Preface
The administration of judicial or justice delivery system in Bangladesh is time consuming and un-affordable to the poor people. A case usually takes about ten to twenty years on average from date of filing to date of judgment. Our district court judges are the administrator of the district court, responsible for managing, scheduling and delivering decisions. Justice delayed justice denied is one of the principles of equity. Public confidence in our legal system is lost. Our former Law Minister Barrister Moudud Ahmed in a recent workshop said that our present judicial system is old, traditional and corrupt and needs reform. He informed that a total of Ten million (96, 83, 305) cases are now pending in different courts of the country and under existing procedure hundred years will be required for disposal. The breakup of this backlog is: 4,946 cases in the Appellate Division of the Supreme Court; 1, 27, 244 cases in the High Court Division, 3, 44,518 civil cases and 95,689 criminal cases in the Judges courts and 2, 96, 862 cases with Magistrate courts and 99,004 cases with Metropolitan Magistrate courts. Independence of judiciary, amendment of existing laws, alternative dispute resolution, case management by judges, court administration by court administrators – are a few recommendations came from our donors and development partners.
Recently the government under its legal reform programme has enacted Speedy Trial Tribunal Act, 2002 and formed six speedy trial tribunals for early settlement of certain cases. This is the century of specialization, the world around us developed and developing. We must move fast in accepting latest modern technology of court administration and case management and not waste time lagging behind.
The judiciary must play proactive role in meeting new issues, challenges and developments and also must see that the disadvantaged and vulnerable groups in society i.e. the poor, women and marginalized sections are not denied access to justice either because they are not aware of laws or they are unable to bear the financial or social costs of justice.
There are labour courts and labour appellate tribunals to decide labour disputes, administrative tribunals and administrative appellate tribunal to decide service disputes of public servants, income tax appellate tribunal to decide income tax disputes, custom, excise and VAT Appellate tribunal to decide disputes regarding custom and excise duties and VAT, court of settlement to decide disputes about abandoned properties, special judges to try corruption cases against public servants, special tribunals to try criminal cases under the Special Power Act 1974 and Nari-o-Shishu Nirjatan Daman Adalats to decide cases of crimes committed against children and women. To decide election disputes the election tribunals are constituted with judicial officers. Other tribunals follow the some procedure. Family courts have been constituted with assistant judges to decide family disputes. To decide money claims of the banks and other financial institutions Artha Rin Adalats have been set up presided over by judges, and insolvency courts have been set up presided over by district or additional district Judges to declare defaulting borrowers as insolvent. To try offences committed by children below the age of 16 years, juvenile courts have been formed with the magistrates and sessions judges, and juvenile courts follow the special procedure laid down in the children’s Act.
In this context will focus on the administrative tribunal, and taxes tribunal and election tribunal functioning in Bangladesh.
Introduction: Jurisprudentially, all human being are equal before the eyes of law irrespective of race, sex, colour, class or position in the society and are entitled to have equal protection of law. The ordinary Courts of law are also set up to establish this issue and more specifically, to settle disputes arising out between individuals.
Perhaps the most important of the functions of the State is that which it discharges as the guardian or order; preventing and publishing all injuries to itself, and all disobedience to the rules which it has laid down for the common welfare.[1]
The framers of the Constitution of Bangladesh considered the importance of tribunal with due care and there are as many as sixteen references regarding ‘tribunal’ in the Constitution.[2]
Bangladesh inherited its legal system from English Common Law, where the issue relating to administrative affairs are dealt by the ordinary Courts of law. In contrast, in France there is a separate system. The Droit Administratis with council d’ etat have separate hierarchy to decide all administrative disputes. There are also instances of countries which adopted a mixed or combination of both the system. Bangladesh, Pakistan or India is the examples of countries which adopt a mixed system.
Tribunals are mainly a twentieth-century phenomenon, for it was long part of the conception of the rule of law that the determination of questions of law- that is to say, question which require the findings of facts and the application of definite legal rules or principles – belonged to the Courts exclusively.
