It was all possible because in a mobile court one person plays the role of plaintiff, investigator and judge
It was all wrong.
The way in which a mobile court operated in the dead of the night in Kurigram on Friday and subsequently sentenced Dhaka Tribune journalist Ariful Islam for a year in prison, violated due process by all means.
Accompanied by law enforcement agency and multiple magistrates, the mobile court, at night, broke into his house and mercilessly beat up the journalist.
Around 2am, the journalist was taken to the Kurigram deputy commissioner's (DC) office and sentenced to one-year in prison.
It was all possible because in a mobile court one person plays the role of plaintiff, investigator and judge.
Speaking to Dhaka Tribune, Supreme Court lawyer Barrister Jyotirmoy Barua said it is a matter of shame and humiliation on the part of the country’s judiciary when a mobile court operates in such a rogue manner.
“A mobile court cannot operate at night. Breaking someone’s door or entering someone’s house is not the task of mobile court,” he said.
Even if a mobile court acts on an issue that does fall under its jurisdiction, it will have to decide the punishment on the spot, he said, adding: “A mobile court cannot pick someone up from [their] house and take the person into its custody.”
“When a mobile court enters someone’s house and take the person into custody, it is unprecedented,” said Jyotirmoy.
“The time and the manner in which the mobile court functioned for incriminating the journalist is illegal and a clear violation of constitutional rights of a citizen,” he said.
When asked whether a taskforce can perform this at night, he said: “The taskforce has to wait till morning. It cannot break open a door to enter into someone's property.”
Also, if the taskforce is formed only to punish this journalist, it is evident that the deputy commissioner has done this only to malign the reputation of the journalist, he added.
When asked on why the mobile court carried out the raid at midnight, Kurigram Deputy Commissioner (DC) Sultana Pervin told Dhaka Tribune that it was a drive of a taskforce, not a mobile court.
"The drive was planned much earlier, like other drives. They [law enforcement officials] raided the house and found the illegal substances there," she claimed.
When asked, if mobile courts can conduct drives at night, she said it was a drive of a special taskforce, not any mobile court.
However, the copy of the verdict sent to the jail authorities clearly states it was a mobile court drive.
Supreme Court lawyer Hasan MS Azim said police can visit any place, anytime, but not a mobile court.
“There is no stipulated timeframe when a mobile court can operate, but there are High Court orders on this. A mobile court cannot operate at night, neither can it break open a door of a person's house,” he said.
When the lawyer was briefed on the publication of reports by this journalist against the DC, Azim said this incident seems not unusual.
“Chances are there that there is connection between publication of the report and punishment of the journalist via mobile court. This action is clearly violation of law,” he said.
Also, slapping a person with one year jail term for possession of half a bottle of liquor and 125gm of cannabis in his house, is an unprofessional act, he opined.
The High Court in May 2017, declared the mobile courts, conducted by executive magistrates were illegal and contradictory to the Constitution.
During the hearing, the High Court observed that empowering executive magistrates with judicial powers is “a frontal attack on the independence of the judiciary and is a violation of the theory of separation of powers.”
The court declared section 5, which empowers an executive magistrate to conduct mobile court, and sections 6 (1), 6 (2), 6 (4), 7, 8 (1), 9, 10, 11, 13 and 15 of the Mobile Court Act-2009 illegal and contradictory to the Constitution, independence and supremacy of the judiciary.
The Appellate Division later stayed the High Court order that had declared operating mobile courts by executive magistrates illegal. The matter is now pending with court.
There are many incidents where a mobile court convicts a person, but later they secured justice from High Court.
Very recently, on March 11, the High Court declared conviction of 121 minors by mobile courts as illegal and directed the authorities concerned of the government to immediately release the children.
On the day, the High Court stated that the mobile court act needs to be amended as Section 6 of the law is contradictory with the constitution.
The executive magistrates need compulsory training; otherwise if they violate the fundamental rights of children or other citizens of the country then the image of the country will be tarnished, the court said on the day.
The Mobile Court Ordinance was promulgated in 2007 during the army-backed caretaker government. Later, Awami League-led government passed the Mobile Court Act on October 4, 2009.