How Hasina rose above accountability

Parliament came automatically under her control due to structural flaws in the system as Sheikh Hasina was sworn in as the prime minister 15 years ago winning a landslide in the December 2008 general election.

What she then needed most was a "friendly" judiciary to govern the country facing less scrutiny of her government's actions and policies regardless of their validity in the eyes of laws.

Again, the same blessing, the same magical power: the judicial system too suffers from structural defects.

Constitutionally, judges are independent in their functions. However, the alarming level of dominance of the executive department over the appointment and promotion of the judges always remains a major threat to their independence.  

Hasina exploited the structural defects to the fullest in the judicial system to retain effective control over the apex court.

Newly appointed Chief Justice Syed Refaat Ahmed has however set the tone of brightening the image of the judiciary as he said "Until now, fraudulence had persisted instead of honesty and oppression instead of justice and wrong prevailed instead of right." He warned, "From now on, any wrongdoing will be dealt with stringently. No deviation will be tolerated." 

Incidents of controversial appointments and supersession—violation of seniority criteria—took place on several occasions in the appointments of the chief justices and judges to the Appellate Division and the High Court Division.  

Judges and magistrates working in the lower judiciary were controlled by her government too through their posting and promotion in the name of consultation with the Supreme Court.

Those serving the government's partisan interests were awarded promotions and good postings. Those found "disgruntled" faced punishment such as transfers to less important posts.

She also enjoyed absolute authority to appoint any lawyers as the Attorney General, the highest law officer of the state, and as many as deputy and assistants for his office who served the interests of her regime in the apex court.

Exploiting this power, she appointed around 2,800 party men as public prosecutors (PP) and general pleaders (GP) for the lower judiciary in all the districts turning the attorney service partisan.

This has been done as part of her government's general policy to install AL-regime loyal individuals everywhere.

It was, however, a clear breach of her electoral promise to strengthen and ensure the independence of the judiciary. The pledge was made before the December 2008 election in which her party won a landslide setting the stage for her long rule.

The way she controlled the judiciary was also a breach of the oath she took every time – to be precise, four times consecutively since January 2009, to "preserve, protect and defend the constitution."

On 10 August, the resignation of Chief Justice Obaidul Hasan and five other judges of the Appellate Division, after they were accused of "being associates" of the despotic Hasina regime by the very students who toppled Hasina, set an unprecedented record. 

They – who resigned – were a culmination of the politicisation of the judiciary.

Being labelled with similar charges, the attorney general – and most of the law officials of his office – disappeared from public life and refrained from joining work in the top court.

A similar situation prevailed in the lower judiciary too, as public prosecutors and general pleaders refrained from joining their offices in the district courts.

Why did Hasina politicise the judiciary so deeply?

Her efforts were aimed at minimising the window for judicial scrutiny of her regime's actions and policies.

She enjoyed the immense benefits of clinging to the powers through holding three consecutive stage-managed parliamentary elections in 2014, 2018 and 2024.

But none of the judges who took an oath to "preserve, protect and defend" the Constitution was heard saying anything against violation of the Constitution and people's fundamental rights by Hasina's government.

Justice Khairul Haque who was made chief justice in 2010, superseding two other senior judges in the Appellate Division, declared the non-partisan election-time government illegal. In doing so, Haque armed Hasina with the tools to abolish the system through the 15^th constitutional amendment in 2011.  

In another controversial move, a High Court bench in 2018 doubled Khaleda Zia's five-year jail term, which was handed down by a lower court in the Zia Orphanage Trust graft case considering Khaleda's old age.

The judge who authored the lead verdict increasing the jail term was elevated to the Appellate Division later and was forced to resign after Hasina's fall.

Yet, the Hasina government, formed after the January 2014 election, moved further and amended the Constitution in the same year empowering the parliament to remove Supreme Court judges on grounds of misconduct.

In line with the amended constitutional provision, the Hasina cabinet approved a law empowering MPs to investigate allegations against judges to remove them through parliament.

The amendment was declared illegal, at first by the High Court. Later, it was upheld by the Appellate Division led by then-Chief Justice SK Sinha in 2017 – angering the Hasina government. 

Sinha who authored the lead verdict of the Appellate Division was critical about the sorry state of the governance. His remarks infuriated the government high ups and he was forced to resign, and subsequently left the country.

How the judiciary was made 'friendly'

The responsibility of seeing that no functionary of the State oversteps the limit of his power is, of necessity, on the judiciary, writes former attorney general Mahmudul Islam in his book "Constitutional Law of Bangladesh."

To avoid that scrutiny, all successive governments tried to control the judiciary, especially the Supreme Court through the powers to make the appointments to the Chief Justice and other judges of the apex court.

The provision made in the original 1972 Constitution said "The Chief Justice shall be appointed by the president and other judges shall be appointed by the president in consultation with the Chief Justice."

The fourth constitutional amendment in 1975 altered the provision empowering the president alone to appoint Chief Justice and other judges. Through the amendment, the country switched to the presidential form of government discarding parliamentary democracy.

After the political changeover in August 1975, the Constitution was amended through martial law order reinstating the original provision, which took effect in August 1976.

Next year, the provision was reversed empowering the president with the absolute power of making all appointments, which took effect in December 1977.

Beginning in March 1982, the second martial law regime suspended the Constitution – introducing new provisions through martial law proclamation and empowering the chief martial law administrator to appoint the Chief Justice and other judges of the apex court and they would swear in expressing allegiance to the CMLA.

