Faulty Saving Clause
All steps at stake
Shakhawat Liton
Flawed saving clauses in the newly promulgated ordinance that repeals the emergency power ordinance and rules, make uncertain the fate of ongoing anti-graft activities initiated under the state of emergency, according to legal experts.
A saving clause is a provision in a statute or contract which makes sure if any clause is determined to be unenforceable, the remainder of the statute or contract will remain intact and enforceable.
The saving clauses in the new ordinance allow incomplete activities like investigations, inquiries, and trials, which were initiated under the now repealed emergency powers rules (EPR), to be completed under ordinary laws of the land.
But legal experts argue, all of the incomplete tasks are supposed to be allowed to be completed under EPR even after its repeal by the new ordinance.
They say the flawed saving clauses will give rise to a lot of confusions and complications that might end up jeopardising the incomplete anti-graft tasks which began under the state of emergency.
In cases of completed tasks, the saving clauses stipulate that despite the repeal of EPR the activities completed under EPR will remain valid in such a way as if EPR was never repealed. The legal experts find this portion of the clauses satisfactory.
The problem is in other saving clauses which deal with the fate of incomplete anti-graft activities which were launched under the emergency and are still to be completed, the experts say.
According to the new ordinance, investigations, inquiries, trials, and appeals that were initiated under EPR and are still to be completed, will remain valid up to the point where they were at the time of repealing the emergency laws, in such a way as if EPR was never repealed.
And the remaining portions of those tasks will be completed according to the regular laws and rules of the land, which would be applicable if the EPR was not formulated at all.
The legal experts argue that the clause puts a half of an activity under EPR and the other half under regular laws, jeopardising the validity of the entire work.
“The incomplete activities are supposed to be completed under EPR even after its repeal. But the drafting of the saving clauses was not proper. And it will create confusions regarding the fate of the activities still to be completed,” Ghulam Rabbani, a former judge of the Appellate Division of Supreme Court, told The Daily Star.
Another eminent jurist Shahdeen Malik termed the saving clauses unusual. “The courts and lawyers will have to face an unusual situation which they hardly ever faced before,” Malik told The Daily Star.
He said it will create procedural complications in adjudicating pending cases that were initiated under EPR.
A senior official of the courts, who is now working at a government office on deputation to the post of a joint secretary, said the law ministry failed to draft the ordinance properly.
He said a saving clause is always framed in such a way, so all pending cases can be adjudicated under the repealed law.
“I think, the law ministry either made mistakes in drafting the saving clauses or did it intentionally,” the official told The Daily Star wishing anonymity.
When a home ministry senior official’s attention was drawn to the flaw in the saving clauses, he expressed astonishment and said he will talk to the law ministry seeking explanations.
With the new ordinance coming into effect today after being promulgated on Monday, the National Coordination Committee for Dealing with Grievous Offences and Corruption (NCC) also gets dissolved.
“The NCC will be deemed dissolved with the withdrawal of the state of emergency,” says the new ordinance published in a government gazette notification.
But the office of NCC will continue to be functional till January 1, 2009 to wrap up its unfinished administrative work, and will finally cease to exist after that date, the gazette notification says.
The military backed caretaker government constituted the NCC on March 8, 2007 in the aftermath of the declaration of the state of emergency.
The new ordinance that repeals the Emergency Power Ordinance 2007 includes another saving clause indemnifying those individuals from prosecution, who acted upon the emergency ordinance or implemented it in good faith. The emergency ordinance also provided them with the same indemnity.
Courtesy: thedailystar.net