It should be mentioned here that in international arena, there is Administrative Tribunal of International Labour Organization established in 1927. In 1932, The Institute of Agriculture established a tribunal. The United Nations established its own tribunal.
Chapter One
Definition of Tribunal: It is not possible to define the word ‘tribunal’ precisely and scientifically. The word ‘Tribunal’ is derived from the word ‘tribune’. Dictionary meaning of the word ‘tribune’ is a magistrate of Republican Period of Rome elected by the Roman Plebeians to defend their right; a champion of popular rights; a name for a newspaper; a platform for speaking from; a raised area for stand; bishop’s stall or throne. Tribunal judgment seat; Court of justice of arbitration; a body appointed to adjudicate in some matters. In common parlance dictionary meaning of the word ‘tribunal’ is ‘Court of justice’ or ‘seat of a Judge’.
Tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes – whether or not it is called a tribunal in its title. For example, an advocate appearing before a Court on which a single Judge was sitting could describe that judge as ‘their tribunal’. Many governmental bodies that are titled ‘tribunals’ are so described to emphasize the fact that they are not courts of normal jurisdiction. For example the International Criminal Tribunal for Rwanda is a body specially constituted under international law; in Great Britain, Employment Tribunals are bodies set up to hear specific employment disputes. Private judicial bodies are also often styled ‘tribunals’. The word ‘tribunal’ is not conclusive of a body’s function.
The word ‘tribunal’ has not been defined in the Constitution of Bangladesh or in relevant laws.
In ordinary sense, it can be said that a tribunal means a body with judicial or quasi-judicial functions set up statutes, and existing outside the usual judicial hierarchy of the Supreme Court. The tribunal as distinguished from the Court, exercises judicial power and decides matters brought before it judicially or quasi-judicially but it does not constitute a Court in the technical sense.[3]
The expression ‘tribunal’ as used in Article 102(5) of the Constitution of the People’s Republic of Bangladesh does not mean the same thing as “Court” but includes, within the ambit all adjudicating bodies, provided they are constituted by the state and are invested with judicial as distinguished purely from administrative or executive functions. In the case of Bangladesh vs. A. K. M. Jahangir Hossain,[4] after applying the principle of “ejusdem generic” the Appellate Division held that the “Court” acts judicially and “tribunal” also acts judicially or at least quasi-judicially.
A tribunal is a judicial assembly; a judicial authority within the ambit of Section 74(1) (ii) of the Evidence Act, 1872.
Chapter Two
Similarities between Tribunal and Court:
All tribunals are not Courts, though all Courts are tribunals. The word ‘Court’ is used to designate those tribunals, which are set up in an organized state for the administration of justice. The word ‘tribunal’ is a wide import and the words ‘Court’ and ‘tribunal’ embrace with them the exercise of judicial power in all its term. ‘Courts’ and ‘tribunal’ act ‘judicially’ in both senses and in the term ‘Court’ are included the ordinary and permanent tribunals and in the word ‘tribunals’ are included all others which are not so included.
The tribunals, if not Court, have got many of trappings of the Court, a tribunal when performs the functions of a Court notwithstanding that it is tribunal, it is in more or less a Court and it has the power to decide and adjudicate the matter with a judicial bent of mind and in accordance with law both substantive and procedural.
After this above discussion it is clear that both the tribunals and Courts are important tools in the administration of justice. There are some common features between these two. In the case of Durga ShankerMebta vs. Raghuraj Singh[5] it was the held that both the Courts and tribunals are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions. They are both adjudicating bodies and they deal with and finally determine disputes between the parties, which are entrusted to their jurisdiction. The procedure followed by the Courts is regularly prescribed and in discharging their functions and exercising their powers, the Courts have to conform to that procedure. The procedure which the tribunals have to follow may not always be so strictly prescribed, but the approach adopted by both the Courts and tribunals is substantially the same, and there is no essential difference between the functions that they discharge. Both the Courts and tribunals provide for appeal and keep the provision of lawyers to defend parties. The basic and fundamental feature, which is common to both the Courts and tribunals, is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State.
