HC judgment soon on executive magistracy

The High Court is likely to deliver a final decision on the legality of empowering administrative officials to perform judicial functions this month, as it is about to finish hearing arguments on the seven-year-old relevant writ petition.

In response to the petition, the HC on November 15, 2009, issued a rule asking the government to explain as to why the amended rules of the Criminal Procedure Code (CrPC) giving judicial powers to executive magistrates should not be declared illegal.

Counsels for the petitioner and the state, and two amici curiae (friends of the court) -- Dr Kamal Hossain and Ajmalul Hossain -- had already placed their arguments before the HC on the petition in April last year.

Other two amici curiae -- M Amir-Ul Islam and Rokanuddin Mahmud -- may place arguments before the same court any day, petitioner's counsel Manzill Murshid told The Daily Star yesterday.

He said the bench of Justice Moyeenul Islam Chowdhury and Justice Md Ashraful Kamal is expected to deliver a judgment on the petition after concluding hearing arguments this month.

Jurisdiction of this bench has to be restored through the chief justice for concluding the hearing and delivering the judgement on this case, as its powers have been changed, Manzill said.

He said Chief Justice Surendra Kumar Sinha has the authority to restore the jurisdiction of the bench for disposal of the petition.

Both Dr Kamal Hossain and Ajmalul Hossain had told the HC that performing judicial functions by the executive magistrates was not lawful, he added.

Deputy Attorney General Motaher Hossain Sazu opposed the writ petition, saying the executive magistrates have been given the powers to take cognisance of some offences for the time being to protect peace in the areas concerned.

Three HC benches had been scheduled to hold final hearing of the petition for its disposal at different times earlier, but they could not do that due to reconstitutions of their jurisdictions.

The parliament passed the CrPC (Amendment) Act, 2009, on April 7, 2009, incorporating the rules that allowed the government discretion to empower executive magistrates to take cognisance of offences, and the government issued a gazette notification on the act on April 8 the same year.

Human Rights and Peace for Bangladesh on November 15, 2009, filed the writ petition as public interest litigation, seeking a directive from the HC upon the government to cancel the amended CrPC rules.

The petition stated that as per sections 145 to 147 of the amended CrPC, the executive magistrate decides issues of possession, grants ad-interim injunction, appoints receiver, restores possessions and grants permanent injunction in the cases until the cases are settled by the courts of the judicial magistrate, which are judicial powers.

The amended CrPC rules, which empowered the executive magistrates to discharge judicial functions, are against the provisions of the constitution and the principles of the Supreme Court judgement in Masdar Hossain case, popularly known as Judiciary Separation Case, it said.