Special Power Act:
People or Regime Security?

by Zakia Haque

Definition:

The Special Powers Act is an Act to provide for Special measures for the prevention of certain prejudicial activities, for more speedy trial and effective punishment of certain grave offences and for matters connected therewith. In this Act, unless there is anything repugnant in the subject or context.

1. “Code” means the Code of Criminal Procedure, 1998 (V of 1898);
2. “Dealing in the black-market” means selling or buying anything for purposes of trade at a price higher than the maximum price fixed by or under any law, or otherwise than in accordance with any law;
3. “Detention order” means an order of detention made under section 3;
4. Clause (d) was omitted by Act No. 18 of 1991 (w.e.f. 26.2.1991);
5. “Hoarding” means stocking or storing anything in excess of the maximum quantity of that thing allowed to be held in stock or shortage at any one time by any person by or under any law;
6. “Prejudicial act” means any act which is intended or likely –


1. to prejudice the sovereignty or defense of Bangladesh.
2. to prejudice the maintenance of friendly relations of Bangladesh with foreign states;
3. to prejudice the security of Bangladesh or to endanger public safety on the maintenance of public order;
4. to create or excite feelings of enmity or hatred between different communities, classes or sections of people;
5. to interfere with or encourage or incite interference with the administration of law or the maintenance of law and order;
6. to prejudice the maintenance of supplies and services essential to the community;
7. to cause fear or alarm to the public or to any section of the public;
8. to prejudice the economic or financial interests of the state.
7. Clause (g) was omitted by Act No. 18 of 1991 (w.e.f. 26.2.91).

The SPA is an amalgamation of both procedural and substantial measures with 36 sections and one schedule.

It is not out of place to mention here that the post independence grim and grave situation inspired the Government to promulgate Scheduled Offenses Special Tribunal order P.O. 50 in May 1972. But due to serious lapses in the application of such laws (including P.O. 8) innocent people were harassed and victimised routinely. Misapplication of P.S. 50 of 1972 caused severe public criticism and this law together with the Security Act. 1952 and Public Safety Act Ordinance 1958 was repealed on 9 February 1974 by the Special Powers Act. The Act was adopted essentially keeping line with the Maintenance of Indian Security Act (MISA), 1971 and the East Pakistan Public Safety Act, 1958. But the provision of the Special Powers Act were made more draconian than those of the other two laws.

The SPA: Black vs. White Debate

Most of the political parties have termed the Act as a black law and even promised to repeal it if voted to power, but which ever party went to power in the last 25 years conveniently forgot the promise. It was the Awami League which placed a bill on 20th September, 1958 to repeal the tyrannical black law of the British era the public Safety Act (Awami League suffered immensely under such various security laws); but while discussing on the Special Powers Bill in the parliament in 1974, ruling Party MP Serajul Huq termed the proposed law (The SPA) as -
“The whitest law that we are bringing against the blackest background”.

The then Law Minister Manarajan Dhar also assured the House that the law would be used only to prevent massive smuggling, hoarding, black marketing, killing, etc. prevailing at that time. But in fact the law has been used widely over the years by all successive Governments to oppress the political opponents of the ruling party.

During the anti-autocracy movement one of the demands of the three alliance of the political parties was the repeal of the SPA. In the first election during post autocracy era all the political parties pledged to repeal it after assuming power. But the then Prime Minister Begum Khaleda Zia emphatically said that without this law the country could not be administered. Likewise before coming to power incumbent Prime Minister Sheikh Hasina gave an avowed commitment to repeal this law. In 1996 several influential leaders including some of the cabinet members of the present Awami League government were detained under the SPA. Before the last Parliamentary election held on 12th June 1996 the present ruling party promised to repeal all black laws including the ones of its own creation. But after assumption of power Hasina pulled her tune in quite opposite direction by saying,
“The Act has been identified by the previous government as an essential law to run the state ....... . So, question does not arise to abrogate the Act during our rule”.

On 13 August 1999 replying to a journalist of the Dhaka Courier Law Minister Abdul Matin Khasru said,
“This sort of Law is there in almost all countries to ensure safety, security and lives of the innocent citizens but the misuse of the law should be strictly prevented by the government functioning”.

