The first-ever Bangladesh law against enforced disappearance, the Enforced Disappearance Prevention and Redress Ordinance 2025 lapsed in April 2026, following the election of the country’s new parliament. It passed after the ouster of Sheikh Hasina in August 2024. It defined enforced disappearance as an ongoing crime, provided compensation to victims, and empowered the National Human Rights Commission to probe the complaints. Though the Commission of Inquiry has reported more than 1,800 complaints, and identified at least 40 secret detention centres, Bangladesh remains without any domestic legal provision for accountability following the lapse.

For the families of those over 700 who went missing under Hasina’s 15 years rule, the legal vacuum only aggravates a psychological wound. Families are consistently experiencing prolonged grief, PTSD, and ambiguous loss, which the International Convention for the Protection of all Persons from Enforced Disappearance (ICPPED) acknowledges as forms of trauma in Article 24, defining family members also as victims. This blog contends that constitutional tort remedies under public law can be followed for judicial recognition of that harm.

The Legal Vacuum

Bangladesh signed up to the ICPPED in August 2024, but there is no national law that criminalises forced disappearance. However, the Constitution supplies the building blocks of a remedy. Articles 44 and 102 create the enforcement mechanism: Article 44 guarantees the right to move the High Court Division (HCD) to enforce fundamental rights, and Article 102 vests it with writ jurisdiction over the State. The substantive rights lie in Part III, principally Article 27 (equality before the law), Article 31 (protection of the law) and Article 32 (life and personal liberty).

In practice, this route is only partially effective. In habeas corpus petitions by families of the disappeared, the HCD has often confined itself to directing police to trace the missing person, declining to find State responsibility or award compensation where security agencies are the alleged perpetrators, treating the petitions as unresolved missing-person inquiries rather than proven violations. The UN Working Group on Enforced or Involuntary Disappearances’ June 2025 study visit highlighted this structural issue.

Public Law Torts and State Accountability

A public law tort is a claim, brought under constitutional writ jurisdiction rather than ordinary private law, in which the court awards compensation against the State for breaching fundamental rights. In DK Basu v State of West Bengal 1997 (1) SCC 416, the court ruled that ‘custodial torture and illegal detention were actionable through constitutional writs, independent of criminal liability.’ The Bangladesh HCD adopted the same reasoning in CCB Foundation v State of Bangladesh (2017), where a child died after falling into an uncovered pipe. The HCD held that this violation of the right to life under Article 32 of the constitution was a public law tort and awarded compensation directly against the State.

The doctrine applies squarely to enforced disappearance, which engages the rights to life and liberty, the protection of the law (Art 31), and equal protection (Art 27). It also differs usefully from an ordinary rights petition. A habeas corpus claim asks only that the body be produced. A constitutional tort claim asks the court to find that a violation occurred and to award compensation. That is why it is more likely to be enforced. Most importantly, it acknowledges the mental anguish suffered by family members as a compensable injury.

International Jurisprudence: Legal Recognition of Psychological Harm

International courts have solidly established that psychological damage inflicted by the State during the disappearance is a legal injury. The InterAmerican Court of Human Rights in Velásquez Rodríguez v Honduras (1988) held that ’the victim’s family was entitled to reparations for the crime of enforced disappearance, and that delayed claims can be pursued.’ In Bazorkina v Russia (2006), the European Court of Human Rights also found that the mental anguish arising from the disappearance was covered by Article 3 of the ECHR, and awarded damages to the mother of the disappeared detainee.

These precedents provide a basis for a framework where Bangladesh’s judiciary can hold the state accountable for enforced disappearance as a violation of fundamental rights (under sections 27, 31, and 32 of the Constitution). Rather than declaring a breach of fundamental rights, the public law tort doctrine allows the court to award compensation for state abuse of powers and psychological harms. The judiciary will likely be more willing to apply this doctrine because of evidentiary issues and the unequal sides of the state and the victims.

Conclusion: Civil Remedies as a Form of Recognition

It is now more important than ever to intervene in the lapsing of the Ordinance. While the legislature has been stalled and the BNP-led government has committed itself to introducing a revised bill at a future date, families may have only one legal avenue available to them at present for seeking recognition and redress: the tort claims route. However, civil remedies cannot take the place of criminal accountability.

Therefore, where prosecutions continue to stall in the political realm, a doctrine of “constitutional tort” found in Bangladeshi, Indian, and international precedent gives the judiciary an opportunity to establish what international law already recognizes: that enforced disappearance causes harm to not only the victim, but also to the families.