In 2017 the High Court Division (hereinafter HCD) declared mobile courts led by executive magistrates as illegal holding that it is ‘a frontal attack on the independence of the judiciary and is violative of the theory of separation of power.’ However, the judgment has, since then, been stayed by the Appellate Division (hereinafter AD). Meanwhile the rampant sentencing of mobile courts has gone on. Recently in a suo motu rule the HCD nullified a number of sentences imposed by the mobile court under which some 121 children were detained in Child Detention Centres (CDC). This is an important decision where the court took a proactive role to free the children detained via illegal sentences. This decision has also brought forth some important legal questions regarding the jurisdiction of mobile courts.
The mobile court prosecuted several child offenders around the city under different sections of the Narcotics Control Act, 2018 (Narcotics Act) and the Penal Code, 1860. In total, 121 children were detained in CDC, some of whom were less than 12 years old. This incident was reported in a newspaper which was referred to the HCD by Advocate Abdul Halim. The court then issued a suo motu rule against the executive magistrates asking why these sentences would not be declared illegal. Following the issuance of rule the court asked the authority to immediately release the children under 12 years. The rest of the children were granted bail for six months on the satisfaction of the children court. Later in an eloquent judgment Justice Sheikh Hasan Arif made the rule absolute.
The court began the judgment by shedding light on the limitation of the mobile court’s jurisdiction as provided in section 6 of the Mobile Court Act, 2009. Some children were sentenced under section 44 and 45 of the Narcotics Act. According to section 6 of the Mobile Court Act, 2009, the mobile courts have jurisdiction to try only those offences over which the judicial magistrate and metropolitan magistrate have jurisdiction. Offences under sections 44 and 45 are triable by a special tribunal presided by a sessions judge. The respondent, however, relied on section 57 of the Narcotics Act which states that all offences under this act can be tried by the mobile court. The court opined that this section is limited by section 6 of the Mobile Court Act, 2009 from which mobile court derives its jurisdiction. It also stated that the sentences were clear violations of article 31 of the constitution which provides the right to be ‘treated in accordance with law, and only in accordance with law.’
The court also reflected on the procedural requirements that mobile courts need to adhere to while passing sentences. Section 7 of the Mobile Court Act, 2009 has provided some procedures to hold the trial. An executive magistrate has to see the offence being committed, detain the offender, write their names, take cognizance, record complaint, write charge, read over the charge, record confessions, take signature etc. However, the record showed that in one case the magistrate performed all of these duties in approximately 21 minutes and sentenced 11 children under section 356 of the Penal Code, 1860. According to the court, it was ‘humanly impossible.’ Therefore, the court concluded that the procedures under section 7 were not followed in these cases. The court also criticized what some people glorify as ‘instant justice system’ which sounds attractive but, in reality, deprives people of their ‘right to have public trial, to engage lawyers of their choice, right to be treated in accordance with law and only in accordance with law.’
Another issue that came up in this case was the applicability of the Children Act, 2013 in cases of offences under the Narcotics Act. Chapter V of the Children Act, 2013 dictates that child offenders will be prosecuted by a special court. Section 52 of the Narcotics Act also reiterates the applicability of the Children Act, 2013. However, section 57 of the Narcotics Act says that irrespective of anything said in this act, mobile courts will have jurisdiction to prosecute any offence under this act. The court held that Mobile Court Act, 2009 does not provide the executive magistrate with the power to conduct trials of children and that Children Act, 2013 being the subsequent special law would override the provision of Mobile Court Act, 2009. Moreover, the mobile court sentenced some children who were under 12 years old. Section 83 of the Penal Code, 1860 says that children under 12 years have to attain sufficient maturity of understanding for committing any offence. The record did not state that the executive magistrate attempted to determine such maturity in children below 12 years old. Therefore, it was a clear violation of the right to be treated in accordance with law as provided by article 31 of the constitution.
Lastly, the court deliberated upon the inherent flaws of the mobile courts run by executive magistrates. Executive magistrates take the role of prosecutor, investigator and judge. It goes against the very basic principle of natural justice which says that no one should be the judge in his own cause. Moreover, the summary procedure mentioned in section 6 of the Mobile Court Act, 2009 does not provide for any legal assistance which violates the ‘right to consult and be defended by a legal practitioner of his choice’ as provided under article 33 of the constitution. The procedure mentioned in section 6 also lacks the adequate safeguards against forced confession which is a violation of article 35 of the constitution that says, ‘no person accused of any offence shall be compelled to be a witness against himself.’
The court has done a commendable job by nullifying the convictions and sentences and setting the children free. However, there was scope to do more. In a glaring instance of violation of fundamental rights like this, the court’s jurisdiction regarding the form of remedy is not limited. The recent trend of providing compensation to petitioners under the constitutional tort principle could have been applied here. Article 102(1) of the constitution grants HCD the power to give ‘directions or orders as may be appropriate.’ ‘In a case of clear and blatant violation of fundamental rights involving life or liberty of the citizens caused by the State machineries’, the court can award for compensation (see CCB Foundation v Government of Bangladesh (2017) 5 CLR (HCD) 278). It is not necessary in such cases that the petitioner has to specifically ask for compensation. The court can issue compensation order suo motu in glaring instances of violation of fundamental rights (see BLAST v Bangladesh (2003) 55 DLR (HCD) 363 for details). Moreover, the court was silent about taking any step against the executive magistrates who performed the illegality. As a result of such inaction, similar incidents will continue to take place. In fact, on 14 March, just three days after issuance of this judgment, a mobile court sentenced a journalist to one year in jail for possession of liquor after raiding his home in middle of the night. Therefore, this judgment has only a palliative effect and not a curative one.
Unfortunately, following an appeal filed by the government this judgment has been stayed by the AD. Despite the stay order, the release of the children aged between 6 to 12 years will continue to be effective. However, the children aged between 12 to 18 years can still be prosecuted by the mobile court. Unless the AD takes a proactive role, this judgment might experience the same fate as the judgment of 2017 which never came to AD’s cause list in the last three years.
Mobile courts run by executive magistrates is undoubtedly an antithesis to the separation of power. It’s a cancerous development militating against the true implementation of the verdict of Masdar Hossain case (52 DLR (AD) 82). The executive magistrates do not have a formal legal education and are not familiar with judicial norms. People are being affected by their abuse of power on a regular basis. Only a small number of these affected people are fortunate enough to get the remedy from the Supreme Court of Bangladesh. In such a situation, as the guardian of the constitution the AD should immediately hear all the appeals regarding the mobile courts’ abuse of power and finally adjudge this issue once and for all.