Executive Magistrates’ judicial power: in light of Natural Justice
Jahedul Islam Sourov : The word natural justice has been derived from the word jus naturale which means natural justice or the justice which ought to be given to any person aggrieved. Natural justice is an established principle in Bangladesh which a judicial or quasi-judicial body must follow while giving judgement or taking action against any person accused.
The Supreme Court of Bangladesh held in the leading case of Abdul Latif Mirza v. Government of Bangladesh [31 DLR (AD) 33] that- “The principles of natural justice are inherently universal and a part of the law of the country.”
In this case, it was also observed that- ‘The principles of natural justice are inherent in every society in which the rule of law, the fundamental human rights and freedom, equality and justice, political, economic and social shall be secured.’
The principles of natural justice have not been boldly mentioned in any of the legal statutes in Bangladesh, so in many-other countries but all of the developing nations and welfare countries are following the principles of natural justice to maximize their development process by limiting the scope of arbitrariness of any government authority. The principles of natural justice have been impliedly mentioned in the Constitution of Bangladesh. Basically, natural justice works on two(02) principles, they are:
- Audi altarempartem, means- none should be condemned unheard or both the side (party) should be heard before taking any action against such person.
- Nemo judex in causa sua, means- none can be judge of his own case as there remain chances of biasness or self interest, such as- pecuniary bias, personal bias, official bias, etc.
The constitution of Bangladesh has provided in some articles these principles of natural justice. Some of the articles where principles of natural justice have been impliedly mentioned are:
Article-35 where the right of speedy and public trial by an independent or impartial court has been ensured, which supports both the principles of natural justice.
Article-33 where any person has been given the right to consult and appoint an advocate and the right to defend himself. This right has also been ensured by Section-340 of the Code of Criminal Procedure, 1898 which actually supports one of the principles of natural justice.
Article-31 of the Bangladesh constitution has also ensured the principle of natural justice by saying- ‘person has the right to be treated in accordance with law and be protected by law.’
Now, the ultimate question that arises is what the law says about trialing a person? The law ratifies the view of natural justice, it (law) says- a person must be heard, must be given notice with proper time to reply, must be given reasonable time to appear before the court that is called summon in legal language, suit must be dealt impartially which will be free from biasness, accused must be given chance to defend himself and the chances of examination & cross-examination, proper time to present evidentiary documents, etc.
In analytical view, all these legal procedures impliedly support the principles of natural justice by protecting the interest of the victim and also the accused.
Now, I will be co-relating these principles of natural justice with the practical scenario of Bangladesh regarding the power of magistracy which plays the most vital role while taking preventive measures and giving remedy to the person aggrieved.
We know magistrates in Bangladesh are divided into two(02) types, one is judicial and the another is executive magistrates. The executive magistrates run mobile court in both the rural and urban area in matters like- food adulteration, child marriage, land acquisition, recovery of possession and in many other cases which need immediate action.
However, in our neighbor country like India, these works of immediate action are mainly done by the judicial officials under the supervision of higher judiciary where the people have better chances of getting fair justice.
In the mobile court system, there remain very little chances of enforcing the principles of natural justice. Even the accused person does not get proper chance of defending himself where it is an established principle of natural justice to hear the party properly before striking him down.
The executive magistrates are always in a hurry as they have to cover a territorial limit of a fixed area where it becomes very hard to ensure all the procedures like- hearing the accused properly, giving him time to present evidence, giving chance to defend himself, etc. which are necessary to ensure fair justice and to avoid arbitrary decisions. Our state has three (03) organs: Legislature, Executive and Judiciary.
The executive magistrates work under executive organ which organ’s duty ought to enforce laws made by the legislature, not to interpret laws and provide justice to people for which there is a separate organ of the state named ‘judiciary’. India has been using the judicial officials for the same work, that are being performed by the executive magistrates of our country, just to provide fair justice to people by ensuring principles of natural justice.
The person aggrieved by any order of executive magistrate is required to go to the administrative tribunal and also to the administrative appellate tribunal where the later one consist member from executive, not below the rank of joint secretary. This is also a clear violation of the second principle of natural justice, where prohibition had been given to decide case by saying ‘none should be judge of his case”.
Even where the magistrate himself is the petitioner cannot adjudicate his case. This will be termed as an absolute power if he does so and it is the bitter truth that ‘absolute power corrupts anyone absolutely’.
There is a suit pending in the High Court Division of Bangladesh regarding this issue whether executive magistrates should be given magistracy power or not. We don’t know when this pending suit will be decided and whether the jurisdictional power of the executive magistrates will be curtailed or not which has been given to them by making amendment of the Code of Criminal Procedure, 1898 but being a citizen of this country we have legitimate expectation.
The legitimate expectation of being treated in accordance with law and to get fair justice. Fair justice can only be ensured if it be possible to make applicable the principles of natural justice for every judicial, quasi-judicial and autonomous bodies having jurisdictional power. Any person until proven guilty is innocent in the eye of law, so is the accused and that is why any person must have to be treated according to the principles of natural justice.
The state has to take steps to make every judicial, quasi-judicial and autonomous body to come under the provisions of natural justice, so that the arbitrary exercise of power by any authority may be taken down significantly.
The writer is a third-year law student at BSMRSTU, Gopalganj-8100. E-mail : jahedsourov.llb@gmail.com
References:
- Mobile Courts and Independence of Judiciary, The Financial Express, September 3, 2011
- Are mobile court serving justice? Dhaka Tribune, December 6, 2017
- Mobile court: conflict of interest between the judiciary and the executive, Web Link: https://bdlawdigest.org/mobile-court-conflict-of-interest-between-the-judiciary-and-the-executive.html#:~:text=In%20both%20countries%2C%20the%20mobile,supervision%20of%20the%20higher%20judiciary.
