How tyrannical laws in tyrannical manners bring an end to everything 

"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner."

The above warning made by the French Philosopher Baron de Montesquieu around 300 years ago in his book "The Spirit of Laws", unfolded as a classic example of corrupt power during the ousted despotic regime of Sheikh Hasina. 

Successive governments, exercising executive powers, blatantly abused the legislative powers by enacting tyrannical laws such as the Special Powers Act in 1974 to the latest Cyber Security Act in 2023, curbing the people's fundamental rights, gagging freedom of the press, dissenting voices and crushing political opponents on the streets.

Making tyrannical laws in combination with executive or legislative powers exercised by the same person came true for the first time in independent Bangladesh within two years after the adoption of the constitution

The subsequent history of this country shows a repetition of the same pattern —after the beginning of Bangladesh as an independent country and the restoration of parliamentary democracy after the ouster of the autocratic Ershad regime in December 1990.

First tyrannical law

The first tyrannical law in independent Bangladesh was made in 1974 when the then Bangabandhu government enacted the repressive Special Powers Act empowering the law enforcement agencies to make preventive detention for months and shutting down newspapers deemed "unfit" to continue publication. The seed for the law was sowed in the 1973 constitutional amendment.

Enactment of such a tyrannical law was not allowed by the original Constitution of Bangladesh which was adopted on November 4, 1972, by the Constituent Assembly and took effect on 16 December, the first anniversary of an independent Bangladesh.

However, a constitutional amendment made in September 1973 empowered the government to enforce measures and make laws curtailing people's fundamental rights. That amendment introduced a provision in the constitution for declaring a state of emergency.

In a state of emergency, the government can either suspend or curtail many of the citizens' fundamental rights such as the right to assembly, freedom of movement and right to freedom of speech and press. 

The amendment also introduced a provision for preventive detention, which was a breach of the original constitution – and in the following year, the then-government would enact the controversial Special Powers Act.

Under complete control of one

All the measures were possible as the then parliament formed through the 1973 parliamentary election was under the complete control of the then government led by Prime Minister Sheikh Mujibur Rahman.

Montesquieu's apprehension of making tyrannical laws in combination with executive or legislative powers exercised by the same person—to be precise, Sheikh Mujibur Rahman was that person then—came true for the first time in independent Bangladesh within two years after the adoption of the new constitution.

SPA serving all well

Before the 1991 parliamentary election held within three months after the ouster of Ershad, BNP, Awami League and other political parties promised to scrap the controversial law. BNP came to power twice and AL did so five times since 1991. But the tyrannical Special Powers Act still remains in force as none of the governments formed in the last three decades did deliver on their electoral promises.

BNP hones its blade

In 1992, within two years of the fall of the autocratic Ershad regime, the then BNP government made the controversial Suppression of Terrorist Offences Act for two years amid a deteriorating law and order situation. The bill was passed by the Parliament on 1 November while all opposition parties protested the proposed law and were absent in the parliament. Even they announced to boycott of the rest of the parliament session. Different political and cultural organisations also denounced the law.   

But the law was allegedly used as a tool to repress opposition party leaders and activists at that time.

Before its life expired, the then government issued an ordinance titled "The Suppression of Terrorist Offences (Special Provisions) Ordinance, 1994 which actually reintroduced the provisions of the law enacted by the parliament in 1992.

Then the government passed a bill in 1994 incorporating the provisions made by the ordinance. The Suppression of Terrorist Offences (Special Provisions) Act, 1994 was born again at a time when the opposition parties were intensifying street agitations forcing then-prime minister Khaleda Zia to introduce a non-partisan election-time government in the constitution—a demand rejected outright by the then prime minister. However, the opposition had the last laugh and the political crisis ended with the 13^th amendment to the Constitution in March 1996 introducing the election-time interim government.  

