National security and law

It is at this point that we must pause and ponder. What is of value to us as a nation? We can all agree that the most valuable feature is our freedom to exist as an independent, sovereign country. It is here that national security assumes its importance.

The presence of a secure nation is the first step for creating the requisite atmosphere necessary for the well-being of her citizens. There is general consensus that security for the nation at the national level is the sine qua non for achieving public good for the citizens. In principle, we may probably differ in terms of priority, but one is more or less sure that most of the items on our list will be similar.

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It is in this regard that we need to refer to our constitution and the principles enshrined therein to highlight what is public good. I am doing this to underline that without a secure nation and the presence of national security guaranteed by law, such public good might not be assured.

Our high ideals have been identified in the preamble as nationalism, democracy, economic and social justice. It is also pointed out that these inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence. In addition, the Preamble mentions that the fundamental aims of the state should be to realise through the democratic process a society free from exploitation -- a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, well be secured for all citizens. It is then added that it is our sacred duty to safeguard, protect and defend our constitution, which is the embodiment of the will of our people.

Part II of the constitution enumerates the fundamental principles of state policy which include directions regarding participation of women in national life, the guaranteeing of fundamental rights and freedoms and the state's fundamental responsibility to attain planned economic growth. Article 25 particularly sets forth the elements which will guide the conduct of international relations.

Part III of our constitution deals principally with our fundamental rights. I believe that these rights are essential components if we are to ensure our commitment towards national security. They are inter-related and have a mutual linkage. To a great extent, it is this crucial area that determines if national security can be ensured without problems. Repression and absence of fundamental rights coerce various freedoms, lead to extremism and sometimes lead political groups to give up the overt political process and seek clandestine methods in the underground.

Equality before law in terms of protection is a vital element. It is as important as non-discrimination against any citizen on grounds of religion, race, caste, sex or place of birth. It is equally appropriate that I refer to Article 32 which states that no person shall be deprived of life or personal liberty save in accordance with law.

Article 33 refers safeguards as to arrest and detention. Similarly, Article 35 clarifies with regard to protection in respect of trial and punishment.

Fundamental rights is the corner-stone on which one can build the edifice of national security and the interests of the state. It is as such vital that we retain the ability to enforce fundamental rights through access to the High Court.

We can now try to ascertain as to what constitutes national security. As explained earlier, in the restricted sense, security is related to one's nearest relationships. When we enlarge the concept to cover the entire nation then it becomes national security. Consequently, those elements become important which enable a citizen to fulfil his aspirations as outlined in the constitution. It then becomes incumbent on the state and its agencies, including the law and order forces and the judiciary, to ensure that no act takes place or situation arises which can lead to the violation of our national security. It is their duty to take all practical measures to make available for the citizens the full potential whereby they can gain a better life without unnecessary danger. It is their obligation to arrange the encouragement of trade, investment, commercial and economic activity, a drug-free environment, education opportunities, clean water, healthcare and access to energy. These are vital interests that coalesce together to constitute the elements of our national security.

However some factors can create serious problems for the national security of Bangladesh. The consequences can be disastrous both in the short term as well as in the long term. Such a situation would arise if

-there was a sudden natural catastrophe, for example a cyclone or a flood. In such a situation millions of people would be affected, displaced and local administration completely thrown out of gear. Over stretching of limited resources would mean that the country would remain vulnerable to external threats during this period;

there was a sudden influx of refugees seeking shelter and temporary asylum in Bangladesh. We have already seen how such refugee movement from Myanmar in 1978 and more recently in the last decade has affected the security of life of the local Bangladeshi population in the south-east;

there was a breakdown of dialogue between India and Bangladesh, and thousands of Bangla speaking people were pushed into Bangladesh from India on the alleged ground that they were illegal immigrants in India; or, if,

for any reason we lost access to sufficient inflow of water into Bangladesh because of upper riparian changes.

