Commentary: Free judiciary in defence of democracy

The question of judicial independence in Bangladesh has once again come to the forefront as parliament moves to repeal key ordinances introduced by the interim government aimed at strengthening the judiciary and limiting executive control.

The development has reignited debate over a long-standing issue: whether the country is prepared to ensure a truly independent judiciary or continue with a system where executive influence remains deeply entrenched.

The interim government led by Dr. Muhammad Yunus introduced several important ordinances to strengthen institutional governance, particularly the Supreme Court Judicial Appointment Ordinance and the Supreme Court Secretariat Ordinance.

These measures aimed to establish a transparent system for appointing judges and to create a separate secretariat under the Supreme Court to oversee subordinate courts, thereby reducing the role of the law ministry in judicial administration.

The reforms were widely seen as an attempt to complete the unfinished agenda of judicial independence and to bring Bangladesh closer to constitutional principles of separation of powers.

However, the parliamentary special committee’s recommendation to repeal or suspend these ordinances has raised serious concerns among legal experts, civil society organisations and governance watchdogs.

Critics argue that repealing the ordinances could effectively return the judiciary to executive control, particularly in matters of judicial appointments and administrative supervision of lower courts.

If the ordinances lapse without replacement legislation, the appointment of Supreme Court judges may once again depend largely on executive discretion, undermining transparency and merit-based selection.

The struggle for judicial independence in Bangladesh is not new.

The landmark Masder Hossain case in the 1990s and the Supreme Court’s directives in 1999 laid the constitutional foundation for separating the judiciary from the executive.

Yet successive governments delayed implementation for years, reflecting political reluctance to relinquish administrative control over the courts.

The separation of the judiciary in November 2007 under the caretaker government marked a significant milestone in this long journey.

At that time, the caretaker government’s law adviser, Barrister Mainul Hosein, had acknowledged that establishing a separate judicial secretariat was part of the reform vision but could not be fully implemented due to time constraints.

Barrister Mainul had warned that political governments often hesitate to create a separate secretariat because it reduces their influence over the judiciary.

His observation now appears particularly relevant, as the current debate revolves around the same institutional question: whether the judiciary should be administratively independent from the executive.

The interim government’s ordinances were widely viewed as a continuation of the 2007 reform process and an effort to institutionalise judicial independence through structural changes.

The proposed judicial appointment council sought to ensure that qualified and neutral candidates would be selected through a transparent process, while the Supreme Court Secretariat aimed to strengthen administrative autonomy.

Governance organisations, including Transparency International Bangladesh, have argued that these reforms should be converted into law rather than repealed.

Supporters of the repeal, however, contend that the ordinances were not adequately consulted and contained structural weaknesses.

They argue that parliament should enact improved legislation after broader consultation with legal experts and stakeholders.

While this argument has merit, the delay in presenting alternative legislation has created uncertainty about the government’s commitment to judicial reform.

The current situation raises a critical question: is the repeal of these ordinances a step towards better legislation or a retreat from judicial independence?

The answer will depend on how quickly and effectively parliament introduces new laws to ensure transparent judicial appointments and an independent administrative framework for the courts.

Without such measures, the gains made in 2007 and the reform efforts of the interim government risk being diluted.

Judicial independence is not merely a constitutional ideal; it is the cornerstone of democracy, accountability and public confidence in governance.

A judiciary free from executive pressure ensures fair trials, protects fundamental rights and strengthens the rule of law.

Any reform or repeal must therefore be guided by the broader national interest rather than short-term political considerations.

The long struggle for an independent judiciary – shaped by court verdicts, reform initiatives and institutional efforts over decades – demands careful and responsible decision-making.

Parliament, backed by a two-thirds majority of the Bangladesh Nationalist Party (BNP) and full support from the opposition, now has a crucial opportunity to strengthen the system through comprehensive and balanced legislation.

Failure to do so, however, may risk reversing hard-earned progress and weakening one of the most vital pillars of democratic governance.