The High Court has spoken: Repeal cannot undo judicial independence

With regard to the preservation of our judicial autonomy, the real question was never whether Bangladesh would aspire to achieve it, but whether the state was prepared to surrender the administrative levers through which the courts are quietly managed. The recent release of the full judgment in Writ Petition No. 10356 of 2024 makes that question impossible to evade (although the judgment was pronounced in September 2025, the full 185-page text was published on April 7, 2026). This landmark judgment was delivered by Justice Ahmed Sohel and Justice Debasish Roy Chowdhury. The High Court, on pages 157 and 158 of the full text, says that the consultative formula under the amended Article 116 of the constitution had become “illusory and meaningless”; on page 167, that a separate secretariat is a constitutional imperative; on page 182, that true judicial independence requires dismantling the “dual governance system”; and on page 184, it directs the government (that is, the law ministry) and other relevant respondents to establish an independent separate secretariat within three months.

The publication of the full judgment—with its rebuke, observations, and instructions—comes at an awkward moment for the government and the parliament. As we know, a parliamentary special committee has recently recommended repeal of the Supreme Court Secretariat Ordinance, 2025, and the law minister has already tabled a repeal bill. But the secretariat is no longer a theoretical future institution. Under the then Chief Justice Syed Refaat Ahmed, a secretary was assigned, a post-creation committee was formed, the institution was formally inaugurated, and hundreds of posts were approved. In other words, the state’s current attempt means repealing not just the ordinance but also a structure it had already begun to operationalise, and it would create a vacuum if it goes ahead with it. That is why the practical question surrounding the ordinance is so serious.

In spirit, the ordinance followed the HC judgment far more closely than its critics want to admit. Its preamble was built around Articles 22, 109, and 116 of the constitution, and around the unfinished constitutional project of separating the judiciary from the executive, with explicit reference to the Masdar Hossain case (Civil Appeal No. 79 of 1999). Section 4 of the ordinance placed the overall control of the secretariat with the chief justice. Sections 11 and 12 gave the secretariat separate budgetary space and freed expenditure from prior executive approval. These were not cosmetic provisions. They reflected the same institutional insight that now runs through the judgment: judicial independence is meaningless if the court does not control the administrative machinery through which independence is lived. That is precisely why the HC insisted, on page 167, that a separate secretariat is not a matter of executive discretion, but a constitutional necessity.

In content, too, the ordinance anticipated much of what the judgment demands. The secretariat was empowered to deal with staffing, organisational structure, budget management, research, training, post creation and, in design, even the posting, promotion, transfer, discipline, and leave of members of the judicial service. The ordinance, therefore, recognised something Bangladesh’s political class has long preferred to deny: courts are not controlled only by spectacular constitutional amendments or headline-grabbing appointments; they are controlled through payroll, posts, promotions, files, leave, buildings, training, and the daily circulation of administrative power. On that basic institutional diagnosis, the ordinance and the judgment were travelling in the same direction.

It should be acknowledged, however, that the ordinance did not fully reach the constitutional position that today’s judgment has restored. It was drafted under the old, compromised Article 116. So while it moved boldly towards autonomy, it still carried traces of the very executive architecture the High Court has now condemned. The most obvious example is section 7, which envisaged the secretariat performing service administration for judicial officers “on behalf of the President.” Section 16 also left a disciplinary role with the Law and Justice Division in certain cases. Sections 8, 10, and 17 embedded executive secretaries, and even the law minister or adviser, inside key planning, commission, and post-creation structures. While the judgment recognises that some dealings between the judiciary and the executive are inevitable for financial and administrative purposes, it immediately draws the line by insisting that the dual governance system, being the joint authority of the Supreme Court and the law ministry, must be dismantled, which is a striking direction expressed in mandatory terms (pages 181-182). The court also rejects, in pages 154 and 155, the stale excuse that the restored Article 116 cannot function alongside the present Article 115. The ordinance, then, was a bridge text—not the constitutional destination.

This is why the fate of the already established secretariat should not be abolition but realignment. The judgment is a constitutional command, not an administrative manual. It restores Article 116 and orders an independent separate secretariat, but it does not itself create posts, assign staff, write budget rules, or design transition clauses. The ordinance, for all its defects, has already done much of that institutional groundwork. The parliament should, therefore, stop pretending that the choice is between a tainted ordinance and some pristine future law. The real choice is between preserving a partially built architecture and returning judicial administration to the old maze of ministry control. If repeal proceeds without a simultaneous replacement and savings framework, its most likely outcome will not be reform but rather administrative confusion followed by executive recapture.

The constitutionally responsible path here is straightforward: withdraw the repeal bill or convert it immediately into an amendment bill. Keep the secretariat alive. Validate all acts already done under the ordinance. Allow the existing secretariat to continue under the new legal framework. Remove every reference that makes the secretariat act for the president under Article 116. Remove the law ministry’s residual disciplinary grip over judicial service matters. Recast executive participation in committees as coordination, not control. Preserve what the ordinance got right—namely, chief justice-led control, direct institutional communication, staffing authority, and budgetary autonomy. Do not destroy the machine merely because its wiring needs to be corrected in light of a judgment that finally restored the original constitutional current.

Let us be honest: a parliament that responds to a judgment demanding an independent secretariat by abolishing the only functioning legal framework that has begun to build one would not be defending constitutionalism. It would be mocking it. Bangladesh does not need a judiciary that is independent in rhetoric but subordinate in administration. The High Court has now said exactly that, in substance and in unmistakable terms. The only serious question left is whether the political class is prepared to accept a judiciary it cannot quietly manage.

Khan Khalid Adnan is advocate of the Supreme Court of Bangladesh, fellow at the Chartered Institute of Arbitrators, and head of the chamber at Khan Saifur Rahman and Associates in Dhaka.

Views expressed in this article are the author's own. 

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