With the Appellate Division set to hear the appeal against the High Court verdict on the legality of mobile courts, administration officials are airing their grievance at the potential loss of magistracy power on various formal and informal platforms.
The High Court last Thursday declared unconstitutional the rules under which the mobile courts are operated in the country.
The High Court verdict on Thursday declared 11 sections of Mobile Court Act 2009, which empowered executive magistrates to conduct mobile court drives, unconstitutional. The court ruled that the sections violate the constitutional provision for independence of the judiciary and separation of powers between the three organs of the state.
The verdict arrives at a time when the Chief Justice SK Sinha has been publicly vocal about the government’s failure to complete Code of Conduct for lower court judges in line with the verdict of the Masdar Hossain case which stipulates the provisions of the separation of judiciary.
Mobile courts are our own mechanism to deliver justice on time. It is not a common practice around the world, but people agree that it is an effective process for overpopulated countries like ours
Caught in between the larger debate for the separation of judiciary, district and executive magistrates feel the law and order situation around the country, especially in the absence of sufficient numbers of judicial magistrates, may compromise the law and order situation in the country.
The decision becomes more relevant with the month of Ramadan coming up, where mobile courts are perceived as an effective mechanism to stop consumers from being exploited by unscrupulous traders and businessmen.
On various formal and informal platforms, executive magistrates are pointing out that efforts to curb child marriage, encroachment of rivers, sand extraction, stalking, sale of fake medicines, cosmetics and other commodities, use of polythene bags, illegal power and gas connections and cheating at examination centres.
The magistrates want their powers to convict and hand down sentences and the government’s power to amend the schedule of the act returned.
Lawyer Hassan MS Azim, representing the petitioner Kamruzzaman Khan in the case, said the law and order situation will not deteriorate if the executive magistrates lost their power to conduct mobile courts.
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Mahmud Hossain OPu“They can perform all other functions - bust offenders, lodge FIRs and even hold offenders in custody. The magistrates can also seal off any organization or seize illegal items,” he said.
“The difference now is that they cannot take any offence into cognizance and deliver any sentence on it. They will have to hand over the offenders to the police for a regular trial,” he added.
Azim added that in mobile courts alleged offenders do not get a chance to be represented by a lawyer. There is no chance of producing witnesses for or against them. As a result the trial is prompt but remains faulty.
Administration officials, however, are extremely unhappy.
District officials in letters to the Cabinet secretary claimed that the law and order situation had drastically deteriorated in the three days following the HC verdict.
A district magistrate in Pabna claimed the local authorities had been conducting drives against child marriage at 17 villages across the nine upazilas of the district which had come to a halt since the HC verdict. Another letter claimed that packaged sugar past their expiration date was being sold in markets in absence of mobile courts.
BRTA executive magistrate Munibur Rahman told the Dhaka Tribune “It is very difficult to run the local administration without mobile courts. No one will follow the directions of the administration if they have do not have any magistracy power,” he added.
Cabinet secretary Mohammad Safiul Alam said “Mobile courts are our own mechanism to deliver justice on time. It is not a common practice around the world, but people agree that it is an effective process for overpopulated countries like ours.”
“However, we are waiting on the Supreme Court direction,” he added.
The High Court in its’ verdict agreed that in order to facilitate access to justice at the grassroots level, fast-track courts like mobile courts are an impressive necessity and this types of courts may prove to be effective tool in curbing the rising wave of crime in the country.
But, it said that all Bangladesh Civil Service (Administration) Cadre members are administrative executives. As per the Masder Hossain case, widely known as judiciary separate case, they cannot exercise sovereign judicial power.