And AL tries its hand too

Coming to power in 1996, AL formulated a new version of the law in January of 2000, named the Public Safety Act which also aimed at suppressing street protests of the opposition parties. Offences like obstruction or diversion of traffic and damage to public properties, which had become a common phenomenon in any protests by either a political party or any other professional bodies, were made non-bailable. Then President Shahabuddin Ahmed refrained from signing the bill into law that made those offences non-bailable. Then PM Hasina rushed to Bangabhaban and pledged to bring an amendment to the bill. On assurance, the president signed the bill. Hasina fulfilled her promise. But abuse of the law against then-opposition parties drew huge outcry and criticism. The legality of the law was challenged at the High Court which came up with a split judgement on 12 July 2001, three days before Hasina handed over power to a non-party election commission.

The BNP that returned to power in October 2001 did not wait much for disposal of the case pending with the High Court on the Public Safety [Special Provision] Act 2000. In less than four months, in January 2002, the cabinet approved a draft bill to scrap the Public Safety Act which was denounced by the BNP when it was made. Later it would be scrapped.

It came up with two laws in 2002. The Speedy Trials Act declared most activities which were made an offence under the Public Safety Act as a punishable offence under the new law.

Another law was made to set up special tribunals for holding trials of cases filed under the speedy trial law for offences like extortion, creating obstacles during the movement of vehicles, damaging vehicles, and destroying movable and immovable property. Both laws were to have a life for two years. But their tenures were extended later.

The AL and other opposition parties had denounced the speedy trial act saying it was an oppressive black law. This law can be used to harass citizens for political reasons or for any reason if the government wants, them apprehended. Their allegations came true as it was used as a tool to suppress protest on the streets be it by opposition political parties or any professional organisations.

Oppression gets life after life

When Hasina returned to power in January 2009, her government did not need to make new laws to suppress street protests. It fell in love with the law enacted by the past government. What her government did was simple. It kept extending the lifespan of the two laws for two years.

After several extensions, the Hasina government wanted to do away with the annoying job of life extension. Her government used the parliament to pass a bill in March this year to make it a permanent legislation.

Every time while extending the lifespan of the speedy trial act, the Hasina government came up with the same excuse, the one used first by the BNP government to introduce the law in 2002.

Hasina's government shifted focus to another legal provision that was made in the Information Technology Act 2006 enacted by the parliament at the fag end of the BNP government. The provision created discontent quickly. That was section 57 of the ICT law which has been denounced as blatant and rampant abuse triggering widespread outcry and criticism by rights bodies, and journalists at home and abroad as it appeared as a tyrannical tool to suppress the freedom of the press and free speech.

Before its enforcement, Hasina made the weapon sharper by empowering the police to make arrests without a court warrant in an amendment to the provision in 2011. This has become a perfect weapon to control the dissenting voices in the cyber world as offences under this law were punishable with up to 14 years of imprisonment and a monetary penalty.

Hasina's draconian dance

Amid a growing outcry, her government promised to get rid of section 57 of the ICT Act and came up with a new law named the Digital Security Act in 2018. But it was nothing but old wine in a new bottle as the DSA split the infamous section 57 into several sections of the new law. Tyrannical abuse of the DSA against journalists, cartoonists, opposition leaders and dissenting voices forced the government to make promises again to get rid of it.

In 2023, it came up with the new law titled Cybersecurity Act which is also nothing but again the old wine in a new bottle just lessening the punishment for the offences. This remains a major threat to free speech and freedom of the press—a vital necessity for democracy.

When the governments of the day were coming up with proposals for making tyrannical laws over the years, the parliament never took the time to scrutinise the proposed laws to verify if the laws harmed the people's fundamental rights guaranteed by the constitution. The Constitution has limited the parliament's power to make any law contradictory to the fundamental rights granted by the Constitution.

The Constitution, under article 76 (2) (a) (b), empowers the parliamentary standing committees to "examine draft Bills and other legislative proposals" and "review the enforcement of laws and propose measures for such enforcement."

But members of the committees while scrutinising the bills sent to them after being placed in parliament by the government have not delivered on their jurisdiction. None of the bills for making the tyrannical laws which were discussed above, faced any hurdles to get endorsements by the committees regardless of their legality. And in the House MPs, those who belonged to the ruling party had nothing to say but "yes" to all the bills. Article 70 of the Constitution has largely been blamed for this travesty as it has made MPs prisoners of the parties that nominated them in the elections.

