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| Tanvir Ahmed Tusher |
The Constitution
of Bangladesh strongly asserts equality before the law and freedom of religion.
Articles 22, 27, 28, and 41 assure judicial independence and the protection of
minorities. These textual assurances are more or less idealistic. Strongly entrenched
executive dominance over the courts, ineffective instruments like the National
Human Rights Commission (NHRC) to enforce them, and widespread impunity erode
the Constitution. This essay argues that reform of NHRC and judicial
independence must co-evolve in a manner that bridges the gap between rights in
theory and rights in practice. Adopting the paradigm of "institutional
interdependence," a reform roadmap becomes visible that grounds both
institutions on the principles of reciprocal support for constitutionalism.
Eroded Judicial Independence
Judicial independence is mandated by
the constitution through Article 22 which makes provision for its independence
from the executive, and Article 94(4) reaffirming judicial independence.
Structural defects continue. Articles 95, 98, 115, and 116 collectively give
excessive executive authority over judicial appointments, promotion, and
discipline. Article 95(1) empowers the President—on the advice of the
executive—to appoint judges to the Supreme Court, without parliament. Articles
115 and 116 reassert executive dominance in lower judiciary appointments and
vacancies.In Secretary, Ministry of Finance v Masdar Hossain, the Supreme Court
considered judicial independence to be a constitutional basic structure and
ordered the setting up of a separate judicial service commission. Decades
later, however, structural reform remains in large part in abeyance. The later
Sixteenth Amendment Case—and its invalidation of Parliament's power to impeach
judges—was a judicial resistance to political encroachment, affirming the need
for insulation from executive influence.Regardless of such precedents,
Bangladesh has no Judicial Appointments Commission, and there is no enforceable
code of judicial conduct. The lack of an open, merit-based procedure has
deepened the perception of politicized appointments. With over 3.8 million
pending court cases and corruption surveys recording the highest mean bribes in
the judicial branch, trust in unbiased justice continues to falter.
Constitutional Safeguards and the
Reality for Minorities
The
constitutional guarantee of equality under Articles 27 and 28, and religious
freedom under Article 41, does not find expression in every-day life.
Discriminatory laws, such as the Vested Property Act, were repealed, but
retrieval of the confiscated property is still unachieved. Hindu families
continue to lose ancestral lands because of failures to implement the 2001
Vested Property Return Act. The trend in the Chittagong Hill Tracts (CHT) is
not better. Despite the 1997 Peace Accord, land acquisition and displacement
continue to occur, and this indicates a disjuncture between signed agreements
and state practice. The 2021 Durga Puja violence, which was marked by attacks
on Hindu populations and the lack of an effective state response, signals an
acute failure in protective machinery. In this context, courts—overwhelmed by
backlog and executive pressure—have been structurally unable to provide justice
for minorities. Even though they remain invaluable arenas for constitutional
decision-making, they are made useless without institutional allies who can
provide investigative capability and independent evidence gathering.
The NHRC’s Structural Limitations, Comparative
Insights and Lessons
Established by the National Human
Rights Commission Act of 2009, the NHRC was intended to add on judicial
protection as an auxiliary rights watchdog. But it isDisabled by its enabling
statute. Section 18 of the Act exempts "disciplined forces" such as
the police and military from the investigatory authority of the NHRC—this, in a
country where law enforcement bodies are regularly accused of abuses. Moreover,
the executive controls appointments to the NHRC, undermining its autonomy. The
NHRC can only offer suggestions, most of which are not heeded, since it has no
authority to enforce them. UN and Transparency International reports are a
confirmation that NHRC's intervention in instances of religious violence and
minority rights violations has been symbolic at best. The 2025 OHCHR report
documented that over 1,400 individuals were murdered in July and August 2024
and no significant accountability was realized through the courts or the NHRC.
Meanwhile, surveys show over 62% of households experienced bribery within the
judicial process, affirming systemic impunity.History of institutional
helplessness also indicates a deeper structural vulnerability: lacking
enforcement power, autonomy of appointment, and control of the most overt human
rights offenders, the NHRC cannot efficiently function as an actual
counterbalance to judicial restraint.
Bangladesh is not unique in facing
tensions between constitutionally guaranteed precepts in form and asymmetries
of structural enforcement. India's constitutional jurisprudence, particularly
the cases of Kesavananda Bharati and NJAC, consolidated the Basic Structure
Doctrine, permitting courts to strike down executive overreach like politically
tainted appointment systems. In Supreme Court Advocates-on-Record Association v
Union of India, NJAC was struck down for undermining judicial
independence—emphasizing safeguarding judicial appointments from political
influence.Germany offers a more integrated solution, having parliamentary
participation in judicial appointments but securing autonomy through
transparency and reciprocal feedback between legislature and judiciary. Sri
Lanka's Constitutional Council, despite its weaknesses, is an example of
participatory appointment that can be followed. These examples show that
institutional design matters. The Bangalore Principles of Judicial Conduct
endorsed by the UN—emphasize the virtues of independence, impartiality,
integrity, and accountability. These are not self-evident truths; these virtues
need to be moored through thoughtful institutional design.
Institutional Interdependence as a
Reform Doctrine
The key argument advanced here is
"institutional interdependence" whereby a functionally independent
judiciary and a robust NHRC need to co-evolve in such a way that they
internalize constitutional rights. The courts must remain neutral and authoritative,
and the NHRC must be redefined as a credible, investigative body with binding
powers.Abstaining from making the NHRC either an alternative to justicecourts
or a ceremonial exercise, it must be regarded as an evidentiary machine that
generates credible investigative reports upon which the courts can act. This
synergy must be founded on reciprocal information-sharing, independent
appointments, and co-evolution framework. When one institution collapses, the
other can intervene—not as a duplicative actor, but as a co-equal. That is an
especially necessary concept in hybrid democracies, where democratic
backsliding tempts to co-opt one institution and politicize or neglect another.
Policy Agenda for
Co-evolved Reform
To operationalize the
doctrine of institutional interdependence, a logical reform agenda must be
introduced step by step. This involves amending Articles 98, 115, and 116 of
the Constitution to eliminate executive power over judicial appointments,
promotions, and postings and introducing an Independent Judicial Appointments
Commission grounded in transparency and meritocracy. At the same time, the
National Human Rights Commission Act 2009 also must be reformed to provide the
NHRC with binding investigative powers, expand its jurisdiction over
disciplined forces, ensure a transparent and independent choice process, and
mandate time-bound action by government on its recommendations. To provide
constitutional equality on firm ground, passage of a robust anti-discrimination
law is essential, providing justiciable standards that enable positive
protection of minority rights. Moreover, a legally binding and codified
Judicial Conduct Framework consistent with the Bangalore Principles should be
established to shield the judiciary from politicization and ensure integrity.
Collectively, these reforms do not only fortify separate institutions but
create a strong, mutually reinforcing architecture that can assist in upholding
constitutional justice and defending fundamental rights in Bangladesh.
Conclusion
Bangladesh's Constitution guarantees
equality and religious freedom, which are illusions in the absence of an
institutionally co-evolved structure. A politicized judiciary and an
ineffective NHRC cannot deliver constitutional justice. By adopting the doctrine
of institutional interdependence, Bangladesh can recreate its governance
environment—one where judicial impartiality and oversight investigations
harmoniously work to protect the weak. The Constitution ought not to be a
declaration of intent but a tool of enforcement. Only with simultaneous reforms
of the judiciary and NHRC can the nation achieve its constitutional vision of
an inclusive, rights-protective democracy.