The Role of Speedy Trial Tribunal in Administration of Justice

8/11/2019 The Role of Speedy Trial Tribunal in Administration of Justice

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The Role of Speedy TrialTribunal in Administration of

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Preface

The administration of judicial or justice delivery system in Bangladesh is timeconsuming and un-affordable to the poor people. A case usually takes about tento 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. ustice delayed justice denied is one of theprinciples of e!uity. "ublic confidence in our legal system is lost. Our former #aw

$inister Barrister $oudud Ahmed in a recent workshop said that our presentjudicial system is old, traditional and corrupt and needs reform. %e informed that

a total of Ten million &'(, )*, *+ cases are now pending in different courts ofthe country and under eisting procedure hundred years will be re!uired for

disposal. The breakup of this backlog is/ 0,'0( cases in the Appellate 1ivision ofthe 2upreme 3ourt4 5, 67, 600 cases in the %igh 3ourt 1ivision, *, 00,5) civilcases and ',()' criminal cases in the udges courts and 6, '(, )(6 cases with$agistrate courts and '',++0 cases with $etropolitan $agistrate courts.8ndependence of judiciary, amendment of eisting laws, alternative dispute

resolution, case management by judges, court administration by courtadministrators - are a few recommendations came from our donors anddevelopment partners.

9ecently the government under its legal reform programme has enacted 2peedyTrial Tribunal Act, 6++6 and formed si speedy trial tribunals for early settlementof certain cases. This is the century of speciali:ation, the world around usdeveloped and developing. ;e must move fast in accepting latest modern

technology of court administration and case management and not waste timelagging behind.

The judiciary must play proactive role in meeting new issues, challenges and

developments and also must see that the disadvantaged and vulnerable groups insociety i.e. the poor, women and marginali:ed sections are not denied access to

justice either because they are not aware of laws or they are unable to bear thefinancial 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 servicedisputes of public servants, income ta appellate tribunal to decide income tadisputes, custom, ecise and


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Introduction:urisprudentially, all human being are e!ual before the eyes of lawirrespective of race, se, colour, class or position in the society and are entitled tohave e!ual protection of law. The ordinary 3ourts of law are also set up toestablish this issue and more specifically, to settle disputes arising out betweenindividuals.

"erhaps the most important of the functions of the 2tate is that which itdischarges as the guardian or order4 preventing and publishing all injuries toitself, and all disobedience to the rules which it has laid down for the commonwelfare.5

The framers of the 3onstitution of Bangladesh considered the importance oftribunal with due care and there are as many as siteen references regarding

@tribunal in the 3onstitution.6

Bangladesh inherited its legal system from nglish 3ommon #aw, where the issuerelating to administrative affairs are dealt by the ordinary 3ourts of law. 8ncontrast, in >rance there is a separate system. The 1roit Administratis with

council d etat have separate hierarchy to decide all administrative disputes.There are also instances of countries which adopted a mied or combination ofboth the system. Bangladesh, "akistan or 8ndia is the eamples of countrieswhich adopt a mied system.

Tribunals are mainly a twentieth-century phenomenon, for it was long part of theconception of the rule of law that the determination of !uestions of law- that is tosay, !uestion which re!uire the findings of facts and the application of definitelegal rules or principles C belonged to the 3ourts eclusively.

8t should be mentioned here that in international arena, there is AdministrativeTribunal of 8nternational #abour Organi:ation established in 5'67. 8n 5'*6, The8nstitute of Agriculture established a tribunal. The Dnited =ations established its

own tribunal.

1

Holland, Sir Thomas Erskine; The Elements of Jurisprudence, p.3!2"rticles 3#$2%, &', #2$2%, !!$e%, 1(2$#%, 1(3$&%, 1(' and 11. There are also references of the word)tribunal* in the +ourth Schedule to the onstitution of -anladesh, 1'2.

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Chapter One

Definition of Tribunal:8t is not possible to define the word @tribunal precisely

and scientifically. The word @Tribunal is derived from the word @tribune. 1ictionarymeaning of the word @tribune is a magistrate of 9epublican "eriod of 9ome

elected by the 9oman "lebeians to defend their right4 a champion of popularrights4 a name for a newspaper4 a platform for speaking from4 a raised area forstand4 bishops stall or throne. Tribunal judgment seat4 3ourt of justice ofarbitration4 a body appointed to adjudicate in some matters. 8n common parlancedictionary meaning of the word @tribunal is @3ourt of justice or @seat of a udge.

Tribunal in the general sense is any person or institutionwith the authority tojudge, adjudicateon, or determine claims or disputes - whether or not it is called

a tribunal in its title. >or eample, an advocateappearing before a 3ourton whicha single udgewas sitting could describe that judge as ?their tribunal?. $any

governmentalbodies that are titled ?tribunals? are so described to emphasi:e thefact that they are not courts of normaljurisdiction. >or eample the 8nternational

3riminal Tribunal for 9wandais a body specially constituted under internationallaw4 in Ereat Britain, mployment Tribunalsare bodies set up to hear specificemployment disputes. "rivate judicial bodies are also often styled ?tribunals?. Theword ?tribunal? is not conclusive of a body?s function.

The word @tribunal has not been defined in the 3onstitution of Bangladesh or inrelevant laws.

8n ordinary sense, it can be said that a tribunal means a body with judicial or

!uasi-judicial functions set up statutes, and eisting outside the usual judicialhierarchy of the 2upreme 3ourt. The tribunal as distinguished from the 3ourt,eercises judicial power and decides matters brought before it judicially or !uasi-

judicially but it does not constitute a 3ourt in the technical sense.*

The epression @tribunal as used in Article 5+6& of the 3onstitution of the"eoples 9epublic of Bangladesh does not mean the same thing as F3ourtG butincludes, within the ambit all adjudicating bodies, provided they are constitutedby the state and are invested with judicial as distinguished purely fromadministrative or eecutive functions. 8n the case of Bangladesh vs. A. H. $.ahangir %ossain,0after applying the principle of Fejusdem genericG the Appellate

1ivision held that the F3ourtG acts judicially and FtribunalG also acts judicially or atleast !uasi-judicially.

A tribunal is a judicial assembly4 a judicial authority within the ambit of 2ection70&5 &ii of the vidence Act, 5)76.

Chapter Two

3/a0door Sabha s. Hind cles td. "45 1'63&1'!2, 75 13 "7 at p.2(1

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Similarities between Tribunal and Court:

All tribunals are not 3ourts, though all 3ourts are tribunals. The word @3ourt is

used to designate those tribunals, which are set up in an organi:ed state for theadministration of justice. The word @tribunal is a wide import and the words

@3ourt and @tribunal embrace with them the eercise of judicial power in all itsterm. @3ourts and @tribunal act @judicially in both senses and in the term @3ourtare included the ordinary and permanent tribunals and in the word @tribunals areincluded all others which are not so included.

