The hazards of (extensive) trial by bureaucrats
The recent apparently appalling arrest of Dhaka Tribune journalist, Mr Ariful Islam has been the talk of the town. There is yet to be a judicial or some other form of independent assessment of what actually transpired. However, the palpable urgency and heavy-handed manner in which the public servants seem to have acted for dealing with an offence which is by no means a grave one along with the chain of events would unmistakably convey a presumption of ulterior motives. This incident vividly demonstrates some of the demons of the Mobile Court Act, 2009 (MCA). One can only hope that the publicity the incident has garnered may give an impetus to a much-needed overhaul of this law which is hardly attuned with the values of a democratic society.
In essence, the executive magistrates are bureaucrats and not judges. This is a core policy reason that they are supposed to be vested with the jurisdiction to try those matters which are rather straightforward and do not need the exercise of a judicial mind. However, the MCA in its current shape includes around hundred offences which may be tried by mobile courts which are operated by judicial executive magistrates. And while operating mobile courts, they are not only exercising some judicial powers but are also the informants and witnesses, and this can seriously tilt the balance against the accused.
Arguably, even the Preamble of the Act has envisaged that the power of the mobile court would be 'limited' to impose 'limited punishment'. Section 7 of the MCA also seeks to limit the power of the court by providing that if an accused person does not accept her/his guilt, the mobile court would not be competent to sentence her/him and would refer the matter to a court of competent jurisdiction for trial. However, rather strikingly, the law does not provide a safeguard that an accused person be advised that her/his acceptance of guilt would lead to a conviction and a non-acceptance would give her/him an option to undergo a full-blown trial in the court of law. In a country like ours where bureaucrats are the epitomes of power, it is possible that even some people would feel coerced to accept the guilt of committing imaginary crimes lest greater trouble befalls on them. Again, any conviction by the mobile court, no matter how simple the punishment may be, is still a conviction. Convictions would remain as a stigma in a society like ours, where public memory of people's misdeeds are seemingly much stronger than public memory of people's great achievements.
It has to be acknowledged that applied in strictly pressing situations involving straightforward matters, with well-defined rules for the application of the MCA, it can play an important role in reducing the backlog of cases in our criminal courts. As long as the mobile courts do engage in routine matters such as visit examination halls during public examinations, inspect retail stores in broad daylight, or swiftly acts to prevent impending child marriage, the potential for abuse of the MCA is minimal. Breaking in people's door at night to recover a small number of narcotics should never be the function of mobile courts. After all, skies would not have fallen if the recovery push awaited the light of the morning sun. This is where not only the scope of the jurisdiction of the mobile court but also in what circumstances the jurisdiction can be exercised should be spelt out in clearer terms.
The public's simple perception of justice and a seemingly insatiable appetite for swift justice, even if that is raw justice, seem to have created a mirage that mobile courts are meeting out justice. And in many cases, mobile courts are possibly doing just that. However, members of the public can only see the well-circulated media reports of the operation of the mobile courts, but not how the operation actually went and the kind of evidence this 'self-sufficient' mobile court actually relied upon. Indeed, if we note that in Mohammad Shahjahan Khan v Executive Magistrate, Munshigonj and Ors, the High Court Division (HCD) has asked the Cabinet Secretary that a circular stating that 'while exercising powers under the Mobile Court Act, 2009 and the relevant laws they (executive magistrates) must not exceed their lawful authority', [LEX/BDHC/0236/2015] it is patent that the HCD either felt that there was a pattern of gross abuse of powers or the potential for it. And from a public policy point of view, there seems to be no appreciable reason for the MCA to be run by judicial magistrates who are trained in law and are not the under control of bureaucrats. It seems disingenuous to claim that justice or public policy dictates that mobile court be run by executive magistrates. The oft-cited number of judicial magistrates in itself is simply unacceptable as it can be addressed readily by appointing more judicial magistrates.
Assuming that Mr Islam was not a journalist affiliated with a national newspaper, but still cantankerous or unlucky enough to have incensed bureaucrats, one can easily imagine that the incident could have remained beyond the gaze of the public. Indeed, the travails of Mr Islam speaks loud how much easier a prey a commoner could have been. Had that been the case, he would not have been lucky enough to be granted bail so soon. To put it bluntly, the administration of justice in the hands of bureaucrats, some of whom are termed as 'district administrators' (literal translation of the Bengali equivalent which is in common currency), is a perilous venture, and it should be vested in them in the rarest of rare cases when there are compelling public reasons necessitating immediate action. And it is not befitting the vision of the founding father of the Republic who viewed bureaucrats as public servants.
The writer is an Associate Professor at Department of Law, North South University.