Bangladesh Letting the Enforced Disappearance Ordinance Lapse Risks Entrenching Impunity

The Enforced Disappearance (Prevention and Redress) Ordinance, 2025, introduced by Bangladesh’s interim government, sought to establish accountability and bring an end to one of the most egregious crimes that proliferated during the ousted Prime Minister Sheikh Hasina's decade-and-a-half-long authoritarian rule.

The ordinance emerged in a transitional political moment, as the interim administration faced sustained domestic and international pressure to confront longstanding allegations of enforced disappearances under Hasina’s government. Its introduction in November last year signaled an – albeit limited – attempt to formally recognise a practice that had long been denied within the domestic legal framework. By clearly defining enforced disappearance and assigning institutional responsibilities, it marked a departure from the earlier reliance on fragmented and inadequate legal provisions.

Several people and organisations have backed the move as a step toward acknowledgment and accountability, something particularly salient in a context where the state had historically resisted formally recognising the offence. Some human rights groups, including Human Rights Watch, had also highlighted some shortcomings in the ordinance.

For more than 15 years under Hasina’s rule, allegations of enforced disappearances persisted amid weak accountability, limited prosecutorial follow-through and opaque institutional practices. Despite its imperfections, the ordinance represented a critical acknowledgment that enforced disappearance is a distinct and grave crime.

Allowing it to lapse – as the current Bangladesh Nationalist Party (BNP) government appears inclined to do – would ultimately reinforce the very structural conditions that enabled such abuses in the first place.

After assuming power, the BNP government subjected the ordinance to review by the law ministry, which proposed extensive revisions. These were forwarded to a special parliamentary committee. Notably, BNP lawmaker Nawshad Zamir issued a dissenting note, directly challenging several of the ministry's recommendations.

As Zamir’s dissent underscores, key proposed changes by the law ministry dilute rather than strengthen accountability. For instance, requiring prior government approval before initiating proceedings against state actors creates an inherent conflict of interest.

Conditioning prosecution on executive consent subordinates justice to administrative discretion, effectively erecting a structural barrier.

Similarly, the law ministry’s proposal of broad “national security” exceptions risks overriding constitutional safeguards. Vaguely defined, these provisions enable detention without transparent scrutiny and weaken requirements such as timely judicial oversight.

The ministry’s approach to command responsibility is equally flawed. By imposing varying standards across categories of actors and requiring multiple conditions to be met simultaneously, it raises the evidentiary threshold to an impractical level.

In enforced disappearance cases – where documentation is scarce and chains of command are often deliberately obscured – such thresholds are unlikely to be met.

Despite these concerns, including dissent from within its own ranks, the ordinance is reportedly being allowed to lapse by the treasury bench. This leaves enforced disappearance inadequately defined in domestic law.

Existing provisions on unlawful detention or abduction fail to capture its defining elements, particularly state involvement and denial of custody. The result is a legal vacuum in which responsibility is diffused and prosecution becomes increasingly difficult.

Human rights observers point to the central role of national security in this dynamic. While exceptional powers are not uncommon, their legitimacy depends on clear limits and robust oversight. In the ministry’s formulation, the “exception” is so broad it risks becoming the rule.

Without defined thresholds, independent review or time-bound safeguards, “security” becomes a blanket justification – eroding legal predictability and enabling arbitrary action.

The dissent also highlights weak oversight mechanisms. Investigative bodies remain dependent on the executive, and when approval is required from the very institutions under scrutiny, incentives for genuine accountability diminish. Cases risk delay, reclassification or quiet deprioritisation.

From an international law perspective, the absence of a dedicated statute further complicates compliance with frameworks such as the Rome Statute and the International Convention for the Protection of All Persons from Enforced Disappearance, both of which emphasise clear definitions, command responsibility and independent investigation. Partial or inconsistent adoption of these principles weakens both compliance and credibility.

The consequences will likely be gradual but cumulative. Without reform, existing patterns will persist: limited accountability and diminished incentives for internal oversight within security institutions. Over time, practices operating at the margins of legality risk becoming normalised.

For victims and their families, the distinction between flawed legislation and no legislation is not theoretical. Even imperfect recognition in law provides a foundation for claims, documentation and future accountability. Its absence erases that foundation, reducing visibility without reducing violations.

The issue is not whether the ordinance was sufficient. It was probably not. The question is whether allowing it to lapse advances reform. It does not. Instead, it preserves existing deficiencies while discarding a framework that could have been strengthened.

Faisal Mahmud is a Dhaka-based journalist.

The Wire is now on WhatsApp. Follow our channel for sharp analysis and opinions on the latest developments.