The tribunals, if not 3ourt, have got many of trappings of the 3ourt, a tribunalwhen performs the functions of a 3ourt notwithstanding that it is tribunal, it is inmore or less a 3ourt and it has the power to decide and adjudicate the matter

with a judicial bent of mind and in accordance with law both substantive andprocedural.

After this above discussion it is clear that both the tribunals and 3ourts are

important tools in the administration of justice. There are some common featuresbetween these two. 8n the case of 1urga 2hanker$ebta vs. 9aghuraj 2ingh itwas the held that both the 3ourts and tribunals are constituted by the 2tate andare invested with judicial as distinguished from purely administrative or eecutivefunctions. They are both adjudicating bodies and they deal with and finallydetermine disputes between the parties, which are entrusted to their jurisdiction.The procedure followed by the 3ourts is regularly prescribed and in dischargingtheir functions and eercising their powers, the 3ourts 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 3ourts and tribunalsis substantially the same, and there is no essential difference between thefunctions that they discharge. Both the 3ourts and tribunals provide for appealand keep the provision of lawyers to defend parties. The basic and fundamentalfeature, which is common to both the 3ourts and tribunals, is that they discharge

judicial functions and eercise judicial powers which inherently vest in a sovereign2tate.

Dissimilarities between Tribunal and Court:

Though there are some common features between the tribunals and 3ourt but itis not impossible to find out some distinct features between these two. There aretribunals with many trappings of a 3ourt, which nevertheless are not 3ourts in

the strict sense of eercising judicial power.

8n the case of Bangladesh vs. A.H$ ahangir %ossain(it was held that there is adistinction between a 3ourt and a Tribunal. The 3ourt has a clear and distinctconnotation whereas a tribunal assumes wide range of character. 8t may be audicial Tribunal and in between there are various ranges of adjudicatingauthority, which are more often called administrative tribunals. But there is acommon element, the authority may be judicial or administrative, but the

#"45 1#& S #2(.68pcit & 9.1&

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authority is to decide either a dispute or an offence, and it is to decide on fact andapply the rules to them without considering eecutive policy.

>ry, # observed in the case of 9oyal A!uarium vs. "arkinson 7 that the word@tribunal is ambiguous, because, it is not like @3ourt with any ascertainable

meaning in nglish #aw. About four decades

later in 2hell 3ompany of Australia vs. >ederal 3ommissioners), #ord 2ankey #3observed/

FThe authorities are clear to show that there are tribunals with many of thetrappings of a 3ourt which, nevertheless, are not 3ourts in the strict sense ofeercising judicial power. . . 8n that connection it may be useful to enumeratesome negative propositions on this subject/ 5. a tribunal is not necessarily a3ourt in this strict sense because it gives a final decision. 6. =or because it hears

witnesses on oath. *. =or because two or more contending parties appear beforeit between whom it has to decide. 0. =or because it gives decisions which affect

the rights of subjects. . =or because there is an appeal to a 3ourt. (. =orbecause it is a body to which a matter is refried by another bodyG.

8n 8ndia, according to Eajendragadkar 3, the main and the basic test is whetherthe adjudicating power which a particular authority is empowered to eercise, hasbeen conferred on it by a statute and can be described as a part of the statesinherent power eercised in discharging its judicial function.'

>rom the Bangladesh perspective the difference between a court and a tribunal islargely 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. 2ometimes it isargued that a tribunal is a !uasi-judicial body whereas a court is a full judicialbody but this is true from the viewpoint of the concerned legislative designation.8f a particular law creates it in the form of a !uasi-judicial body it will turn out tobe a !uasi-judicial body. 8n Bangladesh most of the tribunals, e.g. AdministrativeTribunals, 2pecial Tribunals under the 2pecial "owers Act, or instance, the Advisory Board under the2pecial "owers Act 5'70 and article ** of the 3onstitution has all trappings of atribunal in true sense of the term though it has not been termed as a tribunal. Onthe other hand, Administrative Tribunal, 2pecial Tribunal under the 2pecial "owersAct 5'70 are tribunals by name but they are all courts subordinate to the2upreme 3ourt and they have to follow normal judicial procedure.

Reasons behind Settin up of Tribunals:

1!'2$1% 2-.&31 9.&&6!1'31 " 2# 99. 2':'!'"ssociated ement o. td. s. 9 Sharma, "45 1'6# S 1#''# at 16(6, 16('

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There was a time when the Hing or the sovereign would decide the disputesbetween parties and it was also considered that @Hing can do no wrong. Accordingto A.aireG has been given up and the old F"olice2tateG has now become a @;elfare 2tateG and because of this radical change in

the philosophy as to the role to be played by the 2tate, its functions haveincreased. =ow the 2tate not only eercises sovereign functions, but, as a

progressive democratic 2tate, it also seeks to ensure social security and socialwelfare for the common masses.

The reasons for the setting up of the tribunals were said by #ord "earce in

Anisminic vs. >oreign 3ompensation 3ommission, 5'(', 6 ;.#.9. '(0 to beFspeed, cheapness and epert knowledgeG. 2ince the tribunals do not followformal procedures and they are constituted by eperts, they can provide easilyspeed and effective remedies.

Dnder the nglish #egal 2ystem, the 9oyal 3ommission on #egal 2ervice, 5'7'

pointed out that over a !uarter of million cases are dealt with by Tribunals eachyear. The number of cases then being heard by tribunals was si times greaterthan the number of contested civil cases dealt with by the %igh 3ourts and county3ourts combined. Another main purpose of setting up of the tribunal system is toprevent the ordinary 3ourts of law from being over burdened by cases.

The responsibilities of tribunals are in general no less important than those

of courts of law. #arge awards of money may be made by tribunals, for

eample, in cases of industrial injuries.

