According to experts, the existing Trust Act of Bangladesh is an old and complex law. With a view to framing a new trust act, in 2017 a law commission was formed comprising Justice ABM Khairul Haque as Chairman, and late Professor Dr. Shah Alam and Justice ATM Fazle Kabir as members. In the recommendations and draft proposal of the commission, it has been stated that the main trust-related law in Bangladesh is the Trust Act 1882 which is about one hundred and eighty years old. The same act, with minor modifications, governs the creation and administration of private or individually-run trusts. On the other hand, there is no single special law for the formation and management of individual, public and public welfare trusts in the country.
The commission has recommended that as the Trust Act-1882 does not contain any clear provision regarding public and welfare trusts, separate laws have to be framed for each. Keeping this in view, fifteen public trusts were created in the post-independent Bangladesh which was formulated as a different law for different trusts in the country. According to the commission, there were various types of trusts in use in both Hindu and Muslim societies before the British rule in the subcontinent. Due to ambiguity or lack of understanding of the law, private trusts often lead to disputes between the parties which may lead to civil courts for settlement. Many cases lead to litigation which is a very time consuming and harassing process. Consequently, the parties cannot enjoy the proper benefits of the trust. As a result, though forming a trust is a good initiative, many feel discouraged due to the complexities involved. Therefore, the law commission its draft proposal recommended introduction of three separate laws, namely private initiative trust, public trust and public welfare trust. This will ultimately eliminate many complications related to the formation and management of any type of trust and at the same time, many inconsistencies in private, public and public welfare trust laws will also be removed.
At present, the Act of 1882 provides for entrustment of any property to another for the benefit of him or herself or others and the owner of the property or the person who creates the trust is called the settler or promoter of the trust. Trusts are generally set up in accordance with transfer of property and inheritance laws. This is not applicable to private universities. The Section 15 of the Private University Act of 2010 states, "Each Private University shall have a Board of Trust for its management and one of the members of the said Board shall be the Chairman of the Board of Trust". Besides, the Private University Act provides the "power and responsibilities to the Board of Trust". According to the UGC office order, no member of the Board of Trust can be proposed to the three-member panel for the purpose of appointing Vice-Chancellor, Pro Vice-Chancellor and Treasurer and no member of the Board of Trust can be employed in the mentioned three positions in the university. Section 6 (1) of the Private University Act 2010 states, "A Board of Trustees consisting of not more than 21 but not less than 9 members shall be formed for the purpose of establishing and managing the proposed private university". That means, though all these 9 to 21 people are all the board members, it is nowhere mentioned in the Private University Act how the trust will be formed, yet the trust is registered according to the Trust Act. As such, various complicacies are created, since there is no trust formation process referred to in the Private Universities Act 2010. According to the instructions of the UGC, the Board of Trustees has to form an agreement and get it registered from the Registrar of Joint Stock Companies as per the Societies Act 1860 and from the Sub-Registrar's office, which is not mentioned anywhere in the Private Universities Act 2010. That is why some university vice-chancellors (CEO) do not want to accept the structure of the trust and its posts.
The word trust means confidence, dependence and faith. If a person transfers property to another person for the benefit of a third party, it is considered as a trust. Trust is an agreement between three parties i.e. (1) Donor or creator of trust: He/she who donates his/her property to someone for the benefit of a third party with the intention of helping the needy is called the donor/creator of trust. (2) Trustee: The person whom he or they entrust with the maintenance of the property is called a trustee. And (3) Beneficiaries: Those who will get their profit or benefit from the said property are called beneficiaries. But, the question is: who benefits from private universities? Who are the beneficiaries? Students are not the beneficiaries as they pay fees for the services they receive. As a result, the Trust Act 1882 is vague for private universities.
Anyone looking to set up a charity trust knows that running a trust is not an easy or stress-free task. A trustee is required to invest considerable time and effort in maintaining and administering a trust. Regardless of how a trust is registered under Trust Law, a trustee is generally not remunerated for the work performed by the trust for trust, unless all trustees agree. However, there is some variations in professional trustees for trust protection in different countries, and the idea of paying professional trustees is now much more of a reality. In the current law, there is no guidance on professional trustees or if a trustee acts in any other capacity outside the trust work, as a result of which, conflicts arise with the board of trustees and misunderstandings are created. It is not said anywhere that they will not be paid for their talent. It is common in many countries to pay professional trustees for their merits for trust protection and for the work outside the trust or in other positions outside the trust. Section 50 of the Bangladesh Trust Act of 1882 only deals with Trusts. "A trustee is not entitled to remuneration for his trouble, skill and time lost in executing the trust responsibilities". It does not refer to external positions of the trust. However, many people give explanations based on their own assumptions and opinions without understanding the Article 50 properly. The need of the hour is to guide the private university trust in the right direction. Otherwise, the problem will persist in the days to come.
With a clear goal and purpose, education enthusiasts establish a private university with their talent, financial contribution and full-time efforts. But they cannot devote full-time to apply their professionalism to protect the trust and to establish the university outside the management of the trust, though it is not mentioned in the act. If initiators or founders cannot play a role in the spread of education, how will they implement their goals and objectives? Why do private initiators or founders take the initiative to build such institutions? This may hamper the expansion of higher education in the private sector. Trustees are the custodian of Private University. Institutions do not run only by laws, especially private institutions; otherwise, there would not have been so much news about public universities. Private universities are established for the expansion of education. Prevention of corruption can be done only through proper monitoring systems and appropriate law enforcement wherever required. We must not hinder this sector by imposing negative initiatives just because of a few people's ill motives.
Trustees are engaged in private universities as a part of social development in the country. There is no difference between public and private universities, except in the manner of the financing. Everything else is the same. One is financed by individuals or groups and the other is financed by the government.
It would be an undesirable hindrance to control a university only in the name of irregularity. Then there will be no difference between a university and a high school. If the government wants to take control of it, then the government should also take responsibility for spending money on private universities.
If a private university is needed to run under a trust, formation and implementation of a separate trust act for private universities may eliminate the confusion and narrowness of this sector. In this regard, a full survey is required on the prevailing conditions of private universities of Bangladesh. Private universities will turn into a burden, if good governance, quality education, transparent management and the trustees' appropriate power, rights, and respect cannot be ensured. Consequently, silent corruption will take place and the stakeholders will be losers; faith will be lost and funding will be in crisis, some signs of which are now visible. A specific trust law for private universities is highly required now. Otherwise, it will be difficult to ensure the quality education in this sector.
Professor Sarwar Jahan is an initiator and founder of Southern University
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