WITHOUT due process of law, justice becomes arbitrary, the rule of law collapses, and authoritarianism takes hold. The staggering scale of enforced disappearances and extrajudicial killings under Sheikh Hasina’s 16-year despotic rule stands as undeniable proof.
During the Hasina regime, thousands of opposition activists, dissenters, and critics vanished — leaving their families in perpetual agony, their fates unknown. These brutal crimes not only inflicted immeasurable suffering on the victims but also shattered the legal and constitutional foundations of Bangladesh’s fragile democracy.
To prevent the country’s further descent into lawlessness, Bangladesh must urgently establish a robust legal framework that upholds due process of law — the cornerstone of constitutional democracy that ensures no individual is deprived of life, liberty, or property without fair and transparent legal procedures.
In Anglo-American legal traditions, the principle of due process stands as a cornerstone of justice. It first took shape in the 39th article of the Magna Carta (1215) and was later codified in English statutes in 1354. The United States enshrined this fundamental safeguard in the Fifth Amendment (1791) and expanded its reach with the Fourteenth Amendment (1868), ensuring its nationwide enforcement.
Over time, nations worldwide have embraced due process, adapting it to their unique institutional contexts. France integrates due process (procédure légale) within its constitutional and European legal framework, while Germany’s Basic Law (Grundgesetz), Article 103, guarantees the right to be heard and protection against retroactive criminal laws.
Due process in constitution
THE constitution of Bangladesh, however, does not explicitly mention ‘due process of law’, though its core principles are embedded in several provisions. Article 27 guarantees equality before the law while Article 31 ensures that no action affecting life, liberty, body, reputation, or property is taken except in accordance with the law. Article 32 upholds the due process doctrine by prohibiting the deprivation of life or personal liberty without legal justification.
Article 33 safeguards against arbitrary detention, guarantees the right to legal representation, and ensures procedural protections in criminal trials. Additionally, Article 35 prohibits retrospective criminal laws, double jeopardy, and self-incrimination. Together, these provisions, overlappingly, establish a framework for both procedural and substantive due process.
The enforcement of these constitutional provisions, however, remains deeply flawed due to executive overreach, judicial inefficiencies, and political interference. For example:
— While the constitution theoretically guarantees judicial independence, executive control over judicial appointments, transfers, and promotions undermines this principle. The ruling party often exploits the judiciary to selectively apply due process protections, particularly in politically sensitive cases.
— Laws like the Special Powers Act 1974 allow for preventive detention, frequently used against political opponents and dissenters. Enforced disappearances and extrajudicial killings further violate due process rights, as victims are denied fair trials or legal recourse.
— Although Article 33 provides safeguards, authorities can use the Cyber Security Act and Anti-Terrorism Act to detain individuals without proper legal justification. These laws have vague definitions and are misused against journalists, activists, and opposition members.
— A fundamental aspect of due process is the right to a fair and timely trial. However, the legal system in Bangladesh suffers from severe case backlogs, often delaying trials for decades. Prolonged pre-trial detention leads to de facto punishment without conviction, violating the right to liberty.
— Politically connected individuals frequently evade accountability while opposition activists and marginalised groups face harsher legal treatment. This discriminatory application of due process erodes public trust in the justice system.
— Due process requires effective legal representation, yet many detainees, particularly from disadvantaged backgrounds, lack access to competent lawyers. The absence of robust state-sponsored legal aid programmes exacerbates this problem.
Urgent need for reform
CLEARLY, legal safeguards are not just ignored. They are systematically dismantled in Bangladesh. As a result, the unchecked abuse of power by law enforcement, arbitrary legal provisions, a compromised judiciary, and a failing legal system have turned justice into a farce. Immediate, unbending action is necessary. Here is how to begin:
End law enforcement impunity: The Bangladesh police force operates under British colonial laws, such as the Police Act 1861 and the Police Regulations of Bengal 1943, which were designed to subjugate, not serve. These archaic laws fuel unchecked police brutality and corruption. Reform must begin with independent oversight mechanisms to monitor and punish police abuses. Without strict accountability, law enforcement will continue functioning as a weapon of oppression rather than a force for public safety.
Strip police of prosecutorial powers: It must be declared illegal for the police to arrest anyone from their home, property, or business without a court-issued warrant. Police must also be stripped of their power to file criminal cases — this authority should be transferred to state-appointed attorneys under the Attorney General’s Office. For too long, the police have used their unchecked power to amass illicit wealth, extort the public, and fabricate charges. This must end immediately.
Abolish draconian laws: The Special Powers Act 1974 and the Cyber Security Act have been weaponised to crush political opposition and silence journalists. These laws must be repealed, and habeas corpus provisions must be fortified to end the practice of arbitrary arrests and detentions. Without this, Bangladesh remains a police state masquerading as a democracy.
Establish judicial independence: More than two decades after the 1999 Masdar Hossain case, the judiciary remains shackled by executive influence. Amend Articles 95 and 116 of the constitution to establish a transparent collegium system for judicial appointments, ensuring the courts are no longer pawns of the ruling power. The judiciary must serve justice, not the interests of ruling elites.
End judicial paralysis: Case backlogs and delays cripple Bangladesh’s legal system, leaving justice perpetually out of reach. Implement sweeping reforms, including e-filing systems, digital case management, and alternative dispute resolution mechanisms, to eradicate the endless delays in court proceedings.
Guarantee legal representation for all: Justice is meaningless if it is only for the privileged. A nationwide, state-sponsored public defender system must be subsidised to ensure legal representation for every citizen, particularly the underprivileged who are most vulnerable to state abuse.
No more empty promises
ARTICLE 39(1) of the Bangladesh constitution guarantees ‘freedom of thought and conscience’. Yet, thousands have disappeared, and countless others have been tortured and executed extrajudicially for daring to express dissent. The selective, politically motivated application of due process has created a governance crisis of existential proportions.
Without immediate and uncompromising reforms, due process in Bangladesh will remain nothing more than an empty constitutional slogan. The country’s path towards democratic governance depends on an independent judiciary, fair legal procedures, and a law enforcement system that serves the people, not the ruling parties. This is not just about legal reform — it is about reclaiming the fundamental rights of every Bangladeshi citizen before it is too late.
Dr CAF Dowlah is a retired professor of economics and law in the United States. He serves as chair of the Bangladesh Institute of Policy Studies.
