SC opinion overlooked

The Election Commission is now seeking amendment to the Representation of the People Order (RPO) to empower executive magistrates permanently to try electoral offences during parliamentary polls, which goes against an opinion of Supreme Court.
The EC has already asked its officials to draft proposals to this end in line with the new mobile court law, which empowers executive magistrates to impose fines and sentence an offender to imprisonment for up to two years.
The SC last year disapproved the commission's move to deploy executive magistrates to hold trial of electoral offences during the ninth parliamentary elections.
"We want to incorporate a provision in the RPO empowering executive magistrates to hold trials of electoral offences to reduce the burden of the judicial magistrates," Election Commissioner Muhammed Sohul Hossain told The Daily Star on Thursday.
Interestingly, executive magistrates running mobile courts cannot sentence a person to imprisonment over two years while the punishment for an electoral offence might be up to seven years' jail term.
But Sohul Hossain said if an executive magistrate finds that an offender should be sentenced to more than two years' imprisonment, then he can file a regular case, which will be tried by judicial magistrates.
The EC is also drafting a set of proposals for electoral reforms. It will finalise the proposals upon consultation with political parties and will then send those to the government for making laws.
The executive magistrates lost judicial powers following separation of the judiciary from the executive during the last caretaker government's rule.
But in the face of strong demand from the admin cadres, the then caretaker government promulgated an ordinance empowering executive magistrates to run mobile courts to maintain law and order. The executive law officials only got the power to impose fines for offences.
Later, the law ministry empowered executive magistrates to hold trial of electoral offences during the last parliamentary polls but they did not get the authority to sentence someone to imprisonment for those offences.
A debate arose centring if executive magistrates can hold trial of electoral offences after separation of the judiciary. The EC wrote to the Supreme Court, seeking its opinion on the matter.
The general administrative committee of the SC, headed by the chief justice, unanimously decided last December that only experienced judicial magistrates should be engaged to administer justice in cases filed for electoral offences.
"As jurisdictions of the judicial and executive magistrates are clearly delineated, the latter need not be entrusted with the authority of the former," the SC noted.
The EC then deployed judicial magistrates for trying electoral offences in the ninth parliamentary election.
The ordinance promulgated by the last caretaker government ceased to have effect in late February since it was not ratified in parliament within a specified time.
In line with the government's decision, President Zillur Rahman promulgated an ordinance on July 23 empowering executive magistrates to run mobile courts to maintain law and order and try electoral offences.
The Awami League-led government also placed a bill in parliament, seeking ratification of the ordinance.
The parliamentary standing committee on home ministry placed its scrutiny report in the House on September 15 with recommendations for passing the bill.
Legal experts, however, say after separation of the judiciary from the executive no one except judicial officials can be entrusted with judicial powers without the approval of the Supreme Court.
They say the Code of Criminal Procedure clearly specifies the functions and jurisdictions of the judicial and executive magistrates and it does not allow executive magistrates to hold trials of cases for any offences and award imprisonment to an individual.
Talking to The Daily Star earlier, eminent jurist Shahdeen Malik said an executive magistrate can impose punishments like fines. He said handing down imprisonments should no longer lie with anyone except judicial magistrates.
"Hence, vesting power in executive magistrates or anyone, except judicial officials of the republic, is, in my opinion, unconstitutional," he said.