The enactment of the Mobile Courts Act in 2009 aimed to enhance the effectiveness and efficiency of law enforcement and crime prevention efforts. Nevertheless, due to various structural and practical obstacles, the Act’s credibility has been called into question and it has largely fallen short of achieving its intended goals. One particular concern lies in Section 5 of the Act, which assigns executive magistrates the judicial responsibility of Mobile Courts. This arrangement does not align with the principles of separation of powers and judicial independence enshrined in the Constitution of Bangladesh.
In 2007, after the separation of the subordinate courts from the executive organ of the state, the provision of ‘mobile courts’ was enacted through an ordinance, but the ordinance was not passed by the parliament after the elected government came to power, and thus the said ordinance became void. In 2009, a new law was enacted to operate mobile courts. But there was no change in the delegation of power. Where the Constitution separates the Judiciary from the Executive and vests judicial powers in the Judiciary, it is unconstitutional to confer judicial powers and the power to impose penalties on the executive magistrates. After filing two writ petitions in 2011 and one in 2012, the High Court Division ruled on the government and after a lengthy hearing, on 11 May 2017, declared Section 9 of the Mobile Courts Act 2009 and related sub-sections as invalid. In its verdict, the court said that, sections 5, 6 (1, 2, 4), 7, 8 (1), 9, 10, 11, 13 and 15 of the Mobile Court Act are inconsistent with the Constitution and the sections are in contravention of the two basic structures relating to the independence of the judiciary and the three organs of the state (Executive, Legislature and Judiciary). However, to avoid unwanted complications and controversies, the court dismissed all the orders, sentences and sentences given by the mobile court except for these three writs which were challenged in the high court as past consideration.
The judgment in Mazdar Hossain case clearly states that the administrative executives engaged in mobile courts cannot exercise the judicial powers of the republic. According to Section 15 of the Act, the Government has the power to amend the schedule of the Act from time to time, but the power to amend any law rests mainly upon the Parliament. It is not rational that why the government has been given this power through this Act. This section certainly violates the concept of separation of powers which is part of the basic structure of our Constitution. Regarding the supremacy of the Constitution, article 7(2) of the Constitution states that “This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void”. Since 9 sections of this Act and related sub-sections are inconsistent with the Constitution, the High Court Division has given judgment by voiding these sections. The government appealed against the judgement of the High Court Division to the Appellate Division of the Supreme Court, where the Appellate Division stayed the judgment of the High Court Division and the mobile court can continue its operations pending disposal of the appeal. Which conflicts with the basic structure of the Constitution and has created a frightening situation for the common people. But in 2018 the hearing began in the Appellate Division that brought some relief to the common people. In the first appeal hearing, a 5-judge bench headed by Acting Chief Justice Md. Abdul Wahab Mia, criticized the way the mobile courts are run by the executive magistrates. In a 2011 case where an accused was sentenced to 1 month imprisonment by the Executive Magistrate and an appeal and revision petition was filed before the Additional District Magistrate, and Special Sessions Judge respectively regarding the validity of the sentence, but unfortunately, it did not see the light of justice. Although this penalty is illegal in all respects. However, as per Section 6(1) of the Mobile Courts Act 2009, this imposition is also illegal. According to Section 6(1), the Executive Magistrate under Section 5 or the District Magistrate empowered under Section 11 while conducting law and order maintenance and crime prevention activities or in simple words while operating mobile court, the empowered magistrate can take cognizance and give punishment for any offence, which is defined in the schedule of the Mobile court Act 2009, took place in front of him/her. However, the Executive Magistrate in the said case did not follow this provision. When an application was made to the High Court Division to quash the decision of the mobile court in the said case, the High Court quashed the judgment on March 1, 2023. Those who run these mobile courts may not properly apply the law and cannot be assured that the common people will get adequate access to justice. A question of competency still remains unresolved. There are concerns over the perception and attitude of the mobile court judges on law and justice in a given society. Being directly under the administrative influence, they may not play their role without favour and fervour. This is, however, necessary to establish the rule of law in the overall justice delivery system of the country. Whether the functioning of the Mobile Courts is legal or illegal is yet to be resolved by the Appellate Division of the Supreme Court. We are hopeful that the apex court of the country, the guardian of the Constitution, will definitely take these issues into consideration.
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