Repealing Supreme Court ordinances may return courts to political captivity

The move to repeal the Supreme Court Secretariat Ordinance, 2025 and the Supreme Court Judges’ Appointment Ordinance, 2025 is being presented as prudence. But it is actually the latest expression of an old political reflex: every ruling class in Bangladesh wants courts that speak the language of independence but operate within boundaries set elsewhere. Experts have seriously condemned and criticised the proposed repeal. The law minister’s assurance that the texts can be scrutinised and returned later as bills should be read together with the rollback itself, not as a cure for it. Usually, first comes institutional retreat, then comes the promise of consultation, and then comes the graveyard of reform. Bangladesh has seen this script too many times now to mistake it for caution.

The real mistake in much of public discussion is to treat judicial independence as a noble abstraction. The issue is far more concrete and far uglier. A politically pliant judiciary helps governments do three things that raw executive power alone cannot do: it sanitises persecution, legitimises constitutional vandalism, and disciplines dissidents through procedure rather than openly through force. That is why these ordinances matter. They touch the two pressure points through which capture usually operates: who gets onto the bench and who controls judges once they are in office.

Anyone who thinks this is exaggeration should return to the 13th Amendment review judgment. The most damning passage in it is not the restoration of the caretaker framework, but the court’s acknowledgement that, in the gap between the 2011 short order and the later full judgment, the judiciary appeared to have “buckled under the legislative pressure” (pp 59-61). That is an extraordinary admission. It amounts to a constitutional confession that the court could be bent at the very moment it was meant to operate in the nation’s interest. Once the highest court says that politics may have shaped constitutional adjudication, appointments and institutional control cease to be technical questions and instead become factors influencing the survival of democracy. It is also noteworthy that former Chief Justice Khairul Haque, who authored the 13th Amendment judgment, has been in custody since July 24, 2025 (albeit on unrelated charges). The symbolism is difficult to ignore.

The same pattern has been visible in other cases as well. Former Chief Justice SK Sinha resigned following intense government pressure after the 16th Amendment judgment. He publicly denied claims of illness and stated he was forced to leave the country. He had to say openly before the media that he was neither sick, nor was he escaping, and that the government was misguided. In later interviews and in his book, A Broken Dream, he alleged intimidation by intelligence officials, coercion by senior state authorities (namely, the then prime minister, law minister, and attorney general) at Bangabhaban, and severe personal and institutional pressure to deliver a judgment favourable to the then government—which he had refused to do (pp 526-530).

In August 2024, then Chief Justice Obaidul Hassan and several Appellate Division judges resigned, again confirming how shattered public confidence in judicial neutrality had become. And the cases against Khaleda Zia showed, in perhaps the cruellest possible way, what a compromised judiciary can do to a political opponent. No principled democrat needed to be a partisan of Khaleda Zia to see the problem: an elderly opposition leader with serious medical complications was denied bail and/or meaningful relief for years, only for the Appellate Division to later (that is, after the August 8, 2024 regime change) describe the proceedings as a “manifestly contrived misapplication of the law” amounting to “malicious prosecution.” This was not a minor judicial error, but a structural failure that demonstrated how laws can be weaponised when courts cease to function as independent adjudicators.

The historical justification for the repealed ordinances is, therefore, significant. Bangladesh’s present situation is the result of a gradual weakening of constitutional safeguards. The original 1972 constitutional framework assigned the chief justice a role in judicial appointments, but later amendments and political practice steadily reduced the scope of the role. In practice, the consultation requirement was always limited, since Article 48(3) ensures that presidential authority follows the prime minister’s advice. The most sensitive stage has long been the appointment of additional judges under Article 98, which serves as the main entry point to the higher judiciary. This structural feature allowed patronage-driven appointments to persist.

Although the Awami League restored consultation with the chief justice for permanent appointments under Article 95 through the 15th Amendment in 2011, it chose not to extend the same safeguard to Article 98, thus clearly violating the 1972 framework’s structure. As a result, initial appointments to the High Court Division remain largely within executive control, creating space for political preference and favouritism.

The system relied on convention where firm legal limits were required, and that reliance proved misplaced. The 2008 attempt to establish a Supreme Judicial Commission was later abandoned with the return of electoral politics, not because it failed but because it restricted executive discretion. The underlying reality is clear: control over appointments is a source of power, and governments are reluctant to surrender it.

The Supreme Court Judges’ Appointment Ordinance in particular was an attempt, admittedly an imperfect one, to replace that opaque patronage system with a statutory process. The High Court itself (when asked to strike down parts of it) accepted that the existing scheme had defects and lacunae, noted the prevalence of political appointments, and described the ordinance as desirable in the national interest while leaving room for parliamentary debate and revision. That is the correct constitutional sequence: courts identify vulnerabilities and parliament improves the law. What the parliament must not do is destroy the framework first and promise improvement later. That is not refinement. It is a relapse.

The same is true of the Supreme Court Secretariat Ordinance. Judicial independence is not secured merely because judges write their own judgments. It requires administrative control over postings, promotions, discipline, staffing, and the everyday machinery through which careers are made or broken. The High Court’s 2025 ruling restoring Supreme Court control over the lower judiciary and ordering a separate judicial secretariat was important precisely because it confronted the operating core of executive influence. A lower court judge who knows that administrative destiny still depends on the executive does not need to receive a direct order to understand the limits of courage. Institutional dependence teaches self-censorship more efficiently than threats ever could.

Defenders of the repeal say no elected parliament should feel bound by ordinances issued by an interim government. That is a respectable argument only if it is applied honestly. These ordinances are being targeted not because they are procedurally impure, but because they constrain the two forms of influence that elected governments most prize: control over appointments and control over judicial administration. If there are defects in composition, age thresholds, disclosure rules, or selection criteria, amend them now. Strip out what is weak. Tighten what is vague. Add transparency where it is missing. But do not reopen the old void and ask the public to trust that something better will one day emerge from it. In Bangladesh, legal vacuums are rarely neutral and are almost always filled by the executive.

The real question before parliament now is brutally simple. Does it want an independent judiciary, or merely a friendlier one?

If these ordinances are allowed to die, the answer will become obvious. The country will be told once again that reform is admirable in speeches, expendable in office, and negotiable whenever it threatens the political class’ control over the courts. That would not just be a waste of a historic reform moment; it would restore the institutional conditions that made constitutional distortion, partisan prosecution, and judicial intimidation possible in the first place. Bangladesh does not need that system repaired. It needs it buried and replaced with one that no government can quietly reclaim.

Barrister Khan Khalid Adnan is advocate of the Supreme Court of Bangladesh, fellow at the Chartered Institute of Arbitrators, and head of the chamber at Khan Saifur Rahman and Associates in Dhaka.

Views expressed in this article are the author's own. 

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