Is the Judiciary in Bangladesh Truly Independent?

This week, the Supreme Court Judges’ Appointment Council issued a notice to recruit 20 new judges for the High Court Division.

On paper, this development appears to signal progress in strengthening the judiciary.

However, a fundamental question must be addressed before any further appointments are made: Will the selection process be genuinely transparent, or will it simply reflect the preferences of the Chief Justice?

A Long Struggle for Independence

Since its birth, Bangladesh has aspired to build a judiciary free from political interference.

The 1972 Constitution enshrined the principle of judicial independence, but successive governments failed to fully implement it.

Only in 2025 did the interim government introduce the Supreme Court Judges’ Appointment Ordinance, which aimed to formalize a new framework for appointing Supreme Court judges.

More than five decades after independence, the essential question remains: Is the judiciary in Bangladesh truly independent?

Judicial independence requires not only freedom in judicial decision-making but also an appointment process based on transparency, merit, and accountability.

Yet, the appointment of judges continues to be characterised by favouritism -- political influence in the past, and judicial influence in the present.

The Masdar Hossain Case: A Turning Point

The landmark case of the Secretary, Ministry of Finance v. Md. Masdar Hossain began in 1995, when District Judge Md Masdar Hossain and 441 lower-court judges challenged the government’s administrative control over the judiciary.

They argued that treating judges as executive officials violated the constitutional guarantees of independence.

In 1997, the High Court Division agreed with their position and ordered the separation of the judiciary from the executive. This decision was upheld by the Appellate Division in 1999.

The Masdar Hossain judgment provided the foundation for an independent judiciary, although implementation was delayed for years.

Even after the caretaker government’s reforms of 2007-2008, which established a legal basis for judicial autonomy, the process of appointing judges often continued to reflect political preferences rather than merit.

Prior to 2009, there was some degree of meritocracy. However, under Sheikh Hasina’s extended administration, critics argued that the judiciary became increasingly aligned with the ruling party -- a situation many described as a “pocket judiciary.”

Reform or Rebranding?

Following the political transition in August 2024, when Professor Muhammad Yunus assumed leadership, judicial reform was promised.

A key outcome of this pledge was the Supreme Court Judges’ Appointment Ordinance, 2025, which established a permanent seven-member council to recommend names to the President for judicial appointments.

According to Section 3, the council comprises the following members:

• The Chief Justice (Chair)

• The senior-most judge of the Appellate Division

• Two senior-most High Court judges (one from judicial service, one from the bar)

• One retired Appellate Division judge, nominated by the Chief Justice

• The Attorney General

• One law professor or legal expert, nominated by the Chief Justice

A Chief Justice-Centric Council

Although the council is formally composed of seven members, the Chief Justice’s dominance is built into its very design. As chair, he presides over every proceeding, sets the agenda, and frames the deliberations.

He directly nominates two members, ensuring loyal voices within the body, and as the head of the judiciary he commands deference from colleagues who may hesitate to challenge him.

In practice, this means that five of the seven seats fall within his orbit of influence, creating a structural imbalance that undermines the council’s claim to collective independence.

The result is a body that risks functioning less as a forum of diverse perspectives and more as an extension of one individual’s priorities.

What was intended to be a pluralistic council becomes, in effect, a “Chief Justice’s wish‐list committee,” where decisions reflect the preferences of a single office‐holder rather than genuine consensus.

Such concentration of power not only erodes the credibility of the institution but also raises serious concerns about judicial independence, transparency, and the resilience of checks and balances.

A Troubling Transparency Deficit

The first round of appointments under the ordinance -- 25 judges appointed in August 2025 -- exposed significant gaps in transparency.

The public was not informed of the number of applicants, the criteria used in selection, or the reasons some candidates were chosen over others.

Without such information, claims of transparency remain rhetorical. Closed-door proceedings undermine public trust. Genuine reform requires openness, scrutiny, and clear selection standards.

The first group of 25 appointees appears to represent personal and professional networks more than open competition. While political patronage may be diminishing, judicial patronage risks taking its place, consolidating influence within a narrow circle.

Another area of concern is the ordinance’s requirement that High Court judges must be at least 45 years old. This rule excludes many talented lawyers and judicial officers who establish strong reputations before reaching that age.

Rather than broadening the pool of potential candidates, the age restriction narrows it, reinforcing hierarchy and favouring older, often better-connected individuals.

This is not merit-based reform; it is a structural barrier that preserves the status quo. Labelling it as “reform” is misleading.

The 2025 ordinance raised hopes of meaningful reform, but its implementation shows how easily power can be re-centralized at the top. True judicial independence cannot rest on the discretion of one office, no matter how elevated.

When appointment criteria -- including an arbitrary age requirement -- limit competition and deny space for merit, independence becomes a slogan rather than a standard.

For the courts to earn public confidence, appointments must be transparent, competitive, and free from personal or institutional favouritism.

Bangladesh deserves a judiciary that serves the nation -- not the preferences of any individual or inner circle.

Barrister Salah Uddin Bhuiyan is an Advocate, Supreme Court of Bangladesh.