Arrest of public servants - No prior nod needed: HC

"Everyone is equal before the law. From now on, government officials will not get the protection."

— ACC Commissioner Jahurul Haque told The Daily Star.

Law enforcers can now arrest government employees in criminal cases without needing to get permission from the authorities concerned.

In a watershed verdict, the High Court yesterday cleared the way for the law enforcers. It declared that section 41 (1) of the Government Service Act 2018 went against fundamental rights and the constitution.

The section made it mandatory for the law enforcers to get prior approval if they wanted to detain public servants in criminal cases before a charge sheet was filed.

"Everyone is equal before the law. From now on, government officials will not get the protection," Anti-Corruption Commission Commissioner Jahurul Haque told The Daily Star.

The HC observed that the section had given protection to a particular segment of the populace and it is contradictory to articles 26, 27 and 31 of the constitution.

Article 26 says that laws inconsistent with the fundamental rights are to be void, and articles 27 and 31 guarantee equality before the law and the right to protection of the law.

The High Court had earlier scrapped section 32 (Ka) of the Anti-Corruption Commission Act, 2004, for giving similar protection to public servants. The government did not appeal and therefore, there is no scope for the formulation of such a law, the HC observed.

The HC bench of Justice Md Mozibur Rahman Miah and Justice Kazi Md Ejarul Haque Akondo delivered the verdict following a writ petition filed by Human Rights and Peace for Bangladesh, a right organisation, challenging the legality of the Government Service Act 2018 section.

The HC is yet to release the full text of the verdict, which is expected to have details and observations.

Writ petitioner's lawyer Manzill Murshid told The Daily Star that arrest warrants issued by judges for government employees could not be executed because of the section and it hindered judicial independence.

Replying to a question, the lawyer said the section was not exercised in any case, as the writ petition was filed and a rule was issued immediately after the law was formulated.

Meanwhile, Attorney General AM Amin Uddin told reporters at his office that the government would appeal before the Appellate Division challenging the HC verdict.

He claimed that section 41 (1) was included to protect government employees from the harassment of false cases.

During the hearing on the rule on Wednesday, Manzill told the HC that the section was discriminatory and contradictory to the constitution, as all citizens are equal in the eye of the law.

Deputy Attorney General Arobinda Kumar Roy told the court that the parliament passed the act to protect public servants considering them a separate class of people.

He said the section applies only when an employee is on duty.

Transparency International Bangladesh (TIB) Executive Director Iftekharuzzaman hopes the Appellate Division would uphold the HC verdict.

"If the public servant is given the protection for being a separate class of people, other sections of the society -- doctors and businessmen -- may also seek the same type of protection," he said, terming the provision discriminatory.

Former cabinet secretary Ali Imam Majumder said the section was unnecessary as government officials already enjoy some protection under the Code of Criminal Procedure.

Human Rights and Peace for Bangladesh filed the writ as public interest litigation on October 14, 2019.

The parliament passed the act on October 24, 2018, and it came into effect via a gazette notification on September 25, 2019.

Another HC bench on October 21, 2019, issued a rule asking for explanations as to why the section should not be scrapped. Secretaries to the cabinet division, offices of the president and prime minister, the ministries of public administration and law, the Speaker, and the Anti-Corruption Commission were asked to explain.

The Daily Star could not reach KM Ali Azam, senior secretary to public administration ministry, for comments despite repeated attempts.

Bangladesh Administrative Service Association President Kabir Bin Anwar and General Secretary Khalilur Rahman also could not be reached.