ASSIGNMENT

CourseTitle :Penal code Part-II

CourseCode :Law 634

AssignmentName : The Special Powers Act, 1974: Problems,
Challenges and Recommendations.

SUBMITTEDTO:

Name :Dr. Md. Milan Hossain

( Associate Professor)

Departmentof: Law and Justice

Bangladesh University of Business and Technology.

SUBMITTEDBY:

Name :MD.Sabab Hosen Shamim

Intake : 46
ID :21222105038
Section:01

SUBMITTEDDATE:10 November 2024

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 TABLE OF CONTENTS

Contents

Introduction.......................................................................................................................................................3
Objective of the Study......................................................................................................................................3
Special Power Act, 1974 Problems and Challenges.........................................................................................4
Key Challenges of Special Power Act 1974.....................................................................................................6
Recommendations for improvement.................................................................................................................8
Conclusion........................................................................................................................................................9
Reference........................................................................................................................................................10

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 Introduction

The Special Powers Act was introduced in 1974, shortly after Bangladesh's liberation war. The
primary purpose of this act was to curb harmful activities and enable faster trials and more effective
punishment. At that time, Bangladesh faced a fragile socio-economic situation, and the government
encountered many challenges.This law was implemented to address these issues.

The act contains 36 sections, covering powers such as detaining or removing specific individuals,
enforcing detention orders, setting detention conditions, and ensuring that detention orders are not
voided on specific grounds. It also includes provisions regarding absconding persons, the
communication of detention grounds, the formation and procedures of an advisory board, and
revocation and temporary release of detained individuals.Other sections impose penalties for
activities like sabotage, forming certain associations or unions, hoarding or black-market trading,
counterfeiting currency and government stamps, smuggling, and selling adulterated food, drink,
drugs, and cosmetics.

Although there were numerous discussions about repealing the Special Powers Acts of 1974, the act
was never done so, hence in some ways, it is regarded as a successful measure.The special power
legislation were never repealed by any of the political parties that came into power throughout time.
Because the Special Powers Act of 1974 was exploited in numerous ways, some lawmakers
referred to it as a "black law." This statute was really repealed by every political party that took
office.

Nevertheless, the act is now often used to suppress anti-government and sometimes democratic
movements, leading most scholars to view it negatively. This Assignment paper provides a
comprehensive review of the act, identifies Problems and Challenges, and offers recommendations
for improvement.

Objective of the Study

 Identifying its problems

 Identifying its Key Challenges

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  Finding out possible recommendation for the Act

Special Powers Act, 1974 Problems and Challenges

 Detention order
Bangladesh Constitution is regarded as the country's highest law. According to Article 33 of the
Constitution, no one who has been detained may be held in jail without being advised of the reason
for their incarceration, and no one may be stopped from communicating with a lawyer 1. It is
unfortunate, therefore, that those who are the subject of preventative detention are not covered by
subsection 2. Only those who lack political literacy may legalize it. According to Section 4 of the
Special Powers Act,2 the detention order issued under Section 3 of the Act must be executed in
conformity with Section 80 of the Code of Criminal Procedure. 3 It is obvious that if Section 3 of the
Special Powers Act, 1974 and Section 80 of the Code of Criminal Procedure are read together, the
inmate must be served with a detention order obtained under Section 3 of the legislation. 4

 Infringement of the Right to Life

The right to life is the most essential of all human rights, and Bangladesh has a responsibility to
take practical steps to uphold it. Articles 31 and 32 of the Constitution affirm that the right to life
cannot be taken away except under lawful procedures 5.International human rights agreements, such
as the ICCPR, UDHR, and the Convention for the Protection of Human Rights and Fundamental
Freedoms, require the state to clearly protect the right to life without exceptions. The Special
Powers Act (SPA), a preventive detention law, is inherently arbitrary and unreasonable, as it allows
for indefinite detention of individuals who have neither committed nor been convicted of any crime,
but are suspected of possibly engaging in vaguely defined prejudicial activities. Moreover, simply
enacting such a strict law "in accordance with law" does not justify the legality or propriety of these
administrative detentions, as the grounds for detention are presumed rather than proven.6

1
The Constitution of Bangladesh, Article 33
2
The Special Power Act 1974, Section-4
3
The Code of Criminal Procedure 1898,Section- 80
4
The Special Powers Act 1974, Section-3
5
The Constitution of Bangladesh, Article 31, 32
6
Siam Labib,Md : Special Powers Act, 1974: A Critical Review (2023), academia.edu.

