The recent controversial arrest of Meghna Alam under the draconian Special Powers Act, 1974 (‘SPA’) in Bangladesh comes at a time when the nation is aspiring toward reforming its justice system following the fall of an authoritarian regime. Though alarming, the incident presents a critical opportunity to reassess the country’s preventive detention laws through a human rights lens.

Meghna Alam was arrested under the SPA on 9 April 2025 for allegedly posing a “threat to public safety, law, and order”. This has been criticised for its evident lack of due process and fair trial guarantees. Preventive detention is defined as the pre-trial incarceration of individuals on the assumption that their release may harm societal interests, and is widely criticized for its potential abuse by authoritarian regimes. In Bangladesh, while its most notable misuse occurred during 1974–79 and 2007–08 since its introduction in 1974, its continued existence poses a chilling effect on individual freedoms.

As a party to all nine core international human rights treaties, Bangladesh’s enforcement of a legislation as repressive as the SPA severely undermines its professed commitment to human rights. It is therefore not surprising that the Constitutional Reform Commission of Bangladesh has recently recommended abolishing preventive detention laws.

Bangladesh introduced preventive detention in its Constitution through the Second Amendment in 1973. Paragraphs 4, 5, and 6 of Article 33 of the Bangladesh Constitution provide constitutional legality for preventive detention. Paragraph 4 empowers the government to detain individuals for up to six months without the approval of a three-member Advisory Board, and for an indefinite period with its approval. Paragraph 5 grants detainees the right to be informed of the grounds for detention, though it exempted the Government to disclose them in public interests.

Article 33 has been widely criticized for its lack of substantive and procedural safeguards. As M. Ehteshamul Bari has identified, it has several troubling features, namely the absence of a clear definition of the circumstances justifying preventive detention, the potential for executive bias within the Advisory Board, vague rules regarding the disclosure of detention grounds, and the absence of a maximum time limit for detention.

Bangladesh enacted the SPA with its amended Constitution on 9 February 1974. It provides among other things, a list of “prejudicial acts” for detaining an individual, procedures for detaining an individual, the powers and functions of the Advisory Board, and so on. It empowers the Government to detain an individual without trial for four months, and fifteen days without informing their of the grounds of detention.

The SPA also attracts similar criticisms for violating human rights. In fact, this law would likely fail the widely accepted three-part test for reasonable restrictions on human rights – particularly Article 9 of the International Covenant on Civil and Political Rights (ICCPR) – which requires that any restriction on liberty must (1) have a clear legal basis, (2) pursue a legitimate aim, and (3) be necessary and proportionate.

First, the Act’s vague and politically malleable definition of “prejudicial acts” for detaining an individual (Section 2(f)) challenges its legality. Second, while it may arguably pursue a legitimate aim of preventing certain acts for national interest, the appropriateness of that aim against the restriction upon human rights remain questionable. Third, the necessity and proportionality of the law are difficult to justify, as its objectives could be achieved through less restrictive means (such as house arrests, limitations on freedom of association and internet and so on). The same rationale applies for limitations placed on the right of fair trial (Article 14) and protection against torture (Article 7).

While some may argue that preventive detention is a necessary evil and compatible with human rights, in a country struggling with a fragile democracy and a challenging law-and-order situation, the dangers far outweigh any supposed benefits. Thus, the Government should take this opportunity to repeal preventive detention laws in Bangladesh. Since there is no Parliament in existence in Bangladesh, it is impractical to amend Article 33 of the Constitution. However, the Bangladesh Government may take immediate action by repealing the SPA through a Presidential Ordinance. This would be a vital first step in aligning domestic law with international human rights standards.