Constitutionalizing Preventive Detention in Bangladesh: An Unconstitutional but Effective Means to Curtail Individual Liberty

Abstract

he civilization’s old right to individual liberty fell apart when the rulers idealized the concept of preventive detention to keep their power untroubled. Where the preventive detention starts to take place, the right to individual liberty begins to violate. Bangladesh was born as a secular state with a full guarantee of the right to individual liberty as well as safeguards against arbitrary arrest. But some monstrous events and dangerous turns in history forced it to rewrite its destiny afresh. This paper attempts to figure out what propelled our parliamentarians to introduce the draconian laws constitutionalizing and legalizing the preventive detention by illustrating the chaos arose from the constitutional amendments in question. It also argues that the basic structure doctrine and the principles of ‘Legislative Purpose Test’ turn the laws in Bangladesh legalizing the preventive detention unconstitutional. It further finds the Constitutional Court of Bangladesh as the last resort to have those black laws declared unconstitutional applying its supreme judicial review power within the current frameworks and limits of the constitution in reference to the landmark decisions of the American and Indian Constitutional Courts.