The Judiciary Under Hasina and What’s Happening Now

The lower courts in Dhaka have suddenly become so effective in dispensing justice. In the past three days, judges and officials of the lower courts have granted bail to about 5,000 people, as if the gates of justice had suddenly opened.

The gate remained closed till a few days ago. No bail. Whoever was arrested or detained by the law enforcement and brought to court was denied bail and sent to jail. Many of them were remanded in custody. Even a 17-year-old boy was remanded in custody. This tactic was part of the Hasina government’s plans to brutally suppress the student protest.

Similar tactics were used from October to December last year, when Hasina’s then-government launched a crackdown on male opposition figures led by the BNP who protested against January’s parliamentary elections, which were to be held under Hasina’s government.

In the crackdown, thousands of opposition figures, including senior BNP leaders, were arrested in multiple cases filed against them by police. Many of them were released only after the elections were over and Hasina was sworn in as prime minister for a fourth term.

This time, the fall of the Hasina regime on July 5 opened the gates of justice.

The prevailing state of lawlessness since her fall has also exposed the fragility of all our institutions, such as the police and the judiciary. This is the culmination of the excessive politicization of state institutions by the Hasina government for their narrow partisan interests.

Dhaka’s district judges and courts are functioning despite security concerns. However, lower courts at the district level are largely non-functional as officers do not show up due to security concerns after the entire police administration collapsed and abandoned its law enforcement duties following Hasina’s resignation.

The Supreme Court remains closed indefinitely. No one knows when it will reopen. The attorney general and some senior officials in the AG’s office have also resigned, accused of playing a partisan role.

Why are the same judges and officials in Dhaka courts behaving differently now? The question is big, but the answer is simple. They were under the complete control of the ousted Hasina government. The judiciary was denied the opportunity to work independently.

All successive governments have exercised control over the lower courts, which are in close contact with the people, for their partisan interests, particularly to silence dissenting voices and put opposition people behind bars. However, the abuse of judicial power that has taken place in recent years has exceeded all previous records.

Let’s go back in time and find out how successive governments have controlled the judiciary over the decades.

The framers of the constitution of independent Bangladesh dreamed of a democratic country and focused on an independent judiciary, which is a hallmark of democracy.

Therefore, Article 22 of the Constitution clearly states that the judicial power will be separated from the executive power.

As regards the lower judiciary, the original Article 116 of the 1972 Constitution empowered the Supreme Court to exercise control over the affairs of the lower judiciary, including the appointment, promotion, leave and discipline of judges and court officials.

But the parliament, through the fourth amendment to the constitution during the AL government in 1975, abolished this SC power and gave it to the president. Bangabandhu Sheikh Mujibur Rahman, who was the prime minister then, took over the presidency through a constitutional amendment and established a one-party rule – BAKSAL.

Later, in 1978, during the martial law period, Article 116 was further amended by declaring martial law and introducing a provision stating that the president would exercise his powers in consultation with the Supreme Court.

However, the AL government led by Hasina, which has always criticised martial law, decided to maintain the provision introduced by the martial law government.

In 2011, the 15th Amendment to the Constitution retained the same provision in Article 116.

“As a result of replacing the words ‘President’ with the words ‘Supreme Court’ in Article 116, the independence of the lower courts has been completely violated, limited and impoverished,” the Supreme Court noted in a 2017 judgment in which it issued a ruling under the 16th Amendment.

“Although there was a possibility of consultation in the exercise of this power, in practice such consultation would be meaningless if the executive power did not cooperate with the Supreme Court,” the top court added.

Moreover, at first glance it may seem that the president has been authorized by the amendment to exercise Article 116. In reality, however, he cannot exercise this power alone. The prime minister exercises the power because the president exercises all his functions on the advice of the prime minister, except for the appointment of the prime minister and the president of the Supreme Court.

In this way, the Prime Minister retained control over the lower judiciary.

“There can be no talk of independence of the judiciary if the disciplinary mechanism, including the power to appoint, delegate and promote officers of lower and higher judicial authorities, remains in the hands of the executive power,” the Supreme Court stated in its judgment.

The government also maintains control over the appointment of Supreme Court judges, disregarding the constitutional obligation to create a separate law on the appointment of supreme court judges. The lack of a specific law allows the government to appoint judges of its own choosing.

These laws empowered former Prime Minister Hasina to establish government control over the judiciary. And the rigged elections also helped her establish complete control over parliament. She retained control of all three branches of state and emerged as Bangladesh’s “omnipotent leader.”

There was no institution that could challenge her leadership. Parliament was unable to hold her cabinet to account. The members of her cabinet were also blindly loyal to her.

What could be the result of such a situation?

Bangladesh has become a classic example of what the French philosopher Baron de Montesquieu, a French judge also known as one of the great political philosophers of the Enlightenment, warned about 300 years ago.

“When the legislative and executive powers are united in one person or in the same body of magistrates, there can be no liberty, because fears may arise that the same monarch or the same senate will enact tyrannical laws and execute them in a tyrannical manner,” said Montesquieu.

What would happen if the three powers – executive, legislative and judicial – were exercised by one person or a specific group?

Montesquieu wrote: “Everything would come to an end if the same man or the same body, whether nobility or people, exercised these three powers: that of making laws, that of executing public resolutions, and that of considering the affairs of individuals.”

However, Hasina has always maintained that her government was legally elected by the people, even after forming governments through supervised elections in 2014, 2018 and 2024.

Montesquieu said something significant about those who use the legal shield to justify their seizure of power. “There is no greater tyranny than that which is exercised under the shield of law and in the name of justice.”

This culture of judicial control must be changed because both members of political parties and ordinary people have been its victims. And separation of state powers is a must to ensure effective checks and balances.