But we as conscious citizens would like to see this scrapped for the following reasons:

• In the presence of the section 54 of Criminal Procedure Code, there is no justification of a similar Act like the SPA.
• In the Act, the crucial term, “Prejudicial Act” is not defined precisely which creates scope for gross abuse of the law.
• There is a serious critique on prevention detention - a concept of the SPA, which is to prevent someone from committing any probable injurious activities. The power of the executive authority to arrest someone under preventive detention depends on the subjective satisfaction of the concerned executive officer. If such officer is personally satisfied against the arrested person, he can give order for preventive detention. And thus the doctrine of subjective satisfaction has scope of abusing the power. In fact the subjective satisfaction of a civil servant is not always beyond controversy.
• The SPA provides for the detention by the government of any person without trial. The detenu may be kept inside the prison for years without any specific allegation of offense. The initial period of preventive detention is six months under the Constitution. Neither the SPA nor the Constitution specifies any fixed period. So, here a person can be detained for an indefinite period.
• The Act also denies the Constitutional safeguards like the right to consult and be defended by a legal practitioner of the detenu’s choice. Because the detenu has no right to legal representation before the Advisory Board, the detenu becomes helpless without having any right to visit by lawyers or relative. Detenu may only submit a representation for writing against the detention to the Board.
• Although a detenu can exercise his/her right to representation under Article 35(3) of the Constitution but this right is dependent on the right to communication of ground of detention. In most of the detention orders under the SPA, the detaining authority does not disclose facts on grounds in the name of so called state secrecy and unnecessary confidentiality which creates problem for the detenu to take an effective representation and this right becomes illusory.
• The procedural safeguard for an innocent detenu is too lengthy.
• Although detention order can be challenged before the High Court Division, poor detenus cannot afford the costly and time consuming process.
• Most of the detention done under SPA were declared illegal by higher courts and sometimes such detention causes embarrassment to the government. In more than 90% cases the court found detention order invalid. The common grounds of such findings of the Supreme judiciary are:
  
  
  • the grounds of detention in most cases are vague, indefinite and lacking in material particulars.
  • failure to inform the detenu of this right to representation.
  • failure to serve the detenu of detention within 15 days.
  • lack of nexus between the order of detention and grounds of detention.
  • failure to procedure the detenu before the Advisory Board within a certain time.
  • retrospective issuance of orders.
• The Act does not provide any compensation in favour of the detenus even for the grossly wrongful detention. However, in the order against arrest of four BNP leaders in 1997, the High Court of Bangladesh not only declared the detention illegal but also ordered to pay them compensation of Tk. one lakh each.

Ershad’s Claim of Scrapping the SPA

Deposed President H.M. Ershad recently kicked off a fresh controversy accusing President Justice Shahuddin Ahmed of ignoring an order signed by him for repealing the SPA on December 6, 1990. The Bangabhaban officials, however, dismissed the allegation as false. From a statement issued by the Bangabhaban, it transpired that President Justice Shahabuddin Ahmed after taking over in 1990 knew about the ordinance, but he did not take action since officials did not refer it to him. The Ministry of Law on the other hand, reiterated that the SPA of 1974 was never scrapped.

So, in this controversy, our views on the issues are as follows:

• Before his ouster in 1990, Ershad signed 3 orders relating to University affairs, District Council affairs and the SPA, but these orders could not be given effect to because those were not numbered and notified in the government gazette.
• In the orders made by Ershad, dates, SRO number, name and signature of person responsible for promulgation were absent. Those were mere informal orders signed by him and not ordinances. So, undisputedly, Ershad could not repeal the SPA by any ordinance and Ershad never scrapped the SPA.

From the foregoing discussion, it is aptly clear that the SPA has been greatly abused in the last 25 years since its enactment. There occurred no situation of war, or external aggression or internal disturbance, threatening the security of the state, but the SPA has been used by every government, even in peace time as a brutal weapon to suppress anti-government movement, sometimes democratic movements. The motion of the rule of law cannot exist let alone flourish in presence of such black law. Unfortunately, there exists colonial tendency of every government to regard the challenge to their authority, as a threat to the life of the nation. Of course they do it very purposefully, this is particularly true of regimes which do not provide any lawful means for the transfer of the political power and which in consequence are inclined to regard any criticism of the government as an act subversive of public order. Detention law is still applied for harassing the political opponents of the ruling party, for suppressing the anti-government, democratic movement. This is the greatest instance of mutual distrust of the political parties. The power in the law to issue order of detention is so arbitrary that it is used indiscriminately without minimum care of civil rights. More than 80,000 people were detained under this law in the past 25 years. And the worst sufferers of this law are the general people of the country who carried forward democratic movements during different regimes. So, we believe that,
“For a democratically elected government, SPA cannot be a tool to govern the State, this black law must go. There is no other alternative if we have any belief in the rule of law - the ultimate destination for any democracy”.

Report prepared by Md. Sultan Uddin, Maliha Ahad, Tasnim Haque, Zakia Haque, Nigar Sultana, Israt Ara, Farhana Yunus, Farhana Ahmed and Nusrat Zahan.