The main reason of creating separate Tribunals for dealing with special subjects isto bring into eistence a body or bodies that will deal with the disputes relating to

those subjects speedily, efficiently and with concentrated attention. TheAdministrative Tribunal is epected to take the load off the shoulders of not only

ordinary 3ourts but of the %igh 3ourt 1ivision. ;ith the increase of various kindsof litigations it has been the increasingly felt need to provide public servants!uicker and cheaper justice. cessive delay in settlement of their service mattersnot only affect individual moral but sap the vitality of the system as a whole inthe long run. The Administrative Tribunals are particularly designed to guardagainst such delays in dispensing justice, while keeping in tact its spirit and!uality. There is no doubt that these Tribunals will make for a more contendedand efficient governmental machinery.5+

Ad!antaes of Tribunals:

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All over the world the tribunals are functioning beside the ordinary 3ourts of lawbecause of some advantages it provide to justice seekers and administrators of

justice. The social legislation of the twentieth century demanded tribunals forpurely administrative reasons/ they could offer speedier, cheaper and moreaccessible justice, essential for the administration of welfare schemes involvinglarge number of small claims, whereas the process of the courts of law is

elaborate, slow and costly. Tribunals have certain characteristics which often givethem advantages over the courts. These are cheapness, accessibility, freedom

from technicality, epedition and epert knowledge of their particular subject. 55

2ome of the advantages of the tribunals over the 3ourts are discussed below/

Speed:

The tribunals are much !uicker than that of the 3ourts in hearing and deciding

the cases. A related advantage of the tribunal system is the certainty that it willbe heard on a specified date and it will decide a case within a specific period oftime. 8n most of the cases, the provisions of law by which the tribunal is set upprovide that the dispute or case must be settled within a specified time. >oreample, the #abour Appellate Tribunal formed under section *) of the 8ndustrial

9elations Ordinance, 5'(' provides in sub-section &* that the decisions of thetribunal shall be delivered within sity days. The 2peedy Trial Tribunal disposed ofa total of 7+' cases between 60h October, 6++6 to 5' th2eptember, 6++, which is

a huge success of tribunal.56

Cost:

To make a tribunal functional the ependiture incurred by the Eovernment iscomparatively less and parties too, have to bear the minimum of ependiture.Thus, tribunals are much cheaper way of deciding cases than taking recourse tothe regular procedure of the court. One factor that leads to a reduction in cost isthe fact that no speciali:ed 3ourt building is re!uired for the hearing of the cases.=o 3ourt 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 3ourts, are not binding inthe tribunals proceedings. They observe principles of natural justice and fair play.

They can rely on hearsay evidence or decide the !uestions of onus of proof oradmissibility of documents, etc. by eercising discretionary powers.5* The

provisions of this informal situation suggest that the complaints do not need to berepresented by lawyers, they may represent them or the representative of thetrade union may represent them. But the >rank 3ommittee 9eport, 5'7 of DHemphasi:ed on the need for clear rules for procedure. =ow, many tribunals followspecific rules of procedure. >or eample, the 8ndustrial 9elations 9ules, 5'77provides for the rules of procedure to be followed by the #abour Appellate

Tribunal. The 8ncome Ta Appellate Tribunal 9ule, 5') provides for the rules thatthe 8ncome Ta Appellate Tribunal shall follow in discharging cases.

"le#ibility:

The tribunals are not bound to follow the strict rules of precedent. 2o, in every

case a Tribunal has the chance to correct its previous decision or if the previousdecision was correct the tribunal can take the view. But it is customary practicethat as the tribunals are inferior to the 3ourts they follow the precedent of the3ourts.

$#pertise:

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The +ranks ommittee12The 5eport of /inistr of aw, Justice and 9arliamentar "ffairs, -anladesh, 2((#, p. 613State of 8rissa =s. /urlidhar, "45 1'63 S &(&

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8n the ordinary 3ourt, the judges may not be well ac!uainted with the cases or itmay happen that a judge may not feel comfortable to hear particular categoriesof cases because he does not have sufficient knowledge on that issue. Tribunalsare free from such problem. 8n most of the cases persons who are epert on thetribunal issues constitute the tribunals. The judges of the tribunals are well versedwith the issue for which the tribunals were set up. >or eample, section 55&* of

the 8ncome Ta Ordinance, 5')0 provides that-

A person shall not be appointed as a member of the Taes Appellate Tribunalunless

&i he was a member of the =ational Board of 9evenue4 or

&ii he was a 3ommissioner of Taes4 or

&iii he is a 3ommissioner of Taes4 or

&vi he is an income ta practitioner and practiced professionally for not lessthan twenty years4 or

&vii he is a professional legislative epert having not less than eight years

eperience in the process of drafting and making financial and ta laws4 or

&viii he is an advocate and practiced professionally for not less than ten years inany income ta office.

Thus it can easily be inferred that a person not ac!uainted with ta matterscannot 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 iscertainly not as difficult as getting a case into the ordinary 3ourts. 8n 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 theright forum. 8n tribunal system, all persons concerned know the forum and thusthe tribunals are easily accessible.

Pri!acy:

"eople of our society, by and large, do not want to share their private issuesrelating to 3ourt matter. $ost of the instances, the proceedings of the 3ourt areheld in open 3ourt. 8n a tribunal, the proceedings can be taken without triggering

the publicity. >or eample, section (* of the "I 2ramik 2hongha abong 2hilpa2hamparka Ain, 6++0 says that if any information is obtained from any

association or person, unit or company or employer during taking evidence by theeecutive chairman, conciliator, tribunal, arbitrator or appellate tribunal, and ifthat any association or person, unit or company or employer re!uests to keepsuch information secret, it cannot be published without the written consent ofthat association or person, unit or company or employer.

%imitations of Tribunals:

1espite the fact that tribunals have many advantages it is also a fact that it hasits own limitations too. The main weaknesses in the tribunal system are described

below

Appeals Procedure:

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The appeal procedure is too much comple in the tribunal and there remainhardly any scope for further appeal in higher 3ourts against the decision of theTribunals.

8n ngland, before the >rank 3ommittee 9eport, 5'7 tribunals were not re!uired

to provide reasons for their decisions and these prevented appeals from most of

the cases. But subse!uent to the >rank 3ommittee 9eport, 5'7 most of thetribunals are re!uired to provide the reason behind their decision under section5+ of the Tribunals and 8n!uires Act, 5''6.

%ac& of Publicity 'Secrecy(:

The proceedings of the tribunals are held under strict secrecy and as such it maymake the judges of the tribunals autonomous in that, their decisions may bearbitrary. 2ince the tribunals maintain privacy, apprehension of violation of rightsremains.

Pro!isions of %eal Aid:

#egal aid pre-supposes that there is a need, so undeniable that the tapayershould 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 bythe decision of the Tribunal. And in such a case, in ngland, there is a system of

@green form, which may be the synonyms to a limited scale of the legal aid.

A.H.$. 2hamsul %uda traced two demerits of Administrative Tribunals i.e. this

system has given birth to a second judicial forum, and the scope for remedy inthe superior 3ourt has been greatly limited50.

Chapter Three

1&8pcit 1( p.'('

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)inds of Tribunals:

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 shalldiscuss 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. 8t is a non-statutory body. 8t settles thedispute between employer and employee. 3ourt fee is not needed in domestictribunals. 8t deals with the private matters rather than public matters. Tribunals ofBangladesh Bar 3ouncil, different clubs serve as eamples of domestic tribunals.At present there are five tribunals of Bangladesh Bar 3ouncil to deal with differentdisciplinary issues relating to its members.

