Judicial Independence in Hybrid Regimes: A Comparison between Bangladesh and Pakistan

The political and constitutional histories of Bangladesh and Pakistan have many similarities including colonial legacies, authoritarian and hybrid regimes, and the inability of the higher judiciaries of the two countries to protect themselves against court-packing and court-curbing activity by regimes. However, both the Supreme Court of Pakistan and the Supreme Court of Bangladesh were able to gain a certain degree of independence from other branches of the state in recent decades. The former was able to maintain a certain degree of independence since the lawyers’ movement for the restoration of the judiciary (2007–2009), whereas the latter could not maintain its independence. After the restoration of the judiciary, military and political elites in Pakistan were unable to take any major court-packing or court-curbing actions against the higher judiciary until 2018. Unlike elites in Pakistan, the current government of Bangladesh, Awami League, forced the Chief Justice of Bangladesh, Surendra Kumar Senha, to resign and leave the country because the latter led the SCB to strike down the Sixteenth Constitutional Amendment. The amendment had transferred the powers for the removal of judges from the Supreme Judicial Council to parliament. Using secondary sources and government documents, this chapter compares the nature and scope of judicial independence in the two countries to argue that legal history alone does not determine judicial independence. Instead, three factors affect the maintenance of judicial independence: socio-economic changes and consequent support of the middle class for the judiciary, divisions within elites which increase space for judicial independence, and popular and strategic judicial leadership which can cultivate the support of political elites and the middle class. The aim of the chapter is to explain the different nature and scope of judicial independence in countries with similar political and constitutional histories and to offer new insights into judicial independence in authoritarian and hybrid regimes.