Dissimilarities between Tribunal and Court:
Though there are some common features between the tribunals and Court but it is not impossible to find out some distinct features between these two. There are tribunals with many trappings of a Court, which nevertheless are not Courts in the strict sense of exercising judicial power.
In the case of Bangladesh vs. A.KM Jahangir Hossain[6] it was held that there is a distinction between a Court and a Tribunal. The Court has a clear and distinct connotation whereas a tribunal assumes wide range of character. It may be a Judicial Tribunal and in between there are various ranges of adjudicating authority, which are more often called administrative tribunals. But there is a common element, the authority may be judicial or administrative, but the authority is to decide either a dispute or an offence, and it is to decide on fact and apply the rules to them without considering executive policy.
Fry, LJ observed in the case of Royal Aquarium vs. Parkinson[7] that the word ‘tribunal’ is ambiguous, because, it is not like ‘Court’ with any ascertainable meaning in English Law. About four decades
later in Shell Company of Australia vs. Federal Commissioners[8], Lord Sankey LC observed:
“The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. . . In that connection it may be useful to enumerate some negative propositions on this subject: 1. a tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court. 6. Nor because it is a body to which a matter is refried by another body”.
In India, according to Gajendragadkar CJ, the main and the basic test is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the state’s inherent power exercised in discharging its judicial function.[9]
From the Bangladesh perspective the difference between a court and a tribunal is largely a matter of statutory designation and in most cases the real difference is difficult to draw since almost invariably tribunals have got all trappings of a court. The nomenclature of a tribunal bears the significance of specialisation only rather than any substance compared to the proceedings of a court. Sometimes it is argued that a tribunal is a quasi-judicial body whereas a court is a full judicial body but this is true from the viewpoint of the concerned legislative designation. If a particular law creates it in the form of a quasi-judicial body it will turn out to be a quasi-judicial body. In Bangladesh most of the tribunals, e.g. Administrative Tribunals, Special Tribunals under the Special Powers Act, VAT Tribunal etc under special laws are quasi-judicial in the sense of their formation as they are composed of both judicial and non-judicial members but from the view point of their function and jurisdiction they are judicial in nature. This is because of the fact that full hearing with the presence of lawyers for both the sides is held; judicial review of the decisions of tribunals under the supervisory or appellate power of the Supreme Court is invariably available; also most of the appellate tribunals are given, contempt power. For instance, the Advisory Board under the Special Powers Act 1974 and article 33 of the Constitution has all trappings of a tribunal in true sense of the term though it has not been termed as a tribunal. On the other hand, Administrative Tribunal, Special Tribunal under the Special Powers Act 1974 are tribunals by name but they are all courts subordinate to the Supreme Court and they have to follow normal judicial procedure.
Reasons behind Setting up of Tribunals:
There was a time when the King or the sovereign would decide the disputes between parties and it was also considered that ‘King can do no wrong’. According to A.V. Dicey’s theory of Rule of Law, the ordinary law Courts must administer the ordinary law of the land. He was opposed to the establishment of administrative tribunal. According to the Classical Theory of law and the doctrine of separation of power the function of deciding disputes between the parties should belong to the ordinary Court of law.
The traditional theory of “Laissez Faire” has been given up and the old “Police State” has now become a ‘Welfare State” and because of this radical change in the philosophy as to the role to be played by the State, its functions have increased. Now the State not only exercises sovereign functions, but, as a progressive democratic State, it also seeks to ensure social security and social welfare for the common masses.
The reasons for the setting up of the tribunals were said by Lord Pearce in Anisminic vs. Foreign Compensation Commission, 1969, 2 W.L.R. 964 to be “speed, cheapness and expert knowledge”. Since the tribunals do not follow formal procedures and they are constituted by experts, they can provide easily speed and effective remedies.
Under the English Legal System, the Royal Commission on Legal Service, 1979 pointed out that over a quarter of million cases are dealt with by Tribunals each year. The number of cases then being heard by tribunals was six times greater than the number of contested civil cases dealt with by the High Courts and county Courts combined. Another main purpose of setting up of the tribunal system is to prevent the ordinary Courts of law from being over burdened by cases.
