View with images and charts Report On Judicial Administration 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 1
Holland, Sir Thomas Erskine; The Elements of Jurisprudence, p.378 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. 2
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 Singh5 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. 3
Mazdoor Sabha Vs. Hind Cycles Ltd. AIR 1963 1982, DLR 173 AD at p.201 5 AIR 154 SC 520. 4
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 decadeslater 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 6
Opcit 4 P.174 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 7
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 nonjudicial 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 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 10
Huda, A.K. M. Shamsul; The Constitution of Bangladesh, Vol. II, First Edition, p. 905 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 11
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 thatA 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 accessib
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 limited14. Chapter Three Kinds of Tribunals:
14
Opcit 10 p.909
There are two types of tribunals i.e. domestic tribunal and statutory tribunal. There can be other types of Tribunals, but at this stage of our discussion we shall discuss only these two types of tribunals. Domestic Tribunals: The tribunals, which are domestic in nature deals only with the internal disciplinary principle of any institution. It is a non-statutory body. It settles the dispute between employer and employee. Court fee is not needed in domestic tribunals. It deals with the private matters rather than public matters. Tribunals of Bangladesh Bar Council, different clubs serve as examples of domestic tribunals. At present there are five tribunals of Bangladesh Bar Council to deal with different disciplinary issues relating to its members. The domestic tribunal is not a Court to follow procedures of the trial or enquiry according to the Civil Procedure Code, 1908. In appropriate cases, considering the facts and circumstances thereof, such a tribunal may arrive at a decision simply by questioning the accused and considering his explanation.15 The Civil Courts have no power to look into the decisions of the domestic tribunal unless there is a breach of principle of natural justice and the decision is an act of bad faith and biased. The civil Court is not competent to sit over the decision of the executive Committee of the respondent Club unless it is proved that it is in a breach of principle of natural justice and the decision is an act of bad faith and biased. In case of domestic tribunal, the enquiry officer is not to follow the procedure of a trial by a Court, he may, in appropriate cases, arrive at a decision simply by questioning the delinquent officer and considering his explanation.16 Statutory Tribunal: Statutory tribunals are established by the provisions of statutes. For example, in Bangladesh, Labour Appellate Tribunal is a statutory tribunal, which is established under section 38 of the Industrial Relations Ordinance, 1969. Where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to such rights which are the creation of that Act, then, except, so far as otherwise expressly provided or necessarily implied, that tribunal’s jurisdiction to determine those questions is exclusive.17 Administrative tribunals are the glaring examples of statutory tribunals. These tribunals deal with the disputes between a govt. employee and the govt. arising out of the rules and regulations relating to the service matter. For example, in India, the Administrative Tribunal formed under the Administrative Tribunals Act, 1985 resolves the disputes between a govt. employee and the govt. arising out of the rules and regulations relating to service matter. In Bangladesh, the Administrative Tribunals established under the Administrative Tribunals Act, 1980 perform similar duties. Besides there are some special Tribunals like Nan 0 Shishu Nirjatan Damon Tribunal, Acid Oporadh Damon Tribunal, Speedy Trial Tribunal and other Special Tribunal established 15
Bashir Ahmed vs. BJMC. 44 DLR(AD) 267 Director T & T Board, Dhaka vs. Hasan Ahmed Bhuiyan and another 47 DLR (AD) 143. 17 Mian Sultan Ali Nanghian vs. Mian Nur Hussain, 1949, PLD, Lah. 301 16
under the Special Powers Act, 1974. The Nan 0 Shishu Nirjatan Damon Tribunals are established according to the provisions of section 26 of the Nan 0 Shishu Nirjatan Damon Am, 2000 (Act No. VIII of 2000) in every district to try offences committed under the said Act. The Acid Oporadh Damon Tribunals are established as per the provisions of section 23 of the Acid Niyontron Ain, 2002 to try offences under the Act. When the statutory tribunal (i.e. special tribunal set up under a special statute) has acted beyond the scope of the power vested in it by the statute, the jurisdiction of the Civil Courts to examine into such cases is not taken away even if the statute contains words purporting to exclude such jurisdiction. This certainly is not the same thing as saying that jurisdiction has been made to depend upon the correctness or otherwise of the suitor’s contention as respects the subject matter.18 Chapter Four Can a Tribunal be Supplementary to or Substitute of a Court? Article 109 of the Constitution, 1972 says that the HCD shall have superintendence and control over the tribunals subordinate to it. The tribunals providing an alternative mechanism must be a worthy successor of the High Court in all respect.19 But there is no command in the Constitution of Bangladesh, 1972 that the Tribunal or the Appellate Tribunal is subordinate or co-equal to the High Court Division. A tribunal cannot be substitute of a Court for a good number of reasons. In the Court of law there are openness, fairness and impartiality. But in the tribunals these things are absent. Tribunals are not supplementary to the civil Courts but it is partly substitute of the civil Courts. The tribunals are not fully supplementary to the civil Court as the equity Courts were supplementary to the common law Courts. According to section 9 of the Code of Civil Procedure, 1908, the tribunals do not come under the umbrella of the civil Courts but the tribunals will come under the definition of civil Courts in three cases and will be questioned by the HCD: (a)
if the tribunal violates its own law;
(b) if the fundamental rights of the parties are violated due to the ma/a fide decision of the administrative tribunals. (c)
if the tribunals do anything ultra vires.
