Empowering the executive magistrates to hold trials of people for electoral offences through the newly promulgated mobile court ordinance goes against a Supreme Court opinion.In line with the government's decision, President Zillur Rahman promulgated the ordinance on July 23 empowering executive magistrates to run mobile courts to maintain law and order and try people for electoral offences.
The general administrative committee of the SC, headed by the chief justice, unanimously decided in 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 Supreme Court noted responding to a letter of Election Commission.
As the SC did not approve empowering executive magistrates, who are also officials of the admin cadres, to hold trials of cases filed in connection with electoral offences, the EC had finally decided to deploy judicial magistrates in the December 29 parliamentary polls.
Talking to The Daily Star on Sunday, eminent jurist Shahdeen Malik said an executive magistrate could hand down punishments like fines. He said handing down imprisonments should no longer be done by 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.
The executive magistrates have lost judicial powers to try people for offences following separation of the judiciary from the executive during the last caretaker government's rule. In the face of strong demand from the admin cadres, the then caretaker government, however, promulgated an ordinance empowering the executive magistrates to run mobile courts to maintain law and order.
The ordinance, which ceased to have effect in late February as it was not ratified in parliament within a specified time, allowed the executive magistrates only to fine individuals for an offence.
The new mobile court ordinance, however, empowers the executive magistrates to fine and sentence imprisonments of up to two years. A mobile court is empowered to hold trials of cases filed under as many as 80 laws including all electoral laws.
Interestingly, Paurashava Ordinance, 1977, Chittagong City Corporation Ordinance, 1982, Dhaka City Corporation Ordinance, 1983, Khulna City Corporation Ordinance, 1984, Rajshahi City Corporation Act, 1987, Sylhet City Corporation Act, 2001 and Barisal City Corporation Act, 2001, which have been repealed by the caretaker government, are among the 80 laws.
The caretaker government had kept the Representation of the People Order for the parliamentary election.
The Awami League-led government placed bills in parliament seeking to enact new laws on the local government institutions--city corporations and municipalities.
Legal experts said an individual might be sentenced up to seven years' imprisonment for electoral offences but the executive magistrates can sentence an individual to a maximum of two years' imprisonment as per the provisions of the new mobile court ordinance.
After separation of the judiciary, the government cannot empower anybody, except judicial officials, with judicial powers without the approval of the SC, legal experts observed.
They said the order 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.
