SC decision stuck in limbo for 11 months | The Daily Star
12:00 AM, January 18, 2019 / LAST MODIFIED: 01:54 AM, January 18, 2019

Legitimacy of Mobile Courts

SC decision stuck in limbo for 11 months

Nearly a year after it set a hearing date, the Supreme Court is yet to hear and settle the government's appeals against the High Court verdict that declared the rules under which executive magistrates run mobile courts to be unconstitutional.

The apex court was scheduled to hear on the petitions on February 13 last year. As the decision remains stuck in legal limbo for 11 months, mobile courts under executive magistrates are continuing to operate in the country.

The HC had on May 11, 2017 declared unconstitutional the rules under which executive magistrates run mobile courts, after hearing on three writ petitions.

In the 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 can 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.

Deputy Attorney General Motaher Hossain Sazu told The Daily Star last week that said the Appellate Division had earlier stayed the HC verdict, thus allowing executive magistrates to run mobile courts; the stay order would remain valid until the government's appeals were disposed of, he said.

Barrister Hassan MS Azim, who moved the writ petitions on which the HC delivered the verdict, told this paper that on January 16, 2018, the SC 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 verdict, and set February 13 for hearing on those.

A five-member bench of the Appellate Division headed by Justice Md Abdul Wahhab Miah, then performing 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 chief justice on February 2.

The appeals were not heard on as they were not included in the Appellate Division's cause list, DAG Sazu told The Daily Star.

He said it was the Appellate Division of the SC that had 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,” DAG Sazu said, adding that executive magistrates could run mobile courts until the appeals were disposed of.

He further said the attorney general's office had already prepared the concise statements (points on which lawyers place arguments before court) for the government, and would place them before the SC after declaration of a date.

The office would take steps to prompt the Appellate Division to fix a date soon, he added.

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