HC scraps provision of prior permission for arrest of govt employees

Law enforcers no longer need to seek permission from the government or employing authorities for arresting a government employee on criminal charges as the High Court on Thursday declared the relevant provision of the Public Service Act unconstitutional.

The bench of Justice Md Mozibur Rahman Miah and Justice Kazi Md Ejarul Haque Akondo gave the verdict after hearing a writ petition filed by the rights organisation Human Rights and Peace for Bangladesh (HRPB).

Manzill Murshid, who had filed the petition, later told the media that the court in its observation said such provisions of the Public Service Act indemnify a particular group and encourage corruption.

"It was made with a malafide intent that totally conflicts with Article 27 of our constitution, which says all citizens are equal before law and are entitled to equal protection of law," he said.

In the verdict, the court said Section 32(a) of the Anti-Corruption Commission Act provided such protection to ACC employees, but later the High Court scrapped the provision.

The government did not challenge the verdict, so there is no scope to enact a similar type of provision again.

Manzill Murshid said, "We have shown the court that there is only one purpose behind making this law – to make government employees different from ordinary citizens and ensure for them many privileges by showing them as a special class…that even if they commit a crime, they should not be punished as criminals. In particular, the independence of the ACC was undermined by this act."

Transparency International Bangladesh (TIB) Executive Director Dr Iftekharuzzaman told TBS the HC verdict will make it easier for the Anti-Corruption Commission to bring corrupt government officials to justice.

He said the controversial provision was added to the Public Service Act in 2018 after a large number of public servants had been arrested by the ACC…the provision was brought in to prevent such arrests.

On 14 November 2018, the Gazette of Government Services Act-2018 was issued. Later in September 2019, the public administration ministry issued another gazette to put the law in force from October.

Section 41(1) of the Act states, "Before a court accepts a charge sheet in a criminal case filed in connection with the discharge of duties of a public servant, the prior permission of the Government or the appointing authority shall be obtained if he is to be arrested."

Human Rights and Peace for Bangladesh filed a writ with the High Court on 14 October 2019 in the public interest, challenging this section of the law in the face of criticism arising from it from various quarters.

After the preliminary hearing, the court issued a ruling on 21 October that year. 

On Thursday, the court disposed of the rule and came up with the decision to scrap the Public Service Act provision.

Deputy Attorney General Arobindo Kumar Roy, who represented the state in court said, "Such a provision was added to the law to give protection to government employees in various cases. The law does not discriminate against government employees. Moreover, the writ petitioner is not an aggrieved party under this act. 

"The court did not take these matters into account while pronouncing the verdict. As a result, an appeal will be made to the Appellate Division against this judgement."

Attorney General AM Amin Uddin also told the media that the state will file an appeal against the HC verdict.