Farrukh Khosru:
The independence of the judiciary in Bangladesh has long been regarded as a constitutional promise repeatedly deferred. Although the Constitution of 1972 clearly enshrines judicial autonomy — particularly through Articles 22, 94(4), 109, and 116A — the practical realisation of this ideal has historically been impeded by entrenched executive dominance.
The struggle for judicial independence, therefore, has unfolded across decades of constitutional amendments, judicial activism, bureaucratic inertia, and political contestation. Central to this struggle are the historic Secretary, Ministry of Finance v. Masdar Hossain case, the reformist actions of the 2007 caretaker government under which Barrister Mainul Hosein served as Law Adviser, and — most recently — the sweeping reforms initiated by the interim government led by Professor Dr. Muhammad Yunus.
The evolution of judicial independence in Bangladesh can be understood through four principal perspectives: (1) the historical and constitutional foundations, (2) the jurisprudential impact of the Masdar Hossain judgement, (3) the role of the 2007 caretaker government in advancing the separation of powers, and (4) the far-reaching reforms introduced by the 2024–2025 interim administration.
The struggle for an independent judiciary in Bangladesh reflects the broader tension between constitutional ideals and political practice. From the erosion of judicial autonomy during military and partisan rule to the judicial activism of the Masdar Hossain case, the unrealised promises of elected governments, and the partial realisation under the 2007 caretaker regime, the journey has been long and uneven.
Historical and constitutional foundations
The constitution of 1972 envisaged a judiciary functionally and structurally independent from the executive. Article 22 explicitly mandates that “the State shall ensure the separation of the judiciary from the executive”. Likewise, Article 94(4) guarantees the independence of Supreme Court judges in exercising judicial functions, while Article 116A protects the decisional autonomy of judges of subordinate courts.
However, constitutional amendments during successive political regimes diluted these guarantees. The original 1972 Articles 115 and 116 vested control over postings, promotions, and discipline of lower-court judges in the Supreme Court. Later amendments, however, transferred these powers to the President, who functions on the advice of the Prime Minister under Article 48(3), effectively restoring executive dominance over the judiciary. This “dual rule,” documented extensively in the attached source, enabled the executive to influence judicial careers and postings, causing delays, politicised promotions, and erosion of public trust.
Throughout the 1980s and early 1990s, the judiciary became institutionally marginalised. Under General Ershad’s military regime, judicial officers suffered discrimination, inferior pay scales, and encroachment through the establishment of martial law tribunals. The politicisation of judicial administration continued even after the return to parliamentary democracy in the 1990s, when both the Awami League and BNP governments repeatedly delayed implementing constitutional separation, despite electoral promises and court directives.
Against this backdrop of persistent executive overreach emerged the landmark Masdar Hossain litigation.
The Masdar Hossain Case: Judicial activism and constitutional clarification
Filed in 1995 by 441 lower-court judges, Secretary, Ministry of Finance v. Masdar Hossain challenged discriminatory pay structures, the administrative subordination of judges to the executive, and the constitutional ambiguity surrounding the judicial service. The High Court’s 1997 judgment declared the inclusion of judges within the BCS (Judicial) cadre unconstitutional and issued 12 directives toward separation. The Appellate Division upheld these directives in 1999, transforming the case into a cornerstone of Bangladeshi constitutional law.
Key elements of the twelve directives included:
- Recognition of the judicial service as distinct and separate from the executive service.
- Creation of the Bangladesh Judicial Service Commission (BJSC).
- Establishment of a separate Judicial Pay Commission.
- Primacy of the Supreme Court’s views in matters of discipline and control over judicial officers.
- Formation of rules under Articles 115 and 133 reflecting judicial independence.
- Financial autonomy of the Supreme Court and explicit separation of judicial functions.
The judgment described judicial independence — not merely structural, but decisional and institutional — as a basic feature of the constitution, immune from dilution or political manipulation. It also emphasised three preconditions of judicial independence: security of tenure, security of salary, and institutional autonomy from the executive and legislature.
Despite the clarity of the directives, successive governments sought more than two dozen extensions between 1999 and 2006, illustrating chronic political reluctance to cede control over the judiciary.
The 2007 caretaker government and the role of Barrister Mainul Hosein
The long-awaited breakthrough came only in 2007 under the army-backed caretaker government led by Dr. Fakhruddin Ahmed. Barrister Mainul Hosein, serving as Law Adviser, played a crucial role in operationalising long-pending judicial reforms.