The domestic tribunal is not a 3ourt to follow procedures of the trial or en!uiryaccording to the 3ivil "rocedure 3ode, 5'+). 8n appropriate cases, consideringthe facts and circumstances thereof, such a tribunal may arrive at a decisionsimply by !uestioning the accused and considering his eplanation.5

The 3ivil 3ourts have no power to look into the decisions of the domestic tribunalunless there is a breach of principle of natural justice and the decision is an act of

bad faith and biased. The civil 3ourt is not competent to sit over the decision ofthe eecutive 3ommittee of the respondent 3lub unless it is proved that it is in abreach of principle of natural justice and the decision is an act of bad faith andbiased.

8n case of domestic tribunal, the en!uiry officer is not to follow the procedure of atrial by a 3ourt, he may, in appropriate cases, arrive at a decision simply by!uestioning the delin!uent officer and considering his eplanation.5(

Statutory Tribunal:

2tatutory tribunals are established by the provisions of statutes. >or eample, inBangladesh, #abour Appellate Tribunal is a statutory tribunal, which is establishedunder section *) of the 8ndustrial 9elations Ordinance, 5'('. ;here a specialtribunal out of the ordinary course is appointed by an Act to determine !uestions

as to such rights which are the creation of that Act, then, ecept, so far asotherwise epressly provided or necessarily implied, that tribunals jurisdiction to

determine those !uestions is eclusive.57

Administrative tribunals are the glaring eamples of statutory tribunals. Thesetribunals deal with the disputes between a govt. employee and the govt. arisingout of the rules and regulations relating to the service matter. >or eample, in

8ndia, the Administrative Tribunal formed under the Administrative Tribunals Act,5') resolves the disputes between a govt. employee and the govt. arising out of

the rules and regulations relating to service matter. 8n Bangladesh, theAdministrative Tribunals established under the Administrative Tribunals Act, 5')+

perform similar duties.

Besides there are some special Tribunals like =an + 2hishu =irjatan 1amon

Tribunal, Acid Oporadh 1amon Tribunal, 2peedy Trial Tribunal and other 2pecialTribunal established under the 2pecial "owers Act, 5'70. The =an + 2hishu

=irjatan 1amon Tribunals are established according to the provisions of section 6(of the =an + 2hishu =irjatan 1amon Am, 6+++ &Act =o. T -oard, 7haka =s. Hasan "hmed -huian and another & 75 $"7% 1&3.1/ian Sultan "li anhian =s. /ian ur Hussain, 1'&', 97, ah. 3(1

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;hen the statutory tribunal &i.e. special tribunal set up under a special statutehas acted beyond the scope of the power vested in it by the statute, the

jurisdiction of the 3ivil 3ourts to eamine into such cases is not taken away evenif the statute contains words purporting to eclude such jurisdiction. This certainlyis not the same thing as saying that jurisdiction has been made to depend uponthe correctness or otherwise of the suitors contention as respects the subject

matter.5)

Chapter "our

Can a Tribunal be Supplementary to or Substitute of a Court*

1!9ro=ince of East 9akistan =s. 7ewan "bdul "lim, $1'#% ' 75 26

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Article 5+' of the 3onstitution, 5'76 says that the %31 shall havesuperintendence and control over the tribunals subordinate to it.

The tribunals providing an alternative mechanism must be a worthy successor ofthe %igh 3ourt in all respect.5'But there is no command in the 3onstitution of

Bangladesh, 5'76 that the Tribunal or the Appellate Tribunal is subordinate or co-e!ual to the %igh 3ourt 1ivision. A tribunal cannot be substitute of a 3ourt for agood number of reasons. 8n the 3ourt of law there are openness, fairness and

impartiality. But in the tribunals these things are absent. Tribunals are notsupplementary to the civil 3ourts but it is partly substitute of the civil 3ourts. The

tribunals are not fully supplementary to the civil 3ourt as the e!uity 3ourts weresupplementary to the common law 3ourts.

According to section ' of the 3ode of 3ivil "rocedure, 5'+), the tribunals do notcome under the umbrella of the civil 3ourts but the tribunals will come under the

definition of civil 3ourts in three cases and will be !uestioned by the %31/

&a if the tribunal violates its own law4

&b if the fundamental rights of the parties are violated due to the maJa fidedecision of the administrative tribunals.

&c if the tribunals do anything ultra vires.

Again, the jurisdiction of the civil 3ourts cannot be totally ousted becausetribunals cannot impose penalty, it can only suspend an employee. 8f the tribunals

are mala fide in their decisions they are not immune to the challenges in the civil3ourts.

But the Administrative tribunals which were set up to deal with service matters ofthe Eovernment employee can be a substitute of 3ourt. The Administrative

Tribunals are not like the %igh 3ourt 1ivision or the 2ubordinate 3ourt over whichthe %igh 3ourt 1ivision eercises both judicial review and superintendence.

There is no command in the 3onstitution that the Tribunal or the AppellateTribunal is substitute or co-e!ual to the %igh 3ourt 1ivision. 8t is left to thelegislature, after establishing the Tribunals, to make necessary provisions in thisregard for the carrying out of the functions of the tribunals.6+

Chapter "i!e

Some important tribunals functionin in +anladesh:

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Administrati!e Tribunal:

Broadly speaking, the term, @administrative refers to broad areas of

governmental activities in which repositories of power may eercise every class ofstatutory function.( 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 >rench system of

Administrative Tribunals. 8n >rance, the control of the udicial 3ourts over theAdministration was lifted under Article 56 of the #aw of 57'+, which is in force

even today. =apoleon also decided to build up solid governmental machinery onthe ruins of >rench 9evolution so that it could function effectively. The >rench

3onstitution of 57'' established the 3ouncil dtat. This was the beginning of thesystem of Administrative Tribunals.65

The Administrative Tribunal is the third type of judicial body as mentioned in the3onstitution of Bangladesh, 5'76 in "art


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&b the compulsory amalgamation of bodies carrying on commercial or otherundertakings4

&c the etinction, 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 therein4

&d the etinction, modification, restriction or regulation of rights of search foror win minerals or mineral oil4

&e the carrying on by the Eovernment or by a corporation owned, controlledor managed by the Eovernment, of any trade, business, industry or service to theeclusion, complete or partial, or other persons4 or

&f the etinction, modification, restriction or regulation of any right toproperty, 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 anycommercial or industrial undertaking4

if "arliament in such law &including, in the case of eisting law, by amendmentepressly declares that such provision is made to give effect to any of the

fundamental principles of state policy set out in "art 88 of this 3onstitution.

