Hartal vs. Mobile court
Examining constitutionality of the Mobile Court Act, 2009
Tapos Kumar Das
Use of mobile court to embattle the destructive activities at the time of hartal has added fuel to the nation wide political debate. In furtherance to the Mobile Court Act, 2009 the Government has launched the operation of the mobile court which has been meant to expedite the law and order situation. The pro-hartal political parties have alleged that the Government has employed the mobile court to accomplice its political motive to curb the hartal by creating panic amongst the pro hartal activists. 'Hartal is a political right and use of mobile court to cut back hartal is unconstitutional', they added. They further alleged the functioning of the mobile court to be inconsistent with the rights of the accused guaranteed by the constitution.
This write up is a legal analysis on Mobile Court Act, 2009 to get some answers.
Is hartal a right?
Issues involving hartal was first addressed by our SC in the case Abdul Mannan Bhuiyan v State (2008) 60 DLR (AD) 49. During the period of 1998-1999 the public peace and tranquility was jeopardised due to the frequent hartal and anti-hartal activities of the political parties. On perusal of the pro-hartal destructions stated in the Daily Ittefaq newspaper the HCD on 15 February 1999 issued suo moto rule under s-561A of the Code of Criminal Procedure, 1898 calling upon the General Secretary of the BNP and others to show cause as to why activities of pro-hartal and anti-hartal should not be declared as cognizable offence and the criminal court and the police should not be directed to take action accordingly.
After hearing the learned advocates of Mannan Bhuiyan the HCD in its judgment and order dated 13 May 1999 summarised chapter viii of the Penal Code, 1860 (Of offences against the Public Tranquility) and then interpreted s-141 of the Code by holding that:
i) according to the 5th clause of s-141, a procession or other activities of five or more persons in support of or to force hartal shall be an unlawful assembly punishable under s-143 of same Code;
ii) every assembly of five persons or more to protest or to oppose hartal shall be an unlawful assembly;
iii) activities of the members of these assemblies shall be cognizable offence according to their behavior under the relevant sections of chapter viii of the Penal Code and the criminal courts and police are directed to act accordingly.
It was the first judicial decision in Bangladesh which went beyond the existing penal law to criminalise any procession in support of or against hartal. Challenging the said judgment and order Abdul Mannan Bhuiyan, and Amanullah Kabir, (President, Bangladesh Federal Union of Journalists) who was an intervener in the HCD preferred two criminal appeals (Criminal Appeal Nos 24 and 25 of 1999) which were heard by the AD jointly. In the AD, the power of the HCD to legislate and create any cognizable offence was addressed by Md. Abdul Matin J in following words:
Ours is a Constitution based on the spirit of separation of powers. ………it is true that there is no such thing as absolute or unqualified separation of power in the sense conceived by Montesquieu but there is however, a well marked and clear-cut functional division in the business of the Government and our judiciary is to oversee and protect the overstepping not only of other organs of the Government but also of itself. Offence can be created only by a law, by an act of the parliament and not by any legal pronouncement by any court. The HCD acted beyond its authority in entering into the field of making law and to declare the pro-hartal and anti-hartal activities as cognizable offence. The HCD had no constitutional or judicial power to legislate or create, of its own, a cognizable offence.
Accordingly, so far the position is the AD recognised hartal as a long practiced political rights and thwarted the HCD's attempt to criminalise pro-hartal and anti-hartal activities.
Bringing the Mobile Court Act, 2009 to light: During the last caretaker regime the Mobile Court Ordinance, 2007 was promulgated by the President. This ordinance became ineffective in February 2009 as the 9th Parliament did not approve it within thirty days of the first session. Subsequently, on 23 July 2009 in absence of Parliamentary session the President promulgated the Mobile Court Ordinance, 2009 and on 13 September 2009 Home Minister placed the ordinance before the parliament in the form of Mobile Court Bill, 2009. The Bill was passed on 4 October 2009 and after signature of the President the Mobile Court Act, 2009 came in to operation on 6 October 2009.
Formation of Mobile Court: The mobile courts are constituted under this Mobile Court Act, 2009; it is a court which moves to the place of occurrence and conducts instant trial of the accused/s caught in red hand (s-4). In metropolitan or district area Government authorized executive magistrate or district magistrate may conduct the mobile court for trial of the offences mentioned in the Schedule of the Act (s-5). As per the preamble, the mobile court is meant to further the public interest by facilitating maintenance of law and order situation and restraining crime. Very often hartal is accompanied by destruction and violence which every Government is vigilant to pin down and in June 2011 for the first time the mobile court was employed to curb pro-hartal violence.
