Section 41 of the Public Service Act regarding the provision for prior permission to arrest government employees has been repealed by the High Court (HC) as it conflicts with several other articles of the constitution.
The High Court bench of justice Md Mojibur Rahman Mia and justice Qazi Md Ijarul Haque passed the verdict on Thursday.
The Public Service Act was legislated in November 2018. It came into effect on 1 October 2019 through a circular published on 26 September the same year.
On 14 October, 2019, a writ was filed with the High Court on behalf of the Human Rights and Peace for Bangladesh (HRPB) stating that the Section 41 (1) of the law regarding the special benefits of the government employees contradicts certain articles of the constitution.
The High Court ruled after the preliminary hearing on the writ on 21 October, 2019. The rule asked why the Section 41 (1) of the Public Service Act should not be declared contradictory with certain articles of the Constitution. The hearing on this rule was completed on Wednesday followed by the verdict today.
Senior lawyer Monjil Morshed took part in the hearing in favour of the writ. He was helped by lawyer Ripon Baroi. Deputy attorney general Arabind Kumar Roy presented the state in the hearing. Senior lawyer Khurshid Alam Khan was present at the hearing on behalf of the ACC.
Speaking to Prothom Alo after the verdict, Monjil Morshed said, “The High Court has given a verdict revoking the Section 41 (1) of the Public Service Act as it contradicts the constitution. Therefore, there will be no need for any prior permission for arresting any government employees accused of criminal offence.”
According to the Section 41 (1) of the law regarding the legal actions against any government employees accused of criminal offence, approval from the government or the employing authority is a must for arresting public servants before a court accepts the charges related to their official duties Monjil Morshed said in the hearing that according to the constitution, all the citizens are equal before the law. As such, that section of the Public Service Act is discriminatory.
Article 26 of the constitution stipulates if any law contradicts the constitution Laws inconsistent with fundamental rights to be void. The section 32 (A) Anti-Corruption Commission Act was legislated in 2013 with the same preferential provisions like the Section 41 (1) of the Public Service Act. The High Court revoked the law terming it discriminatory. There was no appeal challenging the verdict, said ACC lawyer Khurshid Alam Khan.
During the hearing yesterday, addressing the state the High Court questioned, “Isn’t the provision of seeking prior permission from the authority for arresting government employees discriminatory? What happens to common people? They are arrested right after any allegation is made."
In reply, deputy attorney general Arabind Kumar Roy said, “The provision is not discriminatory as the government employees themselves are a class. The law is not creating any discrimination within this class.”