Running mobile courts through the executive magistrates has become an effective tool for the administration officials to gradually regain their lost judicial powers.
Since the enactment of a law a few years ago to run the mobile court they had regained some judicial powers. Now the proposed changes in the Mobile Court Act 2009 to empower the executive magistrates to punish an alleged wrongdoer even after he denies the offence and to use photographs and audio-video clips as evidences will add new muscles to their judicial clouts.
The existing provision of the 2009 act empowers executive magistrates to punish an alleged offender only after he admits of any wrongdoing.
Once the proposed changes approved by the cabinet on Monday are translated into law through the parliament it will quell another long standing demand of the admin cadres.
The admin officials had lost their judicial power following separation of the judiciary from executive in November 2007 during the caretaker government. This had made them unhappy. They had staged a showdown in the capital and demanded their judicial powers stay untouched.
In face of strong protests, the then caretaker government had relented to give them some judicial powers. The then president promulgated an ordinance empowering executive magistrates to run mobile courts to maintain law and order. It however allowed them only to fine individuals for an offence. That ordinance ceased to have effect in February of 2009.
The Awami League that assumed office in early January of 2009 however offered an olive branch to the admin cadres. A new ordinance was promulgated increasing the executive magistrates’ power to run the mobile courts. It empowered them to sentence offenders up to two years imprisonment in addition to their earlier powers to impose monetary fine.
Later the AL-led government had given the ordinance a permanent shape by enactment of the Mobile Court Act 2009 in parliament.
At the beginning, the executive magistrates running the mobile courts were empowered to hold trials of offences under a handful of laws. But over the years the number of laws has increased to around 100.
The executive magistrates have even been empowered to hold trial of electoral offences ignoring the opinion of the general administrative committee of the Supreme Court.
In December 2008, the SC committee headed by the then chief justice unanimously decided that only experienced judicial magistrates should be engaged to hold trials of electoral offences.
The SC’s opinion had prevented the Election Commission from deploying the executive magistrates to hold trials of electoral offences in the parliamentary election held on December 29 in 2008.
The government’s latest move to further empower the executive magistrates shows its willingness to bend over backwards to keep the bureaucrats happy.
Earlier, the AL-led government had brought changes in the Anti-Corruption Commission Act 2004 introducing a provision in 2013 that made it mandatory for the anti-graft body to take prior permission from the government to file cases against bureaucrats on charge of grafts. This was done to meet a demand of the admin cadres. The government was heedless of the growing criticism and outcry against the move.
The High Court in January 2014 however has scrapped the amendment to the ACC law labelling it unconstitutional for its discriminatory nature.
To make the bureaucrats happy, the government had also enacted a new law in 2013 on contempt of court that had given the public officials legal protections. The same year the High Court had scrapped those provisions that offered discriminatory protection to the bureaucrats from contempt of court.
The fate of the Mobile Court Act 2009 also still hangs in balance.
The High Court in response to a writ petition on October 18, 2011, questioned the legality of mobile courts and asked the government to explain within four weeks why the provisions of the law that empower executive magistrates to exercise judicial powers through mobile courts should not be declared unconstitutional.
The petition is still in the hearing list of the High Court, Barrister Hassan MS Azim, who appeared for the petitioner, told The Daily Star on Monday.
However, Al-Amin Sarkar, deputy attorney general, said he is yet to receive any government reply in this regard.
This clearly shows the government’s attitude towards the judiciary.
From the very beginning the Mobile Court Act 2009 has generated intense criticism.
Some legal experts argue that running mobile courts through executive magistrates is unconstitutional and it goes against the spirit of the SC’s milestone verdict in the Masder Hossain case on the separation of judiciary and the executive branch. That verdict restored the judiciary’s supremacy over the executive in judicial procedure.
However, the government has paid no attention to the criticism against empowerment of the executive magistrates. This has resulted in setting a unique instance in Bangladesh’s judicial system which does not have any precedence in other countries including India and Pakistan.
Mobile courts were introduced in India in 2007 and in Pakistan in 2013. The aims and objectives are the same–to provide legal services to people in remote areas. The mobile courts also work to create awareness among people. The mobile court system has been expanding there. In both countries, the mobile courts are run by judicial officials under supervision of the higher judiciary.
This can be applied in Bangladesh by empowering judicial magistrates to run mobile courts under the control and supervision of the Supreme Court. It is necessary for the sake of maintaining the spirit of the separation of the state powers.
If the government’s policy to keep empowering executive magistrates continues, it might give rise to a new judicial system parallel to the country’s judiciary. And if so, a grave danger will be waiting for us.
To understand the peril we can look to Baron Montesquieu, the great 18th century political philosopher and promoter of the theory of separation of powers. He says there is no liberty if the power of judging is not separated from the legislative, and the executive and if judging powers were combined to the executive power, the judge might act with violence and oppression.
Source: The Daily Star
