The recent enactment of the Supreme Judicial Appointment Ordinance, 2025 represents a significant shift in the legal and institutional framework of Bangladesh under the interim government led by Professor Muhammad Yunus. This development signifies an ambitious effort to reform the judiciary’s appointment process, a subject that has long been fraught with controversy.
Historically, judicial appointments in Bangladesh have been criticized for favouritism, lack of meritocracy, and excessive executive influence, raising concerns about the integrity of the system. With this ordinance, the government claims to be introducing a structured selection mechanism aimed at strengthening judiciary independence and enhancing public trust in the rule of law.
However, the provisions of the ordinance warrant close scrutiny, as they raise critical concerns about transparency, accountability, and the possibility of power misuse.
The ordinance reflects a dual narrative: On one hand, it portrays an intention to address existing challenges in judicial appointments by establishing formal criteria and procedural guidelines; on the other hand, it raises concerns about the centralization of authority and the absence of safeguards against political influence.
Many legal scholars have long emphasized that an independent judiciary is a cornerstone of constitutional governance, ensuring the separation of powers and upholding the rule of law. In this context, the procedural and institutional design of judicial appointments becomes crucial, as it directly impacts the judiciary's ability to act as a check on executive overreach and legislative transgressions.
However, a careful examination of the Supreme Judicial Appointment Ordinance, 2025, reveals gaps in its framework that could undermine these principles, leaving the system vulnerable to manipulation.
One of the most troubling aspects of the ordinance is the ambiguity surrounding the selection criteria and decision-making process. While the document outlines general eligibility requirements for prospective justices, it fails to define key terms such as "integrity" and "suitability," leaving room for subjective and potentially biased interpretation. This vagueness echoes concerns raised in other jurisdictions, where poorly defined criteria have been exploited to justify appointments driven by political or personal interests.
Moreover, the ordinance appears to concentrate significant discretionary power in the executive branch, a feature that compromises the very independence it purports to safeguard. Comparative experiences underscore the dangers of such executive dominance, as evidenced in India, where judicial appointments under the collegium system, despite being controlled by the judiciary, have faced criticism for their lack of transparency and susceptibility to informal pressures.
Furthermore, the absence of strong oversight mechanisms or external accountability further heightens the risks inherent in the ordinance. While transparency is a fundamental aspect of any democratic system, the provisions of the ordinance make no mention of public disclosure of candidate evaluations or the rationale behind appointments.
This lack of transparency stands in sharp contrast with the practices in countries like the United Kingdom, where the Judicial Appointments Commission operates independently and is mandated to ensure merit-based, transparent, and inclusive appointments.
By failing to incorporate such safeguards, the Supreme Judicial Appointment Ordinance, 2025, not only diminishes the credibility of the appointment process but also risks eroding public confidence in the judiciary -- a vital institution for ensuring justice and future democratic stability which is missing at this moment greatly.
Through critical examination, insights into how Bangladesh can reinforce its judicial system to meet the demands of a modern constitutional democracy can be inferred. As the nation stands at a crossroad, the success or failure of this ordinance will inevitably shape the future of judicial governance in Bangladesh, determining whether the judiciary can truly act as the guardian of constitutionalism and the rule of law.
Terms such as 'suitability,' 'merit,' and 'integrity,' central to the evaluation process, are left open to subjective interpretation. This vagueness creates room for discretionary decision-making, potentially allowing the very inconsistencies the ordinance seeks to eliminate
Key provisions and intended goals
The Supreme Judicial Appointment Ordinance, 2025 marks a key moment in the development of Bangladesh's legal framework, aiming to address long-standing issues in the appointment of judges to the High Court division.
By proposing a centralized mechanism under the newly established Judicial Appointment Commission, the ordinance supposedly seeks to correct inconsistencies and limit political interference, which have historically plagued the judicial appointment process.
On paper, this initiative appears to be a significant step toward institutional reform, setting out structured eligibility criteria, a standardized appointment process, and defined evaluation metrics for judicial candidates. Yet these provisions, while seemingly promising, require a deeper critical analysis to evaluate their practical effectiveness and their alignment with the fundamental principles of judicial independence and accountability.
The establishment of the Judicial Appointment Commission under the ordinance symbolizes an acknowledgment of the judiciary's vital role in upholding the rule of law and nurturing public trust in democratic governance, although this ordinance has been enacted by a democratically unelected interim government. By creating a formalized body tasked with overseeing judicial appointments, the current interim government appears to be taking steps to systematize a process that has often been criticized for its lack of transparency and susceptibility to external pressures.
In particular, the emphasis on eligibility criteria and evaluation metrics reflects an effort to introduce a merit-based framework, apparently designed to identify candidates who meet the highest professional and ethical standards. This development aligns with global demands for judicial reforms, as explained by scholars Ginsburg and Garoupa, who have highlighted the need for appointment mechanisms that enhance judicial neutrality and reduce undue influence from the executive branch.
However, while the ordinance suggests progress, a closer examination exposes critical areas of concern that may weaken its stated objectives.
