2. Institutionalised Arbitrariness 2.6 Violating Impartiality The guarantee of impartiality under international human rights law encompasses both objective and subjective dimensions. According to the HRC: ● Objective impartiality requires that a judge or adjudicator not hold preconceived views or act in ways that favour one party.139 59 ● Subjective impartiality requires that a tribunal appear impartial to a reasonable observer.140 To secure these qualities, separation of powers is indispensable. The HRC has expressed that a lack of clear boundaries between the executive, legislative, and judicial branches may jeopardise the rule of law.142 Therefore, a clear delineation between the roles of the executive and judiciary is essential, ensuring that judicial bodies maintain autonomy in areas within their jurisdiction.143 In the case of the FTs, serious concerns arise over both objective and apparent impartiality. The adjudicatory function of FTs is structurally entangled with executive control. Political influence pervades every stage of the tribunal process—from appointment to tenure review and discipline. As outlined earlier, members are appointed by the executive, with minimal transparency or safeguards, and are assessed and reappointed through executive mechanisms. This compromises their ability to rule independently in cases where the executive’s interest in expelling or excluding certain populations—particularly Bengali-origin Muslims—is explicit and well documented. The HRC has observed that such political influence fatally undermines impartial adjudication. To prevent this, adequate financial and institutional resourcing is also essential.144 Under-resourced judicial bodies are more susceptible to corruption, and low remuneration can distort adjudicative incentives.145 The Committee has thus emphasised that judicial actors must receive adequate pay and institutional support to function impartially. The FTs fail on both fronts. They are not insulated from executive pressure in appointment or tenure. For the FTs to align with international standards, reforms must ensure secure funding and an independent structure for appointments, promotions, and disciplinary actions—conditions necessary for any meaningful claim to impartial adjudication. 139 140 141 142 143 144 145 146 147 HRC ‘Arvo O. Karttunen v. Finland’ (October 1992) UN Doc CCPR/C/46/D/387/1989, para 7.2. HRC ‘General Comment No. 32’ (n 47) para 21. UN Commission on Human Rights ‘Report on the situation of human rights in Nigeria prepared by Mr. Bacre Waly Ndiaye, Special Rapporteur on extrajudicial, summary or arbitrary executions, and Mr. Param Cumaraswamy, Special Rapporteur on the independence of judges and lawyers’ (4 February 1997) UN Doc E/CN.4/1997/62, para 71. HRC ‘Concluding Observations of the Human Rights Committee: Slovakia’ (n 122) para 3. HRC ‘Concluding Observations of the Human Rights Committee: Romania’ (28 July 1999) UN Doc CCPR/C/79/Add.111, para 10. See also HRC ‘Concluding Observations of the Human Rights Committee: Peru’ (n 121) para 10; HRC ‘Comments of the Human Rights Committee: El Salvador’ (18 April 1994) UN Doc CCPR/C/79/Add.34, para 15; HRC ‘Comments of the Committee: Tunisia’ (23 November 1994) UN Doc CCPR/C/79/Add.43, para 14; HRC ‘Comments of the Human Rights Committee: Nepal’ (10 November 1994) UN Doc CCPR/C/79/Add.42, para 18. HRC ‘Concluding Observations of the Human Rights Committee: Central African Republic’ (27 July 2006) UN Doc CCPR/C/CAF/CO/2, para 16. ibid. Clooney and Webb (n 49) 77-78. Lavents v. Latvia App no 58442/00 (ECtHR, 28 Nov 2002) para 115.