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  Violation of Freedom of Thought, Speech and Conscience

The Special Powers Act threatens freedom of thought, expression, and conscience and targets
political activists, the opposition, and other government opponents in an effort to silence dissenting
voices, even though sections 16, 17, and 18 of the Act were eliminated in 1991 by the Special
Powers (Amendment) Act7. According to the UDHR and ICCPR, which declare that everyone has
the right to freedom of thought, conscience, and expression, including the freedom to hold opinions
without fear of reprisal and the freedom to seek, receive, and disseminate information and ideas
across all media and national boundaries. it is a violation of both the people's constitutional rights
and international human rights standards. Similar to this, every citizen of Bangladesh is guaranteed
the freedom of speech, expression, and the press under the Constitution, subject to some reasonable
restrictions. Additionally, it safeguards the freedom of conscience and thought. Nonetheless, the
court pointed out that the public's voice is represented by the media. It must act as a link between
the people, who use it to express their aspirations, and the legislature, which drafts legislation.

Nonetheless, law enforcement officials frequently keep an eye on, detain, and threaten media
professionals, political rivals, and human rights advocates. The executive authority detains, tortures,
and threatens preventative jail of anyone who criticize the government in the name of the Special
Power Act (SPA). Therefore, it is unequivocally stated that the Special Power Act violates both the
spirit of the Constitution and the principles of human rights.

 Breach of the Right to Free Assembly and Association

According to the constitution of Bangladesh, everyone has the right to assemble and form
associations, subject to certain reasonable restrictions. The freedom of association includes the right
to form and join any group that promotes opinions and ideas on religious, economic, civic, political,
cultural, and other subjects. Legislative restrictions, not administrative orders, will infringe upon the
freedom of association. Without considering the impact of religious and communal harmony among
people, Article 20 of the Bangladesh Constitution has established obstacles to the establishment of
religiously orientated political parties. 8 However, the Special Power Act (SPA) and the presence of
state security restrict people's rights to peaceful assembly and association, even though the
formation of an assembly or organization must be peaceful. In addition to labor unionists being
7
Act No. 28 of 1991, https://legislativediv.portal.gov.bd
8
The Constitution of Bangladesh, Article 20

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imprisoned under the SPA, the government has formed an alliance with civil society that is in
jeopardy. Both national and international human rights standards have been broken by this.

 Legalization of cruel punishment and torture

The constitution safeguards the right to be free from torture and other cruel, inhuman, or degrading
treatment. Additionally, it is a widely recognized right that is safeguarded by international human
rights laws as well as the “jus cogens” concept of international customary law 9. Torture and other
cruel or degrading treatment are prohibited by Article 35(5) of the Constitution. 10
Therefore, it is a serious violation of fundamental human rights to torture or to use unlawful
punishment that infringes upon someone's right to life and liberty, which are protected by Articles
31 and 32 of the Constitution and are not susceptible to any exceptions. TheSpecial Power Act
(SPA) remains silent on these prisoner rights, despite the fact that Bangladesh's internal laws must
guarantee them.

Key Challenges of Special Powers Act 1974

The Special Powers Act of 1974 in Bangladesh presents several challenges, primarily due to its
provisions that conflict with fundamental human rights and international legal standards. Here are
the key challenges associated with this Act:

 Violation of Due Process and Right to Fair Trial :

The Act permits preventive detention without a fair trial, allowing the government to detain
individuals based on suspicion rather than proven criminal activity. This challenges the right to a
fair trial, which is a cornerstone of due process, as enshrined in international treaties like the
Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and
Political Rights (ICCPR).

 Postponed Disclosure of Arrest Causes (Section 8):

9
The Vienna Convention 1969, Article 53
10
The Constitution of Bangladesh, Article 35(5)

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The Act permits a delay of up to 15 days (or longer if deemed necessary for public safety) before
informing a detained person of the reason for their arrest. This contradicts Article 9 of the ICCPR 11
and Article 33 of the Bangladeshi Constitution, which call for prompt information to detainees
about their detention reasons, ensuring transparency and accountability.12

 Extended and Indefinite Detention (Section 10)

Section 10 authorizes detention without trial initially for up to 120 days, extendable further to 170
days or indefinitely13. Such preventive detention without trial violates international norms and is
seen as excessive, particularly when applied to peaceful or political dissenters, leading to potential
human rights abuses.

