Judiciary during Hasina's regime and what happens now

The lower courts in Dhaka have suddenly become so efficient in dispensing justice. In the last three days, the judges and magistrates in the lower judiciary granted bail to around 5,000 people, as if the gates of justice had suddenly opened up.

The gate remained shut until a few days ago. No bail. Whoever was detained or arrested by the law enforcement agencies and placed before the courts, they were denied bail and sent to jail. Many of them were placed on police remand. Even a 17-year boy was placed on remand. That tactic was a part of the Hasina government plans to brutally crush the student protest. 

A similar tactic was applied between October to December last year. The then Hasina government launched a clampdown on the BNP-led opposition men who were protesting the January parliamentary election to be held under Hasina government. 

In the crackdown, thousands of opposition men, including senior BNP leaders, were arrested in numerous cases filed by the police against them. Many of them walked out of jail only after the election was over and Hasina was sworn in as the prime minister for a consecutive fourth term. 

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

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

The judges and magistrate courts in Dhaka are functioning amid security concerns. But the lower courts at district level have been largely dysfunctional, as law officers are not showing up because of security concerns, after the entire police administration collapsed and abandoned their duties to maintain order, following Hasina's resignation.  

The Supreme Court remains closed for an indefinite period. Nobody knows when it will reopen. The Attorney general and some senior officials of the AG office also resigned, being accused of playing a partisan role. 

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

All successive governments exerted control over the lower courts, which are closely in contact with the people, for their partisan interests, particularly to gag the dissenting voices and put opposition men behind the bars. However, the judiciary abuse that occurred in recent years, has surpassed all the previous records.

Take a look back at history to find out how successive governments have controlled the judiciary for decades. 

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

Therefore, Article 22 of the constitution strongly pronounced that the judiciary would be separated from the executive. 

Regarding the lower judiciary, the original Article 116 of 1972 constitution empowered the Supreme Court to have control over the affairs of lower judiciary, including the posting, promotion, grant of leave and discipline of the judges and judicial magistrates.

But the parliament, through the fourth amendment to the constitution during the AL rule in 1975, scrapped that authority of the SC and gave it to the president. Bangabandhu Sheikh Mujibur Rahman, who was then prime minister, grabbed the presidency through the constitutional amendments and established one-party rule - BAKSAL.

Later in 1978, during the martial law regime, Article 116 was amended further through the martial law proclamation, and a provision was introduced saying the president would exercise the authority in consultation with the SC. 

The Hasina-led AL government that always blasted the martial law regime, however opted for retaining the provision introduced by the martial law government. 

In 2011, the 15th amendment to the constitution retained the same provision in Article 116.

"By this substitution of the word 'President' for the words 'Supreme Court' in Article 116, the independence of the lower judiciary has been totally impaired, curtailed and whittled down," observed the SC in the 16th amendment verdict, delivered in 2017.

"Though there was a provision for consultation in exercising this power, practically this consultation is meaningless if the executive does not cooperate with the Supreme Court," the apex court added. 

Moreover, at first sight, it may seem that the president has been empowered by the amendment to exercise Article 116. But in reality, he himself cannot exercise the power. The prime minister exercises the power as the president performs all his functions on advice of the prime minister, except for the appointment of the PM and the chief justice.

Thus, the prime minister has retained control over the lower judiciary. 

"There cannot be any independence in the judiciary if the disciplinary mechanism including the power of appointment, posting and promotion of the officers of the lower and higher judiciary are kept in the hands of the executive," said the SC verdict.

The government also retains control of appointment of judges of the Supreme Court, paying no heed to the constitutional obligation for making a separate law for the appointment of the apex court judges. Absence of specific law allows the government to appoint judges of its own choice. 

Those provisions empowered ex-PM Hasina to establish her government control over the judiciary. And stage-managed elections helped her to establish complete control over the parliament too. She had retained her control over all three branches of the state and emerged as the 'all powerful leader' of Bangladesh. 

There was no institution to question her leadership. Parliament was unable to hold her cabinet accountable. Her cabinet members were also blindly loyal to her. 

And what could be the result in such a situation? 

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

"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner," said Montesquieu.

What would happen if three powers—executive, legislative and judicial—are exercised by one person or a certain group? 

Montesquieu wrote: "There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals." 

Hasina however always claimed that her government was legally elected by people, even after forming governments through stage-managed elections in 2014, 2018 and 2024. 

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

This culture to control the judiciary needs to be changed, as both political party men and common people have been victims of this. And separation of the state powers is a must for ensuring an effective check and balance.