The current Awami League-led government deployed mobile courts on June 11 under the Mobile Court Act, 2009 to prevent anarchy (according to them) during hartal for the first time in the history of independent Bangladesh. BNP politicians alleged that, this type of suppression was done in Pakistan period especially during Ayub Khan’s time. Mobile courts arrested and summarily tried picketers all over the country when the main opposition Bangladesh Nationalist Party enforced a two-day long hartal on June 12 and 13. During the strike, executive magistrate of mobile court took cognisance and instantly meted out punishment to over 100 people all over the country.
Mobile courts were brought out again during the 48-hour hartal called by the BNP and its allies on July 6 and 7. Awami League politicians as well as the home minister and the authorities concerned all mentioned their obligation to maintain peace and affirmed that ensuring public security at any cost was their prime concern. More government officials than one assured that the use of mobile courts during hartal is lawful as the Mobile Court Act 2009 was passed through the legislature by the people’s representatives.
The Mobile Court Act: The Mobile Court Act, 2009 was brought into force on February 24, 2009. Prior to this act, a similar ordinance was passed by the caretaker government in 2007. The act was highly appreciated when this was implemented to prevent stalking and sexual harassment of women and adulteration of victuals. Now, the same law is being criticised by rights activists, lawyers, and politicians for the violation of general principles of law and suppression of political activists and even uninvolved citizens.
According to section 6(1) of the act, the magistrate can only try a person if the culpability falls under the offences specified in the schedule of the act and if the magistrate catches him red-handed and if he confesses to his crime.
In accordance with section 7(1), after taking cognisance, the magistrate will frame written charge against the offender and ask whether he confesses to his crime and, if he doesn’t, ask for explanation. The magistrate can punish by imprisonment or fine or both if the wrongdoer confesses.
Constitutionality of mobile court: Our constitution guarantees freedom of assembly and association in Articles 37 and 38 respectively. In a democratic society, general strike is legal unless and until it is declared illegal by an enactment or by the intervention of the court.
Article 32 of the constitution has a provision regarding personal liberty. The government cannot curtail citizens’ right to liberty without a lawful explanation; it doesn’t have the authority to confine a person without any valid reason, not even for a second.
Again, Article 31 of the constitution provides that the citizens have equal right to get the protection of the law. The government cannot legally prevent a party or a body that wishes to peacefully observe a strike.
In addition, Article 33 provides safeguards against arrest and detention. Bail is a mandatory provision, even for some cases of grievous offence, to ensure natural justice. However, bail is the name of an abstract dream to someone who is convicted instantly, on the spot, without adherence to definite rules of investigation, witness, examination, cross-examination and providing evidence.
Moreover, Articles 35(3) and (4) of the constitution provides the right to obtain fair and open trial by a competent forum and protection from providing evidence against himself. But the sole means to punish the accused under mobile court law is if the accused testifies against himself, which makes it extra-constitutional.
During hartal, opposition leaders were confined either at their office or at their residence by platoons of members of law enforcing agencies. It was nothing but a violation of the right to free movement, a fundamental right guaranteed in Article 36 of the constitution.
Another established principle of natural justice is that every person shall have the right to defend himself before punishment and can appoint a lawyer to this end. However, in this case, the law has no provision of self-defence, which is a grave violation of the general principles of law and human rights as well.
A further incongruous stipulation of this act is that the magistrate who will take cognisance and frame charge will himself conduct trial. There is no precedent in the world of the same person bringing the allegation and trying the accused.
Sections 186 and 353 of the penal code provide for action against obstruction to government duty and govt. can enforce these provisions.
Executive versus judiciary: Mobile court is not a proper forum, because here, the government applies its executive power to try, which contravenes the principle of separation of power and independence of judiciary. This creates a scope of abuse of judicial power by the executive.
Furthermore, there is a possibility of this instrument being exploited for personal vengeance and we have already heard of some cases where the executive magistrate allegedly used the power vengefully.
The government argues that the law enacted by the House is valid, without doubt. But it may have forgotten that a law passed by parliament, if inconsistent with the spirit of the constitution, shall be void to that extent of inconsistency [Article 7(2)].
Experiences of Hartal and mobile court: There is widespread allegation of innocent people being convicted through it. During the strike on June 12 and 13, many picketers were tried by the mobile court at the police station. It is a complete violation of Sections 6(1), 7(1), (2), (3), (4) and 11 the Mobile Court Act 2009, because according to these provisions, executive magistrate and district magistrate has the authority only to set up a court within their local territorial jurisdiction. They can pronounce sentences only at the moment of occurrence and for offences performed in their presence. However, at the time hartal, the police arrested people and brought them to the station where they were tried instead of at the place of occurrence.
