Judicial Independence and the Quest for Institutional Autonomy in Bangladesh

When we speak of constitutional law, we are accustomed to speaking of texts. But constitutions are not merely texts. A constitution is also a society’s memory of itself. Yet a constitution lives neither by memory nor by text alone. It also lives through institutions. This relates to a broader question for the judiciary: What does judicial independence mean if a court, though independent in deciding cases, remains institutionally dependent in the administration of the system within which those cases are decided?

Indeed, judicial independence is indispensable to constitutional government. But I argue such independence, understood only as freedom from interference in adjudication, is not enough. Constitutional independence becomes durable only when the institution entrusted with judicial power possesses the structures, capacity, integrity and autonomy necessary to sustain it. Put simply, judicial independence is a constitutional promise; institutional autonomy is the architecture through which that promise becomes sustainable.

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For Bangladesh, this is not merely an abstract question. Rather, it is bound up with our constitutional history, our contested constitutional identity, our experience of institutional fragility, and more recently with the challenge of converting a moment of profound political and constitutional change into institutions capable of outliving that moment.

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Constitutional identity and the institutional state

To understand why institutional autonomy matters, we must first consider the idea of ‘constitutional identity’. Every constitutional system possesses a distinctive identity formed through historical experience, founding ideals, internal and external disharmonies, ordinary politics, evolution and commitments to the future.

This insight is particularly useful for Bangladesh. If we ask only, ‘What does the Constitution say?’, we obtain only part of the answer. We must also ask what historical experiences gave those constitutional words their meaning, how that meaning has changed, and which institutional commitments have carried or failed to carry those meanings across time.

Although national identity and constitutional identity might overlap, they are not identical. While national identity may draw upon language, culture, religion, historical memory and political experience, constitutional identity is concerned more specifically with the principles and institutional commitments through which a political community chooses to govern itself.

This distinction matters because constitutional values do not implement themselves on their own. Democracy, equality, rule of law, judicial independence and fundamental rights become meaningful only through institutions capable of giving them practical effect. When constitutional identity is expressed not merely through values but through institutional commitments, the autonomy of those institutions becomes a constitutional question in its own right.

Bangladesh’s constitutional identity: The institutional deficit

The Bangladeshi constitutional story begins with an unusually powerful founding moment. The Constitution of 1972 crystalised a founding constitutional identity around nationalism, socialism, democracy and secularism. These were not ornamental additions to the constitutional text. Rather, they represented the aspirations of a newly independent republic.

That said, our constitutional identity has remained contested. The relationship between Bengali nationalism and Bangladeshi nationalism, between secularism and religious identity, and between democratic aspiration and periods of authoritarian constitutional practice has repeatedly altered the political meaning attached to the Constitution. But underneath those visible contests lies another, less dramatic question: what institutions were built to preserve constitutional commitments when the political narrative changed?

This points towards the institutional deficit in our constitutional history, I suggest. Bangladesh has rarely lacked constitutional ideals. The recurring difficulty has been creating institutions sufficiently independent, resilient, and internally capable to translate those ideals into durable practice.

Political power, constitutional identity and institutional fragility

Prior to 1971, the constitutional experience of the then East Pakistan demonstrated how political geography, constitutional form, and institutional legitimacy may diverge. The difficulty was not merely representation. It was whether constitutional institutions could accommodate linguistic, cultural, regional, and political claims within a common framework.

When institutions fail to perform that task, politics begins to displace constitutionalism. Independence in 1971 created a new sovereign state, but it did not erase the deeper challenge of institutional development. Bangladesh emerged as a new state inhabited by a nation with an older history and a powerful political imagination.

In Bangladesh, I would suggest, the historical development of national identity has often moved faster than the institutional development of the state. While political narratives can change rapidly, institution-building requires patience, continuity, rules, restraint, memory and, above all, acceptance that an institution may sometimes be required to say ‘no’ even to those who possess political legitimacy.

The danger arises when institutions are judged principally by their conformity to the prevailing political or historical narrative. The institutions then cease to be autonomous and become an instrument, making constitutionalism fragile.

This is also why constitutional memory matters. History should inform constitutional institutions. It should not become political property to which institutions are required to conform. Where institutional memory weakens, constitutional legitimacy can gradually be replaced by political mythology or, in certain cases, as I call it, the ‘cultural appropriation of historicity’.

For the judiciary, the consequence is particularly serious. Courts cannot perform their constitutional function if their institutional identity changes with every political transition.

July-August 2024: A constitutional moment and an institutional question

I use the expression ‘constitutional moment’ deliberately. Because the significance of the July and August events cannot be measured merely by the change of political authority that followed. They raised a deeper question: can constituted institutions continue to claim constitutional legitimacy when a substantial part of the people come to believe that those institutions have ceased to give effect to the constitutional compact?

Constitutional transformation need not be confined to the classical image of an extra-constitutional overthrow. Profound constitutional change may also occur through constituted institutions and formally constitutional processes. What matters is not simply the mechanism of change, but the depth of the transformation in the understanding and operation of constitutional power.

