Section 16(2) Of Special Powers Act: Scrapped yet used for arrest

Nearly three decades ago, section 16(2) was dropped from the Special Powers Act, 1974. But strangely, police filed a case under the section and even arrested two accused in Manikganj's Singair this May.

They are still in jail.

The High Court yesterday expressed dissatisfaction over filing of the case under the non-existent section.

The bench of Justice M Enayetur Rahim and Justice Md Mostafizur Rahman also directed police not to make any arrest or file any case under the section. Besides, it ordered the inspector general of police to take necessary steps in this regard.

The court came up with the order while granting six weeks' anticipatory bail to two other accused in the case -- Sajedul Alam Shadin and Habibur Rahman Lalu. They had filed a bail petition recently.

On May 23, two accused -- Salauddin and Bashir alias Bashir Member -- were arrested in Singair on charges of holding a “secret meeting” at Salauddin's home at Charuigram village and planning “subversive activities for the release of arrested BNP chief Khaleda Zia”.

The case was filed the next day against 21 people, including the four, with Singair Police Station under section 16(2) of the special powers act, said Khandker Imam Hossain, officer-in-charge of the police station.

Asked, he said he was not aware whether the section still existed or not. “As far as my knowledge goes, cases are filed with other police stations under the section,” he said.

Contacted, Assistant Attorney General Md Yusuf Mahmud Morshed said the section had been incorporated in the act with a provision for five years' imprisonment and fines for committing “prejudicial acts”.

In 1991, the then government scrapped the section while bringing amendment to the law. However, cases were still being filed and suspects arrested under the section, he said. 

He said attempts were made in 2007 to revive the section but parliament did not approve it.

Supreme Court lawyers said the section was dropped from the act as other laws already had provisions to deal with the relevant offences.

Talking to The Daily Star about the issue yesterday, Prof Mizanur Rahman, a former chairman of the National Human Rights Commission, said if any law or part of the law was declared null and void, it could not be enforced.

“If a citizen is arrested or harassed under the scrapped law that very action becomes an offence. Whoever has resorted to it must be prosecuted,” he said.

“Section 16 (2) of the Special Powers Act, 1974 is no longer a part of the act and cannot be enforced by any authorities, be it the executive or the judiciary … ignorance of law is not an excuse for anyone. This is a minimum requirement for rule of law and democratic governance.” 

Khurshid Alam Khan, a Supreme Court lawyer and also the editor of Dhaka Law Reports that compiles and publishes SC verdicts, said it was very unfortunate that law enforcement agencies did not even know that the section has been dropped.

It casts a serious doubt about the competence of the law enforcers, he said adding that many innocent could have been harassed and arrested under the section.

He also said police should be provided with proper academic training on the laws they follow.

Contacted, Attorney General Mahbubey Alam declined to make any comment on the issue. He said he could not say anything without reading the HC order that granted bail to two of the accused in connection with the case filed in Singair.

Meanwhile, Mantu Ghosh, lawyer for Sajedul and Habibur, alleged that six other suspects in the case had sought bail from a court in Manikganj but the pleas were rejected.

The Daily Star, however, could not verify this claim.