Preventive detention laws in Bangladesh and their increased use during emergencies: a proposal for reform. (2nd January 2017)

• Record Type: Journal Article
• Authors: Bari, M. Ehteshamul
• Is Part Of: Oxford University commonwealth law journal. Volume 17:Number 1(2017)
• Page Start: 45
• Page End: 74
• Publication Date: 2017-01-02
• Subjects: Preventive detention -- states of emergency -- Constitution of Bangladesh 1972 -- Special Powers Act 1974 -- Emergency Powers Rules; Law -- Commonwealth countries -- Periodicals; Law -- Periodicals; 349.11241
• DOI: 10.1080/14729342.2017.1306943
• Languages: English
• ISSNs: 1757-8469

Abstract

ABSTRACT: The resort to the extreme power of preventive detention, which contradicts the basic tenets of human rights by permitting executive dispensation of the right to liberty, is generally recognised as an administrative necessity in times of grave emergencies, such as war, external aggression, subversion or civil unrest, to prevent mischief against the state. Unlike the constitutions of India and Pakistan, the Constitution of Bangladesh did not originally warrant the exercise of the power of preventive detention under any circumstances. However, on 22 September 1973, the Constitution of Bangladesh was amended thereby empowering the Parliament to enact laws concerning preventive detention, without stipulating the safeguards necessary for mitigating the harshness of such laws. Furthermore, the 1973 Constitutional Amendment neither confines the power of preventive detention to formally declared periods of emergency nor specifies a maximum time-frame for keeping an individual in preventive custody. This article will argue that the weakness of the constitutional provisions concerning preventive detention has facilitated the excessive and unjust use of preventive detention during declared periods of emergency in Bangladesh. Consequently, this article will put forward recommendations for an amendment to the Constitution of Bangladesh inserting a number of guarantees that will prevent the abuse of the powers concerning preventive detention and also safeguard humane treatment of the individuals kept in preventive custody.