Judicial independence amid a powerful executive in Bangladesh: a constitutional paradox?

After 36 years of subservience to the Executive, the judiciary of Bangladesh has recently been separated to dispense justice independently. This separation happened in 2007 during the term of an interim caretaker government in power with limited constitutional mandates. The caretaker government enjoyed full army support and operated within its proclaimed state of emergency, which resulted in its extraordinary empowerment far beyond the Constitution. Its all-powerful orientation had an encroaching effect on constitutional guarantees and a marginalising effect on judicial independence. Apex court decisions in the post-separation period accorded priority to the emergency power over the Constitution. Insulated by the emergency powers, the law enforcement apparatus abused human rights with impunity. The emergency powers predefined the legal consequences of these abuses to ensure that legal challenges to any emergency measures were unsuccessful. Pending high-profile cases, particularly against former prime ministers,are set to serve as further testing grounds for judicial independence. A preference for judicial restraint over activism during a state of emergency, in view of the vulnerability of judicial independence, may not be gainsaid in some cases. But a general abdication of judicial impartiality in favour of a pliant role in Bangladesh, where the judiciary is the only forum for enforcing citizens’ rights, is paradoxical to the judiciary’s guardianship of the Constitution.