Again, the jurisdiction of the civil Courts cannot be totally ousted because tribunals cannot impose penalty, it can only suspend an employee. If the tribunals are mala fide in their decisions they are not immune to the challenges in the civil Courts. But the Administrative tribunals which were set up to deal with service matters of the Government employee can be a substitute of Court. The Administrative Tribunals are not like the High Court Division or the Subordinate Court over which the High Court Division exercises both judicial review and superintendence. 18 19
Province of East Pakistan vs. Dewan Abdul Alim, (1957) 9 DLR 26 S.P. Sampath Kumar vs. Union of India (1987) 1 S.C.C. 124
There is no command in the Constitution that the Tribunal or the Appellate Tribunal is substitute or co-equal to the High Court Division. It is left to the legislature, after establishing the Tribunals, to make necessary provisions in this regard for the carrying out of the functions of the tribunals.20 Chapter Five Some important tribunals functioning in Bangladesh: Administrative Tribunal: Broadly speaking, the term, ‘administrative’ refers to broad areas of governmental activities in which repositories of power may exercise every class of statutory function.65 The word ‘tribunal’ has been defined earlier. The administrative tribunals are those tribunals, which deal with administrative affairs. Administrative Tribunals have their roots traced from French system of Administrative Tribunals. In France, the control of the Judicial Courts over the Administration was lifted under Article 12 of the Law of 1790, which is in force even today. Napoleon also decided to build up solid governmental machinery on the ruins of French Revolution so that it could function effectively. The French Constitution of 1799 established the Council d’Etat. This was the beginning of the system of Administrative Tribunals.21 The Administrative Tribunal is the third type of judicial body as mentioned in the Constitution of Bangladesh, 1972 in Part VI (Article 117). Administrative Tribunal and Bangladesh Constitution: A Government Servant during the British rule in India held the office during the pleasure of the Crown. It was for the first time in 1919 certain constitutional protections were provided for the Government servants by the insertion of section 96B in the Government of India Act, 1915. This section was incorporated in the Government of India Act, 1935 and in the Pakistan Constitution. During the adoption of Bangladesh Constitution, 1972, the framers of the Constitution included the provision in Article 117. Article 117(1) of Bangladesh Constitution, 1972 empowers the Parliament to establish one or more Administrative Tribunals against whose decisions no writ will lie in view of the provision of Article 102(5). Such tribunals may be established to deal with matters relating to(a) the terms and conditions of persons in the service of the Republic including matters provided for in Part IX and award of penalties or punishment; (b) the acquisition, administration, management and disposal of any property vested in or managed by the govt. by any law, including the operation and management of, and services in any nationalized enterprise or statutory public authority;. 20 21
Mujibur Rahman vs. Bangladesh, 44 DLR (AD) 111. Opcit. 10. pp. 905-907
(c)
any law to which article 102 (3) applies.