The events of July–August 2024 exposed the distance that can arise between constitutional promise and institutional reality. It simultaneously exposed the danger of institutions whose legitimacy becomes identified with personalities or political power. Finally, it created an opportunity, and an obligation, to ask how institutions could be reconstructed so that constitutional values would not depend upon the preferences of those temporarily exercising authority.

In other words, the purpose of the events of July–August 2024 was to restore the balance of power between the organs of the state through a broad, more equitable distribution of power. This marked the transition, as Daron Acemoglu & James A. Robinson convincingly argued in their compelling book ‘Why Nations Fail: The Origins of Power, Prosperity and Poverty’, from extractive to inclusive institutions. The objective was to give birth to a virtuous circle of self-reliant or autonomous institutions that would ultimately aid the entrenchment of pluralistic political and economic institutions.

I argue that an independent judiciary would be a sine qua non for such a transition. A reconstructive and restorative constitutional moment like the Monsoon Revolution can, however, become meaningful only if it produces an institutional response. The question after August 2024 was not simply who would exercise power differently. The harder question was how power itself could be placed under more durable institutional restraint.

Beyond judicial independence

Judicial independence is often discussed principally in relation to adjudication: whether an individual judge can decide a case without fear, favour, pressure, or interference. But there is a second dimension. The judiciary itself must enjoy institutional independence: protection against external control capable of distorting the exercise of judicial power.

To this, I would add a third dimension of ‘institutional autonomy’. By ‘institutional autonomy’ I mean the structures, authority and practical capacity necessary for the judiciary to govern those matters intrinsically connected with the preservation and exercise of judicial power. A judge may, therefore, be independent while the judicial institution is not fully autonomous. If appointments remain vulnerable to external or personal preference, or if administration is structurally dependent, or if financial arrangements make institutional planning contingent upon another branch, or if the judiciary lacks adequate control over the professional structures necessary for its functioning, or if accountability operates through political rather than legal standards, decisional independence alone cannot carry the entire constitutional burden.

However, institutional autonomy should never be confused with institutional isolation. An autonomous judiciary cannot be an unaccountable judiciary. Rather, independence must coexist with integrity, transparency and accountability.

The constitutional objective is to create institutions answerable to law rather than to political power. That distinction is fundamental. Autonomy, therefore, contains both freedom and responsibility: freedom from improper external control, and responsibility to constitutional norms, transparent processes, professional integrity, and public confidence.

It is worth noting that when I assumed office as Chief Justice in the aftermath of July–August 2024 events, I became increasingly convinced that judicial independence could not be secured merely by constitutional declaration. It required institutional arrangements protecting the judiciary from executive dependence in matters intimately connected with its constitutional function. It was in this context that I proposed the establishment of a separate secretariat for the judiciary under the Supreme Court. I regarded it not as an administrative rearrangement but as an institutional step towards meaningful judicial independence. The same reasoning informed the attention given to judicial appointments and the creation of a judiciary-anchored appointment collegium.

The architecture of autonomy

What, then, does the architecture of institutional autonomy require in practical constitutional terms?

First, administrative capacity. A judiciary cannot meaningfully administer justice if the institutional machinery remains structurally dependent in matters central to judicial administration.

Second, a credible appointments architecture. Judicial independence begins to weaken long before a case reaches the courtroom if judicial appointments are perceived to depend upon political allegiance, personal preference, or opaque criteria.

Third, financial and organisational capacity. Institutional autonomy does not necessarily mean an unlimited or unreviewable claim over public resources. It means that the judiciary must possess sufficient structural capacity to plan, administer and perform its constitutional functions without financial dependency becoming an indirect method of control.

Fourth, integrity and accountability. Independence cannot become a shield for incompetence, corruption or arbitrary institutional behaviour. Accountability must be real, but its standards and processes must themselves be lawful, transparent and compatible with judicial independence.

Fifth, institutional continuity. Reform that exists only for the tenure of a reformer is not institutional reform, but merely a temporary administration.

The ultimate objective is therefore to design arrangements capable of surviving changes in leadership and political power and, therefore, create the virtuous circle I mentioned earlier.

We should remember that institutions – courts, parliaments, civil services and constitutional bodies – also possess memory. When institutions are repeatedly politicised, bypassed, subordinated or reconstructed around the preferences of successive officeholders, that memory disappears. Each new administration then imagines that the state begins anew with it.

But a state cannot be built anew every five years. Nor can constitutional institutions be reinvented every time political power changes hands. The objective must be continuity without perpetuating dysfunction, autonomy without isolation, accountability without subordination, and reform without constitutional amnesia.

The events of 2024 reminded us that a constitutional moment may open the possibility of renewal. But only institutions can carry that renewal into the future. For me, the most important lesson of the reform experience of 2024 and 2025 is therefore not about exercising power differently. It is about designing institutions so that power itself is subject to constitutional restraint.