The Appellate Division of the Supreme Court has stayed the High Court order that scrapped Section 41(1) of the ‘Public Service Act, 2018’ which prohibits the arrest of any public servant on criminal charges without approval from the higher authorities of the government.
The full bench of the Appellate Division, headed by Chief Justice Hasan Foez Siddique, issued the stay order on Thursday (September 1) after hearing an appeal by the government seeking a stay of the High Court order. The apex court’s order will be in effect till October 23.
Other four members of the Supreme Court bench are Justice Md Nuruzzaman, Justice Obaidul Hassan, Justice Borhanuddin and Justice M Enayetur Rahim.
Attorney General AM Amin Uddin appeared for the state, while writ petitioner’s lawyer Advocate Manzill Murshid opposed the state’s petition.
Earlier on Wednesday (August 31), the government moved the Appellate Division, seeking a stay order on the concerned HC order.
After a hearing on the leave to appeal petition filed by Attorney General AM Amin Uddin, Chamber Judge Justice M Enayetur Rahim set Thursday (September 1) for a full-bench hearing.
On August 25, the High Court declared the controversial provision of the ‘Public Service Act, 2018’ illegal and unconstitutional, scrapping prior permission to arrest government officials in any criminal case against them.
The higher court was also astonished by the over three-year old law. Such provision in the Public Service Act indemnifies a particular group and encourages corruption, said the court.
Terming such provision as ‘unconstitutional’, the court observed, “Such provision is against the Constitution and fundamental rights. Constitution is the country’s main law and as per the Constitution, everyone is equal in the eyes of the law.”
The HC bench of Justice Md Mozibur Rahman Miah and Justice Kazi Md Ejarul Haque Akondo had made the remark following the writ petition moved by the Human Rights and Peace for Bangladesh (HRPB).
The HC, in its ruling, ordered that law enforcement no longer needs to seek permission from the government or employing authorities to arrest public service holders on criminal charges.
“It was made with a malafide intent that totally conflicts with Article 27 of our constitution, which says all citizens are equal before the law and are entitled to equal protection of the law,” the HC observed in the verdict.
The court also said that Section 32(a) of the Anti-Corruption Commission (ACC) Act provided such protection to ACC employees, but later the High Court scrapped the provision.
The Public Service Act was enacted in 2018 and it came into effect on October 1 in 2019. The public administration ministry issued a gazette notification on September 26 that year on the enforcement of the law from the date.
The Section 41(1) of the law stipulates that approval from the government or the employing authorities is a must for arresting public servants before a court accepts the charge sheet related to their official duties.
The Human Rights and Peace for Bangladesh challenged the provision in the High Court two weeks after the law was put into effect. Supreme Court lawyers Sarwar Ahad Chowdhury, Eklas Uddin Bhuiyan and Mahbubul Islam filed the writ petition on behalf of the human rights platform.
After an initial hearing, the court issued a rule asking why Section 41(1) of the law will not be deemed illegal, scrapped and declared contradictory to the country’s constitution and violation of the fundamental rights.
Ariful Islam Regan, a local journalist in Kurigram, had filed another writ petition in August 2021 challenging the Sections 41(1) and (3) of the Public Service Act, 2018. The court gave a ruling after an initial hearing later in September. It is being judged by another HC bench.
The local journalist was allegedly assaulted in March last year and the writ petition prompted the High Court to ask why the authorities should not be directed to refrain from posting suspended deputy commissioner (DC) of Kurigram Sultana Perveen, and suspended executive magistrates Rintu Bikash Chakma and Nazim Uddin, to any office.
