Ensuring Compensation against Unlawful Preventive Detention Cases in Bangladesh
Farhan Hasan Bhuyan Shan : Preventive detention is a detention where a person has been detained for an indefinite period of time under Article 33 of the Constitution of Bangladesh.[i] In a preventive detention cases, a person has been detained without formal trial of the court on the basis of reasonable suspension of the administrative authority.
The problem arises when a person has been detained illegally for an indefinite period of time and court passes a mere release order in favor of an accused person.
The textual interpretation of Article 33 (Clause 3-5) of the Bangladesh Constitution suggests that there is no constitutional protection for those people who has been detained for an indefinite period of time. Article 33 remains silence if Administrative authority misuses preventive detention laws. Article 33(Clause 1&2) mentions general safeguards of accused person but such provisions shall not applicable to two categories person mentioned in Article 33 Clause 3. Such as, person is a foreign enemy in present time and persons who have been arrested under any laws of preventive detention.
Justice Debesh Chandra applies ‘Lord Atkin Principle’[ii] in the case of Aruna Sen vs Bangladesh 1974, it states “every imprisonment without trial and conviction is prima facie unlawful and the onus is upon the detaining authority to justify the detention”.[iii]By referring this principle, the Apex Court of Bangladesh states that if the government detains someone on preventive detention that is also a subject matter of Judicial Scrutiny.[iv]
In earlier days, when any person arrested in preventive detention cases such person can file a writ of habiouscorpous to High Court Division under Article 102(b) (1) of the Constitution.[v] If HCD finds such detention is illegal, Court may pass a release order only. For example, In the case of Mrs. Aruna Sen vs Bangladesh and Others, 1974 Court declared preventive detention was illegal and release accused from the case but did not consider for compensation.[vi]
Actually, only release order is not enough to satisfy the mandate of fundamental rights which is guaranteed by part 3 of the constitution of Bangladesh. In the case of Rudul Shahvs State of Bihar, the court states that if a person is not compensated for a violation of his or her fundamental rights, then the fundamental rights remain as they are on paper and are of no use…[vii]
It is to be clear that Article 102(1) of our constitution has given ample opportunity to pass any remedy for enforcement of fundamental rights. On the basis of this provision, HCD can impose Compensation in violation of Fundamental Rights.
Supreme Court is in a fluctuating situation in passing an order of granting compensation along with release order in illegal preventive detention cases on the basis of constitutional instruments.
In the case of Bilkis Akter vs Bangladesh, HCD grant compensation in illegal preventive detention but Appellant Division reject such order by saying, “this case does not seem to be an appropriate case to pass compensation”.[viii] But, the idea of giving compensation in illegal preventive detention cases has emerged through this case. Further, this case has been nicely interpreted in CCB Foundation case. The idea of giving compensation has been adopted by CCB Foundation case on basis on ‘Public Law compensation’ under Constitutional protection.[ix]
In another case Z.I Khan Panna vs Bangladesh, HCD pass an order for paying Compensation for illegal preventive detention. In both cases, the idea of granting compensation has been successfully incorporated in the light of constitutional instrument. Now it’s become establish principal in Bangladesh.[x]
But it a matter of great regret that there is no statutory obligation or direct instrumental mechanism to compensate the victim in illegal preventive detention case. All this case laws and precedent are the development of Judicial Activism .Our supreme Court has incorporated the ideas ‘Public law compensation’, ‘Constitutional tort’ and Such ideas or principals has been nicely incorporated within the periphery of Article 102(1) of the constitution.
The word ‘appropriate’ in Article 102(1) give a Blank Check to Honorable court to exercise its power to direct any authority for any remedy for violation of fundamental rights.[xi] So there is an ample opportunity to provide any remedy for violation of fundamental rights. In this regards Mahmudul Islam expressed that, “the constitution does not specify the nature of the relief which may be granted. It was left to the High Court Division to design the relief owing to conditions of given fact”.[xii]
Furthermore, Article 9 of ICCPR 1966 states about remedies regarding unlawful detention. If right to liberty has been frustrated due to unlawful detention, such individual shall take proceedings before court. Court shall release him from the custody and order authority to pay compensation to that person.
Actually money can no longer be given back to life in jail. It is an irreparable lose for accused. But if the court is confined to a release order for unlawful detention, the importance of ‘Right to Life’ and ‘Liberty’ described in Article 32 of the Constitution will be diminished or denied. In the case of Rudul Shah, it is also clear that the importance of right to life and liberty shall be frustrated if the compensation is not given to the victims.
As the Apex court has incorporated the ideas of giving compensation against illegal preventive detention cases in the light of ‘Public law Compensation’, ‘Constitutional Tort’, and in accordance with Article 9 of ICCPR 1996 .It’s high time, Govt. should reform laws regarding Preventive detention and insert Specific Compensatory Provisions so that the misusing rate of the present preventive detention laws shall be reduced.
Writer : Farhan Hasan Bhuyan Shan has completed his LLB from Eastern University and LLM from Bangladesh University of Professionals.
[i]The Constitution of People’s Republic of Bangladesh 1972. Art. 33
[ii] Lord atkin, ‘Liversidge Vs. Anderson’. As mentioned in Government of West Pakistan and another Vs. Begum Agha Abdul Karim Shorish Kashmiri 21 DLR (SC)1_PLD 1969 (SC) 14
[iii] Supra note 2
[iv] Mrs. Aruna Sen Vs. Govt. of the People’s Republic of Bangladesh and Others, 1974, 3 CLC(HCD) [4602]
[v] The Constitution of People’s Republic of Bangladesh 1972. Art. 102(b)(1)
[vi] Supra note 4
[vii] Rudul Shah vs State of Bihar and Another ALR 1983(S.C) 1086
[viii] Bilkis Akhter Hossain Vs. Bangladesh and Others 1997
[ix] CCB Foundation vs. Bangladesh 5CLR (HCD)2017 para 94
[x] Z.I Khan Pannavs Bangladesh and others 2015 37 DLR
[xi] The Constitution of People’s Republic of Bangladesh 1972. Art. 102 (1)
[xii] Mahamudul Islam, ‘Constitutional Law of Bangladesh’.Page 377 para 5-20.
