Gulam Rabbani :
Incorporating the provision of taking prior permission in arresting government service holders in the law is nothing but to indemnify a handful of government corrupt officials, observes the High Court in a full verdict.
It also observed that the state must not encourage such provision, because our past history dictates, giving indemnity to a certain group of people whatever manner or purpose it be, has brought nothing good to our nation.
The High Court passed the observation in the full verdict that recently scrapped section 41(1) the ‘Sarkari Chakori Ain, 2018’ making it mandatory for law enforcers to take prior permission from higher authorities in arresting any civil servant on charges related to their job before submitting the charge sheet.
The High Court also observed that by incorporating section 41(1) of the Ain a group of people of our country have been given undue privileges and protection from being arrested before accepting charge-sheet.
“However, in our ordinary criminal justice system, no such provision is in place for the accused and in that sense, the impugned provision is colourable exercise of power of the executive derived from the Parliament which is also denial to fundamental rights guaranteed to the citizens in Articles 27 and 31 of the Constitution.”
“Furthermore, in our country, it is a common practice that investigation of a criminal case takes long time even years together to complete, so if that provision remains in place, as it stands, then there will have no ending of investigation into any criminal cases filed against the government servants.”
In a landmark verdict the High Court on August 25 this year ruled that Section 41(1) of the Government Service Act, 2018, that had made it mandatory for law enforcers to take prior permission in arresting any civil servant on charges related to their job, is illegal, unconstitutional and violative of the fundamental rights as it provides special protection to a section of people.
The High Court bench of Justice Md Mozibur Rahman Miah and Justice Kazi Md Ejarul Haque Akondo delivered the verdict after hearing a writ petition filed challenging the legality of the provision.
The government issued a gazette notification of the law on November 14 in 2018 saying that the law will be effective through another notification.
On September 26 in 2019, the government issued the second gazette notification saying that the law will be effective from October 1 in 2019.
As per Section 41(1) of the ‘Sarkari Chakori Ain, 2018’ (Government Service Act, 2018) the law enforcers will have to take approval from the authorities concerned of the government for arresting any public service holder in connection with criminal cases before submitting the charge sheet.
Later rights organization Human Rights for Peace for Bangladesh (HRPB) filed a writ petition challenging the legality of Section 41(1) of the law on October 14 in 2019.
However, following a petition filed by the state the Appellate Division of the Supreme Court on September 1 this year stayed the High Court verdict. The apex court also adjourned the hearing on the petition filed against the HC verdict till October 23.
It also asked the government to file a leave to appeal petition against the judgement by this time. A six-member bench of the Appellate Division headed by Chief Justice Hasan Foez Siddique passed the order.
