No one above the law but justice is not blind equality

The Members of Bangladesh’s armed forces play a vital role in safeguarding national sovereignty and ensuring the nation’s security.

Yet, when allegations of enforced disappearance, murder, or crimes against humanity arise against military officers, a fundamental question emerges under which law should they be tried: military law or the International Crimes (Tribunals) Act, 1973?

Bangladesh’s armed forces are governed by three key statutes – the Army Act 1952, the Air Force Act 1953, and the Naval Ordinance 1961.

These laws primarily regulate discipline, obedience, and conduct within the military framework.

Offences such as insubordination, dereliction of duty, or mutiny are handled through court-martial proceedings.

However, each of these laws has a clear limitation when a member of the armed forces commits a serious offence against civilians, such as murder, rape, or enforced disappearance, those acts fall outside the scope of military discipline.

These are not “military offences” but rather crimes under ordinary or international law. This is where the International Crimes (Tribunals) Act, 1973 becomes relevant.

The only law in Bangladesh that can be used to prosecute international crimes like genocide, crimes against humanity, war crimes, and forced disappearances is the International Crimes (Tribunals) Act of 1973.

The law has a non-obstante clause that makes it clear that it takes precedence over all other laws when it comes to international crimes.

So, if a military officer does something that makes someone disappear, the right place to go is not a court-martial but the International Crimes Tribunal set up by the 1973 Act.

The Ministry of Home Affairs has recently sent out a gazette notification (dated 12 October 2025) saying that the “MES Building No. 54” at Dhaka Cantonment would be used as a temporary prison for 15 army officers. This decision raises serious constitutional and moral questions.

According to Article 27 of the Constitution of the People’s Republic of Bangladesh guarantees equality before law “all citizens are equal before the law and are entitled to equal protection of the law.”

Creating separate detention facilities for a particular class of accused persons contradicts this principle and undermines the rule of law.

On the other hand under section 541(1) of the Code of Criminal Procedure, the government holds the authority to declare any place in Bangladesh as a jail for the purpose of lawful detention.

Therefore, even though these officers are being held within military custody, the government has already exercised this power in accordance with the law. In this context, several facts are worth noting:

• No individual has been personally aggrieved by the decision to keep the accused in military custody.

• The state of Bangladesh has suffered no harm as a result of this measure.
• There has been no violation of any existing law of the country.

Hence, the allegation that “equality or fairness has been violated” does not stand on solid ground.

Equality before the law does not mean treating everyone identically; it means ensuring that each person is treated as justice requires, according to their position, responsibility, and the nature of the alleged offence.

The British legal scholar A.V. Dicey was right when he said that the rule of law makes sure that both the rulers and the ruled are equally responsible.

However, this responsibility must be based on reason and law, not on emotion or popular opinion.

Finally, justice is not about blind uniformity. It is about fairness rooted in law, reason, and the assurance that every accused, whether in uniform or not, receives the trial that justice demands.

(The written is a Lecturer, Department of Law, European University of Bangladesh)