New rights laws: Those who control evidence eventually control accountability

A state can criminalise enforced disappearance while preserving arrangements that make it difficult to prove the crime. Bangladesh’s new National Human Rights Commission (NHRC) Act and Enforced Disappearance Prevention and Remedy Act, gazetted on September 8, must be judged not only by the offences they define or the penalties they prescribe, but also by whether they provide credible mechanisms for establishing responsibility. The decisive questions are about who controls investigations, how victims can challenge official accounts, and who impartially decides the resulting claims.

Reading the laws together reveals neither an unchanged return to 2009 nor a convincing break with institutional impunity. There are genuine improvements, but protections against arbitrary power remain vulnerable where allegations concern the institutions best equipped to conceal their own conduct.

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Under Section 18 of the 2009 NHRC law, complaints against disciplined forces went through a special procedure centred on government reports and commission recommendations. But this legislative weakness was not the whole problem; under that law, complaints were dismissed without hearing complainants or obtaining crucial medical evidence. In one police killing case, criminal proceedings against the dead teenager became the basis for closing the human rights complaint. The commission failed through its handling of the powers it did possess, not merely because of the powers it lacked.

The 2025 framework attempted a structural departure from the 2009 model. Section 16 of the NHRC ordinance excluded investigators from the accused official’s institution and entrusted criminal investigations to the commission, under its exclusive direction. Investigators would have reported directly to the commission, not their parent agency. Meanwhile, Section 8 of the enforced disappearance ordinance routed investigations through this mechanism while leaving criminal trials to a tribunal. Independent investigation did not mean making the NHRC the criminal trial judge.

Nevertheless, the new NHRC law deserves a fair assessment. Compared with the cabinet-approved draft, Section 19(2) now requires the implicated institution’s initial report within a deadline set by the commission. Section 13(b) drops the draft’s approval requirement for inspections, aligning it with Section 21(3), which permits visits without prior permission or notice. Interim protection, compensation recovery and binding orders also make this framework more substantial than its 2009 predecessor. These provisions should be used and tested in practice, rather than overlooked simply because the law has other shortcomings.

The central defect is the sequence preserved by Section 19. According to it, the implicated institution supplies the initial account. If dissatisfied, the commission makes recommendations. The institution then has 45 days to report its response. An absent or unsatisfactory response can trigger the ordinary complaint procedure. This is not an absolute prohibition on independent intervention, but it is an arrangement that gives institutional self-explanation priority over independent fact-finding.

A reporting deadline can discipline correspondence without protecting evidence. The NHRC’s eventual recourse to the ordinary complaint procedure cannot compensate for losing the opportunity to, for instance, interview a frightened witness or secure an unaltered detention register. The law should expressly allow independent inquiry and urgent preservation measures alongside, rather than after, requests for institutional explanations. Its existing inspection and protective powers must not become hostage to arguments about which procedure takes precedence.

The enforced disappearance law presents a related but different problem. Section 14 (3) expressly prohibits the accused disciplined force from investigating and requires the government to assign another force or an inter-agency team. Section 14 (5) also lets magistrates take up cases without prior government approval. Calling this straightforward self-investigation would overlook real safeguards. The unresolved question is whether government-selected investigators can be sufficiently impartial or independent of the wider institutional network implicated in the allegation.

The final report of the Commission of Inquiry on Enforced Disappearances, submitted early this year, supplies the test that parliament should have applied. Page 72 documents joint operations across agencies. Page 28 records manipulation of evidence not only by officers serving before August 5, 2024, but also by subsequent leadership. These findings establish why excluding one named force cannot, by itself, establish independence. A different uniform does not necessarily mean a different chain of interests.

The contrast with the 2025 ordinance, therefore, concerns more than where complaints are received. It concerns who can direct investigators and control their careers, access, and reporting. Removing the NHRC’s central investigative role while leaving the executive to choose the substitute risks redistributing investigation without insulating it from influence.

There is a serious objection to concentrating investigative and adjudicative functions. A decision-maker should not merely validate conclusions from an investigation in which that person (substitute) participated. The answer, however, is to separate functions, not to return control of evidence to potentially interested institutions. Criminal liability, state responsibility for rights violations, and remedies are distinct questions. Treating them as interchangeable can produce either an overbearing commission or an irrelevant one.

Indeed, sections 15 and 16 of the new NHRC act already distinguish an investigating officer from the commission’s complaint hearings. That distinction should guide further reform. The NHRC should supervise an independent investigative service, while case investigators must not sit on the panel determining complaints. Parties need access to the material relied upon, subject to necessary witness protection, and meaningful opportunities to challenge it. Findings require reasons; coercive or compensatory decisions require effective judicial scrutiny. A commission report may inform a criminal trial, but cannot pre-empt its determination of guilt.

Personnel arrangements matter equally. Under Section 7, the Speaker, the law and home ministers, cabinet secretary, and government-nominated MP together suffice for the selection committee’s five-member quorum. Adding other representatives does not dissolve that concentration of political influence. An institution supervising allegations against the government needs appointments that the government cannot dominate; it needs protected funding and professional staff whose advancement does not depend on implicated agencies.

At this stage, a practical response would be a targeted amendment that leads to clearer procedures, enforceable protections, and greater inspection powers. It must restore investigative control outside the implicated chains of command, with civilian expertise, secure evidence custody, and independent witness protection. It must require a complainant’s hearing before accepting an institutional report as grounds for closure, and give courts prompt oversight without making families negotiate successive administrative permissions.

Implementation, meanwhile, can begin even as we wait for amendment. Publish decisions and reasons for rejecting complaints, track compliance with protective orders, and fund the investigative and preventive functions already authorised. Counting disposed complaints is not evidence of successful protection when disposal merely closes the door on a victim.

The lesson of July 2024 is not that one set of officials deserves more trust than another. It is that safeguards must survive officials who cannot be trusted. Bangladesh does not have to choose between independent investigation and impartial judgment. It must build both. Otherwise, the state may condemn disappearance in legislation while retaining decisive influence over whether its own wrongdoing can ever be proven.

Barrister Khan Khalid Adnan is advocate at the Supreme Court of Bangladesh, fellow at the Chartered Institute of Arbitrators, and head of the chamber at Khan Saifur Rahman and Associates in Dhaka.

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

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