Article 07&6 provides that notwithstanding anything contained in this 3onstitutionthe laws specified in the >irst 2chedule &including any amendment of any suchlaw 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 bedeemed void or unlawful on the ground of inconsistency with, or repugnance to,

any provision of this 3onstitution4

"rovided that nothing in this article shall prevent amendment, modification orrepeal of any such law.

Article 07&6 provides that notwithstanding anything contained in this

3onstitution, no law nor any provision thereof providing for detention, prosecutionor punishment of any person, who is a member of any armed or defence orauiliary forces or who is a prisoner of war, for genocide, crimes against humanityor 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 lawor provision of any such law is inconsistent with, or repugnant to any of the

provisions of this 3onstitution. @3ourt as defined in Article 56 includes 2upreme3ourt and hence the %31 cannot entertain any writ petition in respect of any

matter falling within the jurisdiction of an Administrative Tribunal. 2o, it is clearthat the 2upreme 3ourt shall not entertain any proceedings or make any matterfalling within the jurisdiction of an Administrative Tribunal.

But the %31 sometimes entertains writ petition on the ground that the remedy

provided by the Administrative Tribunal is not efficacious4 in Abdul Awal $unshivs. B. 8


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8n case of $ujibur 9ahman vs. Bangladesh,6*the !uestion arose whether a writpetition would be maintainable against the decision of the AdministrativeAppellate Tribunal. The combined effect of art.5+6 & and art.557 &6 is that nowrit petition is maintainable against the decision of Administrative Tribunal. The3onstitution is silent about the Administrative Appellate Tribunal. Again, whenwhat is challenged is not the service rule, but administrative interpretation of a

service rule, writ petition is not maintainable.60

Characteristics of Administrati!e Tribunal:

The Administrative Tribunals have some distinctive features, which are traced outby the >ranks 3ommittee 9eport, 5'7 of DH, are discussed below/

&a The administrative tribunal is the creation of a statute and thus, it has astatutory origin4

&b 8t has some of the trappings of a 3ourt but not all4

&c An Administrative Tribunal is entrusted with the judicial powers of thestate and thus, performs judicial and !uasi- judicial functions4

&d ven with regard to procedural matters, an Administrative Tribunalpossesses powers of a 3ourt e.g. to summons witnesses, to administer oath, tocompel 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 anyadministrative interference in the discharge of their judicial or !uasi- judicial

functions4

&g The prerogative writs of certiorari and prohibition are available against thedecision of Administrative Tribunal.

&h The decisions of most of the tribunals are in fact judicial rather thanadministrative as they have to record finding of facts. They can apply discretion

but their discretionary power is to be eercised judicially.

The Distinctions between Administrati!e Tribunal and Court:

There are many similarities between an Administrative Tribunal and a 3ourt incertain aspects. ;e get the truth behind the statement in an nglish 3ase i.e."ickering vs. #iverpool 1aily "ost and cho =ewspaper,6 Both of theAdministrative Tribunal and 3ourt are constituted by the state, invested with

judicial powers and have a permanent eistence. Thus, they are adjudicatingbodies. 8n Associated 3ement 3ompanies #td. vs. ".=. 2harma,6( the 8ndian

2upreme 3ourt held that the basic and fundamental feature which is common toboth the 3ourts and the tribunals is that they discharge judicial functions andeercise judicial power vested to them by a sovereign state. 8f the precisedecision between tribunals and 3ourts is a matter of uncertainty, what is certain

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is that tribunals are inferior to the normal 3ourts. %owever, the distinctionsbetween these two are comprehensively laid down by 3.H. Takwani as follows/

5. A 3ourt of law is a part of the traditional judicial system. A Tribunal is a bodycreated by a statute and invested with judicial powers. "rimarily and essentially it

is a part and parcel of the ecutive Branch of the state, eercising eecutive andjudicial functions. As #ord Ereene states Administrative Tribunal perform FhybridfunctionsG.67

6. udges of the ordinary 3ourts of law are independent of the eecutive inrespect of their tenure, terms and conditions of their services. On the other hand,members of administrative tribunal are entirely in the hands of the Eovt. inrespect of same.

*. 8n a 3ourt of law, the presiding officer, i.e. the judge is trained in law but themember of tribunal may not be trained in law as well.

0. 8n a 3ourt of law, the judges must be an impartial arbiter and he cannot decidea matter in which he is interested. But a member of the Administrative Tribunal

may be party to the dispute to be decided by it.

. A 3ourt of law is bound by all the rules of evidence and procedure but notAdministrative Tribunal unless the statute imposes such an obligation.

(. ;hile the court of law is bound by precedents, principles of resjudicata andestopple, an administrative tribunal is not strictly bound by them.

7. A 3ourt can decide the FviresG i.e. the power and authority etc. of legislation

while an Administrative Tribunal cannot do so.6)

). A 3ourt must decide all the !uestions objectively on the basis of evidence andmaterials produced before it. But an Administrative Tribunal may decide the!uestions taking into account the departmental policy or epediency and in that

sense, the decision may be subjective rather than objective.

The Purpose of $stablishment of Administrati!e Tribunals in

+anladesh:

The Administrative tribunals were established in Bangladesh to eercise

jurisdiction in respect of matters relating to or arising out of the terms andconditions of persons in the services of the 9epublic or of any statutory public

authority.7) The 2chedule to the Administrative Tribunals Act, 5')+ &Act =o.


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&d Bangladesh 2hilpa Bank established under the Bangladesh 2hilpa BankOrder, 5'76.

&e Bangladesh %ouse Building >inance 3orporation established under theBangladesh %ouse Building >inance 3orporation Order, 5'7*.

&f Bangladesh Hrishi Bank established under the Bangladesh Hrishi Bank

Order, 5'7*.

&g 8nvestment 3orporation of Bangladesh established under the 8nvestment3orporation of Bangladesh Ordinance, 5'7(.

&h Erameen Bank established under the Erameen Bank Ordinance, 5')*.

Administrative Tribunals are creation of the 3onstitution. >or deciding any disputearising out of the terms and conditions of their service, the judicial officers shall

be amenable to the jurisdiction of the Administrative Tribunal.