The responsibilities of tribunals are in general no less important than those
of courts of law. Large awards of money may be made by tribunals, for
example, in cases of industrial injuries.
The main reason of creating separate Tribunals for dealing with special subjects is to bring into existence a body or bodies that will deal with the disputes relating to those subjects speedily, efficiently and with concentrated attention. The Administrative Tribunal is expected to take the load off the shoulders of not only ordinary Courts but of the High Court Division. With the increase of various kinds of litigations it has been the increasingly felt need to provide public servants quicker and cheaper justice. Excessive delay in settlement of their service matters not only affect individual moral but sap the vitality of the system as a whole in the long run. The Administrative Tribunals are particularly designed to guard against such delays in dispensing justice, while keeping in tact its spirit and quality. There is no doubt that these Tribunals will make for a more contended and efficient governmental machinery.[10]
Advantages of Tribunals:
All over the world the tribunals are functioning beside the ordinary Courts of law because of some advantages it provide to justice seekers and administrators of justice. The social legislation of the twentieth century demanded tribunals for purely administrative reasons: they could offer speedier, cheaper and more accessible justice, essential for the administration of welfare schemes involving large number of small claims, whereas the process of the courts of law is elaborate, slow and costly. Tribunals have certain characteristics which often give them advantages over the courts. These are cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject.[11] Some of the advantages of the tribunals over the Courts are discussed below:
Speed:
The tribunals are much quicker than that of the Courts in hearing and deciding the cases. A related advantage of the tribunal system is the certainty that it will be heard on a specified date and it will decide a case within a specific period of time. In most of the cases, the provisions of law by which the tribunal is set up provide that the dispute or case must be settled within a specified time. For example, the Labour Appellate Tribunal formed under section 38 of the Industrial Relations Ordinance, 1969 provides in sub-section (3) that the decisions of the tribunal shall be delivered within sixty days. The Speedy Trial Tribunal disposed of a total of 709 cases between 24h October, 2002 to 19th September, 2005, which is a huge success of tribunal.[12]
Cost:
To make a tribunal functional the expenditure incurred by the Government is comparatively less and parties too, have to bear the minimum of expenditure. Thus, tribunals are much cheaper way of deciding cases than taking recourse to the regular procedure of the court. One factor that leads to a reduction in cost is the fact that no specialized Court building is required for the hearing of the cases. No Court fee or lawyer fee are to be given in the proceedings.
Informality:
Tribunals conform to an informal procedure. The strict rules relating to the evidence, pleading and procedure, which apply in the Courts, are not binding in the tribunal’s proceedings. They observe principles of natural justice and fair play. They can rely on hearsay evidence or decide the questions of onus of proof or admissibility of documents, etc. by exercising discretionary powers.[13] The provisions of this informal situation suggest that the complaints do not need to be represented by lawyers, they may represent them or the representative of the trade union may represent them. But the Frank Committee Report, 1957 of UK emphasized on the need for clear rules for procedure. Now, many tribunals follow specific rules of procedure. For example, the Industrial Relations Rules, 1977 provides for the rules of procedure to be followed by the Labour Appellate Tribunal. The Income Tax Appellate Tribunal Rule, 1985 provides for the rules that the Income Tax Appellate Tribunal shall follow in discharging cases.
Flexibility:
The tribunals are not bound to follow the strict rules of precedent. So, in every case a Tribunal has the chance to correct its previous decision or if the previous decision was correct the tribunal can take the view. But it is customary practice that as the tribunals are inferior to the Courts they follow the precedent of the Courts.
Expertise:
In the ordinary Court, the judges may not be well acquainted with the cases or it may happen that a judge may not feel comfortable to hear particular categories of cases because he does not have sufficient knowledge on that issue. Tribunals are free from such problem. In most of the cases persons who are expert on the tribunal issues constitute the tribunals. The judges of the tribunals are well versed with the issue for which the tribunals were set up. For example, section 11(3) of the Income Tax Ordinance, 1984 provides that-
A person shall not be appointed as a member of the Taxes Appellate Tribunal unless
(i) he was a member of the National Board of Revenue; or
(ii) he was a Commissioner of Taxes; or
(iii) he is a Commissioner of Taxes; or
(vi) he is an income tax practitioner and practiced professionally for not less than twenty years; or
(vii) he is a professional legislative expert having not less than eight years experience in the process of drafting and making financial and tax laws; or
(viii) he is an advocate and practiced professionally for not less than ten years in any income tax office.
