Independence of Judiciary in Bangladesh :
The judiciary is more than just an organ of government alongside the legislature and executive. It is the last hope and refuge for citizens to have their constitutional rights restored and protected. However, the judiciary cannot effectively protect these rights unless it is free from excessive influence and intervention from other organs of the state.
Advocacy Legal, recognized among Bangladesh’s top law firms, provides expert analysis of constitutional law and judicial independence issues, including High Court constitutional matters.
Understanding Judicial Independence
What is Judicial Independence?
Judicial independence is the doctrine that the judiciary should be separate and independent from the other branches of government—the legislature and executive. It ensures that judges can make decisions based solely on law and facts, without fear, favor, or external pressure.
Why Judicial Independence Matters
The Fundamental Chain:
Separation of Judiciary → Independent Judiciary → Rule of Law
- No separation of judiciary = No independent judiciary
- No independent judiciary = No rule of law
- No rule of law = No protection of rights
Therefore: Judicial independence is essential for democracy and the protection of fundamental rights guaranteed by the Constitution of Bangladesh.
Beyond Mere Separation
However, mere separation is insufficient for the judiciary to fulfill its role successfully. True judicial independence requires:
- Institutional autonomy
- Financial independence
- Security of tenure for judges
- Protection from external pressure
- Internal independence from senior judges
- Impartial and competent judges
Constitutional Framework in Bangladesh
The 1972 Constitution
The Constitution of the People’s Republic of Bangladesh, 1972 established the framework for judicial independence from its inception.
Key Constitutional Provisions:
Article 22 – Separation of Judiciary from Executive
“The State shall ensure the separation of the judiciary from the executive organs of the State.”
- One of the Fundamental Principles of State Policy
- Directive for state action
- However, not directly enforceable by courts (Part II provisions are not justiciable)
Article 94 – Establishment of Supreme Court
Establishes the Supreme Court of Bangladesh as the apex judicial authority consisting of:
- Appellate Division
- High Court Division
Articles 115-116 – Appointment of Supreme Court Judges
- Article 115: President appoints judges to Supreme Court
- Article 116: President appoints persons to judicial service and magistrates exercising judicial functions
Article 147 – Subordination of Courts
All courts are subject to the superintendence and control of the Supreme Court (except courts-martial).
Division of Powers
The Constitution establishes a division of powers among three branches:
- Legislature (Parliament) – Makes laws
- Executive (Government) – Implements laws
- Judiciary (Courts) – Interprets and applies laws
Separation of powers ensures that no branch may overstep its constitutional bounds.
Official Resources:
- Constitution of Bangladesh – Full Text
- Supreme Court of Bangladesh
- Ministry of Law, Justice and Parliamentary Affairs
Four Principles of Judicial Independence
The concept of judicial independence contains four fundamental principles that have been developed through international consensus and best practices:
1. Personal Independence
Definition: Judges are not dependent on the government in any way that could influence their decisions in specific cases.
Key Elements:
Security of Tenure:
- Judges’ tenure and terms of service must be adequately secured
- Cannot be removed arbitrarily
- Protection from executive pressure
- Fixed retirement age
Conditions of Service:
- Salaries and benefits protected
- Cannot be reduced during tenure
- Adequate remuneration
- Pension security
Purpose: Ensures judges’ impartiality and ability to make decisions based on law and facts alone, without fear or favor.
International Standard (IBA 1982):
“A judge is subject to nothing but the law and the precepts of his ethics when performing his judicial role.”
2. Substantive Independence
Definition: Independence in judicial decision-making itself—judges must be free to decide cases according to law without external influence.
Key Elements:
Freedom from Instructions:
- No government directives on how to decide cases
- No political pressure on outcomes
- No threats or inducements
Immunity from Suit:
- Judicial immunity for acts done in official capacity
- Protection from litigation for decisions
- Cannot be personally liable
Non-interference:
- Legislature cannot reverse judicial decisions (except by law)
- Executive cannot interfere in pending cases
- Media and public pressure managed
3. Internal Independence
Definition: Independence of judges from their judicial superiors or colleagues in deciding cases.
