Quick-rental power producers' functions now can be challenged as the High Court rescinded the contentious legal impunity given to them during the past regime.
The High Court Thursday passed its orders declaring illegal two impugned provisions of the 'Quick Enhancement of Electricity and Energy Supply (Special Provisions) Act 2010', popularly known as 'Quick Rental Act'.
One of the two provisions exonerated rental-and quick-rental power plants from legal bindings and another empowered solely the minister concerned to take any decision regarding the agreements with the government.
A High Court bench comprising Justice Farah Mahbub and Justice Debasish Roy Chowdhury delivered the verdict, after hearing a rule issued in this regard, also stating that the government can renegotiate the contracts of rental-and quick-rental power plants.
As a further remedial measure for the sector, the High Court also directed the government bodies concerned to take "immediate initiatives for full-fledged operations of the state-owned power plants for the sake of national and economic development of the country and for ensuring greater benefit of the people".
The Quick Enhancement of Electricity and Energy Supply (Special Provisions) Act was enacted on October 12 in 2010 with an avowed aim to ensure uninterrupted power supply to different parts of the country at any cost.
Section 6(2) of the law allows the minister concerned for taking up projects without tenders to increase the production and supply of electricity on an emergency basis.
And according to Section 9 of the Act no one can question in court the establishment and operations of rental-and quick-rental power plants.
Challenging the legality of the two provisions of the law, two Supreme Court lawyers-Dr Shahdeen Malik and Tayeb-Ul-Islam Showrov-filed a writ petition with the High Court on August 27 this year, now that the authors of the immunity law are not in power.
Upon hearing on the petition, the High Court on September 2 this year issued a rule asking the respondents to explain as to why the Sections 6(2) and 9 of the act should not be declared unconstitutional.
Finance Secretary, Law Secretary, Power Secretary and Petrobangla Chairman were asked to comply with the rule within four weeks.
The High Court bench completed its hearing on the rule on November 7 and that day it fixed November 14 for delivering judgment.
The court says, "No hesitation in saying that Section 6(2) of the Act was declared void as it conflicted with the mandate of the Constitution. The people of the country are truly sovereign. The Constitution declares the rule of law.
Section 9 of the Act gives impunity to the responsible persons for the contracts, whereas Article 145(2) of the Constitution guarantees the right to take proceedings against the executive authority of the government in the implementation of the agreements.
As the Section 9 is inconsistent with Article 145 of the Constitution, it is also inconsistent with the Constitution. Therefore, the Section 9 is voidable. As a result, the rule is declared absolute and Sections 6(2) and 9 of the Act are declared unconstitutional."
Dr Shahdeen Malik and Tayeb-Ul-Islam Showrov appeared in the court hearing in support of their petition, while Attorney-General Md Asaudzzaman and Deputy Attorney-General Md Monjur Alam represented the state.
The tenure of the special provisions of the law was extended several times. For the last time in September 2021, the cabinet cleared a proposal for the extension of the act for another five years, until 2026.
Controversial provisions of the law were widely criticized at the time. Energy and legal experts then said that this law was enacted to give special benefits to some persons.
The interim government, formed after the fall of Sheikh Hasina government, on August 18 suspended the law for an indefinite period.
Energy experts welcome the High Court decisions, saying that with this verdict the country will get rid of "impunity culture".
Talking to the FE, former BUET Professor Dr Ijaz Hossain said the Quick Rental Act is itself an 'illegal" law, as energy experts have opposed since its formulation.
He, however, mentions that industrialists supported it at the time, when power shortages hampered production.
Although the then government mentioned its duration as three years when it was enacted, but it continues for a long time.
"I support the verdict. At the same time, I think this type of law should not prevail," says Dr Ijaz.
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