The proposed mechanism lacks clarity in several key aspects, raising questions about its ability to deliver on its promises of reform. For instance, the eligibility criteria outlined in the ordinance, though presented as a safeguard against arbitrary appointments, lack precise definitions. Terms such as "suitability," "merit," and "integrity," central to the evaluation process, are left open to subjective interpretation. This vagueness creates room for discretionary decision-making, potentially allowing the very inconsistencies the ordinance seeks to eliminate.
Studies of judicial systems worldwide suggest that ambiguity in such frameworks often leads to outcomes influenced by political or personal biases, as noted by Russell Wheeler in his discussions on judicial selection processes in the United States. Comparatively, jurisdictions like South Africa, where the Judicial Service Commission follows clear appointment criteria, offer a model of greater accountability.
By failing to establish such a comprehensive framework, the ordinance creates a significant risk for favouritism, leaving candidates, the legal community, and the public with doubts about the fairness and legitimacy of the process.
Moreover, the composition of the Judicial Appointment Commission itself raises significant concerns. While the ordinance emphasizes its role as an independent body, the inclusion of executive-appointed members introduces an inherent risk of political influence. The absence of explicit safeguards to ensure that the judiciary holds a dominant role within the commission weakens its independence, leaving it susceptible to external pressure rather than functioning as a merit-based selection body.
This issue is not unique to Bangladesh; similar critiques have been directed at judicial selection processes in other jurisdictions, including various South Asian countries, where executive dominance often erodes judicial independence. In this regard Professor Upendra Baxi, a legal scholar, has long argued that such structures, despite their reformist intentions, may fall short of protecting the judiciary from intervention by other branches of government.
Additionally, the ordinance’s provisions regarding procedural transparency fall short of what is required to inspire public confidence. While it formalizes the stages of the appointment process, it does not mandate the publication of detailed justifications for decisions made by the commission.
The absence of a requirement to disclose shortlisted candidates or the reasoning behind their selection perpetuates the opacity that has historically characterized judicial appointments in Bangladesh. Such a lack of transparency contradicts international best practices, including those observed in jurisdictions like the United Kingdom, where the Judicial Appointments Commission operates under strict public reporting and accountability guidelines.
Legal practitioners play a critical role in upholding the rule of law, and their exclusion diminishes the diversity of perspectives necessary for a balanced and just appointment process
According to Professor Alan Paterson, transparency in judicial appointments is not merely a procedural preference but a cornerstone of public trust in the judiciary's fairness and impartiality. The lack of a proper firewall separating the judiciary from executive influence violates Montesquieu’s principle of separation of powers, which remains a cornerstone of democratic governance.
The absence of meaningful monitoring mechanisms represents another significant shortfall of the ordinance. Unlike systems where parliamentary or independent bodies can review judicial appointments, the ordinance excludes such external checks. This creates a scenario where decisions can be made without proper scrutiny, increasing the risk of abuse, and reducing the judiciary’s perceived independence.
Oversight mechanisms not only improve transparency but also discourage politically motivated appointments. The lack of such provisions raises concerns about the ordinance’s ability to prevent misuse, as seen in cases like Idrisur Rahman v Bangladesh [(2008) 60 DLR 714], where judicial overreach and flaws in earlier legislation led to constitutional challenges.
The disappointment expressed by the Bar Association over the exclusion of lawyer representatives from the Supreme Judicial Appointment Council adds to the controversy surrounding the ordinance. Although the Council includes lower court judges, the absence of any representation from the Bar undermines the inclusivity of the process. Legal practitioners play a critical role in upholding the rule of law, and their exclusion diminishes the diversity of perspectives necessary for a balanced and just appointment process.
This issue has parallels with earlier initiatives, such as the Supreme Judicial Commission Ordinance, 2008, introduced during a caretaker government. That ordinance faced constitutional challenges, and the majority decision in the Idrisur Rahman case found key provisions unconstitutional. The lack of lessons learned from this precedent suggests a failure to address systemic issues in judicial appointments, exposing the ordinance to similar challenges.
The ordinance's intended goals of creating a fair, transparent, accountable, and merit-driven system are therefore undermined by the structural and procedural deficiencies embedded within its framework. While its enactment may represent a symbolic victory for judicial reform, the practical challenges it introduces run the risk of perpetuating the very issues it seeks to address.
The Supreme Judicial Appointment Ordinance, 2025 represents a missed opportunity to reform and strengthen the judiciary’s independence and accountability. Its flaws mirror broader challenges faced by many jurisdictions attempting to balance political influence with judicial autonomy.
Lessons from countries like the United Kingdom and South Africa highlight the importance of establishing strong, transparent, and merit-based selection processes. Unless significant reforms are undertaken, the ordinance risks becoming a mechanism of executive control rather than a safeguard of judicial independence.
Arafat Hosen Khan currently works as a Visiting Senior Fellow at the London School of Economics and Political Science (LSE) Law School, London, United Kingdom. He is also a Legal Scholar, Advocate for justice and democracy, expert in Constitutional Law, Politics, and Human Rights. He is the author of ‘The Constitution of Bangladesh: People, Politics, and Judicial Intervention.’ He is a qualified English Barrister and Advocate of the Supreme Court of Bangladesh with extensive experience in Constitutional and Human Rights law and policy development. He was serving as a Senior Lecturer and Former Head of the Department, Department of Law, North South University, Dhaka, Bangladesh.