Article 102 (3) of the Constitution of Bangladesh, 1972 provides that notwithstanding anything contained in article 102 (1) and article 102 (2), the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies. Article 47(1) provides that no law providing for any of the following matters shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridge, any of the rights guaranteed by this Part(a) the compulsory acquisition, nationalisation or requisition of any property, or the control or management thereof whether temporarily or permanently; (b) the compulsory amalgamation of bodies carrying on commercial or other undertakings; (c) the extinction, modification, restriction or regulation of rights of directors, managers, agents and officers of any such bodies, or of the voting rights of persons owning shares or stock (in whatever form) therein; (d) the extinction, modification, restriction or regulation of rights of search for or win minerals or mineral oil; (e) the carrying on by the Government or by a corporation owned, controlled or managed by the Government, of any trade, business, industry or service to the exclusion, complete or partial, or other persons; or (f) the extinction, modification, restriction or regulation of any right to property, any right in respect of a profession, occupation, trade or business or the rights of employers or employees in any statutory public authority or in any commercial or industrial undertaking; if Parliament in such law (including, in the case of existing law, by amendment) expressly declares that such provision is made to give effect to any of the fundamental principles of state policy set out in Part II of this Constitution. Article 47(2) provides that notwithstanding anything contained in this Constitution the laws specified in the First Schedule (including any amendment of any such law) shall continue to have full force and effect, and no provision of any such law, nor anything done or omitted to be done under the authority of such law, shall be deemed void or unlawful on the ground of inconsistency with, or repugnance to, any provision of this Constitution; Provided that nothing in this article shall prevent amendment, modification or repeal of any such law. Article 47(2) provides that notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground
that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution. ‘Court’ as defined in Article 152 includes Supreme Court and hence the HCD cannot entertain any writ petition in respect of any matter falling within the jurisdiction of an Administrative Tribunal. So, it is clear that the Supreme Court shall not entertain any proceedings or make any matter falling within the jurisdiction of an Administrative Tribunal. But the HCD sometimes entertains writ petition on the ground that the remedy provided by the Administrative Tribunal is not efficacious; in Abdul Awal Munshi vs. B. IV. D. Board, 22 it is submitted that when the HCD has jurisdiction it may refuse to exercise that on the ground of non-exhaustion of efficacious remedy. But when the HCD’s jurisdiction is ousted by the Constitution then it cannot apply it except on the ground of violation of fundamental rights. No proceedings, order or decision of a tribunal shall be liable to be challenged, reviewed, quashed and called in question in any Court. The decision of the Appellate Tribunal like that of the Tribunal is immune from any review under Article 102 because Article 117 also applies to the Appellate Tribunal. In case of Mujibur Rahman vs. Bangladesh, 23 the question arose whether a writ petition would be maintainable against the decision of the Administrative Appellate Tribunal. The combined effect of art.102 (5) and art.117 (2) is that no writ petition is maintainable against the decision of Administrative Tribunal. The Constitution is silent about the Administrative Appellate Tribunal. Again, when what is challenged is not the service rule, but administrative interpretation of a service rule, writ petition is not maintainable.24 Characteristics of Administrative Tribunal: The Administrative Tribunals have some distinctive features, which are traced out by the Franks Committee Report, 1957 of UK, are discussed below: (a) The administrative tribunal is the creation of a statute and thus, it has a statutory origin; (b) It has some of the trappings of a Court but not all; (c) An Administrative Tribunal is entrusted with the judicial powers of the state and thus, performs judicial and quasi- judicial functions; (d) Even with regard to procedural matters, an Administrative Tribunal possesses powers of a Court e.g. to summons witnesses,’ to administer oath, to compel production of document etc. (e) An Administrative Tribunal is not strictly bound by rules of evidence and procedure. (f) Administrative Tribunals are independent and they are not subject to any administrative interference in the discharge of their judicial or quasi- judicial functions; (g) The prerogative writs of certiorari and prohibition are available against the decision of Administrative Tribunal.
22
6 BLC Opcit 20. 24 Nurul Islam vs. Bangladesh, 201 BLD. 23
(h) The decisions of most of the tribunals are in fact judicial rather than administrative as they have to record finding of facts. They can apply discretion but their discretionary power is to be exercised judicially. The Distinctions between Administrative Tribunal and Court: There are many similarities between an Administrative Tribunal and a Court in certain aspects. We get the truth behind the statement in an English Case i.e. Pickering vs. Liverpool Daily Post and Echo Newspaper,25 Both of the Administrative Tribunal and Court are constituted by the state, invested with judicial powers and have a permanent existence. Thus, they are adjudicating bodies. In Associated Cement Companies Ltd. vs. P.N. Sharma, 26 the Indian Supreme Court held that the basic and fundamental feature which is common to both the Courts and the tribunals is that they discharge judicial functions and exercise judicial power vested to them by a sovereign state. If the precise decision between tribunals and Courts is a matter of uncertainty, what is certain is that tribunals are inferior to the normal Courts. However, the distinctions between these two are comprehensively laid down by C.K. Takwani as follows: 1. A Court of law is a part of the traditional judicial system. A Tribunal is a body created by a statute and invested with judicial powers. Primarily and essentially it is a part and parcel of the Executive Branch of the state, exercising executive and judicial functions. As Lord Greene states Administrative Tribunal perform “hybrid functions”.27 2. Judges of the ordinary Courts of law are independent of the executive in respect of their tenure, terms and conditions of their services. On the other hand, members of administrative tribunal are entirely in the hands of the Govt. in respect of same. 3. In a Court of law, the presiding officer, i.e. the judge is trained in law but the member of tribunal may not be trained in law as well. 4. In a Court of law, the judges must be an impartial arbiter and he cannot decide a matter in which he is interested. But a member of the Administrative Tribunal may be party to the dispute to be decided by it. 5. A Court of law is bound by all the rules of evidence and procedure but not Administrative Tribunal unless the statute imposes such an obligation. 6. While the court of law is bound by precedents, principles of resjudicata and estopple, an administrative tribunal is not strictly bound by them. 7. A Court can decide the “vires” i.e. the power and authority etc. of legislation while an Administrative Tribunal cannot do so.28 8. A Court must decide all the questions objectively on the basis of evidence and materials produced before it. But an Administrative Tribunal may decide the questions taking into
25
1991, 2 WLR 513, CA AIR 1965 SC 1595(1599) 27 Johnson vs. Minister of Health, (1947) 2 All ER 395 (400). 28 Bharat Bank Ltd. vs. Empyoees, AIR 1950 SC 188 26
account the departmental policy or expediency and in that sense, the decision may be subjective rather than objective. The Purpose of Establishment of Administrative Tribunals in Bangladesh: The Administrative tribunals were established in Bangladesh to exercise jurisdiction in respect of matters relating to or arising out of the terms and conditions of persons in the services of the Republic or of any statutory public authority.78 The Schedule to the Administrative Tribunals Act, 1980 (Act No. VII of 1981) includes the following bodies as the statutory public authority(a) Sonali Bank, Agrani Bank and Janata Bank constituted under the Bangladesh Banks (Nationalisation) Order, 1972. (b)
Bangladesh Bank established under the Bangladesh Bank Order, 1972.
