Will the promise of judicial independence elude us again?

When reflecting on broken promises, people sometimes refer to Sunil Gangopadhyay’s poem “Keu Katha Rakheni” (Nobody kept their promise), whose protagonist received numerous assurances and pledges over his 33 years of life but none were apparently kept. In a way, the essence of this poem is aptly reflected in the long-standing discourse surrounding the separation of the judiciary from executive control in Bangladesh. Years have passed, and much has been said about the importance of this issue, but no government has delivered on the promise of judicial autonomy yet.

It has been 27 years since the Supreme Court passed the landmark 1999 verdict in the Secretary, Ministry of Finance vs Masder Hossain case, outlining a 12-point directive to ensure the genuine independence of the judiciary. The case originated from a petition filed by Masder Hossain, then general secretary of the BCS (Judicial) Association, in 1995. The issue has returned to public discourse again after a special parliamentary committee, tasked with scrutinising 133 ordinances promulgated during the Professor Yunus-led interim government, recommended the “repeal and preservation” of four ordinances—the Supreme Court Judges Appointment Ordinance, 2025; the Supreme Court Secretariat Ordinance, 2025; the Supreme Court Secretariat (Amendment) Ordinance, 2026; and the National Parliament Secretariat (Interim Special Provisions) Ordinance, 2024.

The chairman of the parliamentary committee, Zainul Abedin, MP, explained that repeal of these ordinances would mean no new actions would be taken under them for now, while preservation would ensure that actions already taken under these ordinances would remain valid and would not be cancelled. Abedin also noted that the ordinances were recommended for repeal and preservation as they were inconsistent with the constitution and that necessary laws could be enacted in the future.

He further clarified that under the current constitution, the president appoints Supreme Court judges in consultation with the chief justice, and the main qualification for appointment is at least 10 years’ experience in the legal profession. However, the new ordinance stipulates that a judge must be at least 45 years of age for appointment. He also said that there are notes of dissent regarding the formation and functioning of the Supreme Court Secretariat, which requires further discussion.

Of the total 133 ordinances, the committee adopted 98 as they were; 15 were recommended for passage with amendments, 16 ordinances would be allowed to lapse and later reintroduced in parliament as bills by the relevant ministries, and the remaining four ordinances were recommended for outright repeal.

However, several BNP lawmakers said that new bills would be introduced in due course to ensure the judiciary’s full independence. If that happens, members of parliament, including opposition MPs, will have the opportunity to propose amendments and take part in discussions. But then, all decisions hinge on the ruling party, BNP, as it holds the majority required to pass any law and also pass constitutional amendments.

Article 95 of the constitution states that the president appoints judges in consultation with the chief justice. However, Article 48(3) stipulates that, except for the appointment of the prime minister and the chief justice, the president shall act upon the advice of the prime minister in all other matters. In practice, this constitutional arrangement has long raised questions about the extent of executive influence over the judiciary.

While allegations of politicisation of the judiciary have surfaced at different times, no government has enacted a specific law governing judicial appointments. In this context, the interim government promulgated an ordinance in 2025 regarding the appointment of Supreme Court judges to select suitable candidates for appointment to both the Appellate Division and the High Court Division. Such a legal framework could increase the scope for appointing more competent and impartial judges. Besides, two ordinances were introduced to establish an independent Supreme Court Secretariat to ensure effective implementation of judicial independence, including supervision, control, and discipline of subordinate courts.

Since the BNP government is not approving the ordinances, there is a risk that the process of judicial appointments may revert to the previous framework until a new law is enacted.

The BNP’s 2026 election manifesto, however, states that effective independence of the judiciary will be ensured in accordance with the constitution and the Masder Hossain case verdict. It also pledges to enact a law regarding judicial appointments, establish a judicial commission, allow the Supreme Court to control subordinate courts, and strengthen a separate judiciary secretariat. The party’s 31-point reform proposals unveiled in July 2023 also state similar visions about judicial independence. So, the question that comes to mind is, where does the contradiction lie? There is little substantive difference between the BNP’s promises and the ordinances. Although the three above-mentioned judiciary-related ordinances offer more detailed provisions than the party’s broad commitments, BNP’s reluctance to retain them in their current form casts doubt on the execution of genuine judicial separation.

This fear of broken promises is not unfounded, given our past experiences, even though Law Minister Md Asaduzzaman has said the government will further scrutinise the ordinances, make necessary corrections, and reintroduce them as bills in parliament to ensure judicial independence. Scepticism looms large because promises of judicial independence are not new in Bangladesh. Even Masder Hossain, in a 2022 newspaper article, pointed out that the discussion on the separation of the judiciary in Bangladesh is not recent. It dates back to the colonial period. One of the earliest initiatives came in 1900, when the then secretary to the government of Bengal, CW Bolton, presented a plan for segregation, but no action was taken to implement it.

Later, in 1908, Sir Harvey Adamson, who was the home member of the government of India then, prepared a draft to introduce the plan on an experimental basis in some districts. In 1921, the Legislative Council of Bengal also passed a unanimous resolution for the separation of the judiciary, but again, no action was taken. Again in 1947, some experimental steps were taken regarding segregation in West Pakistan, but no such initiative was taken in East Pakistan.

It remains to be seen whether BNP keeps its promises concerning this issue. It must be noted that the three judiciary-related ordinances and other ordinances relating to key reform measures on human rights, enforced disappearances, anti-corruption, and revenue administration—which have been put on hold for further review—were not drafted in ordinary times. They emerged from the July uprising, which had pledged to dismantle fascism and establish the rule of law and good governance. The real question now is whether those visions of the uprising and subsequent commitments made by political parties will be carried forward or quietly set aside.

Shamim A. Zahedy is a journalist. He can be reached at szahedy@yahoo.com.

Views expressed in this article are the author's own. 

Follow The Daily Star Opinion on Facebook for the latest opinions, commentaries, and analyses by experts and professionals. To contribute your article or letter to The Daily Star Opinion, see our guidelines for submission.