Arrest, detention and the constitution

Universal Declaration on Human Rights under Article 9 states that no one shall be subjected to arbitrary arrest, detention or exile

The Constitution of Bangladesh is firm on the protection and respect for fundamental human rights, equality for the citizen. With regards to arrest and detention, the most important constitutional safeguards are incorporated under Articles 27, 31, 33 and 35 of the Constitution of Bangladesh. While Article 27 guarantees the right to equality and equal protection of law, Article 31 provides that all citizens have the inalienable right to be treated only ‘in accordance with law’. Article 32 provides that no person shall be deprived of life or personal liberty save in accordance with law. Article 33 provides provision on safeguards as to arrest and detention. Article 35(3) ensures a speedy and fair trial.
Police is granted broad powers to arrest a person without warrant on reasonable suspicion under section 54 and 167 of the Code of Criminal Procedure, 1898 (CrPC 1898). Section 54 of CrPC 1898 provides the provision when police may arrest without warrant. It states, inter alia; that any police-officer may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or against whom a reasonable suspicion exists of his having been so concerned in. Section 60 of the CrPC 1898 provides that a police officer arresting a person must produce him before the magistrate having jurisdiction. Section 61 provides that a police officer must not detain an arrested person for more than twenty four hours, without the authority of a magistrate. Further, section 167 (1) of CrPC 1898 provides the provision on procedure when investigation cannot be completed in twenty-four hours. Moreover, under Special Powers Act 1974, a person can be ‘preventively detained’ by the executive, i.e., a person can be detained if the government ‘suspects’ that he is about to commit a ‘prejudicial act’, though the individual has not yet committed such an act.
The right to liberty of a citizen is a constitutional right of citizens of Bangladesh, which is not an absolute right and must have to be balanced with other public benefit. Hence Police and other forces while exercising the power to arrest and keep the arrested people in custody, more specifically; to conduct interrogation in police custody; must have to be cautious about the constitutional rights of citizen. In principle, police does not satisfactorily value rights to liberty unless they make sure that (i) they have some evidence to rationalize the arrest before it takes place, (ii) that they tell the person why they are being arrested and (iii) that they discharge the person as soon as possible if the arrest lacks in having sufficient evidence.   
Universal Declaration on Human Rights under Article 9 states that no one shall be subjected to arbitrary arrest, detention or exile. Article 5 of the European Convention on Human Rights and Fundamental Freedoms, states that everyone has the right to liberty and security of person. No one should be deprived of his liberty save in the cases of lawful arrest and detention, which is to be done in accordance with a procedure prescribed by law.
Following the death of a private university student in police custody in 1998 after he was arrested under Section 54 of CrPC 1898, a writ petition was filed before the Supreme Court of Bangladesh as the recommendations of  judicial body, formed over the death of the student; to amend section 54 and section 167 of CrPC  1898; were not implemented,
On April 7, 2003, the High Court gave 15 point directives to the government including those related to arrest and remand of persons, and asked it to implement the directives before amending the law. For safeguarding people's liberty and fundamental rights guaranteed by the Constitution, the Court outlined some recommendations for making changes to the provisions of CrPC 1898 along with proposals for bringing amendments to Penal Code 1860, Police Act 1861 and Evidence Act 1872. It was stated by the HC that  the amendments are required to limit the arbitrary use of powers by the police and magistrates in relation to arrest and remand and to take necessary steps in case of custodial death.
The High Court provided for the followings:
Law enforcers shall not arrest anyone under Section 54 of CrPC 189 to put him/her into detention; they shall show their identity cards while arresting the person; they shall inform the person of the reason behind the arrest within three hours; they must inform relatives of a person arrested anywhere outside his/her house or workplace within an hour of the arrest through telephone or a messenger; the detainee shall be allowed to meet lawyers and relatives for legal assistance; if law enforcers want to quiz the person in custody, they must take permission from a magistrate and the interrogation must take place in a glass-made room inside the prison. Relatives and lawyers of the detainee can be present outside the room; the detainee must be checked by a doctor before and after the interrogation; if the detainee alleges physical torture during interrogation, the magistrate shall form a medical board to check his/her health condition. If the allegation is found to be true, the magistrate shall take action against the law enforcers responsible under Section 330 of the CrPC 1898;
The Supreme Court on 24 May 2016 upheld the HC decision that sought for reform of provisions of arrest without warrant and interrogation on remand under Sections 54 and 167 of the CrPC 1898 with some modifications and guidelines to stop police force from making arbitrary arrests on suspicion and torturing arrestees on remand. It was stated by the Law Minister that as per the directives of the High Court, the government will amend Sections 54 and 167 of the CrPC 1898.This is a signpost judgment since it will guarantee fortification of the fundamental rights of citizens in relation to arrest, detention in custody, remand and interrogation, protection against torture and abuse of powers by those who rely on obsolete laws and practices that are no longer valid under the Constitution. However, in Bangladesh police along with Rapid Action Battalion (RAB) and Border Guard Bangladesh (BGB) have launched extensive combing operations to crack down on militants and extremists, to hound operatives of militant outfits and also deal all types of criminals with an iron fist to stop the killing spree and maintain law and order.
The judiciary where well alert about protecting the fundamental rights guaranteed under the Constitution with regards to arrest and detention, on the other hand, people are being arrested under anti- militant operation just to ensure law and order of the Country. Justifications lie for both. Hence it is the duty of our security forces to balance their act in a manner that is required for upholding the rights under the constitution and other International instruments to which Bangladesh is a party.

