2. Institutionalised Arbitrariness 2.1 The Principle of Legality The foundational condition for the structural integrity of any institution adjudicating citizenship status is that it must be established by law. This principle is central to both constitutional and international human rights frameworks. Article 14 of the International Covenant on Civil and Political Rights (ICCPR) guarantees that any person whose rights and obligations are being determined in a legal 38 suit is entitled to a hearing by a court or tribunal established by law. General Comment No. 32 of the Human Rights Committee (HRC) clarifies that to qualify as a “tribunal” under Article 14, a body must not only be established by law but must also be independent of both the executive and legislative branches of government.47 This guarantee is not limited to the ICCPR. The right to be heard before a tribunal established by law is a fundamental, universally recognised principle reflected across major international human rights instruments. It serves as a crucial safeguard for judicial fairness, legal accountability, and the integrity of adjudicatory processes. This requirement is particularly vital where determinations involve fundamental rights—such as the right to nationality or citizenship—where errors or arbitrariness carry life-altering consequences, including detention, deportation, and the spectre of statelessness. Although tribunals are typically embedded within the judiciary, exceptions exist. Specialised tribunals that lie outside the ordinary court system may nonetheless qualify as “tribunals” under Article 14 if they are legally constituted and exercise genuine judicial independence in deciding matters of a legal character.48 What matters is not the label but the substance: the body must be created and empowered through law and must operate independently of executive direction. Thus, the phrase “established by law” is not a mere formalistic or procedural requirement. It also embodies a substantive guarantee. It requires that the tribunal be grounded in a legal framework that meaningfully constrains executive interference and prevents arbitrary decision-making. A facade of legality will not suffice. Rather, there must be a clear and stable legal foundation that secures the tribunal’s existence and functioning. In this sense, legal establishment implies insulation from discretion and arbitrary creation by the executive branch.49 The judicial function—independent adjudication of rights—is what defines a body as a “tribunal” under international standards. This understanding has been affirmed in various international fora. The International Criminal Tribunal for the former Yugoslavia (ICTY), in Prosecutor v Tadić, held that the requirement of being “established by law” exists precisely to “ensure that tribunals in a democratic society must not depend on the discretion of the executive; rather, they should be regulated by law emanating from 47 48 49 Human Rights Committee (HRC) ‘General Comment No. 32, Article 14: Right to equality before courts and tribunals and to fair trial’ (23 August 2007) UN Doc CCPR/C/GC/32, para 18. HRC ‘Rameka et al. v. New Zealand’ (15 December 2003) UN Doc CCPR/C/79/D/1090/2002, para 7.4; HRC ‘Torres v. Finland’ (5 April 1990) UN Doc CCPR/C/38/D/291/1988, para 7.2. Amal Clooney and Philippa Webb, The Right to a Fair Trial in International Law (Oxford University Press 2021) 133.