The High Court on Thursday invalidated two core provisions of the Speedy Power and Energy Supply (Special) Act 2010, dismantling the special procurement and indemnity clauses that allowed the government to bypass standard protocols in energy projects.
Section 6(2) of the act which authorises the Ministry of Power, Energy and Mineral Resources to submit procurement proposals directly to the purchase committee with only the energy minister鈥檚 approval was struck down.
The court also nullified Section 9 which provides officials with indemnity against legal accountability for their actions and directives under the act, deeming it unconstitutional.
Senior lawyer Shahdeen Malik, main petitioner of the writ on which the verdict came, said in his argument that the indemnity awarding provision of the 2010 law caused a staggering Tk 1 lakh crore loss of public money.
In its ruling, the court clarified that government authorities were now free to review and assess any contracts or actions taken under these provisions.
The verdict also permits action against officials if irregularities and corruption are found.
The judgment was delivered by the bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury in response to a writ petition filed by senior lawyer Shahdeen Malik and his colleague Tayeb-Ul-Islam Showrov on August 28, challenging the legality of these controversial provisions.
Deputy attorney general Monjur Alam told 抖阴精品 that the interim government supported the High Court鈥檚 ruling issued on September 2, 2024 that asked the government to justify the legality of the two provisions. He added that the interim government had no instructions to appeal against the Thursday鈥檚 verdict.
The court, however, condoned past actions carried out under the now-invalidated provisions of the Speedy Power and Energy Supply (Special) Act 2010.
The court, however, emphasised that government authorities were free to review or reconsider any contracts made under these provisions, and also confirmed that the government would be able to take action against any irregularities or illegalities if found.
The High Court declared that Sections 6(2) and 9 of the 2010 act contradicted the constitutional mandate. These provisions, which allowed speedy procurement with indemnity for officials involved, were found to conflict with Article 46 of the constitution, which permits indemnity legislation only for actions tied to national liberation or public order restoration.
The court further observed that the act鈥檚 provisions also breached the constitution鈥檚 Article 145.
Under Article 145, all contracts executed by the republic鈥檚 executive authority must be issued in the name of the president and conducted by an authorised representative.
While Article 145 shields the president and officials acting on his behalf from personal liability, this protection does not prevent citizens from initiating legal proceedings against the government itself.
The High Court also directed the government to immediately operationalise all coal-based power plants under the Bangladesh Power Development Board to boost national energy production and support economic growth.
Lawyer Shahdeen Malik during court hearings argued that the Article 46 of the constitution does not extend to indemnify actions related to the procurement of quick rental power and energy.
He argued that the indemnity preventing any legal challenges to actions, orders, or directives issued in the interest of power and energy supply violated Article 46.
This, according to Shahdeen, effectively removed judicial oversight and accountability from significant financial decisions.
He said that the act, originally passed in 2010 to expedite energy procurement, was extended multiple times鈥攆irst in 2015 for four years, then in 2018 for another three years, and in 2021, for an additional five years.
Shahdeen said that the 2021 amendment further legitimised the quick rental and rental power procurement process until 2026, extending the act鈥檚 influence to a total of 16 years since its inception.
He said that the combined effect of Sections 6(2) and 9 of the 2010 act had led to substantial financial loss for the public, amounting to over Tk 1 lakh crore.
He asserted that the losses would continue unless the contracts under the act were either cancelled or renegotiated.