The Problem:
Sometimes, threats to judicial independence come not from outside but from within:
- Pressure from Chief Justice or senior judges
- Informal influence on junior judges
- Assignment of cases to favorable judges
- Promotion and posting as control mechanisms
Importance:
A judge in a lower court or a junior judge must be able to decide according to law, even if:
- Senior judges disagree
- Chief Justice has different view
- Decision goes against judiciary’s institutional interests
Protection Needed:
- Clear rules for case allocation
- Transparent promotion criteria
- Protection of dissenting opinions
- No retaliation for independent decisions
4. Collective/Institutional Independence
Definition: The judiciary as an institution must be free from intervention by the government and legislature.
Key Elements:
Administrative Autonomy:
- Supreme Court controls lower court administration
- Judiciary manages its own staff and resources
- Independent case management
- Control over physical infrastructure
Financial Autonomy:
- Separate judiciary budget
- Direct budgetary allocation
- Financial autonomy closely linked to institutional independence
- No executive control over judicial funds
Rule-Making Power:
- Judiciary makes its own procedural rules
- Supreme Court controls practice and procedure
- No executive interference in court administration
Importance:
“A judge may be unable to exercise judicial functions autonomously unless he or she is a member of an institution with power over those people and physical resources incidental to executing judicial functions.”
Therefore, collective/institutional independence is required to maintain judges’ individual independence.
Separation of Judiciary: The Masdar Hossain Case
Historical Context
Before 2007: Although Article 22 of the Constitution required separation of judiciary from executive since 1972, it was confined to mere documented recognition—not implemented in practice.
The Problem:
- Magistrates exercising judicial functions were under executive control
- District Magistrates controlled by Ministry of Home Affairs
- No real separation existed
- Executive interference continued
The Landmark Masdar Hossain Case (1999-2007)
Full Citation: Secretary, Ministry of Finance v. Masdar Hossain and others, 12 BLD (AD) 1 (1999)
The Journey:
1999: Bangladesh Supreme Court Bar Association filed writ petition demanding implementation of Article 22.
Initial Judgment (High Court): Directed government to separate judiciary from executive.
Government Inaction: Despite court orders, government delayed implementation.
2007: After prolonged proceedings, the Appellate Division finally ordered immediate separation.
Result: In 2007, Bangladesh’s judiciary became distinct from the executive through actual implementation.
What Changed:
- Magistrates exercising judicial functions transferred to judicial service
- Supreme Court given control over subordinate judiciary
- Appointment, posting, promotion of judicial magistrates under judiciary
- Executive magistrates separated from judicial functions
- Real judicial independence achieved
Significance: The Masdar Hossain case created actual judicial separation and independence after 35 years of constitutional promise.
Challenges to Judicial Independence in Bangladesh
Despite constitutional provisions and the Masdar Hossain judgment, challenges remain to full judicial independence:
1. Appointment Process Issues
Constitutional Provision:
- Articles 95 & 115: President appoints Supreme Court judges
- President acts on advice of Prime Minister
The Reality:
- Executive influence in judicial appointments
- Political considerations may affect selection
- No transparent appointment commission
- Limited consultation with judiciary
International Best Practice:
- Independent Judicial Appointments Commission
- Judiciary involvement in selection
- Transparent merit-based criteria
- Public scrutiny of appointments
2. Continued Executive Influence
Despite 2007 separation, executive interference continues in specific contexts:
Mechanisms of Influence:
- Control over judges’ postings (especially district judges)
- Influence on promotions
- Administrative support controlled by executive
- Infrastructure and resources provided by government
Result: Subtle pressures remain despite formal separation.
3. Financial Dependency
Budget Process:
- Judiciary budget proposed to Finance Ministry
- Executive controls allocation
- Limited financial autonomy
- Insufficient resources for courts
Impact:
- Cannot function fully independently
- Resource constraints affect case management
- Dependence on executive goodwill
Solution Needed: Direct budgetary allocation to judiciary without executive intermediation.
