Following the fall of Sheikh Hasina, one of the first “arrests” of top Awami League ministers was that of Zunaid Ahmed Palak, former state minister for Information, Communications, Technology.
In fact he was detained twice.
We first heard about him on August 6, the day after Sheikh Hasina fled Bangladesh, when he was stopped from leaving the airport. The media reported that Palak was “detained at Shahjalal International Airport during an attempted departure and that airport officials indicated he was handed over to a security force, though the details of the agency were not disclosed”.
Then there was silence.
Then a week later, on August 14, we read in press reports that he was arrested along with Shamsul Hoque Tuku, former deputy speaker of the national parliament, and was remanded the following day in connection with a murder case involving a killing during the student protests.
So where was he during that time?
Arifa Jesmin Konika, the wife of Palak, told me that during this period “he was in army custody”. Initially, this appeared to be some kind of “secret detention” – a form of human rights violation that this new government has promised to stop – but it turns out that it is not as straightforward as that. This is because Palak’s wife said that her husband might have consented to the detention, though she was not certain.
Consenting to army custody might seem strange, but after the fall of Sheikh Hasina, there was a combination of chaos, a total absence of law and order (as police, accused of the killings, scarpered) along with very heightened emotions. This combination meant that members of the Awami League government, along with those seen as closely associated with it, had a very legitimate fear for their lives.
Remember, what had just happened. Law enforcement authorities had just killed hundreds of protestors/students over the course of a two week period, and this was on top of years of Awami League authoritarian rule in which many people were subject to terrible violations of human rights. There was therefore over-brimming anger, and it was quite rational for Awami Leaguers to seek protection in the custody of the army, the only institution able to protect them from vengeful mobs.
And in recent days, the army’s Inter Services Public Relations Directorate has itself obliquely accepted that this is exactly what is happening. Though it is not known how many Awami League ministers and others are in army safe custody, it is rumoured to be quite large numbers.
However, “consent” to safe army custody does not let the government/army off the hook, because the Awami League leaders are being prevented from leaving the country. Every Bangladeshi has a right to leave the country unless there is a court order preventing them from doing so in the context of an ongoing criminal investigation or prosecution. At present, none of those people currently in army “safe custody” are subject to such an order and so preventing them from leaving the country is illegal.
At the same time, allowing these people to leave the country is not acceptable in the current political climate, where many of them are accused of complicity in killings, other serious human rights violations, or serious corruption. How, then, does one get around this conundrum – the current illegality of preventing these people from leaving the country, against the huge public interest in not allowing them to exit Bangladesh prior to determining whether they have committed serious criminal offences?
One possible way around this is to detain them under powers contained in the Special Powers Act, 1974, which allows for three months’ preventative detention, reviewable by a special committee. The Special Powers Act is a so-called “Black law” as it allows detention of someone simply on the basis that the government seeks to prevent them “from doing any prejudicial act” which is defined very widely.
It is clearly very far from ideal to use these powers, but at least it will ensure that the current detention of the Awami League politicians and others are put on a proper legal footing. It will also, importantly, allow proper substantive investigations to take place before criminal cases are filed against people.
The problem with the current situation is that, because the army is aware it cannot lawfully prevent these people from leaving the country, it wants to get the men and women into the formal criminal justice system as soon as possible. This requires them to fake a drama in which an Awami League minister is supposedly “caught” and then “arrested” when in fact what is really happening is that they are simply moved from army into police custody.
For the police to arrest them, there needs to be a criminal case which they can allege that person has committed, and because there has been no time to investigate whether these Awami League ministers have committed any offences, they are arrested on the basis of murder cases with which the detainees actually have no connection. The arrest for murder is simply a mechanism to get them out of army custody.
The advantage of using the Special Powers Act, therefore, is that it would ensure that there is no need to lodge fake criminal cases. This is because detention under the Special Powers Act would allow the authorities proper time to investigate whether there actually is substantive evidence against the detainees before filing criminal cases (that does, of course, assume that good professional investigators are assigned to investigate the cases, and not the same police officers and Anti Corruption Commission investigators who have been so willing to file fake criminal cases under the Awami League government).
It is important to note that if these people now in army custody were detained under the Special Powers Act, they would immediately have the right to access the High Court, through filing Habeas Corpus or other writs. This would provide them important legal protections that they do not have now.
To minimise the problems with preventative detention, which of course one accepts remain highly problematic, the government could commit itself to releasing those people in the event that it is found after three months of investigations there was insufficient evidence to file a substantive and legitimate criminal case against them.
Using the Special Powers Act is far from ideal – and its use should be strictly limited to those currently detained in army custody, and no one else. But at the moment, people are being illegally detained and then arrested on apparently false criminal cases, significantly denting the credibility of the current government.
The use of the Special Powers Act is at least a solution to stop both of these serious illegalities from continuing.
David Bergman is a journalist. He can be followed on Twitter @TheDavidBergman
This article first appeared in the Dhaka Tribune.
