Admin Officials’ Judicial Power: 11 years on, petition still pending
The High Court is yet to dispose of an 11-year-old writ petition that challenged the legality of empowering administrative officials to perform judicial functions.
Since the petition was filed in November 2009, arguments on the public interest issue took place once before an HC bench in 2015. But the disposal of the case has been delayed due to change of hearing jurisdiction of its judges concerned, according to the petitioner's lawyer.
The legal debate ensued after parliament passed the CrPC (Amendment) Act, 2009, on April 7, 2009, incorporating the rules that allowed the government to empower executive magistrates to take cognisance of offences. The government issued a gazette notification on the act on April 8.
Human Rights and Peace for Bangladesh filed the petition on November 12, 2009, seeking a directive from the HC upon the government to cancel the amended Criminal Procedure Code (CrPC) rules.
The petition stated that as per sections 145 and 147 of the amended CrPC, the executive magistrate decides issues of possession, grants ad-interim injunction, appoints receiver, restores possessions and grants permanent injunction until the cases are settled by the courts of the judicial magistrate -- which are judicial powers.
In response to the petition, the HC bench of Justice Syed Refaat Ahmed and Justice Moyeenul Islam Chowdhury on November 14, 2009, issued a rule asking the government to explain why the amended CrPC rules giving judicial powers to executive magistrates should not be declared illegal.
The next hearing on the petition took place in April 2015, when counsels for the petitioner and the state, and two amici curiae (friends of the court) -- Dr Kamal Hossain and Ajmalul Hossain -- had placed their arguments before the HC bench of Justice Moyeenul Islam Chowdhury and Justice Md Ashraful Kamal.
Justice Moyeenul retired on January 8 this year.
During the hearing, both Dr Kamal and Barrister Ajmalul told the HC that executive magistrates performing judicial functions was not lawful.
Opposing the petition, State counsel and the then deputy attorney general Motaher Hossain Sazu said 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.
But after that no hearing has so far taken place, writ petitioner's counsel, advocate Manzill Murshid, told The Daily Star last week.
He said two other amici curiae -- M Amir-Ul Islam and Rokanuddin Mahmud -- were scheduled to place their arguments before the HC on resumption of the proceedings.
"The hearing jurisdiction of three High Court benches had been reconstituted by the then chief justice before the bench led by Justice Moyeenul heard in part the same writ petition in April 2015. We will now place the case before another High Court bench for its hearing and disposal," the lawyer told The Daily Star on November 25.
He could not give details about the three HC benches which had been scheduled to hold a final hearing on the matter and when their hearing jurisdiction was changed.
Manzill Murshid said they would take necessary steps for holding of the hearing before a High Court bench in January or February next year, subject to the ongoing Covid-19 pandemic being over by then.
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 judgment in the Masdar Hossain case, popularly known as the Judiciary Separation Case, he added.
Contacted yesterday, Attorney General AM Amin Uddin, who was appointed on October 8 this year, said he could not make any comment about the case, as he had no information about it at that moment.
Comments