$stablishment of Administrati!e Tribunal:

The provisions of the Administrative Tribunals Act, 5')+ empower theEovernment to establish one or more Administrative Tribunals. 8nitially, by 29O)-#J)6-8aridpur, Eopalgonj, $adaripur, 2hariatpur, 9ajbari, $ymensing, Hishorgonj,=etrokona, Tangail, amalpur, 2herpur, Hhulna, Bagerhat, 2atkhira, Barishal,"irujpur, halokathi, Bhola, "atuakhali, Borguna, 3hittagong, 3os Ba:ar,

=oakhali, >eni, #ami:pur, 3omilla, 3hadpur, Brahmanbaria, 2ylhet, $oulviba:ar,%abigonj and 2unamgonj. The Administrative Tribunal of Bogra shall determine

disputes arising out of the terms and conditions of persons in the services of9epublic in the 6* districts including Bogra, oypurhat, "abna, 2irajgonj 1inajpur,Thakurgaon, "anchghar, Hurigram, 9angpur, #almonirhat, Eaibandha, =ilphamary,9ajshahi, 3hapainababgonj, =oagaon, =atore, essore, hinaidah, $agura, =orail,Hustia, 3huadanga and $eharpur.

Jurisdiction of the Administrati!e Tribunal:

The Administrative Tribunal has the eclusive jurisdiction to hear and determineapplications made by a person in the service of the @9epublic or of any statutorypublic authority in respect of the terms and conditions of his service. 6'2o, theAdministrative Tribunal has no jurisdiction to entertain any application filed by aperson who is or who has not been in the service of the 9epublic or of any

statutory authority specified in the schedule to the Act.

8n the case of Lua:i =a:rul 8slam inance3orporation,*+it was held that the Administrative Tribunal and the AdministrativeAppellate Tribunal has been established with limited jurisdictions and limitedpower. The Tribunal gratuitously granting relief acts in ecess of its jurisdiction.

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The person affected by the decision of the higher authority must make anapplication before the higher authority. After having the decision of the higheradministrative authority under any law enforced for the time being any personaggrieved may make an application to the Administrative Tribunal within simonths of the decision of the higher authority. 8t should be borne in mind that theperson making such application shall wait for only two months for the decision of

the higher authority. 8f he does not get the decision within two months then hemay go to the Administrative Tribunal. 8n the case of Abul Bashar or legal remedies in service matters civilian employees in 1efence 2ervices canwell invoke the jurisdiction of the Administrative Tribunal.**

8n abovementioned matters i.e. to hear and determine applications made by aperson in the service of the 9epublic or of any statutory public authority inrespect of the terms and conditions of his service, the civil courts have no

jurisdiction. The jurisdiction of the civil 3ourt having been vested in theAdministrative Tribunal by the promulgation of special statute the jurisdiction ofcivil court in respect of Bank employees has been ousted, and in that view of thematter, the plaint was rightly returned by the civil 3ourt for presentation to the

proper Tribunal having jurisdiction.*0

All decisions of the Administrative Appellate Tribunal shall be binding on theAdministrative tribunals and the parties concerned4 subject to the decision of the

Administrative Appellate Tribunal the decision of the Administrative tribunals shallbe binding on the parties.*

Besides, the Administrative Tribunals have powers to impose imprisonment forthe obstruction of duties of the Administrative tribunals which may etend to one

month or fine which may etend to five hundred taka.

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The Administrative Tribunal can strike down an order for violation of naturaljustice and for infringement of fundamental rights but it cannot strike down anybar or rule on the ground of its constitutionality. 1uty of 3ourt is to see the rightgiven under Article 5+6&5 is not frittered away or misused.*(

2uch Tribunal cannot entertain any application by the aggrieved party unless hisappeal before the competent authority is disposed of. This legal bar cannot beovercome unless the appeal pending before the Eovernment is disposed of. 8t is

not known why Eovernment respondent is shockingly slow in the matter of takingdecision in the petitioners appeal. The 9ule upon the government is therefore

made absolute with the direction to dispose of the appeal within *+ days.*7

The Administrative Tribunal has no power to grant interim relief in respect of acase pending before it for final adjudication.*)

Appellant was reinstated in service in pursuance of a civil 3ourts decree passedbefore the commencement of the Administrative Tribunals Act, 5')+. Thesubse!uent claim for arrear pay and seniority etc. is not a claim arising out of thecause of action of the civil 3ourt decree. 2uch claim arises out of a fresh cause ofaction after the Administrative Tribunals Act came into force and for that

jurisdiction of Administrative Tribunal can well be invoked.*'

Administrative Tribunal has eclusive jurisdiction to decide disputes relating to theterms and conditions of service including seniority and promotion of the person in

the service of the 9epublic. ;hen the dispute involves determination of theconstitutionality of any law or any notification the jurisdiction of the tribunal is

ousted. 8n such a case this mied !uestion of dispute can well be decided by the%igh 3ourt 1ivision in its writ jurisdiction under article 5+6 of the 3onstitution.0+

"romotion being part of the terms and conditions of the service a grievance inrespect of the same undoubtedly falls within the eclusive jurisdiction of theAdministrative Tribunal.05

;hen the first departmental proceeding ended merely on technical ground,

subse!uent proceeding on self-same or fresh additional charge is not barred inlaw and such a proceeding does not amount to double jeopardy.06

;hen an Administrative Tribunal is set up no 3ourt shall entertain any proceedingor make any order in respect of any matter falling within the jurisdiction of suchTribunal. ;hen by a statute authority is vested in another Tribunal with eclusivepower over any subject matter, a civil 3ourt, ceases to have any jurisdiction to trysuch suit having jurisdiction.0*

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Again, to implement the judgment of the Appellate 1ivision, one cannot go to the

Administrative Tribunal or the Administrative Appellate Tribunal.00

The term Fperson aggrievedG as used in our Administrative Tribunals Act, 5')+has narrower connotation than that of the similar term used in the counter part

enactment of the 8ndian urisdiction. The legal heirs of the deceased servant thuscannot maintain an application before the Administrative Tribunal.

A person who died while in service cannot be dismissed or discharged or removedfrom service. Therefore the legal heirs of the deceased servant who are legallyentitled to the pensionary benefits can seek their remedies in the writ jurisdictionof the %igh 3ourt 1ivision.0

Administrati!e Appellate Tribunal:

8n August 5')*, by 29O =o. *6'J#J)*J+6-5J8< Administrative Appellate Tribunalwas established. The Appellate Tribunal shall consist of three members of whom

be one who is or has been the udge of the 2upreme 3ourt. One shall be a personwho is or has been a oint 2ecretary or a 1istrict udge.

Jurisdiction and Power of the Administrati!e Appellate

Tribunal:

The Administrative Appellate Tribunal does not have any original jurisdictionecept in the case of contempt of it. 8n brief, the Administrative Appellate Tribunalhas the following powers and authority-

&a 8t shall hear the appeal arising from any order or decision of theAdministrative Tribunal.

&b An application for an appeal must be made to the Administrative AppellateTribunal within '+ days from the date of making of the order by the

Administrative Tribunal. The time may be etended for another '+ days on thesatisfaction of the 3ourt on reasonable grounds.