Thus it can easily be inferred that a person not acquainted with tax matters cannot sit on such tribunals.
Accessibility:
The aim of the tribunals is to provide individuals with a readily accessible forum in which they can refer their grievances, and getting cases admitted into tribunals is certainly not as difficult as getting a case into the ordinary Courts. In ordinary courts of law, the general practice is that, if any person wants to institute a suit, he has to go to a lawyer, the lawyer after considering everything finds out the right forum. In tribunal system, all persons concerned know the forum and thus the tribunals are easily accessible.
Privacy:
People of our society, by and large, do not want to share their private issues relating to Court matter. Most of the instances, the proceedings of the Court are held in open Court. In a tribunal, the proceedings can be taken without triggering the publicity. For example, section 63 of the EPZ Sramik Shongha abong Shilpa Shamparka Ain, 2004 says that if any information is obtained from any association or person, unit or company or employer during taking evidence by the executive chairman, conciliator, tribunal, arbitrator or appellate tribunal, and if that any association or person, unit or company or employer requests to keep such information secret, it cannot be published without the written consent of that association or person, unit or company or employer.
Limitations of Tribunals:
Despite the fact that tribunals have many advantages it is also a fact that it has its own limitations too. The main weaknesses in the tribunal system are described below
Appeals Procedure:
The appeal procedure is too much complex in the tribunal and there remain hardly any scope for further appeal in higher Courts against the decision of the Tribunals.
In England, before the Frank Committee Report, 1957 tribunals were not required to provide reasons for their decisions and these prevented appeals from most of the cases. But subsequent to the Frank Committee Report, 1957 most of the tribunals are required to provide the reason behind their decision under section 10 of the Tribunals and Inquires Act, 1992.
Lack of Publicity (Secrecy):
The proceedings of the tribunals are held under strict secrecy and as such it may make the judges of the tribunals autonomous in that, their decisions may be arbitrary. Since the tribunals maintain privacy, apprehension of violation of rights remains.
Provisions of Legal Aid:
Legal aid pre-supposes that there is a need, so undeniable that the taxpayer should support it, for legal advice or legal services relating to the legal issues. As it is not possible to be represented by the lawyers a person may be aggrieved by the decision of the Tribunal. And in such a case, in England, there is a system of ‘green form’, which may be the synonyms to a limited scale of the legal aid.
A.K.M. Shamsul Huda traced two demerits of Administrative Tribunals i.e. this system has given birth to a second judicial forum, and the scope for remedy in the superior Court has been greatly limited[14].
[1] Holland, Sir Thomas Erskine; The Elements of Jurisprudence, p.378
[2] Articles 35(2), 49, 52(2), 88(e), 102(5), 103(4), 109 and 117. There are also references of the word ‘tribunal’ in the Fourth Schedule to the Constitution of Bangladesh, 1972.
[3] Mazdoor Sabha Vs. Hind Cycles Ltd. AIR 1963
[4] 1982, DLR 173 AD at p.201
[5] AIR 154 SC 520.
[6] Opcit 4 P.174
[7] 1892(1) 2B.431 P.446
[8] 1931 AC 275 PP. 297-98
[9] Associated Cement Co. Ltd. Vs. P N Sharma, AIR 1965 SC 15995 at 1606, 1609
[10] Huda, A.K. M. Shamsul; The Constitution of Bangladesh, Vol. II, First Edition, p. 905
[11] The Franks Committee
[12] The Report of Ministry of Law, Justice and Parliamentary Affairs, Bangladesh, 2005, p. 6
[13] State of Orissa vs. Murlidhar, AIR 1963 SC 404
[14] Opcit 10 p.909