Judicial independence: Now is the time to choose the right path

The aspiration for an independent judiciary among the people of Bangladesh has long been standing. This desire began even before the country's independence. During the Pakistan era, in the process of drafting a new constitution for Pakistan and as part of the larger political movement for the autonomy of East Pakistan, establishing an independent judiciary was one of the main demands. Naturally, the 1972 constitution of Bangladesh strongly guaranteed judicial independence. Control over the entire judiciary was vested in the hands of the Supreme Court, instead of the executive branch. However, when a one-party rule was established through the fourth amendment to the constitution in 1975, this constitutional commitment was broken, and control of the judiciary was transferred to the President.

Like many of the nation's other desires, the demand for an independent judiciary gained renewed importance following the July 2024 uprising. This uprising sparked widespread and deep discussions on reforms. Judicial independence was considered a main subject within the larger debate regarding legal and constitutional reform. Given the importance of this issue, one of the early measures taken by the interim government following the July uprising was the establishment of six reform commissions, which included the Judicial Reform Commission and the Constitutional Reform Commission.

Later, both reform commissions uniformly recommended freeing the judiciary from the control of the executive branch. This was included in the July Charter, drafted based on consensus among political parties. Nevertheless, due to political opportunism, Bangladesh is once again on the verge of missing a historic opportunity to ensure judicial independence.

The constitutional framework that determines the interrelations between the executive and judiciary is as important as personal independence and integrity of judges for an independent judiciary. This institutional question is at the center of Article 116 of the constitution. The original 1972 constitution vested the control (determining workplace, promotions, and granting leave) and disciplinary jurisdiction of subordinate courts to the Supreme Court. The fourth amendment abolished that system, transferring these powers to the President. The fifth and fifteenth amendments upheld the President's authority over subordinate courts, but also mandated consultation with the Supreme Court.

Debate over this constitutional arrangement has persisted for decades. Although the verdict in the high-profile Masdar Hossain case advanced the independence of the judiciary significantly, it remains constrained within the restrictions imposed by the amended Article 116. In that case, the Appellate Division of the Supreme Court attempted to establish a framework for judicial independence through judicial interpretation.

However, the Appellate Division was also aware of the limitations of such interpretation due to the wording of Article 116. Later, the Appellate Division itself acknowledged this structural problem. In the verdict of the Sixteenth Amendment case, the court noted that as long as the powers regarding the control and discipline of subordinate courts remain in the hands of the executive branch, true judicial independence will remain elusive.

After the uprising, in order to advance necessary reforms through the judicial process, the successive amendments to Article 116 were presented for the first time for consideration by the Supreme Court. On 18 August 2024, a public interest lawsuit Mohammed Saddam Hossain vs. Bangladesh (Article 116 Case) was filed, challenging the legality of those amendments. The significance of the Article 116 case outweighs that of the Masdar Hossain case because, while the Masdar Hossain case attempted to establish judicial independence within the bounds of the amended Article 116, the Article 116 case directly highlights the underlying constitutional cause of this problem.

The verdict in the Article 116 case was delivered by the High Court on 2 September 2025, with the full written verdict published on 7 April 2026. The verdict annulled the amendments to Article 116, directing its restoration to the original 1972 state. Consequently, control over subordinate courts was once again vested in the Supreme Court. In the same verdict, the court also directed the Ministry of Law to take necessary steps within three months to establish a Judicial Secretariat aimed at ensuring effective judicial independence.

The ordinance to establish a separate Judicial Secretariat was issued on 30 November 2025. Through various formal and practical steps, the then-interim government established the secretariat. It functioned for several months before being dissolved by the current government on 10 April 2026.

In the verdict of the Article 116 Case, the court did not introduce any new constitutional concept. Rather, the court delivered its decision against the backdrop of an existing broad political commitment to judicial independence. The ruling party, the Bangladesh Nationalist Party (BNP), had previously articulated this commitment explicitly on multiple occasions.