In Bangladesh, people are often harassed by law enforcement agencies and now the Mobile Court Act itself has opened the doors of harassment in a supposedly legal way.
Mobile courts were brought out again during the 48-hour hartal called by the BNP and its allies on July 6 and 7. Awami League politicians as well as the home minister and the authorities concerned all mentioned their obligation to maintain peace and affirmed that ensuring public security at any cost was their prime concern. More government officials than one assured that the use of mobile courts during hartal is lawful as the Mobile Court Act 2009 was passed through the legislature by the people’s representatives.
The Mobile Court Act: The Mobile Court Act, 2009 was brought into force on February 24, 2009. Prior to this act, a similar ordinance was passed by the caretaker government in 2007. The act was highly appreciated when this was implemented to prevent stalking and sexual harassment of women and adulteration of victuals. Now, the same law is being criticised by rights activists, lawyers, and politicians for the violation of general principles of law and suppression of political activists and even uninvolved citizens.
According to section 6(1) of the act, the magistrate can only try a person if the culpability falls under the offences specified in the schedule of the act and if the magistrate catches him red-handed and if he confesses to his crime.
In accordance with section 7(1), after taking cognisance, the magistrate will frame written charge against the offender and ask whether he confesses to his crime and, if he doesn’t, ask for explanation. The magistrate can punish by imprisonment or fine or both if the wrongdoer confesses.
Constitutionality of mobile court: Our constitution guarantees freedom of assembly and association in Articles 37 and 38 respectively. In a democratic society, general strike is legal unless and until it is declared illegal by an enactment or by the intervention of the court.
Article 32 of the constitution has a provision regarding personal liberty. The government cannot curtail citizens’ right to liberty without a lawful explanation; it doesn’t have the authority to confine a person without any valid reason, not even for a second.
Again, Article 31 of the constitution provides that the citizens have equal right to get the protection of the law. The government cannot legally prevent a party or a body that wishes to peacefully observe a strike.
In addition, Article 33 provides safeguards against arrest and detention. Bail is a mandatory provision, even for some cases of grievous offence, to ensure natural justice. However, bail is the name of an abstract dream to someone who is convicted instantly, on the spot, without adherence to definite rules of investigation, witness, examination, cross-examination and providing evidence.
Moreover, Articles 35(3) and (4) of the constitution provides the right to obtain fair and open trial by a competent forum and protection from providing evidence against himself. But the sole means to punish the accused under mobile court law is if the accused testifies against himself, which makes it extra-constitutional.
During hartal, opposition leaders were confined either at their office or at their residence by platoons of members of law enforcing agencies. It was nothing but a violation of the right to free movement, a fundamental right guaranteed in Article 36 of the constitution.
Another established principle of natural justice is that every person shall have the right to defend himself before punishment and can appoint a lawyer to this end. However, in this case, the law has no provision of self-defence, which is a grave violation of the general principles of law and human rights as well.
A further incongruous stipulation of this act is that the magistrate who will take cognisance and frame charge will himself conduct trial. There is no precedent in the world of the same person bringing the allegation and trying the accused.
Sections 186 and 353 of the penal code provide for action against obstruction to government duty and govt. can enforce these provisions.
Executive versus judiciary: Mobile court is not a proper forum, because here, the government applies its executive power to try, which contravenes the principle of separation of power and independence of judiciary. This creates a scope of abuse of judicial power by the executive.
Furthermore, there is a possibility of this instrument being exploited for personal vengeance and we have already heard of some cases where the executive magistrate allegedly used the power vengefully.
The government argues that the law enacted by the House is valid, without doubt. But it may have forgotten that a law passed by parliament, if inconsistent with the spirit of the constitution, shall be void to that extent of inconsistency [Article 7(2)].
Experiences of Hartal and mobile court: There is widespread allegation of innocent people being convicted through it. During the strike on June 12 and 13, many picketers were tried by the mobile court at the police station. It is a complete violation of Sections 6(1), 7(1), (2), (3), (4) and 11 the Mobile Court Act 2009, because according to these provisions, executive magistrate and district magistrate has the authority only to set up a court within their local territorial jurisdiction. They can pronounce sentences only at the moment of occurrence and for offences performed in their presence. However, at the time hartal, the police arrested people and brought them to the station where they were tried instead of at the place of occurrence.
In Bangladesh, people are often harassed by law enforcement agencies and now the Mobile Court Act itself has opened the doors of harassment in a supposedly legal way.
