Judicial powers of executive, district magistrates

It’s frontal attack on judiciary independence: HC

Full text of verdict on mobile courts

The High Court (HC) has released the full text of its verdict that declared mobile courts illegal and contradictory to the Constitution. 
The 64-page full text was released on Tuesday after Justice Moyeenul Islam Chowdhury and Justice Ashish Ranjan Das signed the copy of the verdict. 
The HC delivered the verdict on May 11, following three separate writ petitions challenging the legality of mobile courts.  
Later, the Appellate Division of the Supreme Court (SC) stayed the HC order till July 2. The stay order has allowed the functioning of mobile courts until then.
In its verdict, the HC bench emphasised that the legislature has contravened the Constitution by giving executive and district magistrates judicial powers of the republic through Ain No. 59 of 2009. 
“This contravention is a frontal attack on the independence of the judiciary and violates the theory of separation of powers. All members of the Bangladesh civil service (administration) cadre, including executive magistrates and district magistrates, are administrative executives. As administrative executives, they cannot exercise the sovereign judicial power of the republic, which has been spelt out by the Appellate Division in its verdict in the Masdar Hossain case,” it said.
“We are not opposed to the concept of mobile courts. Rather we support the initiative. These are undoubtedly fast-track courts. In the social context of Bangladesh and in order to facilitate access to justice at the grassroots level, fast-track courts are a necessity. Such courts may prove to be an effective tool in curbing the rising wave of crime in the country,” it added.
But the running of mobile courts by executive magistrates under Ain No. 59 of 2009 is not in accordance with the provisions of the Constitution, the judges observed. They went on to describe the system as a “vicious blow to the rule of law and constitutionalism in the country”.

In short, the HC said mobile courts run by executive magistrates are “coram non judice” and hence deserves to be struck down.
It also said mobile courts, if any, must be manned by judicial magistrates or metropolitan magistrates, the verdict stressed. In other words, they must be manned by members of the Bangladesh Judicial Service. Such an arrangement would make mobile courts conform to the Constitution and the judgment passed by the Appellate Division in the Masdar Hossain case, the HC noted. 
The HC verdict also said that the manning of mobile courts by executive magistrates or district magistrates and the disposal of appeals arising from orders of convictions and sentences passed by such courts were “dehors” the Constitution and the law laid down by the Appellate Division in the Masdar Hossain case. 
The judges said they “found that Sections 5, 6(1), 6(2), 6(4), 7, 8(1), 9, 10, 11, 13 and 15 of the Ain No. 59 of 2009 are ultra vires the Constitution”.
As a result, all orders of convictions and sentences passed by mobile courts have been declared to be without any lawful authority and of no legal effect. The respondents have been, therefore, directed to refund the amounts taken from the petitioners within 90 days of receiving the copy of the verdict.
However, to avoid complications and controversies, the HC said all orders of convictions and sentences passed by mobile courts under Ain No. 59 of 2009 are “hereby condoned as being past and closed transactions excepting those which have been challenged in higher courts and will be subject to their decisions”.

Judicial powers of executive, district magistrates

Its frontal attack on judiciary independence: HC

Full text of verdict on mobile courts

The High Court (HC) has released the full text of its verdict that declared mobile courts illegal and contradictory to the Constitution. The 64-page full text was released on Tuesday after Justice Moyeenul Islam Chowdhury and Justice Ashish Ranjan Das signed the copy of the verdict. The HC delivered the verdict on May 11, following three separate writ petitions challenging the legality of mobile courts. Later, the Appellate Division of the Supreme Court (SC) stayed the HC order till July 2. The stay order has allowed the functioning of mobile courts until then. In its verdict, the HC bench emphasised that the legislature has contravened the Constitution by giving executive and district magistrates judicial powers of the republic through Ain No. 59 of 2009. This contravention is a frontal attack on the independence of the judiciary and violates the theory of separation of powers. All members of the Bangladesh civil service (administration) cadre, including executive magistrates and district magistrates, are administrative executives. As administrative executives, they cannot exercise the sovereign judicial power of the republic, which has been spelt out by the Appellate Division in its verdict in the Masdar Hossain case, it said. We are not opposed to the concept of mobile courts. Rather we support the initiative. These are undoubtedly fast-track courts. In the social context of Bangladesh and in order to facilitate access to justice at the grassroots level, fast-track courts are a necessity. Such courts may prove to be an effective tool in curbing the rising wave of crime in the country, it added. But the running of mobile courts by executive magistrates under Ain No. 59of 2009 is not in accordance with the provisions of the Constitution, the judges observed. They went on to describe the system as a vicious blow to the rule of law and constitutionalism in the country. In short, the HC said mobile courts run by executive magistrates are coram non judice and hence deserves to be struck down. It also said mobile courts, if any, must be manned by judicial magistrates or metropolitan magistrates, the verdict stressed. In other words, they must be manned by members of the Bangladesh Judicial Service. Such an arrangement would make mobile courts conform to the Constitution and the judgment passed by the Appellate Division in the Masdar Hossain case, the HC noted. The HC verdict also said that the manning of mobile courts by executive magistrates or district magistrates and the disposal of appeals arising from orders of convictions and sentences passed by such courts were dehors the Constitution and the law laid down by the Appellate Division in the Masdar Hossain case. The judges said they found that Sections 5, 6(1), 6(2), 6(4), 7, 8(1), 9, 10, 11, 13 and 15 of the Ain No. 59 of 2009 are ultra vires the Constitution. As a result, all orders of convictions and sentences passed by mobile courts have been declared to be without any lawful authority and of no legal effect. The respondents have been, therefore, directed to refund the amounts taken from the petitioners within 90 days of receiving the copy of the verdict. However, to avoid complications and controversies, the HC said all orders of convictions and sentences passed by mobile courts under Ain No. 59 of 2009 are hereby condoned as being past and closed transactions excepting those which have been challenged in higher courts and will be subject to their decisions.