Rights of an accused at criminal trial: A person charged with criminal offence should not be deprived of the rights guaranteed by the Constitution and other statutes. The rights of the accused guaranteed by the Bangladesh Constitution in articles 33 and 35 include the following:
1) right to know the grounds of arrest;
2) right to consult and be defended by a legal practitioner ;
3) no unauthorised detention;
4) no expost facto operation of criminal law;
5) protection against double jeopardy;
6) right to a speedy and public trial by an independent and impartial court or tribunal established by law;
7) no self-incrimination;
8) no subjection to torture or to cruel, inhuman, or degrading punishment or treatment.
Along side the Constitution the Code of Criminal Procedure, 1898 also provides safeguard to the accused in the form of appeal, reference and revision. So, an accused may be tried either by the regular court or by the mobile court but the safeguards mentioned above can be denied in no situation.
Jurisdiction of the Mobile Court: The Schedule of the Mobile Court Act contains a list of eighty five statutes under which the offences are defined. The mobile court is empowered to take cognizance of the offences which are mentioned in the Schedule and are triable exclusively by the judicial magistrate or metropolitan magistrate (s-6). Cases which are of serious nature and are triable by the sessions judge should not the subject to the jurisdiction of the mobile court. Jurisdiction of the mobile court is limited and it can impose imprisonment for a term not exceeding two years and fine to the extent limited by the concerned statute (s-8).
Procedure of trail in Mobile Court: The functioning of the mobile court is contingent on two events, firstly, any of the scheduled offences need to be committed or exposed at the presence of the mobile court; secondly, the accused/s must admit the guilt (s-6).
As soon as the cause of action arises the accused/s should be arrested and should be placed before the mobile court. At the initiation of the trial the magistrate presiding over the mobile court should precisely formulate the charge/s against the accused; and, shall read out and explain it to him/her; and, shall ask the accused whether s/he admits guilt or not [s-7(1)]. The accused may refute the charge/s at self-defence and if his/her explanation is convincing the magistrate may discharge the accused and set him/her at liberty [s-7(3)]. On the contrary, if the accused admits guilt his/her confessional statement should be written by the magistrate. Then, the accused should sign or put thumb impression in the written confessional statement in the presence of two witnesses who shall also sign or put thumb impression on it. Only on the basis of the properly signed confessional statement the mobile court can pass a written order imposing imprisonment and/or fine upon the accused [s-7(2)].
There may be cases where an accused will not admit the guilt; or, his/her explanation in self-defence will not be convincing; in such situation the magistrate should send the accused in appropriate court to contest regular trial [s-7(4)]. However, right of an accused to consult with a lawyer is not provided in the Mobile Court Act as mobile court convicts only on the basis of admission of guilt by the accused. So, if any accused refuses to admit the guilt and claims to consult with a lawyer magistrate should send the accused in appropriate court to contest regular trial.
An accused dissatisfied by the decision of the mobile court can prefer an appeal in the court of the district magistrate or sessions judge (s-13). In addition, a convicted accused is exempted from re-trial or double conviction(s-10). On the whole, the mobile court ensures speedy trial which is a grace for both the complainant and accused.
Is Mobile Court a king's Court?: Criticism has been made by terming the mobile court as kangaroo court or king's court which is the master of own will and subject to no legal norms. Such accusation may be deliberated or misconceived. But, form the discussions made above it is clear that the trial in mobile court is circumscribed by the rules of evidence and procedure; and, conform every rights of the accused protected by the Constitution or other code.
Long delay in criminal trial very often results in failure to prove the case; consequently, a sense of impunity generates and public confidence on administration of justice becomes minimised. So, if any pro-hartal activist commits any Scheduled offence there is no wrong in his instant trial by the mobile court. The functioning of the mobile court should not be out-weighted merely for the reason that it moves to the place of occurrence or provides swift justice. The operation of the mobile court is a message for the street-fighters that no minimal wrong will go unpunished. Nevertheless, caution should be taken so that all procedural hurdles are complied by the mobile court fairly.
The writer is Lecturer of Law, Rajshahi University.