HC outlaws provision for permission from govt to arrest civil servants in criminal cases

It rules that the provision for prior permission from the government or employing authorities to arrest public servants in criminal cases violates fundamental rights

The High Court has struck down a provision that required 'prior permission' from the government or employing authorities to arrest a civil servant on criminal charges.

In a ruling on Thursday, the court declared section 41(1) of the Public Service Act 2018 'illegal' on the grounds that it "violated the constitution and fundamental rights".

Lawyer Manzil Morshed argued in support of a writ petition challenging the legality of the provision, while Deputy Attorney General Arobinda Kumar Roy represented the state. Advocate Khurshid Alam Khan appeared on behalf of the Anti-Corruption Commission or ACC in court.

Speaking to reporters after the verdict, Morshed said, "The court has declared section 41(1) of the Public Service Act 2018 illegal and in contravention of the constitution and fundamental rights.

"It noted that Article 27 of the constitution clearly states that all are equal before the law. However, section 41(1) provides an additional layer of protection to public servants. It is certainly unconstitutional and this legislation was made with a malafide intention.”

The implication of the High Court's judgment is that no prior permission will be needed to arrest civil servants, according to him.

"We have drawn the court's attention to the fact that there was only one purpose behind enacting such a law -- to separate government employees from ordinary citizens by turning them into a special class with numerous privileges. Even if they committed a crime, they couldn't be penalised as criminals. In particular, the independence of the ACC was undermined by this law.”

Justice Md Mozibur Rahman Miah and Justice Kazi Md Ejarul Haque Akondo, who presided over the proceedings, had previously expressed their 'astonishment' over the provision during a hearing on a rule questioning its legitimacy.

The court opined that such provisions in the Public Service Act 2018 served to indemnify a particular group and encourage corruption.

The gazette for the law was issued in November 2018. Later in September 2019, the public administration ministry issued another gazette to put the law in force from October.

Section 41(1) of the law stipulates that the arrest of public servants on criminal charges related to official duties can only be made with prior permission from the government or employing authorities before a court accepts the charges.

The Human Rights and Peace for Bangladesh, or HRPB, challenged the provision in the High Court two weeks after the law was put into practice.

After an initial hearing, the court issued a rule asking why Section 41(1) of the law should not be deemed illegal, scrapped and declared contradictory to the constitution.

Ariful Islam Regan, a journalist from Kurigram, filed another writ petition in August 2021 challenging Section 41(1) and (3) of the law. The court gave a ruling after an initial hearing later in September. It is being judged by another High Court bench.

Ariful was allegedly assaulted in March last year and the writ plea prompted the High Court to ask why the authorities should not be directed to refrain from posting suspended deputy commissioner of Kurigram Sultana Perveen, and suspended executive magistrates Rintu Bikash Chakma and Nazim Uddin, to any office.