The Recent Emergency and the Politics of the Judiciary in Bangladesh
Volume 2 Issue 2 (2009)
The recent state of Emergency in Bangladesh (2007-08) put the country’s judiciary under certain challenges with
a far-reaching bearing on judicial statesmanship, resurfacing the old but difficult question of the proper judicial role in Emergency. The 2007 Emergency regime initiated an array of reforms in politics, and legal and
judicial spheres, but at the same time clipped the rights of the people and the judiciary’s protective authority. The proper role of the judiciary in such a context should be defined by reference to its ability to maintain the ‘rule
of law’. Recent Bangladeshi judicial decisions show that while the Supreme Court’s High Court Division by and large asserted self-confidence vis-à-vis the overweening Emergency government, its Appellate Division either remained silent or paid undue deference to the executive. By examining the new politics of the senior judiciary in
Bangladesh and the potential reasons that may explain this, and having been based on the premises that the law is a site of political contestation while the judiciary is a political institution constantly negotiating the law with politics, this article will examine whether the Bangladeshi judges during the 2007 Emergency employed their statesmanship in protecting the citizens. This paper argues that the judiciary throughout the Emergency regime suffered a crisis of public confidence, with negative impacts for its constitutional agency in upholding justice and constitutionalism. While contextualizing the need for judicial activism during Emergency, the paper will question the efficacy of dominant legal-constitutional theories of the judicial role.