The writer is Research Assistant (Law) Bangladesh Institute of Law and International Affairs (BILIA)

Arrest, detention and the constitution

Universal Declaration on Human Rights under Article 9 states that no one shall be subjected to arbitrary arrest, detention or exile

The Constitution of Bangladesh is firm on the protection and respect for fundamental human rights, equality for the citizen. With regards to arrest and detention, the most important constitutional safeguards are incorporated under Articles 27, 31, 33 and 35 of the Constitution of Bangladesh. While Article 27 guarantees the right to equality and equal protection of law, Article 31 provides that all citizens have the inalienable right to be treated only in accordance with law. Article 32 provides that no person shall be deprived of life or personal liberty save in accordance with law. Article 33 provides provision on safeguards as to arrest and detention. Article 35(3) ensures a speedy and fair trial. Police is granted broad powers to arrest a person without warrant on reasonable suspicion under section 54 and 167 of the Code of Criminal Procedure, 1898 (CrPC 1898). Section 54 of CrPC 1898 provides the provision when police may arrest without warrant. It states, inter alia; that any police-officer may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or against whom a reasonable suspicion exists of his having been so concerned in. Section 60 of the CrPC 1898 provides that a police officer arresting a person must produce him before the magistrate having jurisdiction. Section 61 provides that a police officer must not detain an arrested person for more than twenty four hours, without the authority of a magistrate. Further, section 167 (1) of CrPC 1898 provides the provision on procedure when investigation cannot be completed in twenty-four hours. Moreover, under Special Powers Act 1974, a person can be preventively detained by the executive, i.e., a person can be detained if the government suspects that he is about to commit a prejudicial act, though the individual has not yet committed such an act. The right to liberty of a citizen is a constitutional right of citizens of Bangladesh, which is not an absolute right and must have to be balanced with other public benefit. Hence Police and other forces while exercising the power to arrest and keep the arrested people in custody, more specifically; to conduct interrogation in police custody; must have to be cautious about the constitutional rights of citizen. In principle, police does not satisfactorily value rights to liberty unless they make sure that (i) they have some evidence to rationalize the arrest before it takes place, (ii) that they tell the person why they are being arrested and (iii) that they discharge the person as soon as possible if the arrest lacks in having sufficient evidence. Universal Declaration on Human Rights under Article 9 states that no one shall be subjected to arbitrary arrest, detention or exile. Article 5 of the European Convention on Human Rights and Fundamental Freedoms, states that everyone has the right to liberty and security of person. No one should be deprived of his liberty save in the cases of lawful arrest and detention, which is to be done in accordance with a procedure prescribed by law. Following the death of a private university student in police custody in 1998 after he was arrested under Section 54 of CrPC 1898, a writ petition was filed before the Supreme Court of Bangladesh as the recommendations of judicial body, formed over the death of the student; to amend section 54 and section 167 of CrPC 1898; were not implemented, On April 7, 2003, the High Court gave 15 point directives to the government including those related to arrest and remand of persons, and asked it to implement the directives before amending the law. For safeguarding peoples liberty and fundamental rights guaranteed by the Constitution, the Court outlined some recommendations for making changes to the provisions of CrPC 1898 along with proposals for bringing amendments to Penal Code 1860, Police Act 1861 and Evidence Act 1872. It was stated by the HC that the amendments are required to limit the arbitrary use of powers by the police and magistrates in relation to arrest and remand and to take necessary steps in case of custodial death. The High Court provided for the followings: Law enforcers shall not arrest anyone under Section 54 of CrPC 189 to put him/her into detention; they shall show their identity cards while arresting the person; they shall inform the person of the reason behind the arrest within three hours; they must inform relatives of a person arrested anywhere outside his/her house or workplace within an hour of the arrest through telephone or a messenger; the detainee shall be allowed to meet lawyers and relatives for legal assistance; if law enforcers want to quiz the person in custody, they must take permission from a magistrate and the interrogation must take place in a glass-made room inside the prison. Relatives and lawyers of the detainee can be present outside the room; the detainee must be checked by a doctor before and after the interrogation; if the detainee alleges physical torture during interrogation, the magistrate shall form a medical board to check his/her health condition. If the allegation is found to be true, the magistrate shall take action against the law enforcers responsible under Section 330 of the CrPC 1898; The Supreme Court on 24 May 2016 upheld the HC decision that sought for reform of provisions of arrest without warrant and interrogation on remand under Sections 54 and 167 of the CrPC 1898 with some modifications and guidelines to stop police force from making arbitrary arrests on suspicion and torturing arrestees on remand. It was stated by the Law Minister that as per the directives of the High Court, the government will amend Sections 54 and 167 of the CrPC 1898.This is a signpost judgment since it will guarantee fortification of the fundamental rights of citizens in relation to arrest, detention in custody, remand and interrogation, protection against torture and abuse of powers by those who rely on obsolete laws and practices that are no longer valid under the Constitution. However, in Bangladesh police along with Rapid Action Battalion (RAB) and Border Guard Bangladesh (BGB) have launched extensive combing operations to crack down on militants and extremists, to hound operatives of militant outfits and also deal all types of criminals with an iron fist to stop the killing spree and maintain law and order. The judiciary where well alert about protecting the fundamental rights guaranteed under the Constitution with regards to arrest and detention, on the other hand, people are being arrested under anti- militant operation just to ensure law and order of the Country. Justifications lie for both. Hence it is the duty of our security forces to balance their act in a manner that is required for upholding the rights under the constitution and other International instruments to which Bangladesh is a party. The writer is Research Assistant (Law) Bangladesh Institute of Law and International Affairs (BILIA)