Mobile court run by exec magistrates illegal: HC [ Tritiyo Matra News ]

Mobile court run by exec magistrates illegal: HC

Local May 13, 2017

The High Court on Thursday declared unconstitutional 11 provisions of the Mobile Court Act 2009 relating to the operation of the mobile courts by executive magistrates.
The bench of Justice Moyeenul Islam Chowdhury and Justice Ashish Ranjan Das pronounced the verdict after hearing three writ petitions filed by three businesses challenging the legality of 11 sections of the 2009 act and the sentence and fine handed by mobile courts to two of them.
The sections, especially the operation of mobile court and exercise of judicial powers by executive magistrates, were contrary to ‘the two basic structures of the constitution — the independence of the judiciary and the separation of powers among the executive, the legislative and the judiciary,’ the court observed.
It observed that the sections were also contrary to Article 22 of the constitution that tasked the the state with ensuring ‘the separation of the judiciary from the executive organs, Article 27 that guaranteed equality before law, Article 31 that guaranteed right to protection of law and Article 35(3) that guaranteed the right to speedy and public trial by an independent and impartial court or tribunal established by law.
The High Court ordered refund of Tk 10 lakh realised from petitioner Md Mojibur Rahman, the owner of a building at Motijheel in Dhaka, in fine imposed on November 24, 2011 by a mobile court on allegation of violating Building Construction Act, in 90 days.
It also declared illegal the sentence of imprisonment for 30 days handed by a mobile court on September 14, 2011 to petitioner Kamaruzzaman Khan, also the chairman of the Aesthetic Property Development Limited, on allegation of breaching the Building Construction Act.
The High Court rejected one of the three writ petitions, filed by Md Saifullah and 13 other bakery shop owners seeking guidelines for running the mobile courts by executive magistrates as it declared illegal the operation of mobile courts by executive magistrates.
The court, however, said, ‘In order to avoid unwarranted complications, controversies and legal niceties, all orders of the convictions and sentences passed by the mobile courts are hereby condoned as being past and
closed transactions excepting those which have been challenged in higher courts which will be subjected to their decisions.’
Petitioners’ lawyer Hassan MS Azim told reporters after the verdict that the mobile courts run by executive magistrates could no more operate in the country.
The court, however, rejected the request of the government to certify that the case involved a substantial question of law as to the interpretation of the constitution, meaning that the government would have the power to appeal against the verdict without permission from the Appellate Division.
Deputy attorney general Motahar Hossain Sazu said that the government would appeal against the verdict.
The verdict observed that the mobile courts, if any, must be operated by members of the Bangladesh Judicial Services — the judicial magistrates or the metropolitan magistrates.
The running of the mobile courts by the executive magistrates and disposal of the appeals against the convictions the mobile courts handed, by the district magistrates and additional district magistrates were all beyond mandate of the constitution and the verdict delivered by the Appellate Division in the Masdar Hossain case.
On November 1, 2007, the judiciary was separated from the executive branch following 12-point directives given by the Appellate Division on December 2, 1999 in Masdar Hossain case.
The High Court also said that it found no reason and logic as to why and how the government amend the schedule of the mobile court act by issuing notification in official gazette as only the parliament was empowered to amend any parent law enacted by it.
The court said that as per section 190 (4) of the Code of the Criminal Procedure, the mobile courts were prohibited to hold any trial of any case by any executive magistrate.
It said that as per the code, executive magistrates could take cognisance of offences and sending them to the competent court for trial if they were empowered.
The verdict said that the Mobile Court Act was a special law having an overriding effect and therefore, the provision of the Code of the Criminal Procedure, a general law, had no application to the proceedings of any mobile court.