Mobile courts being operated on pretext of pending hearing

The government is running mobile courts across the country by executive magistrates who do not have any connection with the law. They neither have any academic background in law, nor do they have the necessary training. Despite the lacking, ‘illegal’ operation of mobile courts is going on unabatedly countrywide year after year as the much-awaited hearing related to mobile court operation is pending for the last seven years.

However, through an amendment of the Mobile Court Operation Act 2009, provision has been made to punish the accused taking into account the witnesses and circumstances, even if the accused does not plead guilty. Legal experts have criticised this as unconstitutional.

On May 11, 2017, the High Court declared that 11 sections and sub-sections of the Mobile Court Operation Act 2009 Act are illegal. At the same time, the court also declared the operation of mobile courts by executive magistrates illegal.

The verdict delivered by Justice Mainul Islam Chowdhury and Justice Ashish Ranjan Das said, “Giving judicial powers to executive magistrates and district magistrates is a violation of the constitution and an attack on the independence of the judiciary. It is also against the principle of separation of powers. All the members of the Public Service Commission including the executive magistrate and the district magistrate are administrative executives. As an executive officer, they cannot exercise the sovereign judicial power of the Republic.”

But when the state filed an appeal challenging this judgment, the Appellate Division accepted it and stayed the High Court verdict. And based on that stay order, the mobile court is still running. Hearing on the appeal has not been conducted fully during almost seven years.

On the night of March 14, 2020, online news portal Bangla Tribune's Kurigram correspondent Ariful Islam Reagan was picked up at night from home and sentenced to one year of imprisonment by the mobile court. Without the police, the district administration officials broke open the door and entered Ariful's house with Ansar personnel. Then they started beating him. Later, allegations were raised that Ariful was brought to the district administration office where he was tortured brutally being undressed. However, those involved in conducting the mobile court including the then DC of the district had to be punished in this incident.

Recently, journalist Shafiuzzaman Rana applied for information about various projects of Nakla upazila under the Right to Information Act. As a result, on March 5, a mobile court sentenced him to six months of imprisonment and he was finally sent to jail.

Later, allegations of abuse of power and law were raised against Nakla Upazila Nirbahi Officer (UNO) Sadia Ummul Banin and Assistant Commissioner (Land) Md Shihabul Arif. Journalist Rana's family filed a complaint against UNO and AC (Land) for misuse of mobile court law. Sources in the Ministry of Public Administration said that the process in which journalist Rana was sentenced was not proper. This has created a negative perception in the public mind about mobile courts.Because of this both UNO and AC (Land) will be withdrawn soon. Besides, a departmental case will be filed against both of them.

In 2007, after the judicial department was separated from the executive department, the operation of the mobile court by the executive magistrate was also cancelled. In the same year, the army-backed caretaker government promulgated the Mobile Courts Act through an ordinance. After Awami League came to power in 2009, the ordinance got cancelled as it was not passed in the parliament.

On August 20, 2019, Chief Judicial Magistrate of Chattogram Kamrun Nahar issued an order warning the officer-in-charges of all police stations in the district. In the order, she mentioned, “The OCs are presenting the detained accused before the concerned upazila executive magistrate, UNO or AC (Land), instead of handing them over to the regular court. The executive magistrates are illegally sentencing the accused violating the provisions of the Mobile Courts Act-2009, which is a clear violation of the constitution and other existing laws of the country.

Barrister Hasan MS Azim, the lawyer who filed a writ seeking cancellation of the mobile court, told Views Bangladesh, "If the government wants to operate mobile court as per the High Court's verdict, it should amend the law and empower the judicial magistrate to conduct mobile court. Mobile court should be cancelled not because it is being misused; it is against the basic principles of the constitution. No one outside the judiciary should be empowered to judge. Executive Magistrates are not judges. The constitution says that the judiciary should be separate and independent. The mobile court magistrates cannot remain neutral because they serve the administration. The job of the police is not to judge. Those who become executive magistrates have not read the law. They have no training. As a result, we are witnessing the abuse of power through the misuse of mobile courts.”

“The state has appealed against the verdict of the High Court canceling the mobile court. In response, the Appellate Division stayed the High Court verdict through an interim order. But the much awaited hearing has not started even in the last seven years. The state is intentionally dilly-dallying the full hearing in order to continue the operation of mobile courts,” he added.

Yusuf Hussain Humayun, a senior lawyer of the Supreme Court, said, "Article 109 of the Constitution states that the High Court will control the subordinate courts. Subordinate Courts means those who exercise the magistracy. In that sense, the responsibility of monitoring or supervising the activities of the executive magistrates falls upon the High Court. But at present, the public administration ministry is doing it and unfortunately, they are not doing it responsibly. The Constitution did not empower the public administration ministry with the responsibility to judge. The Constitution has specifically given the responsibility of controlling the magistracy to the Supreme Court.”

Eminent Supreme Court lawyer Barrister Manzil Morshed told the Views Bangladesh, “Without justice there will be no peace in the society, but intimidation will not do justice. Mobile court's philosophy of instant trial is actually a philosophy of intimidation. The attempt to popularise the devices of intimidation is suicidal.”

He said, “We definitely want speedy trial. The mobile courts conducted by the High Court will give instant judgments in limited cases. But they will judge as per the existing laws of the country. It has to be proved that speedy trial is possible even under the existing laws of the country.”