Judges as legislators: benevolent exercise of powers by the higher judiciary in Bangladesh with not so benevolent consequences

Abstract

Recently in Bangladesh, there is a discernible (albeit rare) trend of the Supreme Court passing directives to the government for making laws for redressing specific wrongs or addressing some issues of public importance. While this type of directives is apparently motivated by a benevolent desire for ensuring better governance, this paper argues that this is an affront to the well-established theory of separation of powers and leads to undesired consequences. Though not intentional, this practice of issuing directives effectively undermines the government as well as the overall political system of Bangladesh. Arguably, this sort of judgments projects an image that the political forces in Bangladesh are dysfunctional and indirectly cements the power and image of apolitical forces in Bangladesh, which in the long run corrodes democratic values and undermines, if not threatens, the prospect of a functioning democracy in Bangladesh.