Restoring due process of law

The astounding scale of enforced disappearances, torture, and extrajudicial killings under Sheikh Hasina's 16-year despotic rule stands as incontestable evidence that without due process of law, justice becomes arbitrary, the rule of law collapses, and authoritarianism thrives.

Had there been even a shred of respect for the constitutional guarantees of due process-that no individual can be deprived of life, liberty, or property without fair and transparent legal procedures-none of these atrocities could have been committed by law enforcement agencies and their political overlords.

Yet, such horrors occurred relentlessly -- day after day, month after month, year after year. Thousands of people disappeared without a trace, countless others were brutally tortured in clandestine detention centers known as Ayanagars, and many were mercilessly killed --dismembered, drowned in rivers, or crushed under railway tracks.

These monstruous crimes -- orchestrated in a manner akin to criminal syndicates-not only inflicted unspeakable suffering on the victims and their families but also devastated the legal and constitutional foundations of Bangladesh's fragile democracy. To prevent the country from descending further into lawlessness in the future, it is imperative for the interim government to first restore due process of law before undertaking any other reforms.

Due process of law is a fundamental principle in Anglo-American legal traditions, ensuring that legal proceedings are conducted fairly, transparently, and without arbitrary state action. First enshrined in the Magna Carta (1215), it was codified in English law in 1354 and later incorporated into the United States Constitution through the Fifth (1791) and Fourteenth (1868) Amendments.

Many other nations over centuries have long recognized that without due process, legal systems become instruments of oppression rather than safeguards of justice. France integrates due process (procédure légale) within its constitutional and European legal framework, while Germany's Basic Law (Grundgesetz), under Article 103, guarantees the right to be heard and protection against retroactive criminal laws.

The Bangladesh Constitution does not explicitly mention "due process of law," but its core principles are embedded in several provisions: Article 27 guarantees equality before the law, Article 31 mandates that no action affecting life, liberty, body, or property can be taken except in accordance with the law, Article 32 prohibits the deprivation of life or personal liberty without legal justification, Article 33 protects against arbitrary detention and guarantees legal representation, and Article 35 prohibits double jeopardy and self-incrimination.

Together, these provisions theoretically establish procedural and substantive due process. In practice, however, these constitutional guarantees are undermined by executive overreach, judicial inefficiencies, political interference, and blatant disregard for law and order by law enforcement agencies and their political patrons.

Several laws also empower state actors to violate due process with impunity in Bangladesh. For example, the Special Powers Act of 1974 sanctions preventive detention, allowing ruling parties to imprison political opponents and dissenters without trial, and the Digital Security Act (DSA) and the Anti-Terrorism Act provide vague definitions of crimes, enabling authorities to target journalists, activists, and opposition members arbitrarily.

Moreover, the requirement of government sanction before suing public servants remains a major roadblock to holding law enforcement officials accountable. This provision effectively grants state actors immunity from prosecution for human rights violations. As a result, security forces and their political patrons operate with impunity, turning the justice system into a weapon of oppression rather than a safeguard of citizens' rights.

Worse still, judicial inaction renders many laws meaningless. For example, the Bangladesh Penal Code (1860) criminalizes abduction (Section 362) and unlawful confinement (Section 340), while the Code of Criminal Procedure (1898) and the Torture and Custodial Death (Prevention) Act (2013) explicitly prohibit torture and illegal detention. Yet, these laws have been ineffective due to judicial paralysis.

Another fundamental failure of due process in Bangladesh lies in the denial of fair and timely trials. The judiciary is crippled by severe case backlogs, often delaying trials for years -- sometimes decades. As a result, prolonged pre-trial detention leads to de facto punishment without conviction. And, politically connected individuals evade accountability, while opposition activists and marginalized groups face excessive legal persecution.

The unchecked abuse of power by law enforcement, arbitrary legal provisions, a compromised judiciary, and a failing legal system have made justice in Bangladesh a farce. Immediate, uncompromising action is required to restore due process. Here are some steps to consider.

(a) Ending law enforcement impunity: Bangladesh's police force still operates under colonial-era laws like the Police Act of 1861 and the Police Regulations of Bengal (1943). These laws are designed to subjugate, not serve, the people. These archaic statutes must be repealed and replaced with modern legislation that holds law enforcement officers accountable. An independent oversight body should be established to investigate and prosecute police abuses.

(b) Striping police of prosecutorial powers: It must be made illegal for police to arrest individuals from their homes, workplaces, or businesses without a court-issued warrant. Additionally, the power to file criminal cases should be transferred from the police to state-appointed attorneys under the Attorney General's office. Police corruption, extortion, and fabricated charges must be eradicated through strict legal measures.

© Bringing end to draconian laws: The Special Powers Act (1974), Digital Security Act, and other repressive laws must be repealed. Strengthening habeas corpus provisions is essential to prevent arbitrary arrests and detentions. Without these measures, Bangladesh remains a police state masquerading as a democracy.

Establishing judicial independence: Despite the Masdar Hossain case (1999), the judiciary remains under executive control. To free it from political influence, amend Articles 95 and 116 of the Constitution to establish a transparent Collegium system for judicial appointments, and remove executive control over judicial administration, ensuring that courts serve justice rather than political elites.

Elimination of judicial paralysis: Case backlogs and procedural delays must be addressed through E-filing systems and digital case management to streamline proceedings, and promotion of alternative dispute resolution mechanisms to prevent courts from being overwhelmed by minor cases.

Ensuring legal representation for all: Justice cannot be a privilege of the wealthy. A nationwide, state-sponsored public defender system must be established to ensure legal representation for all citizens, particularly the poor and marginalized, who are most vulnerable to state abuse.

Conclusion: No More Empty Promises

Article 39(1) of the Bangladesh Constitution guarantees "freedom of thought and conscience." Yet, under the iron grip of Hasina's despotic rule, thousands disappeared, countless others brutally tortured, and many executed in cold blood-simply for daring to dissent. The outright contempt for constitutional due process by law enforcement agencies and their political masters has plunged the nation into a governance crisis of existential proportions.

Bangladesh's democratic survival hinges on one urgent, non-negotiable priority: restoring due process of law. Without an independent judiciary, fair legal procedures, and a law enforcement system that protects citizens rather than serving as a weapon of repression, any talk of reform is meaningless. If the interim government is to have any legitimacy, its first and foremost duty must be to revive and enforce due process of law-not as an abstract principle, but as the foundation for reestablishing the fundamental rights of every Bangladeshi.

Dr. Dowlah is a retired Professor of Economics and Law in the United States. Currently he serves as Chair

of Bangladesh Institute of Policy Studies (BIPS). He can be reached at: Chair-BIPS@bipsglobal.org