Executive magistrate’s judicial power: Case remains pending unwarranted

Hearing of a case on the executive magistrates’ authority in conducting trial proceedings has remained pending at the High Court Division of the Supreme Court for 13 years. This procrastination has given birth to several questions. One of the questions is whether this was due to a normal process or anything else worked behind the scene. The writ involved with the freedom of the judiciary needs to be settled speedily.

As per the verdict in the Masdar Hossain case, the government separated the judiciary from the executive in 2007. As a result, the administration officials do no longer have the power to conduct trials. Later, a Judicial Service Commission was formed and through it the authorities started appointing lower court judges.

In 2009, the Awami League government amended the Code of Criminal Procedure (CrPC). Through this amendment, the admin cadre officials were given the scope to conduct trial proceedings as executive magistrates in some cases. In November that year, a writ was filed with the High Court regarding the matter. The court appointed four senior lawyers as amicus curiae in the case.

As per a report of The Daily Star, two amicus curiae – Dr Kamal Hossain and Ajmalul Hossain – gave their opinions to the court in April 2015. Both of them said the executive magistrates’ authority on conducting trial proceedings is not lawful. Since then no hearing in the case was held while the executive magistrates have been exercising their power of conducting trials. Conducting trials by the executive magistrates simultaneously go against the constitution and the Supreme Court’s verdict on separation of judiciary, think the law experts.

The Daily Star report also said the attorney general, the chief law officer of the state, declined to remark on the subject as he knew nothing about the writ and the High Court’s verdict on it. On the other hand, lawyer of the person, who filed the writ, mentioned about restructuring of the High Court bench for thrice since the last hearing for the delay. But there are questions whether this reason for delay was logical.

The government has not fully implemented the 12-point directives mentioned in the verdict of the Masdar Hossain case. Rather, the authorities of the executive magistrates have been increased through new laws. In this context, there is no reason to think the delay in hearing the writ over the executive magistrates’ authority to conduct trials a “simple” or “common” matter.

The influence of bureaucracy or the admin cadres in various fields is a matter of much discussion in the country. For various reasons, the government is also excessively dependent on the bureaucracy. In this context, it is not illogical to apprehend that the executive magistrates could be aggrieved if the court gives verdict against their authority to conduct trials. That means procrastination is soothing both for the government and bureaucracy. That’s why there is scope to think whether this delay in holding hearing is a normal process or “intentional”.

The case on the executive magistrates’ authority to conduct trials is involved with independence of judiciary. That’s why beginning of hearing in the case is very important. It is warranted that the matter would be settled at court as per the constitution and the verdict of the Masdar Hossain case and all the parties would play responsible role.