In discussions on legal and constitutional reforms in Bangladesh, the independence of the judiciary has long been a central issue. Indeed, the BNP, now in government after a long period in opposition, has itself consistently called for ensuring full judicial independence over the past two decades or so.
There were political factors behind these demands. As BNP itself has repeatedly alleged, the judiciary was used to harass its leaders and activists. The conviction of the party’s top leader, Begum Khaleda Zia, in controversial cases, her imprisonment, and the restrictions on her movement abroad for medical treatment as well as defaming her using the judiciary—all of these were indicators of a lack of judicial independence in the country. Similarly, the current prime minister also faced politically motivated cases. He had to stay outside the country for a long period due to such cases and convictions against him.
BNP has at various times stated that if the judiciary were truly independent and impartial, its leaders and activists would not have faced judicial harassment. However, following BNP’s formation of the government in February 2026, a sharp contradiction seems to have emerged in its position.
While in opposition, on July 13, 2023, BNP announced a 31-point outline for structural reforms in Bangladesh. Point 10 reads: “The effective independence of the Judiciary will be ensured in line with the Constitution and the Masdar Hossain Case verdict… Control and discipline of sub-ordinate courts shall vest with the Supreme Court. A separate secretariat for the Judiciary will be established to function under the Supreme Court… Legislation specifying qualifications and standards for Supreme Court Judges will be enacted…”
During discussions at the National Consensus Commission last year, BNP supported all of the above. These are also fully reflected in the July National Charter, and BNP has not expressed any note of dissent in regard to any of these. BNP does not have any stated reservations whatsoever about the July charter’s commitments to vesting control of the subordinate courts with the Supreme Court, establishing a separate secretariat for the judiciary, or enacting a law for the appointment of SC judges. BNP also supported the referendum on the July charter, requesting citizens to vote “yes” and thereby endorsing the charter’s mandate on control of the subordinate courts, establishment of a judicial secretariat, and the appointment process of judges under a law. Finally, in its manifesto for the February 12 election, BNP stated that control of the subordinate courts will be placed under the SC, a law for the appointment of judges will be enacted, and the separate secretariat for the judiciary established in 2025 will be strengthened.
Regrettably, the parliament formed after the election, in which BNP holds a two-thirds majority, repealed on April 9 the ordinances on the separate secretariat for the judiciary and the appointment of judges to the SC.
It is interesting that BNP’s 31-point outline refers to the famous Masdar Hossain Case, a landmark ruling on judicial independence. This case was decided within the framework of the then version of Article 116 of the constitution, which provided that “the control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.”
Article 116, which determines matters related to the control of the subordinate courts, has long been a subject of controversy. In the original 1972 constitution, this authority was vested in the SC. However, through the Fourth Amendment, this power was transferred to the President and later, in the Fifth and 15th Amendments, provisions were made requiring consultation with the SC. After August 5, 2024, these successive amendments to Article 116 were challenged in a public interest case, namely Mohammad Saddam Hossen v Bangladesh (hereinafter, the Article 116 case).
When the Masdar Hossain case was decided, control over the subordinate judiciary was exercised by the executive branch—specifically, the Ministry of Law, Justice and Parliamentary Affairs—in consultation with the SC. Within this framework, the Appellate Division of the SC sought, through legal interpretation, to assert a degree of judicial independence. However, the Appellate Division was fully cognisant of the limits of such interpretive efforts, not only in the Masdar Hossain case but also on other occasions. For instance, in the case of the 16th Amendment, the Appellate Division observed that so long as the control and discipline of lower judiciary officers remain with the executive, the judiciary cannot be independent.
In this context, the significance of the Article 116 case is far greater than that of the Masdar Hossain case. The judgment of the High Court, delivered on September 2, 2025—the full written version of which was made public on April 7, 2026—annulled the amendments to Article 116 and directed the restoration of Article 116 to its 1972 state. Thus, control over the subordinate judiciary was once again placed under the SC. In the same judgment, to ensure effective independence of the judiciary, the court also directed the law ministry to take steps to establish a separate secretariat for the judiciary within three months. In reaching its conclusion, the court, among other authorities and materials, relied on the commitments of political parties in the July charter regarding the restoration of control over the subordinate courts to the SC and the establishment of a judicial secretariat.
Following this judgment, the ordinance establishing a separate judicial secretariat was issued on November 30, 2025. Considerable progress in this regard was also made during the tenure of the interim government. A secretary has been appointed to the secretariat and, pursuant to the ordinance, a committee was constituted to develop the human resources organogram. The committee has held multiple meetings, finalised the organogram, and a significant number of personnel have already been appointed. In addition, budget allocations for the secretariat have been made up to June of the current fiscal year, and work is ongoing based on these allocations. Preparations are also underway to release the budget for the next fiscal year.
In other words, significant progress has been made under the ordinance since its issuance. Both formal and practical measures have been taken to establish the secretariat, which is already operational.
But now that parliament has repealed the ordinance, the secretariat’s status has become uncertain, potentially creating a vacuum and administrative complications. Since the court ruling imposes a legal obligation to establish a separate secretariat, a question arises as to how the law ministry would fulfil this obligation. Failure by the ministry to comply could constitute contempt of court, thereby giving rise to various difficulties.
It is essential to consider whether, at this early stage of the current government’s tenure, this could trigger an unnecessary, entirely avoidable conflict between the judiciary and the executive over a matter of significant importance. Since an independent, impartial judiciary free from executive influence is one of the key prerequisites for good governance, we, as citizens, would expect that the High Court’s verdict in the Article 116 case will be upheld by the Appellate Division as well, and that the judgment will be fully implemented. This would mean that control over the subordinate courts would be vested in the Supreme Court, and a separate secretariat under the SC would be made operational to ensure effective implementation of this control.
However, by outright repealing the relevant ordinances, BNP has cast serious doubt on its own commitment to implementing the July charter word for word. While BNP remains insistent on implementing the charter along with its notes of dissent, it is telling that none of these dissents relate to judicial independence. Hence, citizens are left perplexed by its actions so far.
Dr Sharif Bhuiyan is a senior advocate at the Supreme Court of Bangladesh, who acted as amicus curiae in the Article 116 case.
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.
