Rokan's Journal

Brig Gen (Retd) HRM Rokan Uddin

In Bangladesh, the recent formation of charge sheets and summons issued by the International Crimes Tribunal against several army officers has sparked an intense legal, constitutional, and institutional debate. This is not merely a matter of one case, it raises profound questions about the balance between the country’s constitutional framework, state institutions, and the military justice system. The situation reminds us that no institution of the state can survive outside the rule of law and discipline, not even one as respected as the armed forces.

Inconsistency in the Legal Framework

The International Crimes (Tribunal) Act, 1973 was originally enacted to prosecute civilians accused of war crimes and crimes against humanity. The law, in its original form, did not include army or armed forces personnel within its jurisdiction. Later, during a period of military rule, the phrase “members of the armed forces” was inserted through an ordinance, ostensibly to allow the tribunal to try military personnel as well. However, the crucial point is that this ordinance was never ratified by the National Parliament, and therefore, under Article 93(2) of the Constitution, it lost its legal validity. Article 93(2) clearly stipulates that any ordinance issued by the President ceases to be effective if it is not approved within sixty days of the commencement of the next parliamentary session. Consequently, extending the scope of a law through an unapproved ordinance is constitutionally invalid. If the present International Crimes Tribunal proceeds based on this “illegally inserted provision” to try serving army officers, such action would be a violation of the law’s fundamental framework.

The Bangladesh Army Act, 1952 and Institutional Discipline

The Bangladesh Army Act, 1952 is a comprehensive military law governing discipline, justice, and administrative procedures within the armed forces. Sections 53 to 55 of this Act stipulate that a serving officer cannot appear before a civilian court without the permission of the military authority. Appearing or becoming an accused in a civil court without such permission constitutes a breach of discipline. Furthermore, Sections 24 and 25 state that such behavior may result in suspension or dismissal from service. Therefore, if any army officer is still in active service, summoning him before a civilian court is legally impermissible and amounts to a direct affront to the discipline and dignity of the armed forces. It also sets a dangerous precedent that could weaken the institutional integrity of the military in the long term.

Section 197 of the Criminal Procedure Code, 1898

Another fundamental legal issue arises from Section 197 of the Criminal Procedure Code (CrPC), 1898, which provides that:

“No court shall take cognizance of an offence alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Government.”

In other words, no case may be formed against a public official or member of the armed forces for actions undertaken in the discharge of official duties without prior governmental approval. If the charge sheets against the concerned army officers were filed without such approval, the process would not merely be procedurally flawed—it would constitute a direct violation of law.

Constitutional Balance and the Crisis of State Institutions

The Constitution, the Army Act, and the Criminal Procedure Code—these three pillars together uphold administrative balance and institutional order in the state. When this balance is disrupted, the entire state structure is thrown into uncertainty. The armed forces form one of the central pillars of Bangladesh’s sovereignty; therefore, bringing serving officers directly under the jurisdiction of a civilian tribunal undermines that institutional foundation. This is not only a matter of legal complication, it represents a serious blow to the sovereignty of the state and to the independent integrity of its armed institutions. Moreover, it risks tarnishing the image of Bangladesh’s defense forces on the international stage, posing both diplomatic and security challenges for the country.

Internal Responsibility and Ethical Accountability of the Military

However, the blame for this situation cannot be attributed solely to external legal or political factors. The higher leadership of the army must also accept its share of responsibility. Over the years, officers accused of enforced disappearances, extrajudicial killings, and human rights violations could have been identified through internal investigations and subjected to premature compulsory retirement. Instead, many were protected due to political allegiance or personal influence, even promoted, and placed in key positions. As a result, now that these officers are being summoned before civilian courts, the army itself bears the institutional consequence of its earlier inaction. Had the military acted in time through its own mechanisms to ensure justice, it would not have faced today’s humiliating predicament. In sum, this unfolding situation represents not just a judicial anomaly but a profound challenge to the constitutional order, institutional accountability, and the rule of law in Bangladesh. It underscores the urgent need for legal clarity, institutional reform, and a renewed commitment to both justice and discipline—values without which neither the state nor its armed forces can sustain their dignity or legitimacy.

