A law against enforced disappearance cannot allow self-investigation

In Bangladesh, August 30 has become a test of whether the state has learned anything from the evidence on enforced disappearance now before it. In recent years, the country has moved from denial to documentation, from whispered allegations to a formal Final Report by the Commission of Inquiry on Enforced Disappearances. But documentation is a step towards justice, not justice itself. If the new legal framework allows the very institutions accused of enforced disappearance to control or shape investigations into such cases, it will not be building accountability but preserving an old defect in the new language.

Bangladesh’s accession to the International Convention for the Protection of All Persons from Enforced Disappearance on August 30, 2024 was historic, but not self-executing. The convention requires domestic criminalisation, prompt and impartial investigation, protection of complainants and witnesses, reparation, and guarantees of non-repetition. Article 12 is particularly important: allegations must be examined by competent authorities with the necessary powers and resources, and steps must be taken to ensure that suspected perpetrators are not able to influence the investigation. This is not a technical requirement. It is the heart of the treaty.

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The 229-page Final Report, entitled Unfolding the Truth: A Structural Diagnosis of Enforced Disappearance in Bangladesh, shows why. It does not describe a few rogue officers acting beyond orders. It describes a system—intimidation, missing records, procedural obstruction, destroyed archives, altered detention sites, concealed cells, and the destruction of torture instruments after the political transition of August 2024. It also identifies the repeated involvement of the police, Rab, Detective Branch, Counter Terrorism and Transnational Crime (CTTC), DGFI, National Security Intelligence (NSI), BGB, and other forces in different parts of the disappearance architecture. In that context, the design of the investigative mechanism is not a secondary detail. Quite simply, it determines whether the law will uncover the truth or bury it.

The current BNP government’s decision to move towards a dedicated enforced disappearance law should be acknowledged. The Prevention and Remedy of Enforced Disappearance Bill, 2026, tabled in parliament on August 27, recognises enforced disappearance as a distinct, cognisable, non-bailable, and non-compoundable offence. It contains provisions on search warrants, compensation, rehabilitation, legal aid, central records, time limits for investigation and trial, and witness protection. These features are important. But strong punishments and compensation provisions cannot cure a defective investigative design.

Its central weakness, as Transparency International Bangladesh earlier warned, is that investigation under the new law is assigned to the police rather than to an independent mechanism. This is profoundly troubling. The Commission of Inquiry’s report itself records the involvement of police units in enforced disappearance, alongside Rab, DB, CTTC, and intelligence agencies. If a family alleges that police, DB, Rab, or a joint team abducted a person, how can the default legal answer be an investigation by the police? The problem is not merely the risk of bias. It is structural dependence, institutional loyalty, control over records, access to witnesses, pressure within chains of command, and the practical ability of accused institutions to shape the narrative before independent scrutiny begins.

Bangladesh has seen this defect before. The Torture and Custodial Death (Prevention) Act, 2013 was an important law enacted to give domestic effect to Bangladesh’s obligations under the UN Convention against Torture. It criminalised custodial torture and death, provided for medical examination, and allowed complaints before a court. But its investigative structure remained problematic. Under Section 5, once the court records the complaint, the matter is sent to the Superintendent of Police or a police officer for investigation. A judicial inquiry may be ordered if the aggrieved person apprehends that a proper police investigation is not possible and if the court is satisfied. That exception is useful, but the default remains police investigation.

In custodial torture cases, the alleged perpetrator is often a member of law enforcement. In enforced disappearance cases, the problem is even more severe because the offence is built on concealment. The state first denies custody, then controls records, stages reappearance, or fabricates cases, and sometimes erases the person permanently. Evidence may include duty rosters, vehicle logs, CCTV footage, call data records, detention registers, intelligence tasking, transfer notes, medical records, and internal communications. These are not materials a frightened family can collect as they are held by the very institutions likely to be implicated.

The analogy between the 2013 act and the 2026 bill is, therefore, crucial. Both deal with crimes committed in situations where state custody or unlawful state custody are central. Both involve allegations against powerful agencies. Both depend heavily on evidence controlled by those agencies. Hence, if both laws leave investigations primarily to law enforcement agencies, they also suffer from the same default defect: asking the accused institutional culture to investigate itself.

The problem is aggravated by the proposed framework of the National Human Rights Commission. The cabinet-approved 2026 NHRC draft, later tabled along with the disappearance bill in parliament, contains some positive provisions, including a National Preventive Mechanism in line with the UN Optional Protocol to the Convention against Torture (OPCAT) as well as powers of unannounced inspection. But Section 19 requires the NHRC, in case of allegations against disciplinary forces, to first seek a report from the concerned agency or institution. After receiving that report, the NHRC may either take no further step or make recommendations to the same agency. In other words, in precisely the cases where independent scrutiny is most necessary, the bill returns the complaint to the institutional home of the accused.

This is incompatible with the findings of the Commission of Inquiry on Enforced Disappearances. The Final Report recorded that evidence was destroyed not only by those originally responsible but also by succeeding officers after the change of government. In other words, institutional self-protection did not end automatically with the political transition. If a new law assumes that the same institutional environment can impartially investigate itself, it ignores the most urgent warning in the report.

Some may argue that the International Crimes Tribunal (ICT) can address enforced disappearances. It can and, in appropriate cases, must do so, especially where enforced disappearance forms part of a widespread or systematic attack. But the tribunal is not a substitute for a standalone legal framework on enforced disappearance that meets the full requirements of the relevant convention. The ICT process addresses the gravest cases as crimes against humanity. A national enforced disappearance law must do more—prevent disappearances, trigger urgent searches, protect complainants, preserve evidence, recognise the rights of families of victims, provide reparation, correct fabricated cases, and create routine accountability for every unlawful deprivation of liberty.

So, what we need is a proper standalone enforced disappearance law with an independent investigative authority outside the chain of command of the police, Rab, armed forces, intelligence agencies, and all disciplinary forces. It must have the power to register complaints, conduct searches, seize documents, protect witnesses, preserve detention sites, obtain digital and telecommunications evidence, suspend or restrict accused officials, and refer cases for prosecution. It should work under judicial supervision with specialised prosecutors and forensic capacity.

Furthermore, the NHRC should not be reduced to a postbox for agency reports. It should have direct authority to inspect every place of deprivation of liberty, including intelligence- and military-linked detention sites where civilians may be held, and to refer obstruction for prosecution. A National Preventive Mechanism that cannot reach the most dangerous rooms will only perform oversight in the safest places.

The question to be asked on August 30, therefore, is whether Bangladesh will match remembrance of the disappeared with proper institutional design. The disappeared do not need another symbolic law. Their families do not need another institution that sends their complaints back to those they fear. A law against enforced disappearance must begin with a simple principle: no accused force should control the investigation of its own alleged crime. Without that, the truth will remain vulnerable, witnesses will remain exposed, and accountability itself may disappear.

Moyeenul Islam Chowdhury is a former judge of the High Court Division of the Supreme Court of Bangladesh, who authored the landmark 16th Amendment judgment. He also served as chairman of the National Human Rights Commission and the Commission of Inquiry on Enforced Disappearances.

Views expressed in this article are the author's own. 

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