While in opposition, the BNP repeatedly alleged that the judiciary was used as an instrument of political persecution. Incidents such as the sentencing and imprisonment of Begum Khaleda Zia, restrictions imposed on her medical treatment, and numerous cases filed against many of her party's leaders and activists were presented by the BNP as consequences of the lack of judicial independence. The current Prime Minister was also accused in politically motivated cases, which led her to spend a prolonged period outside the country.

Therefore, it was natural that the reform of the judiciary would occupy a significant place in BNP's proposal for constitutional reform. In the party's 31-point reform programme announced in July 2023, commitments were made to ensure judicial independence, vest control over subordinate courts to the Supreme Court, and establish a separate judicial secretariat.

These commitments were reiterated before the National Consensus Commission and were incorporated into the July Charter without any dissent from the BNP. None of BNP's objections concerning the July Charter were related to judicial independence, the transfer of control over subordinate courts to the Supreme Court, or the establishment of a judicial secretariat.

The party's electoral manifesto for the general elections in February 2026 also reaffirmed these commitments. The manifesto specifically stated that control over subordinate courts would be vested in the Supreme Court and that the judicial secretariat established in 2025 would be further strengthened.

In this context, the repeal of the ordinance establishing the judicial secretariat and its dissolution by the parliament on 10 April 2026, was disappointing. It was not only a serious deviation from the repeatedly made commitments by the ruling party but also a violation of the Article 116 case verdict. Until the High Court's verdict was stayed or annulled, the obligation to establish a separate judicial secretariat remained in effect as part of the law.

The government undertook these steps without initiating any appeal against the High Court's verdict. However, on 20 April 2026, Badiul Alam Majumder from SHUJAN (Citizens for Good Governance) filed an appeal. Simultaneously, he applied for an interim order to suspend the efficacy of the provisions dissolving the secretariat and to maintain the status quo regarding the operations of the judicial secretariat. Subsequently, the government filed an appeal on 21 May 2026, along with an application to stay the effectiveness of the High Court's verdict.

The appeals, along with the petitions filed, were heard in the Appellate Division on 9 June 2026. On that day, the Appellate Division stayed the effectiveness of the High Court's verdict. However, up to the point of this stay order by the Appellate Division, from 10 April to 9 June 2026, the government operated in violation of the High Court's verdict.

The most important question that arises here is whether the government's stance against the High Court's verdict aligns with the longstanding political commitments and repeated promises made to the people of the country. As mentioned above, these commitments were included in the 31-point programme, reiterated before the National Consensus Commission, recorded in the July Charter, re-mentioned in the electoral manifesto, and strongly emphasised in both the referendum and general election campaigns.

Regrettably, the reform that the BNP once robustly supported as essential for establishing the rule of law now seems politically inconvenient for the party. People had expected that the party would not break its promises upon coming to power from being in the opposition.

After more than 50 years of independence and two years after a mass uprising, despite repeated promises to ensure the independence of the judiciary, Bangladesh finds itself at a crossroads today. If the BNP decides to uphold its commitments and supports the High Court's verdict in the appeals pending in the Appellate Division, the country could progress on the right path. Conversely, if the BNP continues to retract from its own promises, the responsibility of deciding whether the High Court's verdict will be upheld or annulled will rest upon the Appellate Division.

The High Court's verdict was delivered based on well-established legal principles and a proper and accurate interpretation of the law. Following necessary reviews, the Appellate Division might consider it appropriate to uphold this verdict.

The entire nation will watch the outcomes of the appeals with deep interest and hope, so that more than half a century after independence, the country can finally realise the aspiration for an independent judiciary—a desire that, by being long denied, has caused unbearable suffering for the people. A ruling by the Appellate Division upholding the High Court's decision would mark a momentous milestone not only for the judiciary but for the entire nation.

#Sharif Bhuiyan is a former visiting fellow at Cambridge University and a senior lawyer at the Supreme Court. He served as Amicus Curiae in the Article 116 case.

* The views expressed here are the author's own.

#This article, originally published in Prothom Alo print and online editions, has been rewritten in English by Rabiul Islam