Way Forward: Guidelines for Resolution

1. Legal Clarity and Reconsideration: The International Crimes (Tribunal) Act, 1973 is one of the most significant judicial frameworks in Bangladesh’s history, yet its scope and application remain ambiguous. In the original law, army officers or members of the armed forces were not included, which indicates that it was intended for civilian accused. During military rule, the phrase “members of the armed forces” was inserted, but this amendment was never ratified by Parliament—therefore, under Article 93(2) of the Constitution, it has no legal validity. In this context, it is now imperative to reassess the scope, intent, and applicability of this Act. Expanding the jurisdiction of any law through an ordinance without parliamentary approval is constitutionally invalid. Hence, the 1973 Act must be re-examined to clearly define who falls within its jurisdiction and what legal process applies to military officers. Such legal clarity would not only guide the judicial process correctly but also establish a constitutionally compliant precedent for the future.

2. Redefining the Boundary Between Military and Civilian Jurisdictions: The Bangladesh Army operates under a separate and well-defined judicial framework—the Army Act of 1952. This Act clearly states that when an allegation arises against an active-duty officer, it must first be investigated internally within the armed forces. Appearing before, or being charged in, a civilian court without prior approval from the military authority constitutes a breach of discipline. Therefore, there must be a clear demarcation between military and civilian judicial jurisdictions. If allegations arise, the case should first go through a Court of Inquiry or a Military Court under the Army’s own system. If the investigation proves direct involvement, the concerned officer should be prematurely and compulsorily retired, after which he may be brought under civilian court jurisdiction. This would preserve the dignity and institutional integrity of the armed forces while ensuring a constitutionally sound and morally balanced judicial process.

3. Mandatory Government Approval: Under Section 197 of the Criminal Procedure Code, 1898, if a public servant is accused of an offense committed while performing his duties, prior written approval from the government is mandatory before any charge can be filed. This provision is meant to preserve the balance of state power and to prevent politically motivated or retaliatory prosecutions against public servants. Since army officers serve the state as public officials, this clause applies to them as well. If charge sheets or summonses are issued against them without prior approval from the government or the Ministry of Defence, it constitutes a direct violation of the law. This requirement must be reaffirmed and enforced to ensure that no case against military officers is politically motivated, and that the state’s justice system operates within its lawful and constitutional framework.

4. Institutional Self-Purification: The true strength of any powerful and respected military institution lies in its moral integrity and capacity for self-correction. Had the army identified and taken timely action against those responsible for crimes or human rights violations through its own mechanisms, today’s chaotic situation would not have arisen. What is now needed is an impartial and depoliticized internal accountability system, where allegations of human rights abuses, enforced disappearances, killings, or abuse of authority are investigated transparently and independently. If an officer is found guilty, appropriate measures—such as dismissal, compulsory retirement, or court-martial—should be taken within the force. Such self-correction would not only safeguard the reputation of the armed forces but also help restore public confidence, which is essential to the longevity of any defense institution. It must be remembered—no force can remain strong without public trust.

5. State-Level Coordination and Constitutional Reassessment: A harmonious relationship among the four key pillars of the state—the President (as Commander-in-Chief of the Armed Forces), the Parliament, the Ministry of Defence, and the Armed Forces—is essential. When this coordination weakens, policy confusion and legal conflicts inevitably arise. The current crisis demonstrates that the lack of coordination among these institutions has led to serious policy and administrative disarray. Therefore, a constitutional reassessment is needed to clearly define: Under what circumstances military officers may fall under civilian court jurisdiction, who has the authority to approve such proceedings, and How the relationship between internal military investigations and civilian judicial processes should be regulated. If such a policy framework is established, trust between military and civilian institutions will be restored, and the sovereignty of the state will be further strengthened.

Conclusion

The present crisis is not merely about the trial of a few army officers—it is a test of Bangladesh’s legal, constitutional, and institutional discipline. If we begin making decisions outside the boundaries of the Constitution and the rule of law, then no state institution will remain secure. For a civilized, democratic, and just nation, what is needed is the rule of law and moral accountability, not vengeance. The best way to preserve the honour of the armed forces is to strengthen its own justice system and demonstrate the courage to face truth—free from political influence and with full respect for constitutional principles.