(c) Bangladesh Shilpa Rin Sangstha established under the Bangladesh Shilpa Ritz Sangstha Order, 1972. (d)
Bangladesh Shilpa Bank established under the Bangladesh Shilpa Bank Order, 1972.
(e) Bangladesh House Building Finance Corporation established under the Bangladesh House Building Finance Corporation Order, 1973. (f)
Bangladesh Krishi Bank established under the Bangladesh Krishi Bank Order, 1973.
(g) Investment Corporation of Bangladesh established under the Investment Corporation of Bangladesh Ordinance, 1976. (h)
Grameen Bank established under the Grameen Bank Ordinance, 1983.
Administrative Tribunals are creation of the Constitution. For deciding any dispute arising out of the terms and conditions of their service, the judicial officers shall be amenable to the jurisdiction of the Administrative Tribunal. Establishment of Administrative Tribunal: The provisions of the Administrative Tribunals Act, 1980 empower the Government to establish one or more Administrative Tribunals. Initially, by SRO 58-L/82-JIV/IT-1/81, one Administrative Tribunal located at Dhaka was established for the whole of Bangladesh. Subsequently territorial jurisdiction of the Tribunal was restructured by SRO NO. 11 9L/92/249/J-4/5C-5/89 dated 30th May, 1992. Another Administrative Tribunal was set up in Bogra. Now, the Administrative Tribunal of Dhaka shall determine disputes arising out of the terms and conditions of persons in the services of Republic in the 38 districts including Dhaka, Narayangonj, Munshigonj, Manikgonj, Gajipur, Norshingdi, Faridpur, Gopalgonj, Madaripur, Shariatpur, Rajbari, Mymensing, Kishorgonj, Netrokona, Tangail, Jamalpur, Sherpur, Khulna, Bagerhat, Satkhira, Barishal, Pirujpur, Jhalokathi, Bhola, Patuakhali, Borguna,
Chittagong, Cox’s Bazar, Noakhali, Feni, Laxmizpur, Comilla, Chadpur, Brahmanbaria, Sylhet, Moulvibazar, Habigonj and Sunamgonj. The Administrative Tribunal of Bogra shall determine disputes arising out of the terms and conditions of persons in the services of Republic in the 23 districts including Bogra, Joypurhat, Pabna, Sirajgonj Dinajpur, Thakurgaon, Panchghar, Kurigram, Rangpur, Lalmonirhat, Gaibandha, Nilphamary, Rajshahi, Chapainababgonj, Noagaon, Natore, Jessore, Jhinaidah, Magura, Norail, Kustia, Chuadanga and Meharpur. Jurisdiction of the Administrative Tribunal: The Administrative Tribunal has the exclusive jurisdiction to hear and determine applications made by a person in the service of the ‘Republic or of any statutory public authority in respect of the terms and conditions of his service. 29 So, the Administrative Tribunal has no jurisdiction to entertain any application filed by a person who is or who has not been in the service of the Republic or of any statutory authority specified in the schedule to the Act. In the case of Quazi Nazrul Islam Vs. Bangladesh House Building Finance Corporation, 30 it was held that the Administrative Tribunal and the Administrative Appellate Tribunal has been established with limited jurisdictions and limited power. The Tribunal gratuitously granting relief acts in excess of its jurisdiction. The person affected by the decision of the higher authority must make an application before the higher authority. After having the decision of the higher administrative authority under any law enforced for the time being any person aggrieved may make an application to the Administrative Tribunal within six months of the decision of the higher authority. It should be borne in mind that the person making such application shall wait for only two months for the decision of the higher authority. If he does not get the decision within two months then he may go to the Administrative Tribunal. In the case of Abul Bashar Vs. Investment Corporation of Bangladesh and another,31 it was held that the petitioner cannot have the benefit of section 14 of the Limitation Act while computing the period of limitation in filing application before the Administrative Tribunal. In case of dismissal, the financial benefit during the period of dismissal cannot be claimed as a matter of right when such dismissal is set aside on the procedural defect as to show cause notice.83 Question of payment of subsistence to the government servant during suspension, relates to terms and conditions of service within the jurisdiction of the Administrative Tribunal The remedy against the orders to transfer lies before the Administrative Tribunal and not under Article 102 of the Constitution.85 In the case of DGM, Rupali Bank vs. Shah Jalal, 32 it was held that the Tribunal shall have no power to entertain an application unless it is filed within six months of the impugned order. In the instant suit the impugned order was made 4 years earlier than the date of incorporation of the petitioner bank in the schedule to the Act. Consequently the cause is beyond the jurisdiction of the Tribunal. That being so, the suit does not come within the mischief of Article 117.
