Saturday, June 18, 2011

Mobile Courts : The Question Of Legality

In today’s Bangladesh – digital or otherwise – the word “mobile” definitely carries with it positive connotations of technological advancement, development and so on. Take for example mobile phones, or mobile clinics or even mobile libraries.  These innovations have all come with the primary goal of providing access; be it access to telecommunications, access to healthcare or access to knowledge. The initial idea behind the new phenomenon called “mobile court” was perhaps motivated by a similar aim, namely, access to justice. But what the fruit of this idea has ended up as is rather alarming. A hospital must provide medical treatment, just like a court must provide justice and prevent injustice. So, just like a hospital must be put under scrutiny if it fails in its endeavours to cure people, similarly, a court must face bitter criticism if its actions represent anything but justice. Consequently, I believe that the recent wave of criticism coming from various rights groups and the main opposition party that has surrounded the mobile form of handing out punishments are not unfounded. Our Constitution guarantees that we will be treated in accordance with the law at all times. Our Home Minister has stated that mobile courts have been given power by law enacted by Parliament and as such they are perfectly legal. But unfortunately, the Home Minister’s stance on the issue, which is shared by the government, only represents half the truth. This is because the explanation the state machinery has fed to the public and the media leaves out a very important constitutional principle, i.e. that not only must power be acquired legally, the exercise of such power must be within legal bounds as well. It is true that the Mobile Courts Act 2009 gives almost unfettered discretion to mobile courts to “hold a person guilty”. It is in this unrestricted discretion that the illegality and unconstitutionality of this system lies. The “superpower” given under the Act to mobile courts means that these courts are absolved of all the procedural and evidential requirements that exist to protect the rights of an accused person – the right to consult a lawyer, the right to defend himself, the right to cross-examine the prosecution’s evidence, the right to produce his own witnesses, the right to make a closing argument explaining his story to the court and so on. None of these rights exist for a person whom a mobile court has got hold of and, unfortunately for him, the age-old principle, “Innocent until proven guilty,” stands corrected as “Guilty until proven innocent.” If the immediate past government could be blamed for introducing “ crossfire” to a country which shed millions of lives fighting for democracy and the rule of law, the present government must receive the same treatment for utilising mobile “courts” which, in the name of quick or rapid action, hand out convictions at will. There is nothing constitutional about the way these courts operate; and fairness and impartiality are virtues they have proved to be devoid of. In these circumstances, intervention is necessary. The rights of many citizens, along with their families, are at stake. Moreover, in the current world climate, resisting political opposition must be an act done with clean hands. The era of “ crossfire” and random street convictions must end.