Judicial Reform Scheme -- From Plan to Practice

The Proclamation of Independence voiced one of the guiding principles of the Liberation War: “… to give to the people of Bangladesh an orderly and just Government”. Bangladesh adopted democracy as that constitutional and just system of governance. However, on one hand, citizens suffered from denial or delay of justice, financial loss, and harassment; on the other, the judiciary and the court system were recklessly used as tools to legitimize repression, enforced disappearances, extrajudicial killings, crossfire, corruption, money laundering, and other crimes.

Ultimately, by shifting all political questions from politics to the Courts -- thereby distorting the state structure and being willingly or unwillingly used for establishing authoritarian rule -- the judiciary of this country became the target of severe criticism over the past decade and a half.

In light of the bitter experience of the judiciary’s leading role in suppressing democracy -- the very promise of independence -- during Sheikh Hasina’s regime, there has been a growing consensus among political parties, civil society, and the government that ensuring the separation and independence of the judiciary is indispensable for establishing and sustaining an effective democracy.

Consequently, comprehensive reform of the judicial system has emerged as a major national demand. Nevertheless, post-5th August, the only organ remaining intact is the judiciary. It indicates that our judiciary possesses some inner strength and if nurtured there could be a huge turn around.

To this end, a specially constituted Judiciary Reform Commission (JRC), along with other appointed commissions, has made various recommendations concerning judicial reform.

Judiciary of Bangladesh

The judiciary of Bangladesh has two main tiers: on top is the higher judiciary, constitutionally known as the Supreme Court (SC) of Bangladesh, which consists of the High Court Division (HCD) and the Appellate Division (AD). Additionally, International Crimes Tribunals including certain appellate tribunals such as Labour Appellate Tribunal or Administrative  Appellate Tribunal, may also be considered part of this structure. The District Judiciary, comprising the District Judgeship, the Sessions Division, the Judicial Magistracy, the District Legal Aid Office, and other courts and tribunals. In the Constitution, this tier is mistakenly referred to as the “Subordinate Courts” and the Constitution Reform Commission (CRC) recommended renaming it as “Local Courts”.

Centuries-old Civic and Political Commitment

The independence of the judiciary has been a civic aspiration of the people of this land for more than 140 years. Soon after the establishment of the Indian Congress in 1885, one of its founders, the first Bengali Barrister, Manmohan Dutt, raised this demand. In this regard, what Shivnath Shastri recorded in 'Ramatnu Lahiri O Totkaleen Bongosomaj’, worth reminisce:

"...when the Indian Congress was formed he [Barrister Dutta] began to help the political movement with enthusiasm. He was the first to address one of the topics pending in the Congress; and preached with determination. It is to separate the judiciary and the executive."

Not only that, it is also a centuries-old political commitment of this country. In 1921, the Legislative Council of undivided Bengal passed a resolution regarding the separation of the judiciary from the executive. Among the historic 21-Points of the United Front of 1954, the 15th point was for separation of the judiciary. An Act was also passed to that effect in 1957 to implement this clause, though it did not see the light of day for want of a Gazette Notification.

In the 1970 elections that culminated in the independence war of Bangladesh, one of the election pledges of the victorious East Pakistan Awami League was to completely separate the judiciary from the administration. Segregation was declared as one of the mandates of the 1972 Constitution. Clause 3(b) of the “Outline of the Three Coalitions” that became victorious in the 1990 popular uprising pledged to ensure the independence and impartiality of the judiciary and the rule of law.

Finally, the first speech of Muhammad Yunus as the Chief Advisor of the Interim Government (IG) after the 2024 mass uprising and the Roadmap of Chief Justice of Bangladesh (CJB) Syed Reefat Ahmed also expressed strong commitment and conviction for the independence and reform of the judiciary.

Integration vs. Separation

Debates on judicial separation and independence in Bangladesh usually focus only on separating the subordinate judiciary from the executive, overlooking the higher judiciary, which has been constitutionally somewhat independent since 1972. In contrast, the subordinate judiciary historically remained under government control. Although the 1972 Constitution intended to place disciplinary authority over lower court judges in the SC, this was never fully implemented, as executive officers continued to be appointed as judicial magistrates under the Criminal Procedure Code -- creating a dual and indirect form of executive influence.