On 1 November 2007, the government formally separated the judiciary from the executive, implementing the core directions of Masdar Hossain — a task that elected governments had avoided for nearly a decade. Barrister Mainul Hosein noted that the process was “highly challenging” and constrained by time, but significant institutional architecture was nevertheless created during the period.
Key achievements of the caretaker government included:
- Enactment of four essential sets of rules, including the Judicial Service Commission Rules 2007, Judicial Service Pay Commission Rules 2007, and service rules governing appointment, discipline, and conditions of service.
- Creation of the Bangladesh Judicial Service Commission, composed predominantly of judges and responsible for merit-based recruitment to the judicial service.
- Administrative separation of judicial magistrates from the executive, enabling magistrates to function strictly under judicial supervision.
- Significant progress toward a separate judicial secretariat, although not completed due to time constraints.
Barrister Mainul Hosein also publicly identified a crucial truth: political governments resist creating a separate secretariat because it would remove their administrative and disciplinary control over lower-court judges — a historical means of exerting influence over judicial outcomes.
While the 2007 reforms were groundbreaking, implementation remained incomplete and vulnerable to reversal. For instance, the Supreme Court’s proposed secretariat, inaugurated symbolically in 2012, was never operationalised and was later dismantled in 2018, demonstrating the fragility of gains without structural entrenchment.
Contemporary judicial reforms under the 2024–2025 interim government
The mass uprising of July–August 2024, which toppled Sheikh Hasina’s 16-year rule, created an unprecedented political opening for institutional reform. The interim government led by Nobel laureate Dr. Muhammad Yunus initiated a sweeping modernisation agenda targeting electoral, administrative, and judicial restructuring, supported by ten reform commissions and culminating in the National Consensus Commission (NCC) and the July Charter of 2025.
Establishment of the Supreme Court Secretariat (2025 Ordinance)
The most important structural reform — long recommended by the Judicial Reform Commission and mandated by the Masdar Hossain decision — was finally enacted through the Supreme Court Secretariat Ordinance, 2025. The ordinance delegates:
- Full administrative control over subordinate courts to the Supreme Court;
- Powers to appoint, transfer, discipline, and promote lower-court judges;
- Authority to create or abolish subordinate courts and design their organograms.
This reform ends the longstanding dependence on the Ministry of Law, which had previously served as de facto judicial secretariat, enabling executive interference in postings, promotions, and disciplinary actions. Once fully operational, this will constitute the most significant institutional shift since 2007.
Supreme Court Judges Appointment Commission
In line with the Constitution Reform Commission (CRC) and the July Charter, Bangladesh is moving toward a Judicial Appointments Commission (JAC), led by the Chief Justice, to ensure transparent, merit-based appointments. This directly addresses decades of politically motivated appointments.
Legislative and procedural reforms
The Law Ministry under the interim government has enacted or amended major laws, including:
- Public call for Supreme Court judge appointments for the first time in history.
- Modernisation of the Civil Procedure Code allowing written testimony.
- Enhanced child protection tribunals under the Women and Children Repression Prevention Act.
- Major amendments to cyber law, public service rules, and marriage registration rules.
- ICT tribunal reconstitution and digitisation of judicial infrastructure.
Decentralisation of the High Court
One of the NCC’s most impactful recommendations — supported by major political parties — is the amendment of Article 100 to establish permanent High Court benches in divisional cities, enhancing access to justice and reducing burdens on litigants outside Dhaka.
Anti-corruption and accountability mechanisms
For the first time, judges and judicial officers have been required to submit asset declarations, with verification under way.
Digital judiciary
Pilot e-courts, paperless family courts, online marriage and divorce registration, and apostille automation aim to reduce corruption and enhance efficiency.
The struggle for an independent judiciary in Bangladesh reflects the broader tension between constitutional ideals and political practice. From the erosion of judicial autonomy during military and partisan rule to the judicial activism of the Masdar Hossain case, the unrealised promises of elected governments, and the partial realisation under the 2007 caretaker regime, the journey has been long and uneven.
Yet, the 2024–2025 interim government has revived this constitutional project with unprecedented momentum. The Supreme Court Secretariat Ordinance, the movement toward a Judicial Appointments Commission, decentralisation of the High Court, and wide-ranging administrative and legal reforms together mark the most comprehensive judicial restructuring since independence.
Whether these reforms endure will depend on future political will, constitutional entrenchment, and institutional vigilance. If successfully implemented, Bangladesh may finally transition from a judiciary structurally separated on paper to one functionally independent in practice — realising the promise first enshrined in 1972 and reaffirmed in the Masdar Hossain judgment.
(Farrukh Khosru is Editor in Honour, Bangladesh Development Reports)
