Magistrates Running Mobile Courts: SC yet to decide if it’s legal
The Supreme Court's Appellate Division is yet to settle whether executive magistrates can operate mobile courts legally, although the issue has been pending with it for over three years.
The Appellate Division could not even start hearing government appeals against the High Court verdict that had declared unconstitutional the rules under which executive magistrates run the courts.
The HC scrapped the rules on May 11, 2017, after three writ petitions were filed challenging them.
The hearing was scheduled to take place two and a half years ago and the delay in holding it has halted the final settlement of the issue.
Neither the government nor the writ petitioners has taken any initiative for holding of the hearing. In the meantime, executive magistrates continue to operate mobile courts across the country following a stay order issued by the Appellate Division on the HC verdict.
Contacted, Additional Attorney General Momtaz Uddin Fakir told The Daily Star on Monday that the Appellate Division was now holding hearings, disposing cases and passing ad-interim orders virtually due to the ongoing Covid-19 pandemic.
In this situation, the apex court may not hold hearings on the appeals that challenged the HC judgement, he said.
Replying to a question on whether his office would take any initiative for early hearing of the appeals before the Appellate Division, Momtaz said, "Let's see".
The apex court was scheduled to hold hearings on the appeals on February 13, 2018.
In its verdict, the HC had observed that empowering executive magistrates with judicial powers is "a frontal attack on the independence of the judiciary and is violative of the theory of separation of powers", and said mobile courts could be run by judicial or metropolitan magistrates.
It had declared unconstitutional 11 sections of the Mobile Court Act-2009 on empowerment of executive magistrates and process of running mobile courts, their powers to convict and sentence offenders, district magistrates' powers to run mobile courts, provision of appeal against mobile court orders and government powers to amend schedule of the act.
SC Lawyer Hassan MS Azim, who moved the writ petitions on which the HC delivered the verdict, told this correspondent on Monday that the Appellate Division on January 16, 2028, extended its stay order on the HC verdict until disposal of the appeals.
The same day, the SC had allowed the government to move three leave-to-appeal petitions challenging the HC judgement, and set February 13, 2018, for hearing on those.
A five-member bench of the Appellate Division, headed by Justice Md Abdul Wahhab Miah, then performing duties as acting chief justice, passed the order after granting the petitions.
Justice Wahhab Miah resigned from the post of a judge of the Appellate Division, hours after Justice Syed Mahmud Hossain was appointed as the chief justice on February 2, 2018.
The appeals were not heard on as they were not included in the Appellate Division's cause list, said the SC lawyer.
He said it was the Appellate Division that has the sole authority to include the appeals in its cause list for hearing and disposal. "It cannot be specifically said when the Appellate Division will include the appeals in the cause list," he said, adding that executive magistrates could run mobile courts until the appeals were disposed of.
He further said the attorney general's office has not submitted the concise statements (points on which lawyers place arguments before court) to the SC.