4. Lack of Administrative Autonomy
Supreme Court’s Limited Control:
- While Supreme Court has superintendence (Article 109), practical control is incomplete
- Many administrative matters still involve executive
- Government buildings and staff
Articles 115-116 Limitations:
- President (on PM’s advice) appoints judges
- This gives executive influence over staffing
5. Absence of Judicial Accountability Mechanisms
The Paradox:
Independence requires freedom from external control, but also requires accountability to prevent:
- Corruption
- Incompetence
- Abuse of power
- Misconduct
Current Situation:
- Limited transparent complaint mechanisms
- Removal process controlled by executive (impeachment)
- No independent judicial conduct commission
- Lack of performance evaluation
Balance Needed: Independence with accountability.
6. Political and Social Pressures
Informal Pressures:
- Media trials and public opinion
- Political commentary on cases
- Social pressure on judges
- Security concerns for judges and families
Protection Needed:
- Enhanced security for judges
- Contempt of court enforcement
- Protection from defamation
- Support for judicial families
7. Judicial Capacity Issues
Problems:
- Massive case backlogs (millions of pending cases)
- Insufficient judges (judge-to-population ratio very low)
- Inadequate court infrastructure
- Limited training opportunities
Impact on Independence:
- Overworked judges more susceptible to pressure
- Delayed justice undermines judicial credibility
- Resource constraints create dependencies
Appointment and Tenure of Judges
Current System
Supreme Court Judges:
Appointment Process (Article 95):
- President appoints
- After consultation with Chief Justice
- On advice of Prime Minister
Qualifications:
- Advocate of Supreme Court for 10+ years, or
- Judicial officer for 10+ years, or
- Eminent jurist
Tenure:
- Until age 67 (Appellate Division)
- Until age 65 (High Court Division)
- Can be removed only by impeachment
Subordinate Court Judges:
Appointment (Article 116):
- President appoints on PM’s advice
- Now effectively controlled by Supreme Court post-2007
Judicial Service:
- Recruited through judicial service examination
- Career progression through lower to higher courts
- Posting and transfer by Supreme Court
Issues with Current System
Lack of Transparency:
- No clear criteria for Supreme Court appointments
- Political considerations suspected
- No public scrutiny process
- Limited judiciary input
Executive Influence:
- President acts on PM’s advice (Article 48)
- PM effectively controls appointments
- Chief Justice’s consultation may be nominal
Solutions Proposed:
Judicial Appointments Commission:
- Independent body for judicial appointments
- Majority judiciary representation
- Transparent merit-based selection
- Public accountability
Several countries use this model successfully (e.g., UK, India, South Africa).
The Path Forward
Essential Reforms Needed
1. Establish Judicial Appointments Commission
- Independent of executive control
- Transparent selection process
- Merit-based appointments
- Public confidence
2. Ensure Financial Autonomy
- Direct budget allocation to judiciary
- No executive intermediation
- Adequate resources guaranteed
- Multi-year budgeting
3. Strengthen Administrative Independence
- Complete Supreme Court control over lower courts
- Judicial control of staff and resources
- Independent infrastructure management
4. Create Judicial Accountability Mechanism
- Independent judicial conduct commission
- Transparent complaint process
- Performance evaluation systems
- Balance independence with accountability
5. Enhance Judicial Capacity
- Increase number of judges significantly
- Improve infrastructure and technology
- Provide continuous training
- Reduce case backlogs
6. Protect Judges Effectively
- Enhanced security measures
- Protection from threats and pressure
- Support for families
- Enforce contempt of court strictly
7. Constitutional Amendments
- Make Article 22 justiciable
- Strengthen appointment process
- Clarify separation of powers
- Explicit financial autonomy provision
The Role of Legal Profession
Lawyers’ Responsibility:
- Uphold judicial independence
- Resist executive pressure
- Professional conduct
- Support judicial reforms
Bar Associations:
- Advocate for reforms
- Monitor judicial independence
- Support judges under pressure
- Public awareness campaigns
The Question of Motivation
Critical Issue:
“We are, without doubt, in a position to install a better democratic system by ensuring judicial independence from the executive, but there is still a question about how efficient this system will work if the players and operators of this system are not motivated enough to do so.”