29
Section 4, the Administrative Tribunals Act, 1980. 45 DLR (AD) 106. 31 52 DLR (AD) 178. 32 43 DLR 193 30
For legal remedies in service matters civilian employees in Defence Services can well invoke the jurisdiction of the Administrative Tribunal.33 In abovementioned matters i.e. to hear and determine applications made by a person in the service of the Republic or of any statutory public authority in respect of the terms and conditions of his service, the civil courts have no jurisdiction. The jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of’ special statute the jurisdiction of civil court in respect of Bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction.34 All decisions of the Administrative Appellate Tribunal shall be binding on the Administrative tribunals and the parties concerned; subject to the decision of the Administrative Appellate Tribunal the decision of the Administrative tribunals shall be binding on the parties.35 Besides, the Administrative Tribunals have powers to impose imprisonment for the obstruction of duties of the Administrative tribunals which may extend to one month or fine which may extend to five hundred taka. The Administrative Tribunal can strike down an order for violation of natural justice and for infringement of fundamental rights but it cannot strike down any bar or rule on the ground of its constitutionality. Duty of Court is to see the right given under Article 102(1) is not frittered away or misused.36 Such Tribunal cannot entertain any application by the aggrieved party unless his appeal before the competent authority is disposed of. This legal bar cannot be overcome unless the appeal pending before the Government is disposed of. It is not known why Government respondent is shockingly slow in the matter of taking decision in the petitioner’s appeal. The Rule upon the government is therefore made absolute with the direction to dispose of the appeal within 30 days.37 The Administrative Tribunal has no power to grant interim relief in respect of a case pending before it for final adjudication.38 Appellant was reinstated in service in pursuance of a civil Court’s decree passed before the commencement of the Administrative Tribunals Act, 1980. The subsequent claim for arrear pay and seniority etc. is not a claim arising out of the cause of action of the civil Court decree. Such claim arises out of a fresh cause of action after the Administrative Tribunals Act came into force and for that jurisdiction of Administrative Tribunal can well be invoked.39 Administrative Tribunal has exclusive jurisdiction to decide disputes relating to the terms and conditions of service including seniority and promotion of the person in the service of the Republic. When the dispute involves determination of the constitutionality of any law or any notification the jurisdiction of the tribunal is ousted. In such a case this mixed question of 33
51 DLR (AD) 144. Monsur Ali vs. Janata Bank, 43 DLR 394 35 Section 8, the Administrative Tribunals Act, 1980. 36 Opcit 20. 37 44 DLR 195. 38 49 DLR (AD) 44. 39 2 MLR (AD) 20. 34
dispute can well be decided by the High Court Division in its writ jurisdiction under article 102 of the Constitution.40 Promotion being part of the terms and conditions of the service a grievance in respect of the same undoubtedly falls within the exclusive jurisdiction of the Administrative Tribunal.41 When the first departmental proceeding ended merely on technical ground, subsequent proceeding on self-same or fresh additional charge is not barred in law and such a proceeding does not amount to double jeopardy.42 When an Administrative Tribunal is set up no Court shall entertain any proceeding or make any order in respect of any matter falling within the jurisdiction of such Tribunal. When by a statute authority is vested in another Tribunal with exclusive power over any subject matter, a civil Court, ceases to have any jurisdiction to try such suit having jurisdiction.43 Again, to implement the judgment of the Appellate Division, one cannot go to the Administrative Tribunal or the Administrative Appellate Tribunal.44 The term “person aggrieved� as used in our Administrative Tribunals Act, 1980 has narrower connotation than that of the similar term used in the counter part enactment of the Indian Jurisdiction. The legal heirs of the deceased servant thus cannot maintain an application before the Administrative Tribunal. A person who died while in service cannot be dismissed or discharged or removed from service. Therefore