack laws upon laws can at best create a complex system of justice, this cannot guarantee its efficacy. Rather only a strict and impartial imposition of existing laws by an impartial and strong police administration, judiciary and jail administration can stop many such clandestine activities.

Amendment of Existing Laws:

It is true that with the course of time as the society changes the trends and types of crimes also change. Existing laws become inadequate to combat the newer forms of criminal activities. The age old Penal Code of 1860 and the Criminal Procedure Code of 1898 cannot meet the demand of the time. Amendment of the Penal Code and the Criminal Procedure Code through consultation with the opposition, law specialists and civil society, instead of creating new tough laws could have been a better option to avoid all the controversies.

Freedom of Judiciary:

Law is a dead without the freedom of the judiciary. If we desire the rule of law, we must make the judiciary free from the executive.

Cleaning up of own Camp:

The government's concern for ensuring people's security would have sincerely manifested itself had it taken measures to clean up its own terrorists and extortionists.

Modernisation of Police Force:

It requires immediate steps in the following areas -

1. Those in the police administration responsible for investigation of crimes must be re-trained and should gather expertise in the more civilised methods and techniques of investigation.
2. It is also necessary that the police administration have adequate manpower, logistics and equipment for crime prevention and conducting investigation.
3. Police personnel should be given sufficient training on the existing laws of the country which will enable them to file cases properly.

Taking the Opposition into Account:

To enact a tough act like the PSA, opinion of the opposition political parties should have been given due importance. Law and order situation is a national issue. The opinion of the representatives of the majority of the people cannot be ignored. There has been no clear indication that the government sincerely wanted to discuss with the opposition political parties regarding the enactment of the PSA other than calling them to join the parliament and criticising them without decency at the same time.

The PSA in a Limited Version

The purpose of enacting laws is to create a law-abiding society. To enact such law, which is not endorsed by the representatives of the larger section of the population, is to kill it in the womb. The PSA could have been passed in a limited version introducing special tribunal, summary proceeding and rigorous punishment for snatching, extortion and kidnapping only. Issues like vandalism, barricades etc., which are politically sensitive, should have been shelved until a consensus was reached amongst all parties. Besides, offences regarding illegal acquisition of land by force or by threat or by cheating should have been included in the PSA. The PSA also could have a provision for investigating police brutality or banality when innocent people are killed or harassed under their nose. The section regarding the punishment of the members of the law enforcement agency for any wilful lapse, which was deleted through amendment, should be re-introduced. There should also be provisions to punish the corrupt members of the judiciary.

Independent Institution to Check Abuse of the PSA

Presence of institution to act as a check on the activities of another institution is the hallmark of democratic rule. An independent investigative department headed by a person with the reputation of being honest and impartial can be established to check abuse of the PSA.

Report prepared by Sharif Atiqur Rahman, Syeda Suhana Fahril, Md. Delwar Hosssain and Rozina Yasmin.