The Challenge:
- Laws and structures alone are insufficient
- Judges, lawyers, government officials must be committed
- Culture of independence must develop
- Vigilance by civil society essential
Therefore:
If “separation of judiciary” from executive is the first stage, “impartial judiciary” should be the next step to secure true independence.
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Frequently Asked Questions
1. What does judicial independence mean?
Judicial independence means the judiciary is separate from and independent of the legislature and executive branches. Judges can make decisions based solely on law and facts without external pressure, fear, or favor.
It includes:
- Institutional independence of judiciary
- Personal independence of individual judges
- Financial and administrative autonomy
- Security of tenure and service conditions
2. Is the judiciary completely independent in Bangladesh?
Partially, but not completely.
Progress Made:
- Formal separation achieved in 2007 (Masdar Hossain case)
- Judicial magistrates under Supreme Court control
- Constitutional protection exists
Challenges Remain:
- Executive influence in appointments
- Financial dependency
- Limited administrative autonomy
- Informal pressures continue
Status: Significant progress made but full independence not yet achieved.
3. What was the Masdar Hossain case?
Masdar Hossain case (1999-2007) was a landmark constitutional case that finally implemented Article 22 of the Constitution, separating judiciary from executive after 35 years.
Result:
- Magistrates exercising judicial functions separated from executive control
- Supreme Court given control over subordinate judiciary
- Real judicial independence achieved in 2007
Before: Magistrates controlled by executive despite constitutional mandate.
After: Judiciary independent and separate.
4. Who appoints judges in Bangladesh?
Supreme Court Judges:
- President appoints (on PM’s advice)
- After consulting Chief Justice
- Governed by Articles 95 & 115
Subordinate Court Judges:
- Technically appointed by President
- Practically controlled by Supreme Court (post-2007)
- Through judicial service examination
Issue: Executive influence through PM’s advice to President.
5. Can judges be removed in Bangladesh?
Supreme Court Judges:
- Can be removed only by impeachment
- Requires 2/3 majority in Parliament
- Grounds: Proven misbehavior or incapacity
- Very difficult process (never successfully done)
Subordinate Judges:
- Supreme Court has disciplinary authority
- Removal for misconduct or incompetence
- Procedural safeguards exist
Security of Tenure: Essential for judicial independence.
6. What is Article 22 of the Constitution?
Article 22 states:
“The State shall ensure the separation of the judiciary from the executive organs of the State.”
Nature:
- Part of Fundamental Principles of State Policy (Part II)
- Directive for state action
- Not directly enforceable by courts (not justiciable)
However: Masdar Hossain case made it enforceable through judicial interpretation.
7. How can judicial independence be improved in Bangladesh?
Key Reforms Needed:
- Judicial Appointments Commission – Independent merit-based appointments
- Financial Autonomy – Direct budget allocation
- Administrative Control – Full judiciary control over courts
- Accountability Mechanisms – Judicial conduct commission
- Increase Judges – More judges to reduce backlog
- Constitutional Amendments – Strengthen independence provisions
- Political Will – Government commitment to independence
8. Why is judicial independence important?
Essential for:
Rule of Law:
- No rule of law without independent judiciary
- Laws applied fairly and equally
- Government bound by law
Protection of Rights:
- Citizens can challenge government actions
- Fundamental rights enforced
- Checks on executive power
Democracy:
- Separation of powers maintained
- No dictatorship possible
- Accountability ensured
Economic Development:
- Investor confidence
- Contract enforcement
- Property rights protection
Conclusion : Independence of Judiciary in Bangladesh
The independence of judiciary in Bangladesh has made significant progress, particularly since the 2007 Masdar Hossain case that finally separated judiciary from executive. However, true independence requires ongoing effort and reform.
Key Points:
- Constitutional framework exists (Article 22)
- Formal separation achieved in 2007
- Supreme Court has significant autonomy
- Executive influence in appointments remains
- Financial dependency continues
- Full administrative autonomy not achieved
The Path Forward requires:
- Structural reforms (appointments commission, financial autonomy)
- Cultural change (commitment to independence)
- Vigilance by legal profession and civil society
- Political will to strengthen judiciary
Judicial independence is not just about laws and structures—it’s about commitment of judges, lawyers, government officials, and citizens to uphold the rule of law.
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