This partial separation too was completely reversed by the 4th Amendment (1975), which replaced “Supreme Court” with “President” in Article 116, shifting control over subordinate judges back to the executive and making integration -- not separation -- the state policy. Subsequent constitutional changes under the 5th Amendment introduced some safeguards, including the creation of the Supreme Judicial Council for removing judges, but the executive’s authority over the subordinate judiciary remained intact because the word “President” in Article 116 was preserved.

Since the President acts on the binding advice of the Prime Minister (PM) (except in appointing the CJB and PM), real control over the judiciary continues to lie with the PM, exercised through the Ministry of Law and Justice.

Did Judiciary Separate?

The judiciary became “separate” or “independent” on 1 November 2007 is incorrect. What changed was only the recipient of magistracy powers -- from administrative cadre officers to judicial service officers -- while real control remained with the executive, exercised through the Ministry of Law and Justice. Thus, authority shifted in form, but not in substance.

Although the court had ruled that the SC’s advice should take precedence over executive decisions regarding judges, this principle was inconsistently applied. The government continued to assert strong influence over both the SC and district judiciary. The conflict peaked when CJB S.K. Sinha-led AD struck down the 16th Amendment and attempted to limit executive control over judicial discipline; he was subsequently pressured to resign and go into exile.

A striking example of ongoing executive interference was the Pirojpur incident, where a senior district judge who denied bail to a ruling-party leader was immediately removed from duty, replaced by a junior judge, and swiftly transferred to a remote district (Bangla Tribune, 03 March, 2020). The SC facilitated this transfer, since such decisions require approval from its GA Committee, led at the time by ex-CJB Syed Mahmud Hossain. Reports suggest that the Ex-Law Minister Anisul Haque met the CJB the same afternoon and quickly secured approval for the transfer (Daily Prothom Alo, 06 March, 2020).

Proposals of the JRC

As reform was one of the 3 cardinal mandates of the July Uprising, JRC was formed for overhauling of judiciary. Its proposals for the higher judiciary are:

To strengthen judicial independence by giving weight to the CJB views on the number of SC judges and ensuring appointment of the senior-most judge as CJB. A nine-member Judges Appointment Commission led by the CJB would oversee transparent appointments, while the Supreme Judicial Council would set a judicial code of conduct and investigate complaints. Reforms include fixing judges’ retirement age at 70, requiring at least 15 years’ experience for HCD elevation, ending the President’s unilateral power to appoint the CJB, and granting the SC full control over its own budget.

Additional measures include establishing High Court benches in all divisional cities, digitizing notices and filings, ensuring transparency in bench formation and publication of judgments, hiring IT staff, preventing unnecessary leave and delays, and constitutionally recognizing the Judicial Appointment Commission, SC Secretariat, and a Permanent Attorney Service.

For the District Judiciary, JRC Proposals:

call for comprehensive judicial reform, including: Adopting a judicial code of conduct and transfer policy; ending executive influence over judicial personnel matters; funding the judiciary from the consolidated fund; creating a new pay commission; increasing judicial salaries; expanding courts and infrastructure (including commercial courts); establishing an independent investigation agency; digitizing court processes; requiring public asset disclosures; strengthening legal aid and arbitration frameworks; allowing affidavit evidence; ensuring witness and victim protection; preventing frivolous cases; limiting arbitrary arrests; and creating an implementation taskforce.

For mobile courts, the recommendations are to restrict their powers to fines and ensure they operate under judicial magistrates. For village courts, measures for strengthening effectiveness and district-level monitoring were proposed.

Legal profession reforms include modernizing legal education through a permanent Legal Education Board, unified admission tests, updated curricula, expanding Bar Council tribunals, improving lawyer accountability, banning political activities in court premises, and removing political interference from Bar Council elections.

Recommendations of the CRC

CRC recommended decentralizing the HCD by establishing permanent seats with equal jurisdiction in every administrative division of the country; forming an Independent Judicial Appointments Commission headed by the CJB for appointing SC judges; incorporating honesty and integrity as mandatory qualifications in addition to legal knowledge and competence for appointment as judges of the SC; institutionalizing the practice of appointing the most senior judge of the Appellate Division as the CJB through a constitutional provision; maintaining the SJC; and granting the judiciary full financial independence.