The 15^th constitutional amendment in 2011 restored the original provision of the 1972 Constitution. 

However, none of the successive governments for decades moved to make a law in line with Article 95 (c) to prescribe other qualifications of individuals for being appointed as judges of the Supreme Court.

In the absence of the law, the government enjoys sweeping power to appoint anybody as a judge who is a citizen of Bangladesh, has been either a lawyer of the apex court or a judicial official for at least 10 years, regardless of his/her merits, integrity and track records.

This power has been abused on several occasions in the past as some appointments triggered widespread controversy.

The constitutional provision for consulting with the Chief Justice by the president before any appointment has, however, not made the appointment free of controversy.

Similarly, the consultation with the Supreme Court by the president in regard to the exercise of the power of posting, promotion and grant of leave and discipline of judges and magistrates working in the lower judiciary could not prevent the law ministry's interference in their functions.

The president always acted upon the advice of the prime minister. In recent years, several chief justices were appointed by the president violating the seniority criteria, which triggered controversy.

Here are a few examples. 

In 2010, the then-Chief Justice refused to administer the oath of two additional judges appointed by the Hasina government to the High Court Division for their alleged controversial work in the past. 

Irked by the incident, the then-attorney general accused the Chief Justice of violating his oath.

Media reports in August 2019 said the chief justice ordered three HC judges to refrain from judicial activities as they were facing a probe.

The authorities did not specify the charges against them, but then-Attorney General Mahbubey Alam said lawyers have long been demanding steps to "uphold the image" of the SC and keep the judiciary "free from stigma."

In October 2004, the Supreme Court Bar Association in an unprecedented move asked an additional High Court judge to stand down immediately for his tampering with the LLB certificate.

Earlier, the Bar started boycotting the Chief Justice's court in protest at the appointment of 19 additional judges to the High Court, terming it 'political appointment.'

Major Reshuffle. What's next?  

After the resignation of the Chief Justice and five other judges of the Appellate Division on 10 August, the interim government appointed a new Chief Justice and elevated four senior High Court judges to the Appellate Division. This was done without delay to maintain smooth court operations. 

In a major reshuffle in the judiciary, 81 judges of the lower judiciary were transferred and given new postings last Thursday (29 August).

There is more.

The interim government was compelled to make a large number of appointments to fill up the vacancy to the head of the attorney general office by appointing a new attorney general first on 8 August.

Then on 28 August, the appointment of as many as 227 lawyers as deputy and assistant attorney generals for the office of the newly appointed attorney general in a single day came as a major shakeup in the new government legal team.

In this process, another 2,800 law officers will be appointed as PP and GP for the lower judiciary in 64 districts replacing the current ones who were appointed by the Hasina government.

The interim government announced its agenda for reforms, which includes the judiciary. Removal of structural defects has become an urgent need to ensure the independence of the judiciary.

A complete implementation of Article 109 to allow the High Court Division to have superintendence and control over all courts and tribunals subordinate to it can be a game changer.

Building a professional and permanent attorney service by making the appointment based on merits through recruitment examination is also needed to free the judicial system from politicisation.

Newly appointed Chief Justice Syed Refaat Ahmed has however set the tone of brightening the image of the judiciary as he said "Until now, fraudulence had persisted instead of honesty and oppression instead of justice and wrong prevailed instead of right."

"From now on, any wrongdoing will be dealt with stringently. No deviation will be tolerated," he warned.

His promise to lower court judges and magistrates may bring new hope for them as he said the lower court judges were a very important part of the judiciary. He urged all of them to work after overcoming any fear and promised to always support them.

He said he would start afresh from the ruins and perform the duties given to him following the revolution by the common people and students.

How parliament was tamed

Parliamentary scrutiny is at the heart of politics in a parliamentary democracy. Parliament can form a government and also can end a government. Its consent is required for legislation. Parliament is a particularly central and important body in holding ministers to account day-to-day. 

All this happens in an idle situation.

But the reality of Bangladesh is otherwise. Structural defects in parliament made the crucially important job impossible to maintain check and balance.

The passage of a no-confidence motion against a prime minister is unimaginable because of Article 70 that killed ab initio the parliament's this power. The nefarious restrictions imposed on MPs by this article made them "prisoners of the parties." 

None of the party MPs is allowed to go beyond their parliamentary party's decision in the House. Any deviation will strip his/her membership in parliament. They can neither remove the president, Speaker and Deputy Speaker regardless of their misconduct. 

Individuals holding high offices are safe as long as they can work at the pleasure of the prime minister, who is also a leader of the House and chief of the party in power.

Hasina abused the structural defects to consolidate her powers. MPs elected through the stage-managed elections in 2014, 2018 and 2024 lost their moral authority and could not act on their oath to "preserve, protect and defend the constitution." 

They were always ready to praise Hasina personally and her regime.

The role of the main opposition was always curious in all three parliaments. The Jatiya Party that played the role of the main opposition appeared to be the "B team" of the ruling party.

To make the parliament functional in the true sense, the structural defects need to be removed.

Exploiting the structural flaws in the parliament and the judicial system, Hasina rose above accountability as neither of two of the three key organs of the state was able to ensure checks and balances  – which is, after all, the best antidote to prevent the rise of another authoritarian ruler.