Addressing the crisis of confidence in the judiciary
Saqeb Mahbub
The judiciary is one of the three organs of the state and serves as the guardian of the Constitution. Its role is to keep the executive and Parliament in check. For a long time, the judiciary in Bangladesh fulfilled this role sufficiently well, earning the utmost confidence of the people.
In 1996, during a prolonged movement by opposition parties, including the Awami League and Jamaat, against holding elections under a BNP government, a solution was devised by some of the brightest minds of that time. They proposed a change in the constitution which would allow a caretaker government to oversee elections, and this government would be headed by the immediate past Chief Justice. This arrangement was considered foolproof, enjoying the confidence of the people. It was seen as airtight. After all, who could be more neutral than a former Chief Justice? The public and all political parties had such confidence in the judiciary that a former Chief Justice was viewed as someone who would not compromise on integrity and would be able to deliver elections that would be acceptable to all.
The judiciary, as an institution, was so well respected that the identity of the individual leading it was almost irrelevant. The very fact that the person had once held the office of Chief Justice was enough for all political parties and the general public to trust in their moral integrity, confident that they would not be swayed or biased. Such was the respect, dignity, and honor associated with the judiciary that even a retired Chief Justice, no longer legally bound by oath, was trusted to uphold its honor.
Fast forward 28 years, and compare this with the scenes we witnessed during and in the immediate aftermath of the July revolution. The trigger for the uprising was the High Court's judgment overturning the government's removal of quotas in public sector jobs, the merits of that judgment are not the subject of this article. Instead, I find greater significance in how the protesters reacted to steps taken by the court throughout the duration of the movement. The protesters did not initially demand that the High Court's judgment be overturned on appeal. Instead, they made it clear that they would not engage in the legal battle at all. Their demands were directed squarely at the executive. As protests continued, the government attempted to quell them by hurriedly appealing the High Court judgment to the Appellate Division. On July 10, 2024, the Appellate Division issued an interim order maintaining the status quo on quotas for four weeks. After the order was passed, former Chief Justice Obaidul Hassan reportedly remarked, "We will hear the arguments from all the aggrieved students through their lawyers during the hearing of the leave to appeal petition against the High Court verdict… Enough is enough, go to the classes from the streets."
Yet, the protesters paid no heed and continued their demonstrations. This signified a deeper problem: the state was facing a crisis of confidence in the role of the judiciary. The protesters appeared to have no faith in the judiciary's handling of the quota issue and did not bother to engage with the judicial system at all.
As the protests turned violent and the government struggled to contain them, it once again sought to implement judicial means to restore order. On July 18, 2024, the Attorney General, acting on government instructions, made a rushed application to expedite the appeal hearing which was originally scheduled for much letter. The full bench of the Appellate Division hurriedly convened on July 21, 2024, during a curfew when all other government and non-government offices were closed. The court delivered a verdict reducing the quotas from 56% to a mere 7%. The hope was that this judgment would quell the protests, but it had little effect. By that time, too much blood had been shed for the movement to be pacified by a court ruling. The final blow came when a petition filed by concerned lawyers for the release of six protest coordinators from illegal custody and to stop the use of lethal firearms by law enforcement was rejected by the High Court on August 4th. The protesters unequivocally stated that they had never intended to engage the court in the first place.
Even after the revolution succeeded in toppling the government, confidence in the judiciary did not improve. Quite the opposite. By then, the student protesters had been joined by nearly the entire adult population of Bangladesh in celebrating the fall of the AL regime. In this context, the new demand was that all Appellate Division judges resign. The logic being that those who had enabled the previous autocratic regime could not continue to hold state positions. This demand was ultimately fulfilled after a siege of the Supreme Court premises by students and the resignation of the Chief Justice and the Appellate Division on August 10th.
If anyone were to look at the court's actions in isolation, it would be difficult to understand why a Chief Justice who had led the bench that reduced quotas from 56% to 7% was compelled to resign. However, viewing these events in isolation ignores the elephant in the room: the crisis of confidence in the judiciary that persisted throughout the July revolution. Nothing the judiciary said or did had any impact on the ground. It was clear that the movement had no intention of believing anything said by the former Chief Justice or the Appellate Division at any point.
How did we go from a time when the people had ultimate confidence in the judiciary, willing to entrust the nation's leadership to retired Chief Justices, to a time of complete mistrust even in a sitting Chief Justice?
One could argue that the crisis began when the BNP-led Parliament passed the 14th Amendment to the Constitution in 2004, changing the retirement age of the Chief Justice from 65 to 67. The opposition Awami League viewed this as a manipulation by the BNP to ensure that a Chief Justice favorable to them would head the caretaker government, thereby strengthening their control over the elections. The Awami League's lack of confidence in the particular retired Chief Justice to lead elections ultimately led to a state of emergency and an army-backed government for two years.
However, the events that followed the Awami League's rise to power led to a rapid decline in judicial independence, particularly when it came to sensitive and important questions of the state. In 2011, the Appellate Division scrapped the caretaker government system altogether by declaring the 13th Amendment to the Constitution illegal—a system widely regarded as the only way to ensure free and fair elections in Bangladesh. Then Chief Justice Khairul Haque, in a brief judgment, stated that despite the caretaker government being unconstitutional, elections should still be held under the caretaker government for the next two terms. However, for reasons unknown to the public, this proviso was deleted from the full text of the judgment, raising concerns about government pressure.
