Has the judiciary really become independent?

In order to ensure the full independence of the judiciary, the interim government issued the Supreme Court Secretariat Ordinance, 2025 towards the end of last year.

On 11 December, the Supreme Court Secretariat was inaugurated by the then chief justice, Dr Syed Refaat Ahmed. Through this move, the government has claimed that the judiciary has been completely separated from the executive branch. However, an analysis of the relevant law shows that government control over the judiciary still remains. In particular, government control continues in several areas, including financial allocation.

Sub-section (2) of Section 1 of the ordinance states that, subject to the establishment of the Supreme Court Secretariat and its full operationalisation, the government, in consultation with the Supreme Court, shall bring the provisions of Section 7 into force through a notification in the official gazette.

Section 7 states that:

(1) The Supreme Court Secretariat shall be the institution responsible for service administration.

(2) In order to fulfil the purpose of Article 116 of the Constitution, the Supreme Court Secretariat shall, on behalf of the President, perform all necessary administrative duties relating to the control and discipline of service members.

(3) Matters relating to the control and discipline of service members shall be placed, for the advice of the relevant committee of the Supreme Court, by the Secretary of the Supreme Court Secretariat through the Registrar General of the Supreme Court.

(4) The members of the committee mentioned in sub-section (3) shall be nominated by the judges of the Appellate Division in the prescribed manner.

(5) Notwithstanding the provisions of sub-section (2), matters relating to the posting or transfer of service members to institutions or bodies under the jurisdiction of the Law and Justice Division, or to any other ministry, division, organisation, institution or authority, shall be carried out, for that purpose, in accordance with the rules framed by the President under Article 133 of the Constitution, in consultation with the Supreme Court.

This ordinance was issued by the Ministry of Law, Justice and Parliamentary Affairs under the direction of the President. Earlier, on 20 November, the Advisory Council of the interim government gave final approval to the draft of the Supreme Court Secretariat Ordinance, 2025, concerning the establishment of a separate secretariat for the Supreme Court. To ensure the institutional independence of the judiciary, on 27 October 2024 the Supreme Court, at the initiative of the chief justice, sent a proposal to the Ministry of Law, Justice and Parliamentary Affairs regarding the formation of a separate judicial secretariat.

The government claims that, by issuing the Supreme Court Secretariat Ordinance, 2025, the long-cherished dream of establishing a separate secretariat for the judiciary has finally taken concrete shape.

But what is the reality? Although the interim government has issued a gazette establishing a separate secretariat for the Supreme Court, it must be approved by the subsequent elected government. Otherwise, the hope created regarding judicial independence will collapse. Judicial independence means the ability to conduct judicial activities independently, free from interference by the executive branch. The Constitution of Bangladesh also speaks of establishing an independent and impartial judiciary. Even 26 years after the verdict in the “Masdar Hossain” case, the judiciary has not become independent. Most recently, on 30 November, the Supreme Court Secretariat Ordinance was issued to ensure full independence of the judiciary. However, legal experts have expressed doubts as to whether this separate secretariat will be sufficient to ensure complete judicial independence.

In this regard, constitutional expert Dr Shahdeen Malik told the media, “Judicial independence is a challenging issue, and ensuring it requires vigilant citizens, political goodwill and an effective constitutional framework. To keep the judiciary independent, it must be ensured that judges can carry out judicial work impartially, without interference from any other branch of government.” He further said, “The 12-point directives of the Masdar Hossain case, aimed at judicial independence, have still not been properly implemented. Now a separate secretariat has been created for the judiciary. But without government goodwill, the judiciary will not be independent even after this. This is only a separate secretariat, which will be controlled by the chief justice. But if the government interferes there as well, will they be able to work independently?”

Senior Supreme Court lawyer Ahsanul Karim said, “A separate secretariat for the judiciary is good news. But the 12-point directives of the Masdar Hossain case must be implemented. For this, the government needs to be generous. In the appointment, transfer and promotion of judges, or in the functioning of the Supreme Judicial Council, the government can assert its authority if it wants. That can happen in various ways, because no one is completely outside government control. Therefore, even if the judiciary is separated, doubts remain as to whether it will be completely independent.”

It is noteworthy that Section 1(2) of the ordinance states: ‘Subject to the completion of the establishment of the Supreme Court Secretariat and its full operationalisation, the government shall, in consultation with the Supreme Court of Bangladesh, bring the provisions of Section 7 into force through notification in the official gazette.’ This means that although there is a law establishing the Supreme Court Secretariat, until it is fully implemented, matters relating to the transfer, posting, control and discipline of judges remain under government authority. Therefore, many believe that the so-called independent judiciary or separate secretariat is nothing more than an illusion.

The gazette states that matters relating only to judges engaged in judicial work have come under the authority of the Supreme Court Secretariat. However, judges who perform administrative duties elsewhere, such as in the Election Commission, the Anti-Corruption Commission, training institutions, or bodies like the Law Commission, will continue to have their control, discipline and related matters under the Ministry of Law.
Currently, judges and justices are accountable to the Supreme Judicial Council. The chief justice, however, is accountable to the President. The appointment of the chief justice rests with the President, who acts on the advice of the prime minister. Then how can the appointment of the chief justice be free from politics? So, has the judiciary truly become independent?

In financial matters, the Supreme Court Secretariat is still not fully independent. If the estimated cost of a project is less than Tk5 billion, the chief justice can approve it. If it exceeds Tk5 billion, the chief justice must present it to the ECNEC meeting through the Planning Commission. The budget of the higher judiciary will be approved by the government.

Moreover, this secretariat has not been completely freed from the executive branch. There is still scope to retain at least 25% bureaucrats within this secretariat.

Therefore, even if independence is claimed on paper, how independent has the judiciary really become? That question remains unanswered.