The Mobile Courts Act of 2009 was introduced with the intent of strengthening the legal framework for efficient law enforcement and crime prevention. While it aimed to expedite justice for minor offenses, its implementation has raised significant constitutional and practical concerns, particularly regarding the separation of powers and judicial independence enshrined in the Constitution of Bangladesh.
Key Concerns with the Mobile Courts Act
- Judicial Powers for Executive Magistrates:
- Section 5 of the Act delegates judicial powers to executive magistrates, enabling them to conduct summary trials.
- This delegation contradicts the constitutional principle of separating the Judiciary from the Executive, a cornerstone of judicial independence.
- Historical Context and Legal Challenges:
- Following the 2007 separation of subordinate courts from the executive branch, the Mobile Courts were initially established under an ordinance. However, this ordinance lapsed as it was not ratified by Parliament.
- The 2009 Act reinstated Mobile Courts with no substantial changes, retaining provisions that permit executive magistrates to exercise judicial authority.
- High Court Ruling on Constitutionality:
- In response to writ petitions filed in 2011 and 2012, the High Court Division declared nine sections of the Act, including Section 9, unconstitutional in 2017.
- These provisions were found to violate the Constitution’s basic structure, particularly Article 22 (separation of powers) and Article 7(2) (supremacy of the Constitution).
- Appellate Division Stay and Public Implications:
- The government appealed the High Court’s decision, prompting the Appellate Division to stay the ruling. This allowed Mobile Courts to continue operating, creating legal uncertainty and raising concerns about potential misuse of power.
Issues with Implementation and Justice Delivery
- Competency and Fairness:
- Questions persist about the legal competency and impartiality of executive magistrates. Their dual administrative and judicial roles may undermine the rule of law and public trust.
- A 2011 case exemplified this issue, where a magistrate’s sentencing of an accused was later overturned by the High Court for being procedurally and substantively flawed.
- Risk of Administrative Influence:
- Operating under the executive branch, magistrates may face pressure to act in favor of administrative interests, compromising their judicial objectivity.
- Access to Justice:
- Many Mobile Court rulings lack procedural rigor, leaving individuals, particularly marginalized groups, vulnerable to unjust decisions.
Critical Observations from the Judiciary
During the Appellate Division’s initial hearing in 2018, the bench, led by Acting Chief Justice Md. Abdul Wahab Mia, criticized the functioning of Mobile Courts. The court highlighted instances of procedural irregularities, including magistrates imposing punishments without proper legal basis under Section 6(1) of the Act.
Constitutional Conflict and the Way Forward
The Constitution of Bangladesh clearly mandates the separation of powers. Article 7(2) establishes that any law inconsistent with the Constitution is void. By granting executive magistrates judicial authority, the Mobile Courts Act infringes upon this principle, undermining the independence of the Judiciary.
To address this issue, the Appellate Division must deliver a final verdict that resolves ambiguities and ensures the protection of constitutional principles. Reforming the Mobile Courts Act to align with the Constitution and enhance procedural safeguards could help restore public trust in the system.
Bangladesh’s Perspective on Rule of Law
The Mobile Courts Act serves as a litmus test for the country’s commitment to upholding the rule of law. While swift justice is essential, it must not come at the expense of constitutional principles or public confidence in the judiciary. The ongoing judicial review is an opportunity to reinforce these values and set a precedent for governance rooted in constitutional supremacy.
Conclusion
The Supreme Court’s intervention in the legality of Mobile Courts highlights critical issues of governance, judicial independence, and access to justice. A balanced resolution will require careful consideration of constitutional mandates and practical realities. As the guardian of the Constitution, the apex court must ensure that justice delivery mechanisms, including Mobile Courts, operate within the bounds of law and fairness.