Executive magistrates’ judicial power: A crucial question unsolved in 13yrs
The question of legality over the executive magistrates performing some judicial functions, including taking cognisance of offences, has not been resolved in the last 13 years as a related case remains pending before the High Court.
This is due to changes in hearing jurisdictions of HC judges concerned and the government's inaction to dispose of the case.
The legal proceedings ensued after parliament passed amendments to the Code of Criminal Procedure (CrPC) in 2009, paving the way for executive magistrates to take cognisance of offences.
The HC, hearing a writ petition filed in the same year, had questioned this jurisdiction of executive magistrates, saying only the judicial magistrates are entitled to do such activities as per the constitution and the directives of the Appellate Division of the Supreme Court.
However, as the case is pending before the HC, executive magistrates have been enjoying the judicial powers.
The government has also not taken any initiative for a hearing on the rule in the HC and disposing of the rule, court sources said.
According to case documents, the last hearing of the case 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.
During the hearing, both the lawyers told the HC that performing judicial functions by the executive magistrates was not lawful.
Opposing the petition, state counsel and then deputy attorney general Motaher Hossain Sazu said executive magistrates were given the powers to take cognisance of some offences for the time being to maintain peace and tranquility in the areas concerned.
The executive magistrates have been given the powers to carry out such functions under sections 145 to 147 of the amended CrPC, passed in parliament on April 7, 2009. The government issued a gazette notification on the act the following day.
According to the sections, an executive magistrate decides issues of possession, grants ad-interim injunctions, appoints a receiver (administrator), restores possessions and grants injunctions in cases until those are disposed of by the judicial magistrates' courts.
The writ petition was filed with the HC on November 14, 2009, challenging the legality of the amended sections, saying that those contradict some provisions of the constitution and the principles of the Supreme Court judgement in the Masdar Hossain case, widely known as judiciary separation case.
Advocate Manzill Murshid, writ petitioner's counsel, attributed the delay in disposal of the petition to the changes in hearing jurisdictions of the HC judges concerned.
"The High Court bench has been reconstituted thrice since then [last hearing]," Murshid told The Daily Star.
He said the other two amici curiae -- M Amir-Ul Islam and Rokanuddin Mahmud -- were scheduled to place their arguments before the HC on resumption of the proceedings.
The senior lawyer said the then chief justice had reconstituted the HC benches as part of his routine work when the they were supposed to hold a hearing on the petition.
"I will take an initiative for holding a hearing on the rule after the next annual vacation of the High Court of September as I am now busy with other urgent cases," he told this newspaper yesterday.
Attorney General AM Amin Uddin recently told The Daily Star that he could not make any comment on the issue as he was not aware of the writ petition and the related HC rule.
A senior government official, who had performed duties as an executive magistrate, told this correspondent that executive magistrates were given the powers in order to take preventive actions before offences take place.
The trial of a case starts after a judicial magistrate takes cognisance of an offence, he said, adding that the previous functions in a case are carried out by executive officials from the BCS administration cadre.
Criminal law expert advocate Khurshid Alam Khan said the authority and jurisdiction of the executive magistrates over performing judicial functions as per the relevant provisions of the CrPC are under challenge in the HC after it issued the rule.
Providing powers to the executive magistrates to run judicial functions is not lawful under the constitution and also as per the apex court verdict in the judiciary separation case, he said, adding that the HC will finally determine whether the empowerment of executive magistrates to perform judicial functions is lawful.
"The state should take an initiative for quick disposal of the High Court rule," he observed.