When the Chief Justice must act as a judicial statesman

The crescendo and diminuendo of civilisation, the ebb and flow of national history, and the rise and fall of compassion and humanism all have their roots in the fluctuating evolution of humankind from its earliest ancestry. That collective human experience also shapes how a nation confronts its challenges.

Since 1971, Bangladesh has faced profound challenges at home and abroad. We must respond to these challenges. We must navigate an intensifying geostrategic competition among rival nations and across the global system.

Every nation-state has its own personality, and in shaping that personality, the judiciary plays a key role. The "personality" of the state and the judiciary can be understood in terms of their legal characteristics, functions, and the traits of the individuals who comprise the judicial branch.

The office of the Chief Justice occupies a pivotal position at the intersection of law, governance, and national conscience. In this context, the government on 30 November 2025 promulgated an ordinance to establish a Supreme Court Secretariat to ensure the independence of the judiciary.

Confronting these challenges would be daunting even in the best of times, but a united nation, healthy governing institutions, and strong national leadership can ease the burden. The question is: are we in the best of circumstances? Even in the most stable periods, navigating the nation's most important organ requires a particular set of talents; a man with such conviction and command is called a statesman.

Unfortunately, statesmanship is not regularly seen in our country. Yet, in contrast, the Chief Justice of Bangladesh, Dr Syed Refaat Ahmed, is entrusted with extraordinary responsibilities.

We know that it is not in law alone, nor in its harshest forms, but in statesmanship that we find meaningful results. Consider the incident of 1990, when Chief Justice Shahabuddin Ahmed took charge of the state. It was a true example of constructive statesmanship. It is widely acknowledged that those were exceptionally difficult times that demanded precisely that level of leadership.

Soon after, Chief Justice Muhammad Habibur Rahman stepped in as head of the caretaker government, as the last retiring Chief Justice under the Constitution, and successfully thwarted an attempted military coup. That remains one of the greatest acts of statesmanship in the post-12th Amendment era.

We believe in our country and intend to see it endure, despite any errors of statesmanship that may be committed by its leaders. In many instances, Chief Justice Syed Refaat Ahmed provided a meticulous account of the law and delivered bold judgments without fear or favour. Having steered the judiciary through a rollercoaster period, he is aptly prepared to take charge of any situation should it become necessary.

Each Chief Justice brings his own unique experience to the office. Conventional failures in political manoeuvring make the discussion around the Chief Justice's role in political issues particularly relevant. In the past, the apex court's character has suffered, but the Chief Justice can restore it—provided he remains steadfastly true to the Constitution.

As we have witnessed, the judiciary plays a crucial role in our constitutional democracy. It is no exaggeration to say that the Chief Justice's role is profoundly significant—not only for the judiciary itself, but for the functioning of our constitutional democracy and the entire arrangement of constitutional governance.

Felix Frankfurter once observed, "Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice, they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. 

Therefore, judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour, however blunt." This sentiment was echoed by the Chief Justice of Bangladesh in his response to the felicitation given by the Supreme Court Bar.

The Constitution has three instrumentalities: the executive, the legislature, and the judiciary. The implementation of laws and state policies is the responsibility of the executive. The Cabinet, headed by the Prime Minister, acts within a system designed to prevent any one branch or person from becoming supreme, introducing checks and balances through which one branch may limit another.

The administration is supposed to be governed by the rule of law. Parliament enacts laws. When the executive or legislature engages in actions that are arbitrary or contrary to constitutional provisions, the judiciary has the authority to correct them. The Constitution guarantees fundamental rights, and if the state fails to protect them, any citizen may approach the Supreme Court by filing a writ petition.

Historically, parliament has been the country's dominant power centre. But as elected institutions and political parties seek more governing space, inter-institutional conflicts periodically emerge. Within this competitive terrain, judiciaries across the region (India, Bangladesh, and Pakistan) have played central roles, arbitrating contests between political elites and state elites.

The executive provides essential services to the judiciary—including facilities, security, personnel, and retirement services. It also develops and implements policies affecting the administration of justice. The legislature and executive stand on equal constitutional footing; it is the duty of all to respect the courts and the institutions shaped by the Constitution.

Anyone who believes in parliamentary democracy must respect these constitutionally created institutions. The Constitution grants coequal status to the judiciary, legislature, and executive, and none has superintendence over the others. The sovereignty of parliament will neither be compromised nor negotiated.

Advisory jurisdiction further distinguishes the judiciary. Under Article 106 of the Constitution, if a question of law arises that is of public importance, the President may refer it to the Appellate Division for consideration, which may then report its opinion to the President.

Following the July uprising, the Supreme Court proposed the establishment of a separate secretariat to ensure true independence of the judiciary and its effective separation from the executive branch. True judicial independence has long eluded successive governments, as they have never genuinely sought to achieve it.

Last year, the Supreme Court administration submitted a proposal and concept paper outlining the need and objectives of a separate secretariat for the judiciary. "The structural organogram and concept note are being scrutinised. If there is any constitutional or legal hurdle to its implementation, that will be resolved," according to a report in The Daily Star.

Former Indian Chief Justice Krishna Iyer once saved his nation from supreme shame—an accomplishment remembered for his role in the Indira Gandhi election case. In a similar spirit, Chief Justice Syed Refaat Ahmed saved the country from profound embarrassment by taking charge of the judiciary at a time when it was drifting without direction in an unprecedented manner.

Against all odds, the ordinance establishing the Supreme Court Secretariat was a trailblazing act of the interim government, and the Chief Justice was the true driving force behind it.

As Chief Justice, his role in the Constitutional Court is vital and has grown even more consequential in the context of the July 2024 uprising. These developments shape the composition, character, and philosophical orientation of the judiciary, both now and in the future, and influence fundamental questions about the meaning and implementation of national transformation.

Sketch: TBS

M M Khalekuzzaman is a policy analyst and Advocate of the Supreme Court of Bangladesh

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.