The other responsibility, that of reviewing the enforcement of laws and proposing measures for such enforcement, only remains on the page of the Constitution. Instances of exercising this power by a committee have never been reported.

The parliament's special power to amend the constitution was also blatantly abused by successive governments through passing several constitutional amendments such as the 3rd, 4th, 5th, 7th and lastly the 15th and the 16th.

The 15th amendment brought by the Hasina regime abolished the election-time caretaker government in 2011 unsettling the settled issue. But the changes allowed her to stay in power and hold three stage-managed elections in 2014, 2018 and 2024.  

Tyrannical laws help crush dissent

The tyrannical laws including the Special Powers Act, Speedy Trial Act and cyber laws helped her to crush the opposition protests, gag the free media and dissenting voices by deeply politicised law enforcement agencies and the judiciary that was polluted to a large extent by controlling the appointments, promotions and postings of judges.

All are not equals, some are more than equals 

Hasina not only built and nurtured a deeply politicised civil administration that would serve her to cling to power, but her government also made laws to shield them if they faced any allegation of corruption.

Ignoring all criticisms, her government used the parliament to pass a bill in November 2013 introducing a controversial provision making it mandatory for the Anti-Corruption Commission to seek government permission before filing graft cases against government officials.

Her government placed the bill in February 2011 but transformed it into law in only less than two months before the January 2014 controversial election.

The legality of the controversial provision was challenged by the High Court in April 2015 which scrapped it with an observation that the provision was discriminatory and an obstruction to identifying the corrupt.

In 2018, the year of another parliamentary election, the Hasina government made another law to shield her officials. Now the Public Service Act 2018 introduced a provision that law enforcers would have to get approval from the authorities concerned of the government for arresting public service holders in connection with criminal cases before submitting the charge sheet.

The legal provision was short-lived as in August of the same year, the High Court declared the controversial provision unconstitutional and scrapped the provision for prior permission to arrest government officials in any criminal case against them.

A carte blanche

Enactment of the controversial Quick Enhancement of Electricity and Energy Supply (Special Provisions) Act in 2010 empowered the Hasina government to award power projects to anybody through unsolicited deals by blocking the court's jurisdiction to question any decision taken under the law.

Initially, the Hasina government defended the provisions by saying the provision was for five years to ensure uninterrupted power supply at any cost. Energy and legal experts then said this law was enacted to give special benefits to some people.

The tenure of the special provisions of the law, enacted in 2010, was extended several times. In the last instance, in September 2011, the parliament passed a bill extending the term of the special law for another five years until 2026.

Thanks to the indemnity, the power sector was marked by allegations of grand-scale corruption.

Earlier, another indemnity bill was passed by the Parliament in 2003 indemnifying members of the joint forces who took part in the "Operation Clean Heart" run from October 2002 to January 2003.

As many as 44 people died in custody and hundreds sustained injuries in tortures during the operation, triggering criticism for human rights violations. But the law blocked the avenue for justice. The High Court in September 2015 declared the Joint Drive Indemnity Act 2003 illegal and unconstitutional.

But the Hasina government, five years before the HC scrapped the Joint Drive Indemnity Act, made another indemnity law for the power sector.  

Enactment of such laws says all are not equal in Bangladesh. some are more than equals and get undue legal protections.

End to everything

Coming back to French Philosopher Baron de Montesquieu.

What would happen if three powers— the executive, the legislative and the judiciary—were exercised by one person or a certain group? 

"There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals." Montesquieu wrote around 300 years ago in his book "The Spirit of Law," which is considered one of the most influential books of all time.

Hasina, who was ousted on 5 August in an extraordinary uprising, exercised and blatantly abused all three powers--executive, legislative and judicial- soaring above accountability. Resultantly, Bangladesh has been transformed into a grand Kleptocracy: A system of government of the thieves, by the thieves and for the thieves.

Shakhawat Liton, Deputy Executive Editor, The Business Standard. Sketch: TBS