Mobile courts and independence of judiciary

It ensures equal protection of law. In a situation where one of the parties to litigation belongs to a poor and deprived section of the community, and does not possess adequate social and material resources, is bound to be at a disadvantage as against a strong and powerful opponent under the century-old]justice system. The laws of most nations recognize the equal status of all people before the law, the presumption of their innocence (until proven guilty) and their right to legal representation.

The Mobile Court, created to save time, reduce legal and other expenses, goes to the place of offence and provides Justice speedily. Mobile Court is the best option today to get the lowest cost law services and fastest court Judgment. Developed countries are even considering introducing mobile phone SMS Law and Order coordination between lawyers, Judge and common masses, web page and technical solution systems. Mobile Internet Devices of proposed SMS law and Order programming through e-court will be a most advanced Justice delivery system at very low cost.

In 2007, Chief Justice of India inaugurated the mobile court as an endeavourer to make the Judicial system accessible to remote and backward areas and said, “People generally go to courts to get]justice but today with mobile courts, the courts will come to the people. ” Pakistan also amended Crap through the Code of Criminal Procedure (Amendment) Ordinance 2009. The provincial governments may appoint as many persons as it thinks fit to be magistrates of the first, second or third class in any district; and the sessions’ Judge.

According to Section 5, the presiding officer of the Mobile Court shall send a daily return to the Sessions Judge containing the details of each case along with names of persons, addresses and offences with punishments imposed or such other details as may be prescribed by the Sessions Judge. Mobile courts and independence of judiciary By insidious Supreme Court and mobile court trials by Judicial magistrates. The prime target is to ensure speedy and low cost trial and access to the Judiciary by moving from court room to common people and places of occurrence of crimes.

The executive magistrates have lost Judicial powers to try people for offences following separation of the Judiciary from the executive branch during the last caretaker government’s rule. In the face of strong demand from the administration cadres and revolt and showdown in BAM auditorium, the then caretaker government, however, promulgated an ordinance empowering the executive strategies to run mobile courts to maintain law and order. The elected government also unfortunately passed the Mobile Court Act 2009 giving Judicial authority to the administrative cadre officials.

The Mobile Court Act 2009 attributed Judicial powers to executive magistrates bypassing Judicial officers. The executive officers are empowered to punish offenders with imprisonment of up to two years along with monetary penalties during an instant trial without any proper investigation or representation by a lawyer, if the alleged accused confesses to a crime. An Executive Magistrate cannot regulate a dicta body. This goes against the spirit of the verdict of Mazda Hosing case. It is a complete violation of the supremacy of the Judiciary. It can be seen not as mere interference, rather as a plan to undermine the Judiciary.

The functioning of the mobile court is contingent on two events, firstly, any of the scheduled offences need to be committed or exposed at the presence of the Mobile Court; secondly, the accused must admit the guilt (Sec-6). The Mobile Courts work in the presence of the police and paramilitary forces (and media) that intimidate the alleged accused into confessing to crimes. There may be cases where an accused will not admit the guilt; or, his/her explanation in self-defense will not be convincing, in such situation the magistrate should send the accused to appropriate court to contest regular trial [Sec-7(4)].

The Schedule of the Mobile Court Act contains a list of near hundred statutes under which the offences are defined. It is empowered to take cognizance of the offences which are mentioned in the Schedule and are trial-able exclusively by the Judicial magistrate or metropolitan magistrate (Sec-6). Jurisdiction of the Mobile Court is limited and it can impose imprisonment for a term not exceeding two years and fine to the extent limited by the concerned statute (Sec-8). The magistrate is prosecutor and Judge. There is no protection or advice of lawyer for the suspect.

The provisions of the Mobile Court Act 2009 are contradictory to the protection of rights enshrined in the country’s constitution as well as provisions of the Evidence Actuate, notably Sections 24 to 30, and any notion of Justice. An independent Judiciary free from the influence of legislative and executive organs Bangladeshconstitution states: The State shall ensure the separation of the Judiciary from the executive organs of the State. Article 33 provides safeguards against arrest and detention. Bail is a mandatory provision, even for some cases of grievous offence, to ensure natural]justice .

However, bail is the name of an abstract dream to someone who is convicted instantly, on the spot, without adherence to definite rules of investigation, witness, examination, cross-examination and providing evidence. The accused can claim bail only at the stage of appeal and file pleas to this effect before the districts courts unconcerned. Moreover, Articles 35(3) and (4) of the Constitution provides the right to obtain fair and open trial by a competent forum and protection from providing evidence against himself.

But the sole means to punish the accused under mobile court law is if the accused testifies against himself, which makes it extra-constitutional. Another established principle of natural Justice is that every person shall have the right to defend himself before punishment and can appoint a lawyer to this end. However, in this case, the law has no provision of self-defense, which is a grave location of the general principles of law. Empowering the executive magistrates to hold trials of people for electoral offences through the promulgated mobile court ordinance during the last caretaker government goes against a Supreme Court opinion.

An individual might be sentenced up to seven years’ imprisonment for electoral offences, but the executive magistrates can sentence an individual to a maximum of two years’ imprisonment only. This has given dual authority to Judiciary and administration over single crime. Deputy Commissioners at a conference in July 2011 have sought amendment of retain sections, such as 260 and 265, of the Criminal Procedure Code (Crap) to allow the authorities to conduct summary trial for petty offences, like adulteration of food and water, and contain price hike of essential commodities.

According to the Criminal Procedure Clause-190, a magistrate cannot direct the mobile court. They demand Jurisdictions of executive magistrates to hold trials of cases for any offences and award imprisonment to an individual. They will hear the bail petition and have authority to hear the case up to investigation of police and anally handover case to Judiciary for trial. If so, there will be a parallel court contrary to separation of Judiciary and contrary to deconstruction and Judgment in Mazda Hosing case and go back to the era before the separation of Judiciary.

Asian Human Rights Commission in its 2009 report mentioned that Bangladesh government has made public announcements that the Judiciary would be separated from the executive and will function independently, including to the international in the UN Human Rights Council. However, the same government also amended the Code of Criminal Procedure in 2009 to allow “executive magistrates” to arbitrarily take over trials of any cases they deem fit, greatly undermining any notion of independence of the Judiciary, in particular concerning cases of human rights violations allegedly committed by the State.

On November 15, 2009, a division bench of the High Court Division of the Supreme Court of Bangladesh asked the government to explain in three weeks why the amendments of the Code of Criminal Procedure-1898, which were made on April 8, 2009, giving executive magistrates Judicial power to deal with cases relating to session of immovable property, should not be declared illegal.

The Court issued the rule to the President’s Secretariat, Prime Minister’s Office, Cabinet Division, Parliament and the Ministry of Law, Justice and Parliamentary Affairs, following a writ petition filed by a human rights organization. The recent use of Mobile Court against Hart activists sparked criticism by terming it as a kangaroo court which is subject to no legal norms. Main-O-Saliva Kenned (ASK), an MONGO, and opposition political parties have voiced concern over the indiscriminate rest and punishment of pro-hart activists by mobile courts.

The recent use of the act against political activists sparked protest but the act must be evaluated for ensuring low cost legal service to the common people. Moreover, the bureaucrats are now trying to take over all their lost Judicial power though the act using the loophole of employing administrative cadre as magistrate of the mobile court. The writer is a part time teacher at Leading University, and pursuing PhD in Open University of Malaysia. He can be reached at e-mail: [email protected] Com

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