the legal heirs of the deceased servant who are legally entitled to the pensionary benefits can seek their remedies in the writ jurisdiction of the High Court Division.45 Administrative Appellate Tribunal: In August 1983, by SRO No. 329/L/83/502-1/IV Administrative Appellate Tribunal was established. The Appellate Tribunal shall consist of three members of whom be one who is or has been the Judge of the Supreme Court. One shall be a person who is or has been a Joint Secretary or a District Judge. Jurisdiction and Power of the Administrative Appellate Tribunal: The Administrative Appellate Tribunal does not have any original jurisdiction except in the case of contempt of it. In brief, the Administrative Appellate Tribunal has the following powers and authority(a) It shall hear the appeal arising from any order or decision of the Administrative Tribunal. (b) An application for an appeal must be made to the Administrative Appellate Tribunal within 90 days from the date of making of the order by the Administrative Tribunal. The time may be extended for another 90 days on the satisfaction of the Court on reasonable grounds. (c) The Administrative Appellate Tribunal may confirm, set aside, or modify the decision of the Administrative Tribunal. 40
Opcit. 39. P.257. 50 DLR 39. 42 Opcit. 39 P. 322. 43 7 BLD (HCD) 23. 44 49 DLR (AD) 147. 45 2 MLR (HC) 83. 41
(d) .The Administrative Appellate Tribunal may transfer cases from one Administrative Tribunal to another. The decision of the Administrative Appellate Tribunal shall be final. But by the insertion of section 6A by the Administrative Tribunal (Amendment) Act, 1991, it has been incorporated that the decision of the Administrative Appellate Tribunal shall be final subject to the judicial review of the Appellate Division of the Supreme Court. In a case like the present one where there is no provision for appeal and where under review the President has power to make any order as he deems fit, a Government servant will be entitled to the remedy under Rule 23.102 Status of Administrative Appellate Tribunal in Relation to the High Court Division: Administrative Appellate Tribunal is not under the subordination of the HCD. It is totally a separate judicial body. This body deals with appeals only in cases of the tribunal matters. There are certain common powers which are enjoyed by both the HCD and the Administrative Appellate Tribunal. Article 102(a) (i) of the Bangladesh Constitution, 1972 empowers of the HCD to issue certain order and directions. The provision says that the HCD may, if satisfied that no other equally officious remedy is provided by law, on the application of any person aggrieved direct any person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted to do by law or to do that which he is required by law to do. The HCD is authorized to interpret the Constitution of the People’s Republic of Bangladesh. It is also true that the Administrative Appellate Tribunal has the power to interpret the provisions of Articles 133, 134, 135 of the Constitution in deciding service disputes. Like the HCD, the Administrative Appellate Tribunal can transfer a case from one Administrative tribunal to another. Like HCD, one has to come before the Administrative Appellate Tribunal after exhausting all the available remedies. Justice Mostafa Kamal had decidedly argued in the case of Mujibur Rahman vs. Bangladesh,46 After referring the case Shell Company of Australia Vs. Federal Commissioner, Learned Justice Mostafa Kamal held that “There is no command in the Constitution that the tribunals or the co-equal to the HCD”. The logic behind stating in this way was that the terms and tenure of the service of the Judges have been expressly laid down in Chapter 1 and part VI but no similar provisions are made in the Constitution with regard to the terms and tenure of the persons who will sit on the tribunals. If we take into account the provisions of section 6A of the Administrative Tribunals Act, 1980 it may appear that the Administrative Appellate Tribunal is on the same footing as that of the High Court Division. Section 6A provides that it is hereby declared that the provisions of article 103 of the Constitution shall apply in relation to the Administrative Appellate Tribunal as they apply in relation to the High Court Division. The Administrative Appellate Tribunal, which is the highest appellate forum against the decision of the Administrative Tribunal, is not, in fact, on the same footing of the High Court Division. 46
Opcit. 20.