 Denial of Legal Representation (Section 11):

The Act denies detainees the right to be represented by a lawyer, violating the principle of “Audi
AlterumPartem” (right to be heard).14 This provision also conflicts with UDHR Article 11(1),
which ensures the presumption of innocence until proven guilty, as well as the right to a defense in
public trial.15

 Restrictions on Freedom of Expression (Section 16):

Section 16 allows the government to ban publications and other media deemed a threat, limiting
freedom of expression and press rights 16. Such censorship infringes on UDHR Articles 18 and
19,17which protect freedom of thought and expression, as well as Article 39 of the Bangladeshi
Constitution.18

11
The ICCPR 1966, Article 9
12
The Constitution of Bangladesh, Article 33
13
The Special Powers Act 1974, Section-10
14
Universal Declaration of Human Rights (UDHR), Article 11(1)
15
The Special Powers Act 1974, Section-11
16
The Special Powers Act 1974, Section-16
17
Universal Declaration of Human Rights (UDHR), Article 18,19
18
The Constitution of Bangladesh, Article 39

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  Restrictions on Political Association (Section 20):

The Act restricts the formation of political parties based on religious or other specific ideological
grounds, which can be seen as a violation of freedom of association. Article 20 of the UDHR
protects the right to peaceful assembly and association, while the Act’s restrictions can stifle
political diversity and peaceful activism.19

Recommendations for improvement

 Review and assessment: The Special Powers Act, 1974, can be used effectively if a
comprehensive review and assessment are carried out, taking into account the Act's effects,
efficacy, and consistency with both international human rights norms and constitutional
rights. Civil society organizations, human rights organizations, legal experts, and impacted
communities should all contribute to the review.

 Checks and Balance: To stop the arbitrary use of authority, establish strong checks and
balances. This can involve creating an independent oversight body to keep an eye on how
the Act is being implemented, requiring prior judicial authorization before using exceptional
powers, and giving people a way to contest and seek restitution for any rights violations.

 Limiting the Scope: Take into account limiting the Act's reach by precisely outlining the
situations in which it may be used. This can assist guard against abuse and guarantee that it
is only used when there is an actual risk to security and public order.

 Accountability and Transparency: To improve accountability and transparency

procedures, an impartial body should be established to look into claims of human rights
abuses under the Act. It should be within this body's authority to bring charges, guarantee
fair trials, and offer victims compensation.

19
Universal Declaration of Human Rights (UDHR), Article 20

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  Local Involvement: Make sure that local communities are actively involved in decisions
pertaining to the Act's implementation. This may entail holding public hearings and
consultations as well as including local representatives in oversight and monitoring
organizations.

 Humanitarian Assistance and Development: To address the underlying socioeconomic

problems and advance long-term peace and stability, fund humanitarian assistance and
development initiatives in areas impacted by the Act.

Conclusion

Many other Acts, including the Special Powers Act, either directly or indirectly conflict with the
legal frameworks' fundamental rights. This is one of democracy's main adversaries. Innovation and
general progress will be impeded if the government imposes restrictions on people's ability to use
their freedom in relation to political, economic, and social issues. In the end, this may lead to an
autocratic regime that is completely detrimental to the people. Therefore, the Special Powers Act
and other Acts that conflict with the fundamental rights guaranteed by the constitution must be
repealed by amendment as soon as possible.

Reference

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Statutes:
1. The Constitution of Bangladesh
2. The Special Power Act, 1974
3. The Code of Criminal Procedure, 1898
4. The Vienna Convention ,1969
5. Universal Declaration of Human Rights (UDHR),1948

Books:

1. HabiburRahman, Dr, ‘Nari O ShisuNirjaton Daman Ain,2000 with Special Laws’ (7th
Edition, University Publication-7) Babupara Market-Dhaka 1205

Journal Article:

1. Siam Labib,Md : Special Power Act, 1974: A Critical Review (2023)

<https://www.academia.edu/120482330/Special_Power_Act_1974_A_Critical_Review>
Last accessed on 7 November 2024 .
2. Sarkar, Pinak: Why The Special Powers Act,1974 Should be Repealed (2020)
<https://www.researchgate.net/publication/
348010145_Why_The_Special_Powers_Act1974_Should_be_Repealed/citation/
download>Last accessed on 7November 2024
3. Md. ShahjahanMondol, Dr:“All Citizens are Equal before Law and are Entitled to Equal
Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh
(2007) <https://archive.thedailystar.net/law/2007/03/05/index.htm> Last accessed on 7
November 2024 .

WEBSITES:

1. Laws of Bangladesh

< http://bdlaws.minlaw.gov.bd/act-details-98.html>Last accessed on 7 November 2024.

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