Furthermore, it proposed renaming “Subordinate Courts” as “Local Courts”; establishing a Judicial Secretariat under the supervision of the SC to manage all matters relating to appointment, posting, promotion, leave, and discipline of judicial officers of local courts; and ensuring that this Secretariat has full control over the administrative functions, budgeting, and human resource management of both the SC and local courts, financed by the Consolidated Fund.

Separate Secretariat

There is broad public and political consensus on establishing a separate SC Secretariat to ensure judicial autonomy, reflected in speeches, reform commission reports, and inter-party dialogues. Article 22 and the 4th Schedule of the Constitution impose clear obligations to implement judicial–executive separation and enforce provisions ensuring independence under Articles 115, 116, and 116A. This collective constitutional intent was affirmed in the Masdar Hossain judgment, though earlier attempts by former CJBs Mozammel Hossain and S.K. Sinha failed due to government reluctance. The core obstacle remains Article 116, which creates a diarchy the Court itself identified as incompatible with full judicial independence and urged Parliament to amend through its “12 Directives.” Yet Parliament has never acted on this mandate, retaining Article 116 even during the major 15th Amendment -- which ironically was enacted under the banner of restoring constitutional purity.

Material Reasons for Secretariat

A separate Secretariat is essential not only for constitutional and political reasons but also for practical administrative efficiency. Although the Constitution assigns the SC broad responsibilities -- supervising, controlling, disciplining, and transferring all subordinate courts -- it lacks the organizational structure needed to fulfill these duties. Since 2007, the number of judges has grown 3-time, along with thousands of staff and significantly more courts.

The SC Registry, already burdened with managing the AD and HCD, must also handle nationwide administrative tasks, even as case backlogs have surged from 24,623 in 1972 to over 536,000 in 2022. Despite this massive expansion, the Registry’s administrative capacity has not kept pace. Because the Rules of Business continue to place key judicial controls under the Ministry of Law, establishing a separate Secretariat is necessary to ensure effective administration and protect judicial independence.

Steps Taken by IG

Several significant reforms have already been undertaken to advance judicial separation and independence and improve court administration in Bangladesh. A new law has created a Supreme Judicial Appointments Council, through which judges are now appointed to the AD and HCD after scrutiny and viva voce examinations.

Major procedural reforms include:

●    Civil justice changes -- affidavit-based testimony, online summons, and execution of judgments within the original case file.

●    Criminal justice reforms -- greater transparency and accountability in arrest and remand, protection of accused persons’ rights, removal of gender-insensitive language, oversight of investigations, and measures to curb false cases.

To reduce caseloads, mandatory pre-litigation mediation has been introduced for selected disputes, with increased judicial staffing in district legal aid offices.

The Cyber Security Ordinance 2025 has repealed repressive provisions of the prior law and dismissed related harassment cases. To strengthen institutional independence, the Judicial Service Formation Rules 2025 empower the SC to create judicial posts, and the long-standing practice of assigning both civil and sessions matters to the same judge has been abolished, though, without appointing adequate judges this segregation is yet to materialise.

Additional steps include reviewing subordinate judges’ asset statements, issuing Practice Directions for virtual testimony, and advancing e-family courts.

Consensus

The National Consensus Commission has agreed on a comprehensive set of reforms to strengthen judicial independence, accountability, and efficiency. Key points include:

The President will appoint the CJB from the AD. A constitutional amendment will allow increasing the number of SC judges as needed. An independent Judicial Appointments Commission led by the CJB, will be established to appoint SC judges. Appointment procedures for SC judges will be included in the Constitution.

The Constitution will affirm full judicial independence. The SC will have its permanent seat in the capital, but permanent regional benches may be established. Courts will be set up in all sadar and selected remote or densely populated Upazilas with necessary infrastructure and funding.

The SJC will be restored and strengthened to oversee judicial ethics, enforce codes of conduct, and discipline both sitting and former judges. Regular publication of asset declarations of judges and court staff every three years.

A SC Secretariat will be created to ensure administrative and financial independence, overseeing transfers, discipline, and management of subordinate courts.

An independent criminal investigation agency will be created. The number of judges and support staff will be increased, and new courts will be established as needed. The court system will be reformed and digitalized to reduce delays and improve transparency.

