The High Court, in the verdict which nullified several sections of the Mobile Court Act-2009, said using executive magistrates to operate mobile courts is in breach of several sections of the Constitution and is an affront to an independent judiciary.
The 64-page verdict, published on the Supreme Court website, details the observations and remarks made by High Court bench comprising Justices Md Moinul Islam Chowdhury and Ashish Ranjan Daash on May 11.
Also Read- HC: Mobile courts by executive magistrates illegal, unconstitutional
How magistrates are in breach of the law
The verdict says executive magistrates are members of Bangladesh Civil Service (Administration). Executive and judicial magistrates were separated after the 1898 Criminal Procedure Code (CrPC) was amended as per Section 22 of the Constitution and the verdict of the Masdar Hossain case.
Any use of judicial power by executive magistrates under the 2009 Mobile Court Act article 59’s sections 6(1, 2, 4), 7, 8 (1), 9, 10, 11, 13, 15 is in breach of the Constitution. The aforementioned sections were declared null and void in the verdict.
The bench also asked copies of the verdict to be circulated immediately to the defendant so that they may act accordingly.
The defendant was Bangladesh represented by the secretary of the Ministry of Law, Justice and Parliamentary Affairs.
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The roots of the historic verdict
The High Court reached the historic verdict by completing the hearing on three separate rulings regarding the legality of the Mobile Court Act.
On September 14, 2011, a mobile court sentenced Kamruzzaman Khan, chairman of Aesthetic Properties Development Limited, to 30 days of imprisonment for breaching several building codes.
Kamruzzaman challenged the legality of several sections and sub-sections of the Mobile Court Act in a writ petition submitted to the High Court on October 11, 2011. The High Court ruled on October 19 after the primary hearing.
On September 13, 2011, another mobile court fined Md Mojibur Rahman Tk10 lakh for being in breach of various building codes. Mojibur filed a writ on December 11, 2011 challenging the law and demanding reparation.
A group of bakery owners in Dinajpur also challenged various sections of the Mobile Court Act in 2012. They filed a writ petition on 2 May 2012.
The landmark Masdar Hossain case, filed in 1995 by 441 lower court judges, reached a historic verdict in 1999, which instructed the formation of an independent judicial service commission.
The verdict remained unimplemented for almost a decade. But in 2007, the caretaker government established Bangladesh’s first judicial service commission as a body separated from the executive branch.
