The High Court on Wednesday (October 19, 2011) asked the authorities concerned to explain in four weeks why certain provisions of the Mobile Court Act 2009, including its operation by executive magistrates, should not be declared illegal.Others provisions the authorities will need to explain are the legality of the provisions on prosecution, sentence or financial penalty, appeal and the government’s authority to extend or limit mobile court jurisdiction.
The court also stayed for four months the operation of the judgement delivered on September 14 by Rajuk’s magistrate Md Shahidul Islam that sentenced Md Kamruzzaman Khan, a real estate businessman, to 30 days in jail on charge of construction building in violation of the National Building Code.
The court also stayed for four months further proceedings in the appeal filed on September 18 against the executive magistrate order and the conviction. The appeal is now pending with the court of additional district magistrate (land requisition officer) under the district magistrate.
The government has also been asked to submit in four weeks the case records to the High Court.
The bench of Justice Mirza Hussain Haider and Justice Anwarul Haque passed the order after hearing a writ petition filed on October 11 by the Aesthetic Property Development Limited chairman, Kamruzzaman, who was remanded on bail on September 20, challenging the legality of some provisions of the Mobile Court Act and the subsequent judgement and convictions under the provisions.
The petitioner’s lawyer Hassan MS Azim told the court that the provisions were contrary to the general law and fundamental rights as guaranteed in the constitution.
Azim said that the Mobile Court Act 2009 was against the principles of the separation of the judiciary as it allowed executive and district magistrates, who are not holding any position in the judicial service, to be appointed mobile court judges.
He said that one of the basic features of the constitution was that the executive and district magistrates were appointed by the government from among people employed in the Bangladesh Civil Service (administration) which was under the direct control of the executive and not the judiciary.
The operation of mobile courts by executive magistrates is totally illegal and none but judicial officers should have the powers, especially the power to sentence a person, after the separation of the judiciary from the executive on November 1, 2007 in line with the Appellate Division’s 12-point directives delivered on December 2, 1999 in what is popularly known as Masder Hossain’s case, he added.
Azim also said that all activities of mobile court were directly controlled by the government as it had enacted the mobile court act, posted executive magistrates to the court and amended its jurisdiction incorporating more jurisdiction in dealing with offences.
Acting for the government, additional attorney general MK Rahman said that the court should have summarily rejected the writ petition as it had not been filed in a proper manner.
According to the High Court Division’s rule, any convicted person requires permission from the court before filing a writ petition but the law was not followed in this case, Rahman argued.
Rahman, however, did not argue on the merit of the writ petition.
At this point, the court heard former attorney general Mahmudul Islam, who suggested that the High Court’s rule will not apply to cases when fundamental rights of citizens are violated. The Supreme Court can do anything to enforce fundamental rights, he added.
The then military-controlled interim government, under pressure from the administrative cadre officials, promulgated the Mobile Courts Ordinance 2007 on October 29, 2007 making provisions for mobile court operation by executive magistrates to retain some of their judicial powers.
The ordinance stipulated that the mobile courts run by executive magistrates would have the power to hold on-the-spot trials of some specific offences and could only fine the offenders.
The present government, however, enacted the Mobile Court Act 2009 on October 6, 2009 empowering the mobile courts to sentence suspects for two years.
According to the act, the magistrate of a mobile can take cognisance of an offence committed in front of the magistrate.
The magistrate needs to frame the charge against the accused in writing and read it out to the accused with explanations and then ask the latter whether he admits to doing the crime.
If the accused admits, the magistrate can punish him on the spot on the basis of the admission and evidence after hearing witnesses.
If the accused does not confess to the crime, the magistrate needs to ask the police to record a first information report against the person, according to the law.
Legal experts and rights activists expressed their concerns about such provisions saying that punishing people by mobile courts run by executive magistrates denying the accused their right to self-defence was unconstitutional and a flagrant violation of human rights.
New Age
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