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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 232
August 20, 2011

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Law In-depth

Mobile court: Beyond legitimacy

Mohammad Yusuf Ali

Mobile court, which is conducted mainly at the instance of the Executive Magistrates(Hereafter mentioned as EM), has been regularized through the Mobile Court Act, 2009 with a view to keeping law and order situation under control as well as preventing certain crimes effectively. In juxtaposition of its wide appreciation for combating some heinous social crimes like eve-teasing, food adulteration, drug addiction, child marriage(hundreds to follow); some quarters have been continuously criticizing it on the ground of its efficacy and legitimacy. This write up attempts to look into if the current system of mobile court is legitimate and efficacious.

As to legitimacy let us examine both the substantive and procedural aspects of the way mobile court are being conducted. Mobile court owes its legitimacy to the Mobile Court Act, 2009- an Act passed by the duly constituted parliament to cure the legitimacy crisis, if there be any, of the Mobile Court Ordinance, 2007 passed by the then caretaker or interim government. It is the plenary legislative (Article 65 of the constitution of Bangladesh) power of the parliament of Bangladesh by dint of which it enacted the law, and, this law is to be obeyed so long as it remains valid. This law can be invalidated either by the Parliament or by the High Court Division of the Supreme Court on the ground of unconstitutionality. Till date neither the parliament nor The HCD has declared it void. This environment ensures substantive legitimacy of the mobile court.

As to the method the Act, containing 17 sections, comes up with a detailed procedure so that the ends of natural justice can be satisfied. Now let us consider some provisions of the Act to have a better understanding of procedures involved in mobile court. Section 5 of the Act empowers District magistrate and Executive Magistrates to hold mobile court. According to section 6(1) of the Act, the magistrate can only try a person if the culpability falls under the offences specified in the schedule of the Act and if the magistrate catches him red-handed and if he confesses to his crime. Section 6 (3), (4) and (5) provides that if the offence is not incorporated in the laws in the schedule or if it is more grievous in nature, then the matter would be referred to the formal court and the mobile court will cease the authority to try the offence. In accordance with section 7(1), after taking cognizance, the magistrate will frame written charge against the offender and ask if he pleads guilty and, if the accused person refuses to confess, the magistrate asks for explanation. If such explanation seems to be satisfactory the EM may discharge him, otherwise the EM shall send the accused for formal trial in regular court. The magistrate can punish by imprisonment or fine or both if the accused person confesses. Otherwise, he cannot punish any individual under this Act. Section 8(1) of the Act puts a limitation that the mobile court cannot impose more than two years of imprisonment. As per the provision of section 13, an aggrieved person can prefer an appeal to the district magistrate against the decision of an executive magistrate and to the sessions judge against the decision of district magistrate-a system of double check should there be any apprehension of arbitrary use of power. One might ask the justification of punishing an offender merely on the basis of confession. In this connection recourse may be had to section 243 of Code of Criminal Procedure (Cr.P.C) -according to which now a judicial magistrate can punish an accused person on the basis of his pleading guilty at the of framing charge. So, the relevant provision of mobile court Act concurs with provision of Cr.P.C relating to punishment on the basis of confession at the time of charge framing. Hence it is established that the mobile court Act does not have any procedural defect either.

Not to be surprised that over the time there has grown a lot of institutions having some adjudicatory power besides the traditional judicial organ of the state. Village Court, Arbitration Council, Administrative Tribunal, Special Tribunals for armed personnel formed time to time, Court Martial etc. are some mentionable of them. Under the Village Court Act, 2006 the representative of union Parishad namely chairman along with representatives of the parties in dispute can decide some civil disputes and try some minor offences under the Penal Code, 1860. Programs are being taken to strengthen the Village Court to reduce the burden on the formal court system. The armed forces are being tried under the special laws; say, for example, under the Army Act, 1952. Administrative Tribunal, very often, settle disputes which are civil in nature e.g. disputes where the right to hold office is infringed. In fact, the system of administrative tribunal is ante-thesis to equality before law. However, it has been sustained by the states for smooth functioning of state machinery. To expedite the legal system states have taken lot of steps. For example, in England there is the provision of Lay Magistrates who hear a million cases. These Magistrates are mainly recruited from ordinary people and they need not to have any professional law degree. About 1500 Lay Magistrates are appointed every year in UK. In India executive magistracy retains considerable power. All such arrangements are not parallel rather complimentary to formal judicial system.

Very often law is country or society specific. Societal demands give birth to many special laws. Moreover, with the concept of welfare state gaining popularity, expectation from the government is increasing day by day. To accentuate the pace of development the government is obligated to maintain a sound law and order situation. In a country like Bangladesh where crime is going up with its newer forms and dimensions the effective prevention of crime is an acutely-felt issue. Hence, the scope of crime preventive measures has to be enlarged. In this regard what could be more worthy than Mobile Court!

The writer is Executive Magistrate, Office of the Deputy Commissioner, Sylhet.



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