A new chapter for judicial independence in Bangladesh

Judicial independence is universally acknowledged as the cornerstone of constitutional democracy and the operational foundation of the rule of law. In Bangladesh, this principle has evolved through constitutional design, judicial interpretation, and institutional struggle rather than uninterrupted constitutional practice.  

The formal separation of the judiciary from the executive in 2007, pursuant to the landmark decision in Secretary, Ministry of Finance v. Masdar Hossain, was a defining constitutional moment. 

Yet separation alone did not fully insulate the judiciary from executive influence, particularly in matters of administration and finance. The inauguration of a separate Supreme Court Secretariat on 11 December 2025, following the enactment of the Supreme Court Secretariat Ordinance, 2025, by the interim government, marks a further and significant step toward completing the constitutional promise of judicial independence. 

This article examines the doctrine of the rule of law and judicial independence in Bangladesh by assessing their practicability and lived reality in light of socio-economic conditions, the post-2007 judicial structure, and the long-term implications of the newly established Supreme Court Secretariat.

Constitutional foundations of the rule of law and judicial independence

The Constitution of Bangladesh envisages a legal order governed by the supremacy of law rather than the will of individuals or institutions. Article 7 establishes constitutional supremacy, while Articles 27 and 31 guarantee equality before law and protection of law. 

Article 22 clearly says that the judiciary must be independent, and Articles 94 and 116A ensure that judges in both the Supreme Court and lower courts are also independent. 

These provisions collectively reflect a constitutional commitment to the rule of law, understood not merely as legality but as governance constrained by law, adjudicated by independent courts, and accountable to constitutional norms.

However, constitutional text alone proved insufficient. For decades, executive control over judicial appointments, postings, promotions, and discipline, particularly in the subordinate judiciary, undermined the practical realisation of judicial independence. This structural imbalance necessitated judicial intervention.

The Appellate Division's decision in Secretary, Ministry of Finance v. Masdar Hossain stands as the most authoritative exposition on judicial independence in Bangladesh. 

The Court unequivocally held that the judicial service is distinct from the civil executive service and that subjecting judicial officers to executive control violates Articles 22 and 116A of the Constitution. 

Significantly, the Court recognised judicial independence as an essential feature of the constitutional structure and issued 12 binding directives to operationalise that independence.

These directives required, among other measures, the establishment of a separate Judicial Service Commission, the creation of a separate judicial pay scale, the framing of distinct service rules for judicial officers, and the transfer of administrative control over judicial personnel from the executive to the judiciary. 

With the formal implementation of these directives in 2007, Bangladesh achieved de jure separation of the judiciary from the executive.

Judicial independence after separation: Progress and limits

The post-2007 period witnessed important institutional developments. Recruitment to the subordinate judiciary through the Bangladesh Judicial Service Commission introduced a merit-based, competitive process. 

Judicial magistrates came under the administrative and supervisory control of the Supreme Court rather than the executive. Separate rules now govern appointments, promotions, and disciplinary matters of judicial officers. These reforms substantially reduced overt executive interference and strengthened structural autonomy.

At the same time, separation did not eliminate all constraints. Judicial independence in practice remained affected by political culture, financial dependence, and socio-economic realities. 

Appointments to the higher judiciary continued to attract criticism for perceived political influence and lack of transparent, merit-based criteria. Budgetary dependence on the executive persisted, limiting the judiciary's capacity to plan independently for infrastructure, staffing, and technological modernisation. 

Thus, while independence existed in law and structure, it remained qualified in function.

Socio-economic conditions and the reality of judicial independence

Bangladesh's socio-economic context profoundly shapes the practical meaning of judicial independence. A significant portion of the population lives near or below the poverty line, and access to justice remains constrained by litigation costs, procedural complexity, and chronic delay. 

When justice becomes inaccessible to the poor and marginalised, judicial independence loses substantive content, as courts disproportionately serve those with economic and social capital.

The judiciary also faces an overwhelming backlog of cases due to insufficient numbers of judges, inadequate infrastructure, and procedural inefficiencies. Excessive workload compromises adjudicative quality and may expose judges, particularly at the lower levels, to external pressure to dispose of cases rapidly. 

In many local contexts, informal power structures involving political actors and economic elites exert influence over judicial processes, undermining independence despite formal safeguards.

Judicial independence cannot exist in isolation from accountability. In Bangladesh, disciplinary mechanisms for judges remain opaque, and the absence of a transparent, well-defined accountability framework creates twin risks: impunity on one hand and undue control on the other. 

The constitutional challenge lies in ensuring accountability that strengthens integrity and public confidence without becoming an instrument of executive or political pressure.

The enactment of the Supreme Court Secretariat Ordinance, 2025 and the inauguration of the separate Supreme Court Secretariat on 11 December 2025 constitute a landmark institutional reform. 

For the first time, the apex court has been vested with comprehensive administrative authority over its own affairs through an institutional structure independent of executive ministries. 

The Secretariat, headed by a Secretary with status equivalent to a senior government secretary, is responsible for judicial administration, personnel management, and coordination of judicial governance under the supervision of the Supreme Court.

This reform directly addresses one of the most persistent structural vulnerabilities of the judicial system: dual administration. By consolidating administrative control within the judiciary, the Secretariat removes residual executive leverage over judicial careers and court management. 

It completes, at the apex level, the constitutional logic of separation articulated in Masdar Hossain and strengthens the institutional identity of the judiciary as a co-equal branch of government.

The establishment of the Supreme Court Secretariat has significant long-term implications for the rule of law. Administrative and financial autonomy enhances the judiciary's capacity to function impartially, improves institutional efficiency, and strengthens public confidence in judicial outcomes, particularly in politically sensitive cases. 

By aligning administrative practice with constitutional principle, the reform reinforces the supremacy of law over executive discretion.

At the same time, the reform's success is not automatic. Institutional independence must be translated into effective practice through professional administration, transparent procedures, and internal accountability. 

Financial autonomy must be supported by sustainable budgetary frameworks and fiscal discipline. Without capacity building, modern case-management systems, and trained administrative personnel, the promise of independence risks being undermined by inefficiency.

Challenges and the way forward

The primary challenges lie in operationalising the Secretariat, insulating budgetary processes from political pressure, and cultivating a political culture that respects judicial boundaries. 

Judicial leadership must prioritise professional court administration, continuous institutional review, and transparency in administrative decision-making. Political actors must internalise the constitutional principle that judicial independence is not an obstacle to governance but a prerequisite for legitimacy and stability. 

Legal professionals and civil society have a vital role in reinforcing norms of constitutional restraint and respect for judicial authority.

The evolution of judicial independence in Bangladesh reflects a gradual but significant constitutional journey. The separation of the judiciary in 2007 laid the structural foundation, while the inauguration of the separate Supreme Court Secretariat in 2025 represents a decisive step toward completing that constitutional project. 

Yet independence is not a static achievement. In a developing society marked by socio-economic inequality, political polarisation, and institutional constraints, judicial independence remains a continuing constitutional practice rather than a finished reality.

For the rule of law, to move from constitutional promise to lived experience, institutional reform must be matched by professional competence, financial sustainability, political restraint, and a culture of constitutionalism. 

Only when courts can decide without fear or favour, administer justice efficiently, and remain accessible to all citizens can the true spirit of the Constitution be realised. 

Judicial independence, ultimately, is not merely an institutional arrangement but a constitutional culture that must be continuously nurtured to ensure justice, legitimacy, and democratic governance in Bangladesh.

Md Anwar Hossen is a Barrister-at-Law and an advocate at Supreme Court of Bangladesh. Email: anwar.lawvalley@gmail.com

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.