A person is entitled to file an application for enforcement of any of the fundamental rights (in the HCD) only when he is aggrieved by an order or proceeding taken against him by an authority or person performing any function in connection with the affairs of the Republic or of a local authority.47 Even in the presence of an alternative remedy, a person, instead of going to the Administrative Tribunal can come before the HCD for the protection of his fundamental rights of equality of opportunity in the service of the republic.48 If one Branch of the Department of the Govt. is not following the lawful order of the hierarchy of the governmental authority, definitely the person who is aggrieved can come before the HCD and pray for direction or declaration to implement, fulfill or obey the lawful order of the govt., which the Administrative tribunal is not competent to do.49 The syndicate being an executive authority of the University made nomination for selection board with lawful authority. The University orders having provided remedy by way of appeal from the syndicate’s order the writ petition in this reason is not maintainable due to the doctrine of exhaustion. Under the Indian Administrative Tribunals Act, 1985, the Administrative Tribunals are equal and substitute of the High Courts having exclusive jurisdiction in all service matters of the Government Servants and that of the statutory bodies. Unlike the Indian law, the Administrative Tribunals Act, 1980 of Bangladesh have been enacted in retrogression of the concept as is contemplated in Article 117 of our Constitution. Although the Administrative Tribunals have jurisdiction in all service matters relating to the persons in the service of the Republic of Bangladesh and statutory bodies specified in the schedule of the Act, these tribunals are not equal or substitute of the High Court Division of the Supreme Court.50 There is no command in the Constitution that the Tribunal or the Appellate Tribunal is substitute or co-equal to the High Court Division. It is left to the legislature, after establishing the Tribunals, to make necessary provisions in this regard for the carrying out of the functions of the tribunals.51 The Constitution provides that the President of Bangladesh shall have the power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority. 52 Other Tribunals: There are other tribunals in Bangladesh of which Labour Appellate Tribunals, Tax Appellate Tribunal and Election Tribunal deserve special attention. Tax Appellate Tribunal: 47
50 DLR 496 ibid, p.407. 49 ibid, p.357 50 Bakar, Khondakar Md. Abu; The Laws on Service in Bangladesh, Second Edition, p. 20. 51 Opcit. P.20. 52 Article 49, the constitution of the People’s Republic of Bangladesh 48
The Tax Appellate Tribunal is set up in accordance with the provisions of Chapter III (sections 11- 15) of the Income Tax Ordinance, 1984. Composition of the Tribunal: There is no specific reference in the Ordinance as to the number of judges in the Tribunal Section 11 of the Ordinance, 1984 states that the Government shall establish a Taxes Appellate Tribunal consisting of a President who shall be a judicial member appointed by the Government and such other members as the Government may, from time to time, appoint. Qualifications to be a Member of the Tribunal: The Ordinance was silent as to the qualifications of the members of the tribunal. In 2002, by section 28 of the Finance Act, 2002 an amendment was made to this Ordinance which prescribes the qualification without which a person can not be a member of the tribunal. Now, 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
(iv) he is a chartered accountant and practiced professionally for a period not less than eight years; or (v) he is a cost and management accountant and practiced professionally for a period not less than eight years; 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. Rules of Procedure of the Tax Tribunal: The powers and functions of the Appellate tribunal are performed by Benches to be constituted by the President of the tribunal. The decision of a Bench (usually consists of two or more persons as the President thinks proper) in any case or on any point shall be given in accordance with the opinion of the majority of its members. Where there are only two members of the Appellate Tribunal and they differ in any case, the Government may appoint an additional member of the Appellate Tribunal for the purpose of hearing the case; and the decision of the case shall be given in accordance with the opinion of the majority of the members of the Appellate Tribunal as constituted with such additional member. Election Tribunal:
For the settlement of all disputes regarding election, Article 53 of the Representation of the People Order, 1972 provides for the establishment of Election Tribunal which shall be consisted of a person who is or has been a District and Sessions Judge or an Additional District and Sessions Judge. According to Article 59(1), the Tribunal shall have powers of a Civil Court trying a suit under the Code of Civil Procedure. Article 53 (1) of the Representation of the People Order, 1972 provides that for the trial of election petitions the Election Commission shall appoint as many Election Tribunals as may be necessary. It also says that a Tribunal shall consist of a person who is or has been a District and Sessions Judge. Under section 27(1) of the Local Government (Union Parishads) Ordinance, 1983 the Election Commission shall appoint a judicial officer to be an Election Tribunal for the trial of election petitions for any specified areas, as specified in the gazette notification. Under section 28, the Election Commissioner, may at any stage of the proceeding transfer an election petition from one Election Tribunal to another in case of necessity. The Tribunal where the petition is transferred may recall and examine any of the witnesses who are already examined. After the decision of any Election Tribunal, if any election, appeal is preferred in the District Judge Court, the District Judge shall also have the authority to transfer any election appeal from one Court to another.53 Procedure followed in Election Petition: The procedure to be followed in Election petition is mentioned in section 29 of the Local Government (Union Parishads) Ordinance, 1983. The Election Tribunal after receiving an election petition shall give notice to all contesting candidates at the election to which the petition relates. Then the Election Tribunal shall take the evidence and examine the contesting candidates and then the Tribunal shall pronounce order, which shall be final.54 Any person aggrieved by the decision of the Election Tribunal may, within thirty days of the announcement of the decision of the Tribunal, prefer an appeal to the District Judge within whose jurisdiction the election in dispute was held and the decision of the District Judge on such appeal shall be final.118 An order disposing of the election petition is appealable, but an order for recounting of ballots by the tribunal is not appealable.55 The District Judge when acting as an Appellate Court in Election petitions is under the High Court Division. Though the Election Tribunal is not a civil Court but when the District Judge hears the appeal of such election petitions then he shall follow the procedure to be followed in the civil Courts as mentioned in the Code of Civil Procedure, 1908 and in Rules 47 and 48 of the Union Parishad Election Rules, 1983. This Act also provides that any person aggrieved of a decision where the decision relating to Election was announced before the commencement of the Local Government (Union Parishads) Ordinance, 1984 may also prefer an appeal within thirty days.
