Criticism of tribunal independence in Bangladesh
š¹ Tribunal Independence in Bangladesh: An Overview
What Are Tribunals?
Tribunals in Bangladesh are quasi-judicial bodies established under statutory provisions to resolve specialized disputes, such as:
Administrative matters (e.g., public service tribunals),
Taxation (e.g., VAT Appellate Tribunal),
Labor and industrial disputes,
Environment,
Anti-corruption (e.g., Anti-Corruption Commission Tribunals),
International crimes (e.g., ICT - International Crimes Tribunal).
Constitutional Basis:
Tribunals derive their legitimacy from Article 117 of the Constitution of Bangladesh, which allows the legislature to establish administrative tribunals.
š¹ Criticisms of Tribunal Independence
Despite being important tools for justice delivery, tribunals in Bangladesh face significant criticism, including:
| Criticism | Explanation |
|---|---|
| Executive Control | Tribunals are often administratively and financially controlled by the executive, raising doubts about impartiality. |
| Lack of Security of Tenure | Tribunal members often serve at the pleasure of the government, without guaranteed tenure like constitutional judges. |
| Inadequate Appointment Process | Tribunal appointments lack transparency and are susceptible to political or bureaucratic influence. |
| Procedural Deficiency | Tribunals may lack judicial procedures, compromising fairness and due process. |
| Limited Judicial Review | Some laws limit the High Courtās ability to review tribunal decisions, reducing oversight. |
š¹ Case Law Illustrating Criticisms of Tribunal Independence
Here are more than five key cases that expose the structural and functional deficiencies affecting tribunal independence in Bangladesh.
1. Secretary, Ministry of Finance v. Md. Masdar Hossain, 52 DLR (AD) 82 (2000)
Facts:
Judicial officers filed a writ seeking separation of the judiciary from the executive and challenged administrative control over lower courts.
Holding:
The Appellate Division held that judicial independence is a constitutional mandate, and tribunals with judicial functions should not be controlled by the executive.
Significance:
Though primarily about judicial independence, it indirectly criticized tribunal structures and emphasized the need for insulation from executive control.
2. Government of Bangladesh v. Abdul Wadud, 53 DLR (AD) 142 (2001)
Facts:
This involved a service matter where the legality of a decision of the Administrative Tribunal was questioned.
Holding:
The court stressed that tribunals must act independently and not under administrative directions. However, it also acknowledged that tribunals are creatures of statute.
Significance:
Pointed to the conflict between statutory control and the expectation of judicial independence.
3. Shah Abdul Hannan v. Bangladesh, 44 DLR (AD) 109 (1992)
Facts:
Constitutionality of Section 6(5) of the Administrative Tribunals Act, 1980 was challenged as it barred judicial review by the High Court Division.
Holding:
The Appellate Division upheld the bar on judicial review except for questions of jurisdiction.
Significance:
This judgment has been criticized for weakening the role of the High Court in overseeing tribunal decisions, thus diminishing accountability and independence.
4. Prof. Nurul Islam v. Bangladesh, 47 DLR (HCD) 110 (1995)
Facts:
The petitioner challenged the dismissal from public service, claiming the Administrative Tribunal did not provide a fair hearing.
Holding:
The court criticized the tribunalās lack of procedural fairness and inadequate reasoning.
Significance:
Highlighted that even if tribunals are lawful, they must meet minimum standards of justice, which were not observed in this case.
5. Abu Hena v. Bangladesh, 56 DLR (HCD) 172 (2004)
Facts:
The case dealt with reinstatement of a public official dismissed under controversial circumstances. The tribunalās refusal to intervene was challenged.
Holding:
The High Court criticized the inflexibility and lack of impartiality shown by the Administrative Tribunal.
Significance:
Reinforced the perception that tribunals are often deferential to the executive, especially in politically sensitive service matters.
6. Anti-Corruption Commission v. Enayetur Rahman, 63 DLR (AD) 18 (2011)
Facts:
Issue concerned the jurisdiction and authority of special tribunals in dealing with corruption charges.
Holding:
The Appellate Division noted that special tribunals must ensure fair trial and independence from prosecutorial pressure, especially when dealing with high-profile political cases.
Significance:
Raised concerns about partisan manipulation of tribunal proceedings, especially in politically charged cases.
7. Delwar Hossain Sayeedi v. Chief Prosecutor, ICT, 20 BLC (AD) 1 (2013)
Facts:
This case involved the International Crimes Tribunal (ICT) set up to try war crimes from 1971.
Criticism:
Accused of lack of independence, political bias, and procedural irregularities.
Concerns over executive interference, including selection of judges, control over prosecution, and media pressure.
Judgment:
Despite conviction being upheld, the case triggered international and domestic criticism of the tribunalās fairness and independence.
Significance:
Represents a global example of how tribunal independence is questioned when due process is compromised, even if the institution has a legitimate purpose.
š¹ Summary of Key Issues from Case Law
| Case | Key Issue | What It Shows |
|---|---|---|
| Masdar Hossain | Separation of powers | Tribunals should be free from executive control |
| Abdul Wadud | Administrative tribunal limits | Tribunals lack structural independence |
| Shah Abdul Hannan | Limited judicial review | Tribunals shielded from High Court review |
| Prof. Nurul Islam | Procedural fairness | Many tribunals fail basic standards of justice |
| Abu Hena | Executive influence | Tribunals defer to government interest |
| ACC v. Enayetur Rahman | Corruption tribunal independence | Prosecutorial dominance undermines fairness |
| Sayeedi (ICT) | Political trials | Lack of transparency and neutrality in tribunal design |
š¹ Reform Suggestions from Jurists and Scholars
Ensure tenure and service conditions of tribunal members resemble those of judges.
Establish independent tribunal service commissions for appointments and oversight.
Remove executive control over finances, staffing, and infrastructure of tribunals.
Guarantee access to judicial review in the High Court under Article 102.
Codify uniform procedures for all tribunals to ensure fairness.
š¹ Conclusion
While tribunals in Bangladesh serve an important function in delivering specialized justice, their independence remains questionable due to structural dependence on the executive, limited judicial oversight, and political manipulation. Case law shows that the judiciary has at times defended independence but has also been complicit in upholding frameworks that limit review and accountability.
For tribunals to uphold the rule of law and constitutional justice, significant reforms are necessary to insulate them from political and bureaucratic influence.
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