Law Commission warns the law could turn into a repressive one if remedial measures not taken
Bangladesh Law Commission has found some gross anomalies in the mobile court act that lead to flawed trials run executive magistrates.
In a report on Tuesday, the commission said the Mobile Court Act 2009 that empowers executive magistrates to hold trials may become a repressive law if necessary remedial measures are not taken immediately.
The remedial measures include introducing new provisions for the offenders’ bail, scrapping the existing provisions for filing appeals with deputy commissioners and sending offenders to jail if they fail to instantly pay the monetary fine imposed by the mobile courts, according to the report.
“Instant execution of sentence of imprisonment in case of the offenders’ failure to instantly pay the fine imposed by the mobile courts very often results in violation of human rights,” it said.
The provision on instant execution can be found in section 9 (2) of the Mobile Court Act 2009. However, there is no provision for bail in this law, the report said.
“As a result, important human rights like the right to liberty are trampled very often,” commented the commission in the report prepared after examining the mobile court law.
Law Commission Chairman ABM Khairul Haque placed the report on Tuesday at a meeting of the parliamentary body on the law ministry and highlighted some important points in it.
According to the report, Section 9 (2) of the Mobile Court Act 2009 also runs counter to section 388 of the Code of Criminal Procedure, 1898.
Section 388 empowers a court to order for payment of monetary fine in installments if an offender cannot pay it instantly. The court can even release him temporarily on bond.
The law commission in its report lauded section 388, which had been enacted over 117 years ago in the undivided Indian sub-continent.
“But the modern provision [388] of the Code of Criminal Procedure is not applicable to trials by mobile courts due to an overriding clause of the mobile court act,” the report said.
Contacted, Justice Khairul Haque declined to make any comment on the report which also made some recommendations to deal with the huge backlog of cases.
However, he yesterday said the members of the parliamentary body have supported the commission’s recommendations.
Authorised by law to recommend amendments or make new laws, the commission thinks that absence of a provision for bail of offenders in the mobile court act is a loophole in the law.
If anybody is sentenced to imprisonment for even one day, he can file an appeal against his conviction afterwards. So the offender has to serve in jail before he can file an appeal, which makes it a futile attempt to review the judgment, the report pointed out.
An individual, according to the mobile court law, can file an appeal with the district magistrate (or deputy commissioner) or additional district magistrate (or additional deputy commissioner).
If he is not satisfied with the verdict against his first appeal, only then he can file another appeal with the sessions judge’s court.
Making the DCs and the ADCs appellate authorities is termed by the law commission unnecessary and ineffective.
Referring to a newspaper report published in a national daily on September 9, 2014, the commission report said that in 98 percent of the cases the judgments, given by additional district magistrates of Dhaka, on appeals against mobile court verdicts have been cancelled by the sessions judge’s courts.
A lawyer, wishing anonymity, said this means both the mobile court verdicts and judgments of the additional district magistrates against appeals were wrong.
He said people who were convicted by mobile courts had to suffer, yet they have not got any compensation for their sufferings.
The commission focuses on another interesting point. A convict must file an appeal with a DC against his conviction according to the law. “This makes the entire law inconsistent [with the norms of justice],” the report said.
The original law on the mobile courts in 2007 did not empower the district bureaucrats to dispose of appeals against the judgments of the executive magistrates, who are also admin cadres.
But the Awami League-led government in 2009 made changes in the law, empowering the DCs and the ADCs with the authority to dispose of such appeals.
The law commission wants the Supreme Court to have some supervisory powers over the mobile courts.
In the report it said when a government official imposes a sentence, he exercises the full judicial power and jurisdiction in doing so.
“Therefore, appeals against the judgments of the mobile courts should be filed with the regular courts and the mobile courts like other regular courts should come under the supervision of the Supreme Court,” it asserted.
Officials of the law commission, however, said they do not support trials by the mobile courts. But the commission cannot speak against mobile courts due to the shortage of judicial officials.
They said the commission wants the mobile court system to continue for a certain period and more judicial officials should be appointed during that time so that they can run the mobile courts smoothly.
The commission cited references to mobile courts in India and Pakistan by judicial officials. In India, mobile court was the brainchild of late President APJ Abdul Kalam. The mobile courts have been run in those two countries to ensure justice for the poor in remote areas.
In Bangladesh, however, the aims and objectives for introduction of the mobile courts seem different.
The mobile courts have been introduced to empower admin officials with some judicial power who had lost their judicial powers completely following separation of the judiciary from the executive during the caretaker government’s tenure in November 2007. This had made them unhappy.
Upon assuming office in 2009, the AL-led government has empowered the mobile courts to keep the bureaucrats happy.
Source: The Daily Star