53
10 BLD (AD) 58. 42 DLR 27 55 39 DLR (AD) 140. 54
Though section 29(4) of the Ordinance, 1983, says that the decision of the District Judge is final, but this section does not oust the right of the aggrieved parties to move before the HCD for revision and the parties can also go to the HCD with a writ.56 Powers of the Election Tribunal: An Election Tribunal has all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908, for the purpose of trying the election dispute. 1.
The Election Tribunal can order for the recount of the votes in appropriate cases.
2 The Tribunal can allow the amendment of the election petition. The Election Tribunal cannot grant injunction. 4.
The Election Tribunal cannot act arbitrarily and whimsically.
5. The Election Tribunal can proceed exparte if the Respondents do not file written objection or appear before it to contest the election petition. 6. An Election Tribunal may declare the election of some centers void and direct fresh polling in those centers. 7.
The Election Tribunal can interfere if there has been contravention of the provisions of the Act and if the result of the election has been materially affected due to the contravening.
8. When both the candidate got equal votes, the Election Tribunal is competent to draw a lottery and declare winner elected, though there is no express provision. 9.
The Election Tribunal should not set aside the Election result unless law demands it.
10. The Election Tribunal has the power to decide whether a ballot paper is to be accepted or rejected. Chapter Six How far Tribunal been successful in Bangladesh? This is largely a matter of empirical study though it is frequently evident that most of the tribunals are eventually embroiled with cumbersome and long process of usual litigation frustrating the pious purposes behind their creation. For example, Rule 7 of the Administrative Tribunals Rules 1982 provides that tribunal shall follow as far as practicable the provisions of the CPC relating to the procedure of the execution of decree or judgment. However, this is the longest chapter in the Code of Civil Procedure which is considered ‘in respects cumbersome process costing much time and energy of a weary decree holder. There can be no logic to put the decisions or orders under a marathon process for execution and implementation after deciding the cases under a short and simplified procedure.’ Not only are that most of the tribunals facing a huge backlog of pending cases. 56
38 DLR (AD) 172.
Recommendation: Although tribunals play important role in administering justice, there are some weakness of tribunal which need to be removed for the interest of justice. The following steps may be taken: (a) The appeal procedure should be flexible so that an aggrieved party may prefer an appeal to the Superior court to redress his grievance. (b) The trial of the tribunal should be open so that all parties concerned may know about fair trial. (c) The provision for legal aid should be adopted so that parties may represent by legal experts like advocates. (d) The Judges of the Tribunals should be trained so that they can deal with matter before it more efficiently. (e) Ensure freedom of judges of the tribunal and security of their tenure etc. Conclusion: The proliferation of tribunals in the twentieth century has been a special feature of the development of judicial administration in almost every commonwealth countries. The number of tribunals and their importance have increased so significantly that it is no longer justifiable to regard tribunals merely as an appendage to the ordinary court of law. They are an integral part of the ordinary legal process. This system of administrative justice has in the past caused some concern as Professor Dicey rejected notions of separate system of justice (droit administratiff) for resolving disputes between citizen and the state. Such a view, however, is no longer tenable given the widespread functioning of various tribunals now-a-days. The reasons for this growth of a system of tribunals reflect both the perceived disadvantages of the common law courts, in terms of formality, lack of speed, lack of expertise in some specialist areas of law, cost etc and the context of social or welfare state with the rise of welfare legislation. They also reflect the perceived advantages of tribunals as bodies which follow informal procedures, can hear cases relatively quickly, are cheap, and which have expertise in the particular subject matter. In tribunals proceedings are relatively informal. The strict rules of evidence do not apply. Any person may appear before it. Awards of cost are not usually made unless a party has acted frivolously or vexatious. Selected Bibliography Book 1. Administrative law: H.W.R. Wade & C.F. Forsyth. 2. Legal System of Bangladesh: Barrister Abdul Halim. 3. Lectures on Administrative law: C.K. Takwani. 4. Principles of civil litigation: Bangladesh perspective: Ishrat Azim Ahmed and Md. Ershadul Karim. Website: www.dailystar.net