In addition to the above, national security can be threatened through the harmful consequences of informal trading, also known as smuggling. This activity is bad because it exists on corruption and flouting of established rules. Similarly, one should take cognisance of the detrimental effects of money laundering and hundi which harms the inflow of foreign exchange through regular channels and consequent economic development. Ineffectual control of criminal activity, poor policing, politicisation of the administrative machinery, lack of impartiality in maintenance of law and order, use of mastan culture to strengthen political parties, corruption, lack of accountability and transparency -- all of them, individually and collectively contribute to the creation of a scenario which makes national security that much more vulnerable and exposed.

We have also witnessed in the recent past the proliferation of bombings, kidnappings and murder associated with outlawed movements either political or insurgent in nature. Juxtaposed with these elements are the terrorist prone fundamentalist extremist groups who believe in achieving their objectives through terror and civil commotion.

We can agree that such conditions that can lead to collapse of national security have to be tackled firmly. It is important that the aims and objectives of public welfare that have been set out in our constitution should be available for our citizens at all time. One presumes that Article 141A of our constitution under which a state of emergency can be proclaimed is the answer to such critical situations. Article 141 B and 141 C also stipulate the possibility of suspension of provisions of certain articles of the constitution including some fundamental rights.

It is at this point that I need to refer to the recent decision of our administration to seek the assistance of the army in restoring law and order during 87 days (from October 16, 2002 to January 9, 2003). A large number of arrests of alleged criminals and extortionists were made and considerable amounts of illegal firearms and ammunitions recovered. It was an important step. Regrettably however, during this period, there were deaths in custody. A furore arose as to whether human rights had been observed during detention and subsequent interrogation. This led to widespread criticism both in the local as well as the international media. Various human rights organisations also pointed out the need to conform to international standards of behaviour. Subsequently, as we all know, an Indemnity Ordinance was approved in the Bangladesh Jatiyo Sangshad. Controversial in nature, this move has not been accepted by many in spirit and scope.

The question then arises as to how important is security of life and property and whether the judicial process should remain unimpaired. The pertinent point is the potential of legal redress as opposed to the paramount nature of maintaining national security. This is important because if we curb the legal process, there is great possibility of affecting the quality and efficiency of the judiciary. We must not forget that even today, the higher judiciary in this country enjoys a good reputation and our efforts should not do away with this but should instead try to consolidate it.

The principle of maintaining national security, I believe, needs to be tempered with caution and should be consistent with available legal provisions. At times it might be necessary to detain a suspect presumed guilty of harming our national security needs. However, in the best interest of the state and her citizens, efforts should also be made to follow the specific procedural safeguards provided for in Article 33 of the constitution. Considered together with Articles 32 and 35, they make a total code in respect of arrest, detention and trial. This will avoid the possibility of arbitrary detention and willful misuse of political power.

I believe that the following steps need to be taken to bolster supervision of our national security and also the upholding of the legal and constitutional process:

We should tighten border security; we should immediately undertake a review of the resources available within our intelligence agencies and ascertain whether they are functionally in an optimum state; we should reorganise the magistracy to cure inattention of the past; we should arrange the providing of logistics and suitable training to our police force and also equip them with necessary modern firearms that can match those used by the criminals who are a threat to our public and national security and we should provide our law enforcement forces with a proper, real living wage consistent with market conditions. This will then encourage honest people to join as crime investigators and prosecutors.

Last, but not the least, we should take up and foster computer technology as a part of our life-style. Just importing components of a computer and putting them together is not enough. Buying a few planes or a frigate or two will also not solve the problem. We must also remember that national security cannot always be assured through censorship of newspapers. Information technology has its own dynamics. Taking people on remand and setting up judicial enquiries are but one side of the coin. The principal deterrent to compromise of national security should rest on law being the only mechanism of social control. This alone can ensure public security.

Muhammad Zamir is a former Secretary and Ambassador.