Let us go back to what happened earlier. On 26 April 2010, the cabinet members, in a meeting, agreed to bring amendment to the Anti-Corruption Commission (ACC) Act 2004. They agreed to introduce a new clause that would make it mandatory to seek the government’s approval before filing any case against any government official. In the face of strong criticism, the government backtracked from the amendment and halted the process for a while. Finally in November 2013, just two months before the much-debated parliamentary elections of 2014, this ‘unconstitutional’ amendment (Clause 32-ka) to the ACC Act 2004 was made.
Rights activists, civil society organisations and constitution experts condemned the move. The amendment made the office bearers of the Anti-Corruption Commission (ACC) upset, as it rendered the apex the anti-corruption watchdog a completely toothless tiger. Surprisingly, the amendment was made ignoring recommendations of the finance minister, the parliamentary standing committee on the ministry of law, justice and parliamentary affairs and the ACC boss. The executive branch of the bureaucracy overpowered the parliament and came out in flying colours.
In a similar move in February 2013, the government further strengthened this shield by slashing down the authority of the court to summon any government official on charges of contempt of court in the Contempt of Court Act 2013. This act further stated that any such charge would be null and void after retirement of a government official. The High Court later termed both amendments as unconstitutional and declared these null and void. But this seems to have no impact on the government’s endeavour to empower the executive branch. On 22 June the cabinet approved an amendment to the Mobile Court Act 2009 that would empower executive magistrates to punish an alleged wrongdoer even if s/he denies charges. If finally amended, the bureaucracy will regain the judicial power that it lost after separation of the judiciary from the executive in 2007.
The latest of a similar kind of move to spare civil servants has been made by the same government in its current term by approving the draft Public Service Act that restrains law enforcing agencies from arresting civil servants for crimes without the government’s permission. Little is known about the new act as it was not made public, nor has there been any expert consultation ever.
The act originated from the UNDP-supported Civil Service Change Management Project (CSCMP) which was implemented by the then establishment ministry, now the public administration ministry. The CSCMP project worth U$$4.7 million claims credits for drafting the first ever civil service act which was presented to the prime minister for approval in August 2010. Project insiders, however, said that the first draft did not contain any such provision of sparing government officials from arrest without government permission. This shield is a clear violation of Article 27 of the Bangladesh Constitution which guarantees equal rights of every citizen. All citizens are equal before law and are entitled to equal protection of law. The government this time defended its position by saying that this was done in accordance with the rule 197 of the Criminal Procedure Code (CrPC).
The amendment to the ACC Act shows that the bureaucracy is strong enough to bring changes in state laws to ensure its supremacy and to reign over the rest. Even after the High Court’s observation on the ACC act, a similar provision has been made to the proposed Public Service Act. The law will now be sent to the law ministry for vetting. It will be completely against the spirit of the constitution if this act is passed in parliament that would provide special and differential treatment to the public officials.
Besides, it will give a wrong signal to the donor supported reform initiatives. Major donors including EU, DFID, UNDP and USAID withdrew their funds from the Strengthening Election Management in Bangladesh (SEMB) project which was supposed to continue till March 2016. It is widely believed that this was an outcome of the latest parliament elections boycotted by the key opposition parties.
The present government has brought a number of changes in the bureaucracy including creation of posts of senior secretaries, wholesale promotion and most recently, a move to raise pay. People want to believe that these were done to create a stable bureaucracy for the better of the country, but when they see ‘unconstitutional’ moves to safeguard the wrongdoings of the public officials, they see an ominous sign endangering democratic values and principles.
Lastly, people do have a stake in whatever the government does and this act too, is no exception. It is expected that before enacting such an important law, the government will come forward to open up discussion and finally enact it through a participatory process. Most recently the Cyber Security Act was hosted in the ICT division’s website so that interested persons could send in their opinions. It is hoped the government will do the same this time and not do anything that undermines the spirit of the constitution. It should also revisit existing rules, policies and laws including the age-old CrPC in line with Article 27 of the Constitution.
This Op-ed was originally published on 27 JUly in http://en.prothom-alo.com
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