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Mobile Court: conflict of interest between the Judiciary and the Executive

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Mobile Court is not a new phenomenon rather it has antique sporadic legacy in various statutes and legal traditions in Bangladesh and elsewhere like India, United Kingdom, etc. Think about the public examinations we appeared i.e., SSC, HSC, where magistrates visited the hall and sometimes punished some students or others for the offences committed under the Public Examination (Offences) Act, 1980

; those magistrates acted as mobile courts. When a magistrate moves to the place of the offence committed and tries the case outside the courtroom then we say it is a mobile court.
Most popular areas of functioning for mobile court are 1. Anti-adulteration drive, 2. Eviction of Illegal establishments, 3. Collection of Arrears, 4. Protection of Environment, 5. Transport and Vehicle Sector 6. Stopping child marriage, 7. Preventing eve teasing etc.
The proposed changes by ‘Mobile Court (Amendment) Act 2015′ 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 have yet again brought the role and functions of Mobile Court in question. The amendment of the Act will certainly increase the power of the Executive Magistrates which was curtailed following separation of the Judiciary from the Executive in November 2007.
One of the proposed provisions admits use of electronic signature and biometrics and ICT while the other allows executive magistrate to seek expert opinion while conducting Mobile court. These amendments no doubt will aid the Executive Magistrates to exercise their power more effectively to protect the rights of the people and to maintain law and order situation.
On other side of the coin, exercise of judicial power by the Executives is in conflict with the concept of separation of power. States power are generally classified as the legislative power of making rules, the executive power of enforcing those rules and the judicial power of adjudication disputes by applying those rules. To avoid autocratic exercise of powers of the State it is thought that these three powers should be entrusted to three different organs. In practice, however, no water-tight separation of powers is possible or desirable. [Bangladesh v. Md. Aftabuddin, 2010 bldu2515_ (AD) 1] From the very beginning despite few limitations Mobile Court has succeeded to win the trust of the common people. Especially its role in preventing food and drug adulteration is hugely appreciated by all. Since then citizens’ expectation from mobile court day by day is increasing in at geometrical scale. But the debatable question still remained whether the Judiciary or the Executive should run the Mobile Court.
Baron Montesquieu said 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.
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.
Under sec 13 of the present Mobile Court Act, 2009 any aggrieved person under this Act can appeal to the concerned District Magistrate (part of Executive). To check any kind of arbitrariness and to ensure due process of law it should have been Judicial Magistrate.
But it is also true that thousands of cases are pending in different courts of our country. The honorable Chief Justice admitting this problem has promised to increase the number of judges and curtail the amount of holidays for judges to reduce backlog of cases.
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. Some lawyers argue that the right to consult with a lawyer is a constitutional rights and the mobile court denies it.
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.
But one important aspect should be remembered with caution that mobile court is neither a substitution of mainstream court nor a panacea to enforce law as holistic approach rather it is a piecemeal and ad hoc maneuver in the existing chaotic circumstances of law and order situation. So this Act should be amended in light of the experiences of successful Mobile Court Systems of the world to ensure rule of law.

Sabbir Hossain Rhythm

Sabbir Hossain Rhythm

Sabbir Hossain Rhythm is currently studying LLM at University of Dhaka. He is serving as a Managing Editor of the Bangladesh Law Digest (BDLD).
Sabbir Hossain Rhythm
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