Questionable indemnity

Parliament has crossed the limits of its legislative power by extending the duration of an act which prevents the courts from looking into power generation deals awarded without bidding.

The "Power and Energy Fast Supply Enhancement (Special Provision) Act also undermines several Supreme Court verdicts that upheld anyone's constitutional right to question the fairness of any government deal.

The act, which was extended by four years, indemnifies the government for its actions in the energy sector from judicial proceedings.

Enacted in 2010, the original law gave the government sweeping authority for two years to take up any project for quick electricity and gas generation, distribution and marketing.

The goal was to implement rental power projects as a short-term solution to the country's massive power crisis while the long-term large power projects were being implemented.

Rental projects are quick to implement while conventional projects take nearly three years to become operational. On expiry of the original two-year tenure, parliament in 2012 amended it and extended its tenure by two years which too expired in October 2014. 

The House passed a bill on January 27 extending the lifespan of the law for another four years with the controversial provision.

This law protected the government while it took up dozens of rental power projects now meeting more than a quarter of the country's demand. Initially this law was used for awarding contracts to really interested investors. But later on it was used to give companies, which neither had the experience nor genuine interest, the job to build rental power plants.

For instance, the-then Awami League parliamentarian Aslamul Haque got two power projects in 2011 to be implemented in Dhaka. None of them saw the light of day.

Then different authorities started misusing the power to cover their inefficiencies in contract negotiations. For instance, the Petrobangla's 2010 move to building a Liquefied Natural Gas (LNG) terminal through an open tender fell flat due to flawed negotiation. This fast-track project ultimately was placed under this controversial act and approved earlier this month, five years behind schedule.

Similarly, the Petrobangla floated a tender to drill 10 wells in various national gas fields of the country. After some poor handling of tenders, it opted for a deal with Russian company Gazprom and placed the deal with a $200 million price tag under this law arguing that the wells needed to be drilled by late 2014 to increase gas supply.

Despite being the world's top gas producer, Gazprom's actions were slow and unimpressive and the gas supply it achieved was half the target. Petrobangla is now asking whether it was worth spending $200 million to get the paltry quantity of gas.

Amid such malpractices, it is expected that more deals would be brought under this law and thus incompetent officials would be protected and negligent bidders would be richly rewarded with jobs they would not feel compelled to finish in time, because there was no way to question how they got the deal.

The said legal provision had been criticised by some jurists in 2010. They had said parliament could not deny the apex court its jurisdiction to look into allegations of misuse of power.

The Supreme Court had long ago settled the matter in the verdicts in a number of cases saying parliament could not limit the court's authority to review the government actions.

In Anwar Hossain Chowdhury versus Bangladesh, the apex court in 1988 said the power of judicial review was a basic feature of the constitution and it could not be taken away or curtailed even by the amendment of the constitution.

After more than two decades, the Supreme Court in a verdict declaring the constitution's fifth amendment illegal and void observed that the power to declare any provision seeking to limit the jurisdiction of the court was ultra vires.

The constitution's fifth amendment passed by the second parliament had validated and ratified all actions done by the martial law regimes between August 15, 1975 and April 9, 1979.

The second martial law ruler Ershad had followed the same suit to indemnify himself and all his actions. The parliament dominated by his Jatiya Party in 1986 passed the constitution's seventh amendment act. It had also the same provision to oust the court's jurisdiction.

The apex court in 2011 scrapped the seventh amendment act too.

The much talked joint drive indemnity act of 2003 has also been questioned by the High Court in 2012. The matter remains pending with the court. The then BNP-led government had enacted the law indemnifying the joint forces against legal actions for their wrongdoings.

As many as 44 people died in custody and hundreds sustained injuries following torture during the Operation Clean Heart carried out to curb criminal activities.

In 1975, the martial law regime led by Khandaker Mushtaque had also promulgated the heinous indemnity ordinance to protect killers of Bangabandhu and most of his family members. 

Assuming power in 1996, the AL-led government, however, scrapped the ordinance paving the way for trial.

Given all these instances, why has the AL-led government opted for an indemnity law to legitimise its actions on energy sector?

The answer lies in the shady deals and expenditure in the energy sector.