The High Court has declared unconstitutional the rules under which executive magistrates run mobile courts.

Delivering a verdict on three writ petitions, the HC has observed that empowering executive magistrates with judicial powers is “a frontal attack on the independence of the judiciary and is violative of the theory of separation of powers”.

The HC judgment means that executive magistrates now can't run mobile courts empowered to try a number of offences, including illegal assembly, public nuisance, illegal connection of electricity, water and gas, and cheating at examination centres.

It, however, said mobile courts can be run by judicial or metropolitan magistrates.

“The mobile court is a fast-track court. In the social context of Bangladesh and in order to facilitate access to justice at the grassroots level, fast-track courts like mobile courts are an impressive necessity. This type of fast-track courts may prove to be an effective tool in curbing the rising wave of crime in the country,” the court said in the verdict on Thursday.

The HC declared unconstitutional 11 sections of the Mobile Court Act 2009 regarding empowerment of executive magistrates and the process of running mobile courts, their powers to convict and sentence offenders, district magistrates' powers to run mobile courts, the provision of appeal against mobile court orders and government powers to amend the schedule of the act.

“It is hereby declared that sections 5, 6(1), 6(2), 6(4), 7, 8(1), 9, 10, 11, 13 and 15 of the [mobile court] Ain [act] No 59 of 2009 are ultra vires the constitution and violative of two basic structures of the constitution, namely, independence of the judiciary and separation of powers between the three organs of the state, namely, the executive, the legislature and the judiciary,” the HC ruled.

The bench of Justice Moyeenul Islam Chowdhury and Justice Ashish Ranjan Das, however, condoned all the convictions and sentences delivered by mobile courts, except for the ones challenged at higher courts.

“However, in order to avoid unwarranted complications, controversies and legal niceties, all orders of convictions and sentences passed by the mobile courts of Bangladesh under the Ain No 59 of 2009 are hereby condoned as being past and closed transactions excepting those which have been challenged in higher courts which will be subject to their decisions.”

The HC bench also directed the authorities concerned to refund Tk 10 lakh to M Mojibur Rahman, who was fined by a mobile court in 2011, within 90 days.

“By investing the executive magistrates and the district magistrates with judicial power of the republic by Sections 5, 6(1), 6(2), 6(4), 7, 8(1), 9, 10, 11 and 13 of the Ain No 59 of 2009, the legislature has contravened the constitution and this contravention is a frontal attack on the independence of the judiciary and is violative of the theory of separation of powers.”

The HC said all members of 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 the judgment of Masdar Hossain's case, it pointed out.

“In facts and circumstances of the present case, we opine that the provisions of Sections 5, 6(1), 6(2), 6(4), 7, 8(1), 9, 10, 11 and 13 of the Ain No 59 of 2009 are colourable provisions and are intended to nullify the implication of the judgment of the Appellate Division in the judgment of Masdar Hossain's case.”

These sections are “directly in conflict with the spirit of the judgment” in the Masdar Hossain case, it observed.

On Section-15 of the Mobile Court Act, the HC said, “It is really astounding to note that the parliament has delegated its plenary power of amendment of the schedule of the Ain No 59 of 2009 in favour of the government under Section 15.

“In this connection, it may be pointed out that the parliament may delegate the power of making subordinate or subsidiary legislations in favour of the government or any other instrumentality; but the parliament cannot delegate its plenary power of amendment of the parent statute that is to say, the Ain No 59 of 2009 in favour of the government.

“By delegating the power of amendment of the schedule of the Ain No 59 of 2009 by virtue of Section-15, the parliament has undoubtedly infringed upon the doctrine of separation of powers which is one of basic structures of the constitution,” the HC noted.

“It goes without saying that the schedule of an act of parliament is its integral part. It does not stand to reason and logic as to why and how the government has been empowered to amend the schedule of the Ain No 59 of 2009 by any notification in the official gazette. The power of amendment of any statute is the plenary power of parliament.”

Referring to Section-11 (4) of the Code of Criminal Procedure, 1898, it said the government may require an executive magistrate to perform the functions of a judicial magistrate for a period to be determined in consultation with the HC. And during that period, the magistrate would not perform the functions of an executive magistrate.

“This provision embodied in Sub-Section (4) of Section 11 of the Code of Criminal Procedure is in the nature of an exception. The essence of this provision is that an executive magistrate may be empowered to perform the functions of a judicial magistrate for a limited period to be determined in consultation with the High Court Division of the Bangladesh Supreme Court,” said the HC.

Talking to The Daily Star, writ petitioners' lawyer Hassan MS Azim said the mobile courts cannot be run by executive magistrates following the HC verdict.

“Law enforcement agencies can deal with law and order issues and produce offenders before courts for trial. There will not be any problem in maintaining law and order in the country just because executive magistrates cannot operate mobile courts any more,” he mentioned.

Deputy Attorney General Motaher Hossain Sazu said the government would move an appeal before the SC, challenging the HC verdict.

Between 2011 and 2012, 19 people, including Aesthetic Properties Development Limited Chairman Kamruzzaman Khan, filed the three petitions. The HC issued separate rules questioning the legality of some provisions of the Mobile Court Act during that period.

On September 14, 2011, a mobile court sentenced Kamruzzaman to 30 days' imprisonment on charges of violating some provisions of the law on building construction. He got released from prison on bail on September 20 that year.

He filed a writ petition with the HC the following month, challenging the legality of some provisions of the Mobile Court Act.

Another writ petition was filed by Mojibur Rahman, owner of a multi-storey building in the capital, in December 2011. A mobile court convicted and fined him Tk 10 lakh on September 13 that year on charges of violating the building construction law.

He lodged the petition, challenging some provisions of the act and seeking refund of the fine.

The third writ petition was filed by 17 bakery owners, including Md Saifullah in Dinajpur, in May 2012. It sought HC directives on the government to formulate guidelines for ensuring that mobile courts have food experts and necessary equipment during drives against food adulteration.