Authored By: Faria Kamal Oishy
International Islamic University Chattogram
Case title and case citation
Abdul Latif Mirza v Government of Bangladesh (1979) 31 DLR (AD) 1979
Court name & Bench
Court : Supreme court of Bangladesh, Appellate division.
Bench : Appellate division Bench
Judges : Kemal Uddin Hossain CJ; Syed A B Mahmud Husain J; Dabesh Chandra Bhattacharya J; F K M Abdul Munim J
Date of the judgement
1979
Parties Involved
Appellant : Abdul Latif Mirza was a n individual who was detained by the government of Bangladesh under a preventive detention order issued to the Special Powers act , 1974 ; where he challenged the legality of his detention of the ground that his fundamental rights were violated. So he approached the supreme court of Bangladesh, seeking protection against executive abuse of detention power.
Responded: Government of the People’s Republic of Bangladesh was acting through its authorities who detained authority in this respective case. The government even claimed their detention against Abdul Latif Mirza that were prejudicial to public order and state security and justified with it’s necessary actions and arguments for maintaining peace and order.
Facts of the Case
Abdul Latif Mirza was detained by the State of Bangladesh, he was a private individual. He was the petitioner/ Appellant of this case. And the Government of Bangladesh was the respondent who was acting through its authorities. All because of a speech. Moreover he was detained under the special power act, 1974. But Abdul Latif Mirza believed that his detention was unlawful. Not only that, but also the authority failed to communicate clearly the grounds of detention to him. He believed his fundamental rights were violated under article 31,32 of the constitution of Bangladesh. So he argued that the government had abused it’s power.
- Article 31 : “Every citizen and every person in Bangladesh has the right to be treated in accordance with law and to receive equal protection of the law” .
Which emphasizes that no one can be punished, detained or treated arbitrarily. Every action taken by the state must be lawful, fair and everyone has the right to proceed with legal jurisdiction for any unlawful actions by the government.
- Article 32 : “No person shall be deprived of life or personal inliberty except in accordance with law”
That emphasizes, state can never takeaway a persons freedom or rights given to him unless it follows it’s due process of law. Every person has his freedom and rights.
Since his detention was unlawful as Abdul Latif Mirza believed, he filed a petition against the Government of Bangladesh before the supreme court of Bangladesh (appellate division) . The court declared his detention was illegal and unlawful . Hence , there was an order for his release from detention.
Issues raised
➢ Whether the preventative detention of Abdul Latif Mirza under the special powers act, 1974 was lawful.
Whether the detaining authority failed to clearly and specifically communicate the grounds of detention to the petitioner.
➢ Whether such failure deprived the petitioner of his right to make an effective representative against the detention order.
➢ Whether the detention had violated his fundamental rights that was under article 31 & 32 of the constitution of Bangladesh.
➢ Whether the principles of natural justice are applicable to cases of prevention detention.
Arguments of the parties
Petitioners argument: Abdul Latif Mirza was the petitioner who filed a lawsuit against the Government of Bangladesh under the special powers act,1974. He argued that the reason of his detention that was made unclear, vague to him by the Government. It breached the principal of natural justice and demanded clear reasons of his detention ; which government failed to comply . His constitutional rights were violated.
Respondents argument: Government of Bangladesh claimed that Abdul Latif Mirza ‘s speech goes against the constitution of Bangladesh. Authorities argued that it was necessary for them to stop this violent speech that goes against the Government public policy.
Judgement
The Supreme Court deliberately ruled that the fundamental of natural justice are universal and present in all legal system. The Court further noted that the establishment of a society in which the Rule of law, fundamental rights , human rights , freedom, equality and political, economical and social justice are fully secure for all citizen it’s the fundamental goal of the state, as stated in the third paragraph of preamble to the constitution 1. The Court stated that all law specially those that impact individual liberty must be interpreted and applied in accordance with these constitutional principles.
The Court rejected the idea that the detaining authority’s subjective “satisfaction” is enough to support custody while considering the constitutionality of preventative detention under section 3 of the Special Powers Act, 1974. Because the clause is specifically susceptible to constitutional analysis under Article 102(2)(b)(i) of the Constitution, it was decided that such satisfaction is not absolute. As a result, in the course of exercising its judicial review jurisdiction, the High Court Division must independently confirm that the detention complies with legal and constitutional requirements as well as assess the documents and circumstances that the detaining authority relied upon. The Court underlined that judicial supervision is a crucial defense against capricious administrative conduct.
The Court further determined that the reason for determine must be expressed in a clear , concise and unambiguous manner. If such grounds were ambiguous or unclear the detained individual would not have a meaningful chance to successfully contest the detention order ; a right protected by the fairness of principles of the constitution. When the reason for the detention is ambiguous or unclear the entire detention is illegal. The court further ruled that the continuation of illegal detention is unconstitutional, cannot be changed or made legal afterwards. In this context, the Court stressed the observing as follows:2
“Although the Special Powers Act, standing alone, appears to confer subjective discretion upon the detaining authority, the Constitution mandates that the High Court Division must, in its judicial capacity, independently determine whether such detention is lawful.”
Furthermore, the Court explicitly supported Justice Hamoodur Rahman’s definition of “due process.” The Court stated that both legislative and executive actions must be reasonable, non arbitrary, and consistent with fundamental fairness, drawing on the American understanding of due process. According to the doctrine, no one should face unfavorable legal repercussions without being given a sufficient chance to be heard. Article 32 of the Constitution, which states that no one shall be deprived of life or personal liberty except in accordance with law, was interpreted by the Court as imposing a requirement that any law affecting life or personal liberty must pass stringent judicial scrutiny regarding its reasonableness and fairness. Using this principle, the Court determined that evicting homeless people from slums without creating a rehabilitation or resettlement plan violates Articles 31 and 32 of the Constitution because it amounts to an arbitrary denial of their right to life and personal freedom.3
Legal reasoning
The detention was held illegal as the grounds were vague and insufficient; detention entitled to representation. Natural justice requires clear grounds; the court must scrutinize materials considered by the detaining authority; illegal detention cannot be validated by later orders.
Conclusion
Hence Abdul Latif Mirza raised his voice against the injustice, violation of his fundamental rights. He raised awareness for constitutional rights and set as an example for many more. Till date it is one of the landmark case of Bangladesh.
Reference(S):
1 Ahmed, Hafez (16 June 2012) https://today.thefinancialexpress.com.bd/public/education-youth/rethinking principles-of-natural-justice The Financial Express ; Dhaka. Retrieved 5 July 2017.
2Imtiaz Omar (24 April, 1996) https://books.google.com/books/about/Rights_Emergencies_and_Judicial_Review.html?id=v_PIX6WBZgcC#v=one page&q&f=false Martinus Nijhoff Publishers. P. 69. https://en.wikipedia.org/wiki/Special:BookSources/90-411- 0229-9
3https://bdlawdigest.org/22 June , 2015.