In 2014, the AL-led Parliament passed the 16th Amendment, granting it the power to impeach judges. This move was seen as a final blow to the independence of the judiciary. Granting the government of the day the power to impeach judges instilled a fear of impeachment, bringing judges further under the executive's control. The Appellate Division, led by Chief Justice Sinha, courageously scrapped this provision, but the consequence was that Sinha was forced to resign and live in exile. A new Chief Justice took office, and the judiciary carried on as if nothing had happened. After this, there could be little doubt in the public’s mind that the Chief Justice and the Appellate Division were under the executive's influence when it came to decisions involving important state matters.
In this context, it is hardly surprising that in July 2024, the movement paid little attention to the announcement of a judicial commission led by a High Court judge to investigate the deaths of students at the hands of law enforcement. There was no confidence in the Appellate Division’s repeated assurances that the protesters’ demands had been met. Nor did the movement waver when the Chief Justice-led bench reduced quotas to 7%. As a result of a bloody movement that claimed more than 600 lives, the judiciary is now led by someone accepted by those who led and supported the revolution. Even those who did not support the movement can say little against the moral integrity and ability of the current Chief Justice of Bangladesh.
It is very easy to claim that the crisis of confidence in the judiciary, which the nation has felt since 2006, has now been resolved with this appointment. I would disagree with anyone who holds this view. While the public may have confidence in the recently appointed Chief Justice, it is essential to understand that as of yet, the structural gaps which led the judiciary to 2024 and allowed the executive to reign over it, are still very much in face. We cannot forget that the main factors eroding confidence in the judiciary remain rooted in the executive’s interference in the judiciary.
The slow delegitimization of the judiciary over the past three decades is undeniably the result of successive governments' actions. It arguably began with the perceived manipulation of the retirement age in 2006, followed by a barrage of politically motivated appointments to the bench over the past 15 years. Political loyalty has often outweighed merit in appointments to the Appellate Division and the office of Chief Justice.
It is clear that the Constitution does not have sufficient checks and balances to prevent the executive from interfering with the judiciary. It is hard to believe that no government or Parliament in the past 53 years of our independence has felt the need—or pressure—to draft guidelines for the appointment of judges to the Supreme Court. Currently, there is an unofficial ruling party “quota” in the appointment of judges to the Supreme Court, in the promotion of High Court judges to the Appellate Division, and in the selection of the Chief Justice. Nothing in the law prevents the government of the day from appointing whomever it wishes, and every government, especially the AL regime, has abused this power to the fullest.
Merit has been discarded. Those who delivered judgments favorable to the government politically were rewarded with promotions. Ultimately, loyalty had to be proven to become Chief Justice. If a Chief Justice did not toe the party line, they could be forced to resign. On May 21, 2023, Sheikh Fazle Noor Taposh, an AL MP and leader of the Awami League-backed lawyers’ organization, candidly and proudly boasted in a public speech of having “brought down a Chief Justice,” referring to Chief Justice Sinha’s unceremonious removal. Mr. Taposh’s role in undermining public confidence in the judiciary is an open secret within the legal profession.
Public confidence in the judiciary is essential for a stable democracy. The appointment of a Chief Justice who is acceptable to the public due to his illustrious academic background and record of integrity is only the first step. Several more steps are necessary to make the judiciary an airtight institution that will resist the dark forces of executive interference. There must be appropriate guidelines for the appointment of judges. These guidelines must prioritize integrity and merit while ensuring that political loyalty is discarded at the door. The appointing authority must also be within the judiciary itself. The Prime Minister of the day should have no say in the selection of candidates. The same should apply to the elevation of High Court judges to the Appellate Division. For full transparency, Chief Justices should be appointed solely on the basis of seniority.
The judiciary must also have its own system of disciplinary action. It must be able to weed out, through appropriate due process, those judges who are found guilty of dishonesty of any kind. The public needs to know that even judges can face consequences for their actions if they violate their solemn oaths. The Supreme Judicial Council, which was once part of our Constitution, needs to be reinstated, and proper standard procedures need to be established to make it functional.
Lastly, the political government of the day must realize that an independent and effective judiciary is not an enemy but an ally that can keep the government’s machinery in check. We all now know and can learn from the public humiliation the head of the executive can face when they allow themselves to become the source of absolute power. We should remember how absolute power led to absolute downfall.
In conclusion, restoring and maintaining public confidence in the judiciary is crucial for the long-term stability of Bangladesh's democracy. While recent changes, including the appointment of a respected Chief Justice, may have temporarily restored some confidence, these steps alone are not enough. A truly independent judiciary requires structural reforms, including merit-based appointments, insulation from executive influence, and transparent disciplinary mechanisms. The nation must move beyond short-term fixes and implement lasting reforms to ensure that the judiciary can function as a neutral guardian of the Constitution. Only then can it regain the trust of the people it has historically commanded and ensure justice and accountability in the governance of the country.
Saqeb Mahbub is a corporate and commercial lawyer and a partner at Mahbub and Company.
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