A discussion on the validity of executive magistrate led mobile court
A. H. M. Emranur Rahman :
A number of law experts and eminent lawyers opined that instead of executive magistrates, judicial magistrates should be in charge of mobile courts. A few recent sensational verdict of executive magistrate led mobile court has escalated this demand to a large extent. The concept of mobile court directly conflicts with the freedom of the judiciary. In a mobile court, a single person plays the role of plaintiff, investigator and judge.
On May 11, 2017 the honorable High Court Division (HCD) ruled mobile courts conducted by the executive magistrates to be illegal and contradictory to the constitution. The honorable High Court Division (HCD) observed that empowering executive magistrates with judicial powers is – ” a frontal attack on the independence of the judiciary and is violative of the theory of separation of powers.”
The High Court Division (HCD) also observed that – ” By investing the executive magistrates with judicial power of the republic by sections 5, 6(1), 6(2), 6(4), 7, 8(1), 10, 11 and 13 of the mobile court Act 2009 the legislature has contravened the constitution and this contravention is a frontal attack on the independence of the judiciary and is violative of the theory of separation of power.”
Again, section 15 is the another defiant aspect of mobile court act which empowers the Government to amend the schedule of this act. Regarding section 15 the High Court Division (HCD) observed that,” It is really astounding to note that the parliament has delegated its plenary power of amendment of the schedule of the act in favour of the government……………. In this connection it may be pointed out that the parliament may delegate the power of making subordinate or subsidiary legislations in favour of the government or any other instrumentality, but the parliament cannot delegate it’s plenary power of amendment of the parent statute that is to say, the mobile court act 2009 in favour of the government.”
The High Court Division (HCD) further observed that, ” By delegating the power of amendment of the schedule of the mobile court act by virtue of section 15, the parliament has undoubtedly infringed upon the doctrine of separation of powers which is one of the basic structures of the constitution.”
Referring to section 11(4) of the Code of Criminal Procedure,1898 the High Court Division (HCD) said that the government may require an executive magistrate to perform the functions of a judicial magistrate for a period to be determined in consultation with the High Court Division and during that period, the magistrate would not perform the functions of an executive magistrate. The High Court Division observed that, however, the mobile courts can be run by judicial or metropolitan magistrates.
Section 9(2) of the CrPC provides that the government may, by general or special order in the official gazette, direct at what place or places the court of sessions shall hold it’s sitting. But there is no provision of official gazette notification for the specific sittings of magistrate courts. For this reason it will not be improper for magistrates to try a case in the place of the commission of any offence. Section 33A of Bangladesh Standard and Testing Institute (Amendment) Act specifically authorises magistrates to work as mobile court. The section provides that,- ” not withstanding anything contained in the Code of Criminal Procedure,1898 an offence punishable under this ordinance may be tried at any place in the local jurisdiction of the metropolitan magistrate or magistrate of the first class.” Again the Fertilizer (management) Act, 2006 also provides that any offence punishable under this law may be tried at any place within the local jurisdiction of the court.
In 21 DLR 10 it is observed that,-” the trial magistrate has fully fledged freedom to choose the place of trial. There are no hard and fast laws to conduct trials in an enclosed room or building, rather it may occur in an open place where the offence has committed.” It is the magistrate who has discretionary power to commence the trial at any place other than the court house for the sake of justice ( 21 DLR 307 ).
So it is proved that magistrate court can act as what we call mobile court on the basis of scattered indirect laws and legal traditions. Now we are eagerly waiting for the decision of the honorable Appellate Division of Bangladesh Supreme Court in this regard.
The writer is a Judicial Magistrate, Jhalokati
