ARTICLE TEXT

Article 95 of the Constitution says that the Chief Justice and other judges of the Supreme Court are appointed by the President. It adds that Parliament may by law lay down qualifications for appointment, but for over fifty years Parliament never did. In practice, the President acts on the advice of the Prime Minister, and the Prime Minister consults the Chief Justice as much or as little as convention and politics allow. The result, critics say, has been decades of appointments in which party loyalty mattered as much as legal ability. Since 2024, Bangladesh has tried an alternative, and then abandoned it.

The Experiment

On 21 January 2025, the interim government promulgated the Supreme Court Judges Appointment Ordinance. It created a seven-member Supreme Judicial Appointment Council chaired by the Chief Justice, with the senior-most judge of the Appellate Division, the senior-most High Court Division judges drawn from the bar and from the judicial service, a retired Appellate Division judge nominated by the Chief Justice, the Attorney General, and a law professor or legal expert also nominated by the Chief Justice. Candidates had to be at least forty-five. The council would assess applicants and recommend names to the President.

The council was used once. In August 2025, twenty-five new High Court Division judges were appointed on its recommendation, the first appointments in the country’s history made through a formal, published process. Then, on 9 April 2026, the newly elected Parliament passed a repeal bill. The twenty-five appointments were preserved by a savings clause. Everything else reverted to Article 95 as it stood before.

The Case for an Independent Council

Supporters of the council make an argument from first principles. Judicial independence, they say, begins at appointment. A judge who owes their seat to a politician will find it hard to rule against that politician’s government, whatever their private integrity. The Appellate Division itself recognised this logic in the Sixteenth Amendment case, holding that Parliament could not be trusted with removal because of party discipline; the same reasoning applies to selection.

They also point abroad. The United Kingdom created its Judicial Appointments Commission in 2005 precisely to take selection out of the hands of the Lord Chancellor. South Africa has its Judicial Service Commission. India’s collegium, whatever its faults, keeps the executive at a distance. The council was Bangladesh’s version, and it produced a transparent process for the first time.

Finally, they note that the council was dominated by judges but not exclusively judicial. The Attorney General and an academic member gave the executive and civil society a voice. It was a balanced design, not a judicial closed shop.

The Case for Repeal

The government’s case for repeal has three strands. The first is legitimacy. The ordinance was made by an unelected interim administration. A change to how the highest judges are chosen, the argument runs, should be made by an elected Parliament through constitutional amendment, not by decree. The government has said that appointment criteria will be settled through the constitutional reform process.

The second is accountability. Judges are not elected. A council of judges choosing judges answers to no one. In a democracy, some argue, the elected executive should retain a role in shaping the bench, subject to public scrutiny, because it is the executive that voters can remove.

The third is practical. Critics of the council said that a body chaired by the Chief Justice, with three of its seven members nominated by him, concentrated too much power in one office. A Chief Justice with strong views could shape the bench for a generation.

Reading the Repeal

The difficulty with the government’s position is timing. Repealing the council before enacting any replacement returns appointments to a system that almost everyone, including the July Charter to which the governing party signed up, agreed was inadequate. The Judiciary Reform Commission recommended an independent appointments body in February 2025; the National Consensus Commission reached agreement in principle on one; the referendum of February 2026 endorsed the package. Repeal without replacement looks, to sceptics, like a return to the old ways under cover of procedural objection.

The optimistic reading is different. If the constitutional amendment bill now in preparation entrenches an appointments body in the Constitution itself, with a composition settled by Parliament, the result will be more durable than any ordinance. An appointments council written into Article 95 cannot be repealed by a simple majority.

The Question

Whichever reading proves correct, the underlying question is unavoidable. Every judgment in this magazine’s Landmark Cases series was written by judges someone chose. Whether that someone is a Prime Minister, a Chief Justice, a council or a commission decides, in the long run, what kind of court Bangladesh has. Readers who care about the independence of the judiciary should watch the amendment bill, and the debate about Article 95, more closely than any single case.

Sources

1. Dhaka Tribune, Judges in higher courts to be appointed through council (21 January 2025): https://www.dhakatribune.com/bangladesh/court/371462/judges-in-higher-courts-to-be-appointed-through
2. The Daily Star, Assessment of the Supreme Court Judges Appointment Ordinance 2025: https://www.thedailystar.net/law-our-rights/news/assessment-the-supreme-court-judges-appointment-ordinance-2025-3924941
3. The Daily Star, President appoints 25 new HC judges (August 2025): https://www.thedailystar.net/news/bangladesh/crime-justice/news/president-appoints-25-new-hc-judges-3970711
4. Dhaka Tribune, Parliament repeals Supreme Court judge appointment law (April 2026): https://www.dhakatribune.com/bangladesh/parliament/407342/parliament-repeals-supreme-court-judge-appointment
5. bdnews24, Judiciary Reform Commission report (February 2025): https://bdnews24.com/bangladesh/041ceaa0a063