A code of conduct for lawyers will be introduced, with district-level Bar Council Tribunals led by judges. Political influence in courts and bar elections will be prohibited. Judges’ political loyalty or partisan behavior will be treated as misconduct and subject to punishment.

Reforms through judicial activism

Beyond the reform initiatives adopted by the government and the political sphere, a silent parallel constitutional reform initiative is also underway within the SC arena. On the outset, the 16th amendment was ultimately declared unconstitutional by the AD, hence restored SJC. Then, part of 15th and subsequent amendments related with the article 116 were discarded by the HCD and lastly, much talked about 13th amendment was declared intra vires the constitution by the AD. All of these verdicts are somewhat connected with the idea of independence of the judiciary. Among these cases, Article 116 verdict is pivotal for separation.

Through this judgment, the last and biggest hurdle of separation and constitutional obstacle establishing a separate secretariat has been cleared. HCD held that the amendments brought in Article 116 of the Constitution regarding the transfer of professional control of judges of subordinate courts to the President were unconstitutional and the Judicial Service (Discipline) Rules, 2017, where the control of judges was placed in the hands of the government, have been discarded as inconsistent with the Constitution. The court also directed to set up a separate secretariat within three months of receiving the copy of the judgment.

Is Secretariat a panacea?

Though creating a separate Secretariat is a great leap toward genuine judicial separation and independence; it cannot achieve these goals on its own. A range of additional reforms is essential. These include: Clarifying the judiciary’s role in resolving political questions; removing courts from political controversies such as caretaker-government disputes; establishing clear policies for appointing SC judges and CJB; reviewing post-retirement appointments to lucrative government posts; creating an independent attorney service; and formulating comprehensive policies for judicial recruitment, tenure, promotion, transfer, and hierarchy.

Further requirements include securing financial independence, strengthening accountability, reducing excessive appellate/revisional stages in civil (especially land) disputes, and modernizing land administration through a unified digital survey and related reforms. Other necessary steps involve abolishing laws that legitimize adverse possession of immovable property after 12 years, introducing easement-based rent rights, establishing regional HCD circuit benches, restoring courts at the Upazila level, reforming civil and criminal procedures to reduce delay and cost, appointing judges and staff proportionate to caseloads, improving superstructure, and expanding legal aid services.

Some more unaddressed or less addressed issues are - repeated calls to adjudicate constitutional cases through a constitutional bench composed of at least five or more most experienced and judicially sagacious judges, or to establish a separate constitutional court. The current procedure of annulling constitutional provisions passed by a two-thirds majority in Parliament by a 2/3 member Bench of HCD is widely considered inadequate for such serious matters; making the GA Committee stronger, more balanced, and more inclusive; proposals arguing the appointment of the Attorney-General for Bangladesh (AG) to be placed under an independent authority, as it represents the state rather than the political executive.

Since AG sits on major statutory bodies -- such as the Bar Council, Judicial Service Commission, and Supreme Judicial Appointments Commission -- ensuring neutrality is essential. Proposed reforms include a minimum five-year fixed term and adopting removal and remuneration standards equivalent to those of SC judges.

There is broad civil, political, and judicial consensus in Bangladesh on the need for judicial separation. For the past half-century, judges, citizens, and justice itself have suffered due to dual control of the judiciary.

Very recently, the law advisor Dr Asif Nazrul publicly announced that the cabinet approved the ordinance for establishing the Secretariat. However,  the control and discipline of the judges that is pivotal will be handed over to the SC only after the fully functioning of the Secretariat within months and the government reserved the right to promulgate that gazette notification.

We can remember his predecessor Barrister Syed Ishtiaque Ahmed's effort in this regard in 2001. After the election, the leader of the winning party called him and vowed to finish the task themselves, however, never fulfilled that solemn promise. Beforehand, in 1957, the East-Pakistan government, in line with their electoral manifesto of 1954, even passed an Act for separation of judiciary similarly reserving the right to promulgate an one liner gazette notification and now we know that didn't happen. If the IG ultimately fails to issue the gazette notification, there is a real possibility that history will repeat itself for a third time.

In that sense, the process remains less than accomplished. The consequences of the past seventeen years of half-baked separation have been severe. One can only hope that this time the reform will finally be brought to fruition.

Millat Hossain is a Jurist, essayist, and translator.