&c The Administrative Appellate Tribunal may confirm, set aside, or modifythe decision of the Administrative Tribunal.

&d .The Administrative Appellate Tribunal may transfer cases from oneAdministrative Tribunal to another.

The decision of the Administrative Appellate Tribunal shall be final. But by theinsertion of section (A by the Administrative Tribunal &Amendment Act, 5''5, it

has been incorporated that the decision of the Administrative Appellate Tribunalshall be final subject to the judicial review of the Appellate 1ivision of the2upreme 3ourt.

8n a case like the present one where there is no provision for appeal and whereunder review the "resident has power to make any order as he deems fit, aEovernment servant will be entitled to the remedy under 9ule 6*.5+6

Status of Administrati!e Appellate Tribunal in Relation to the

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,ih Court Di!ision:

Administrative Appellate Tribunal is not under the subordination of the %31. 8t istotally a separate judicial body. This body deals with appeals only in cases of thetribunal matters.

There are certain common powers which are enjoyed by both the %31 and theAdministrative Appellate Tribunal. Article 5+6&a &i of the Bangladesh

3onstitution, 5'76 empowers of the %31 to issue certain order and directions.The provision says that the %31 may, if satisfied that no other e!ually officious

remedy is provided by law, on the application of any person aggrieved direct anyperson performing any functions in connection with the affairs of the 9epublic or

of a local authority to refrain from doing that which he is not permitted to do bylaw or to do that which he is re!uired by law to do.

The %31 is authori:ed to interpret the 3onstitution of the "eoples 9epublic ofBangladesh. 8t is also true that the Administrative Appellate Tribunal has thepower to interpret the provisions of Articles 5**, 5*0, 5* of the 3onstitution indeciding service disputes. #ike the %31, the Administrative Appellate Tribunal cantransfer a case from one Administrative tribunal to another. #ike %31, one has to

come before the Administrative Appellate Tribunal after ehausting all theavailable remedies.

ustice $ostafa Hamal had decidedly argued in the case of $ujibur 9ahman vs.

Bangladesh,0( After referring the case 2hell 3ompany of Australia ederal3ommissioner, #earned ustice $ostafa Hamal held that FThere is no command in

the 3onstitution that the tribunals or the co-e!ual to the %31G. The logic behindstating in this way was that the terms and tenure of the service of the udgeshave been epressly laid down in 3hapter 5 and part


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ven in the presence of an alternative remedy, a person, instead of going to

the Administrative Tribunal can come before the %31 for the protection of hisfundamental rights of e!uality of opportunity in the service of the republic.0)

8f one Branch of the 1epartment of the Eovt. is not following the lawful order ofthe hierarchy of the governmental authority, definitely the person who isaggrieved can come before the %31 and pray for direction or declaration to

implement, fulfill or obey the lawful order of the govt., which the Administrativetribunal is not competent to do.0'

The syndicate being an eecutive authority of the Dniversity made nomination for

selection board with lawful authority. The Dniversity orders having providedremedy by way of appeal from the syndicates order the writ petition in thisreason is not maintainable due to the doctrine of ehaustion.

Dnder the 8ndian Administrative Tribunals Act, 5'), the Administrative Tribunalsare e!ual and substitute of the %igh 3ourts having eclusive jurisdiction in allservice matters of the Eovernment 2ervants and that of the statutory bodies.Dnlike the 8ndian law, the Administrative Tribunals Act, 5')+ of Bangladesh have

been enacted in retrogression of the concept as is contemplated in Article 557 ofour 3onstitution. Although the Administrative Tribunals have jurisdiction in all

service matters relating to the persons in the service of the 9epublic ofBangladesh and statutory bodies specified in the schedule of the Act, these

tribunals are not e!ual or substitute of the %igh 3ourt 1ivision of the 2upreme3ourt.+

There is no command in the 3onstitution that the Tribunal or the Appellate

Tribunal is substitute or co-e!ual to the %igh 3ourt 1ivision. 8t is left to thelegislature, after establishing the Tribunals, to make necessary provisions in this

regard for the carrying out of the functions of the tribunals.5

The 3onstitution provides that the "resident of Bangladesh shall have the powerto grant pardons, reprieves and respites and to remit, suspend or commute anysentence passed by any 3ourt, tribunal or other authority.6

Other Tribunals:

There are other tribunals in Bangladesh of which #abour Appellate Tribunals, TaAppellate Tribunal and lection Tribunal deserve special attention.

Ta# Appellate Tribunal:

&!ibid, p.&(.&'ibid, p.3##(

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The Ta Appellate Tribunal is set up in accordance with the provisions of 3hapter

888 &sections 55- 5 of the 8ncome Ta Ordinance, 5')0.

Composition of the Tribunal:

There is no specific reference in the Ordinance as to the number of judges in theTribunal 2ection 55 of the Ordinance, 5')0 states that the Eovernment shallestablish a Taes Appellate Tribunal consisting of a "resident who shall be a

judicial member appointed by the Eovernment and such other members as theEovernment may, from time to time, appoint.

-ualifications to be a .ember of the Tribunal:

The Ordinance was silent as to the !ualifications of the members of the tribunal.8n 6++6, by section 6) of the >inance Act, 6++6 an amendment was made to this

Ordinance which prescribes the !ualification without which a person can not be amember of the tribunal. =ow, a person shall not be appointed as a member of the

Taes Appellate Tribunal unless

&i he was a member of the =ational Board of 9evenue4 or

&ii he was a 3ommissioner of Taes4 or

&iii he is a 3ommissioner of Taes4 or

&iv he is a chartered accountant and practiced professionally for a period not

less than eight years4 or

&v he is a cost and management accountant and practiced professionally for a

period not less than eight years4 or

&vi he is an income ta practitioner and practiced professionally for not lessthan twenty years4 or

&vii he is a professional legislative epert having not less than eight years

eperience in the process of drafting and making financial and ta laws4 or

&viii he is an advocate and practiced professionally for not less than ten years inany income ta office.

Rules of Procedure of the Ta# Tribunal/

The powers and functions of the Appellate tribunal are performed by Benches tobe constituted by the "resident of the tribunal. The decision of a Bench &usuallyconsists of two or more persons as the "resident thinks proper in any case or on

any point shall be given in accordance with the opinion of the majority of itsmembers. ;here there are only two members of the Appellate Tribunal and they

differ in any case, the Eovernment may appoint an additional member of theAppellate Tribunal for the purpose of hearing the case4 and the decision of the

case shall be given in accordance with the opinion of the majority of the membersof the Appellate Tribunal as constituted with such additional member.

$lection Tribunal:

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>or the settlement of all disputes regarding election, Article * of the

9epresentation of the "eople Order, 5'76 provides for the establishment oflection Tribunal which shall be consisted of a person who is or has been a 1istrict

and 2essions udge or an Additional 1istrict and 2essions udge. According to

Article '&5, the Tribunal shall have powers of a 3ivil 3ourt trying a suit underthe 3ode of 3ivil "rocedure. Article * &5 of the 9epresentation of the "eopleOrder, 5'76 provides that for the trial of election petitions the lection3ommission shall appoint as many lection Tribunals as may be necessary. 8t alsosays that a Tribunal shall consist of a person who is or has been a 1istrict and2essions udge.

Dnder section 67&5 of the #ocal Eovernment &Dnion "arishads Ordinance, 5')*

the lection 3ommission shall appoint a judicial officer to be an lection Tribunalfor the trial of election petitions for any specified areas, as specified in the ga:ettenotification.

Dnder section 6), the lection 3ommissioner, may at any stage of the proceedingtransfer an election petition from one lection Tribunal to another in case ofnecessity. The Tribunal where the petition is transferred may recall and eamineany of the witnesses who are already eamined. After the decision of any lection

Tribunal, if any election, appeal is preferred in the 1istrict udge 3ourt, the1istrict udge shall also have the authority to transfer any election appeal from

one 3ourt to another.*

Procedure followed in $lection Petition:

The procedure to be followed in lection petition is mentioned in section 6' of the

#ocal Eovernment &Dnion "arishads Ordinance, 5')*. The lection Tribunal after

receiving an election petition shall give notice to all contesting candidates at theelection to which the petition relates. Then the lection Tribunal shall take theevidence and eamine the contesting candidates and then the Tribunal shallpronounce order, which shall be final.0

Any person aggrieved by the decision of the lection Tribunal may, within thirtydays of the announcement of the decision of the Tribunal, prefer an appeal to the1istrict udge within whose jurisdiction the election in dispute was held and thedecision of the 1istrict udge on such appeal shall be final.55) An order disposing

of the election petition is appealable, but an order for recounting of ballots by thetribunal is not appealable.

The 1istrict udge when acting as an Appellate 3ourt in lection petitions is under

the %igh 3ourt 1ivision. Though the lection Tribunal is not a civil 3ourt but whenthe 1istrict udge hears the appeal of such election petitions then he shall followthe procedure to be followed in the civil 3ourts as mentioned in the 3ode of 3ivil"rocedure, 5'+) and in 9ules 07 and 0) of the Dnion "arishad lection 9ules,5')*.

This Act also provides that any person aggrieved of a decision where the decision

relating to lection was announced before the commencement of the #ocal

#3

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Eovernment &Dnion "arishads Ordinance, 5')0 may also prefer an appeal withinthirty days.

Though section 6'&0 of the Ordinance, 5')*, says that the decision of the1istrict udge is final, but this section does not oust the right of the aggrieved

parties to move before the %31 for revision and the parties can also go to the

%31 with a writ.(

Powers of the $lection Tribunal:

An lection Tribunal has all the powers of a 3ivil 3ourt trying a suit under the3ode of 3ivil "rocedure, 5'+), for the purpose of trying the election dispute.

5. The lection Tribunal can order for the recount of the votes in appropriatecases.

6 The Tribunal can allow the amendment of the election petition. Thelection Tribunal cannot grant injunction.

0. The lection Tribunal cannot act arbitrarily and whimsically.

. The lection Tribunal can proceed eparte if the 9espondents do not filewritten objection or appear before it to contest the election petition.

(. An lection Tribunal may declare the election of some centers void anddirect fresh polling in those centers.

7. The lection Tribunal can interfere if there has been contravention

of the provisions of the Act and if the result of the election has been materiallyaffected due to the contravening.

). ;hen both the candidate got e!ual votes, the lection Tribunal is competent todraw a lottery and declare winner elected, though there is no epress provision.

'. The lection Tribunal should not set aside the lection result unless law

demands it.

5+. The lection Tribunal has the power to decide whether a ballot paper is to

be accepted or rejected.

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Chapter Si#

,ow far Tribunal been successful in +anladesh*

This is largely a matter of empirical study though it is fre!uently evident that

most of the tribunals are eventually embroiled with cumbersome and long processof usual litigation frustrating the pious purposes behind their creation. >or

eample, 9ule 7 of the Administrative Tribunals 9ules 5')6 provides that tribunalshall follow as far as practicable the provisions of the 3"3 relating to theprocedure of the eecution of decree or judgment. %owever, this is the longestchapter in the 3ode of 3ivil "rocedure which is considered @in respectscumbersome 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 foreecution and implementation after deciding the cases under a short and

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simplified procedure. =ot only are that most of the tribunals facing a hugebacklog of pending cases.

Recommendation: Although tribunals play important role in administeringjustice, 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 fleible so that an aggrieved party mayprefer an appeal to the 2uperior court to redress his grievance.

&b The trial of the tribunal should be open so that all parties concerned mayknow about fair trial.

&c The provision for legal aid should be adopted so that parties mayrepresent by legal eperts like advocates.

&d The udges of the Tribunals should be trained so that they can deal withmatter before it more efficiently.

&e nsure freedom of judges of the tribunal and security of their tenure etc.

Conclusion: The proliferation of tribunals in the twentieth century has been aspecial feature of the development of judicial administration in almost every

commonwealth countries. The number of tribunals and their importance haveincreased so significantly that it is no longer justifiable to regard tribunals merelyas an appendage to the ordinary court of law. They are an integral part of theordinary legal process. This system of administrative justice has in the pastcaused some concern as "rofessor 1icey rejected notions of separate system of

justice &droit administratiff for resolving disputes between citi:en and the state.2uch a view, however, is no longer tenable given the widespread functioning ofvarious 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 offormality, lack of speed, lack of epertise in some specialist areas of law, cost etc

and the contet of social or welfare state with the rise of welfare legislation. Theyalso reflect the perceived advantages of tribunals as bodies which follow informalprocedures, can hear cases relatively !uickly, are cheap, and which haveepertise in the particular subject matter. 8n tribunals proceedings are relativelyinformal. The strict rules of evidence do not apply. Any person may appear beforeit. Awards of cost are not usually made unless a party has acted frivolously orveatious.

Selected +iblioraphy

+oo&

5. Administrative law/ %.;.9. ;ade M 3.>. >orsyth.

6. #egal 2ystem of Bangladesh/ Barrister Abdul %alim.

*. #ectures on Administrative law/ 3.H. Takwani.

0. "rinciples of civil litigation/ Bangladesh perspective/ 8shrat A:im Ahmed

and $d. rshadul Harim.

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Documents

The Role of Speedy Trial Tribunal in Administration of Justice