Keeping Suranjit Sengupta and Sohel Taj in cabinet: constitutionality of their retentionby Nazir Ahmed
Assistant personnel secretary of the former railways minister Suranjit Sengupta, Omar Faruq Talukdar, along with two other persons (former railway general manager, east, Yusuf Ali Mridha and its Dhaka divisional commander, Enamul Haq) were caught red handed with 70 lakh taka, at midnight in Peelkhan, one of the most secure locations in the capital. They were evidently heading towards the residence of the minister with the money. The money was reportedly collected as bribe from lower grade railway jobseekers. In a severely nervous tone, Mr Gupta said three different things/versions, in the three consecutive press conferences held after the incident. He was eventually forced to resign. However, he was taken back to the cabinet without an oath within 30 hours and kept as a minister without portfolio. The Prime Minister said that the railway minister’s resignation was not accepted. According to Prime Minister, a minister remains in the post until the Prime Minister accepts his or her resignation and the President puts his signature on it! At the 40th founding anniversary gathering of Bangladesh Krishok League (BKL), farmers’ wing of Bangladesh Awami League (BAL), held at Bangabandhu International Conference Centre, Sheikh Hasina said ‘we made Suranjit minister without portfolio as we did not accept the resignation of the railway minister.’ This is one incident.
Another one is, Mr Tanjim Ahmed, popularly known as Sohel Taj (the son of first prime minister of independent Bangladesh, late Mr Taj Uddin Ahmed) who joined prime minister Sheikh Hasina’s cabinet as a state minister for home affairs in January 2009. Within five months of being in the cabinet he resigned from his position, saying that he was not being able to perform his duties and tasks independently. His resignation was kept hanging for the last three years, while he was being paid a salary. Interestingly, Mr Taj’s account was suddenly deposited with salaries of nearly three years, to his surprise, and he subsequently asked the cabinet division to take the money back. But the government would not take it back. The prime minister’s office said that Mr Sohel Taj’s resignation was not accepted.
Mr Gupta was taken back in the cabinet within 30 hours of his resignation. What sort of lobby acted for him? What was the need for keeping him in the cabinet without any portfolio, while corruption investigation was going on? Where is the driver whose bravery led the culprits to be caught red handed at midnight? Has he been killed or become a victim of enforced disappearance? In relation to Sohel Taj, what was the necessity of keeping him in the cabinet after resignation, especially when he was desperate to leave? Why was his bank account suddenly deposited with salaries of last three years? Suranjit Sengupta is also drawing a salary for doing nothing. Is it legally and morally right to waste public funds (tax payers’ money) in such a way? These are valid political, moral and legal questions. However, in this article, we will seek to evaluate the constitutionality of the Prime Minister’s decision for keeping them in the Cabinet after their resignation.
Constitutionally, ministers hold their office at the discretion of the Prime Minister. The Prime Minister may, at any time, request a minister to resign and if such a minister fails to comply with the request, may advise the President to terminate the appointment of such a minister, Article 58(2). This is from the Prime Minister’s side. There are two other circumstances where the minister’s office shall be vacant. Firstly, if a minister, who became minister as a member of parliament, ceases to be a member of parliament, [Article. 58 (1) (b)], or secondly, if the Prime Minister resigns or ceases to hold office, Article. 58(4). However, from the minister’s side, the office shall be vacant if s/he resigns from office by placing his/her resignation in the hands of the Prime Minister for submission to the President, Article 58(1)(a). The constitution has not given any authority to the Prime Minister to accept or reject the resignation at her will. Once a minister resigns, the resignation becomes effective immediately. The other activities (i.e. submission of the resignation letter to the President by the Prime Minister and the signature of the President on the resignation letter etc) are mere formalities. This is understandable, due to the fact that the ministers act under oath, and once their conscience dictates them to resign they must not be forced to be kept in the positions.
In relation to Sohel Taj’s resignation as state minister, one of the Prime Minister’s close and senior colleagues, Mrs Choudhury, has recently said publicly that Sohel Taj’s resignation was not accepted by the prime minister, Sheikh Hasina, because of her emotion involved in this matter. This is a very damaging and reckless statement. Is the Prime Minister restricted by emotion from taking the right decision as per the constitution? If that is so, then she has clearly violated her constitutional oath, for she took oath by uttering, among others, ‘And that I will do right to all manner of people according to law, without fear of favour, affection or ill-will’ [Third Schedule: Article 148, Oaths and Affirmations 1(a)].
Let us see what the leading lawyers and eminent jurists of the country have said in this matter. Barrister Rafiq-Ul Huq, an eminent jurist and former Attorney General, asks, ‘Is a minister a service holder that his resignation has to be accepted? There is nothing for acceptance of resignation. If a minister resigns, it takes effect immediately.’ In relation to the retention of Suranjit as a minister without portfolio, Barrister Huq further said, ‘Suranjit Sengupta resigned as railway minister but became a minister again without taking an oath. Without taking an oath of the office afresh how will he sit in the cabinet meetings?’ Echoing him, another eminent jurist Dr M Zahir said, ’to my knowledge there is no provision in the constitution for acceptance of a minister’s resignation. If one resigns, there is no issue of acceptance.’ According to Hasan Arif, senior advocate of the supreme court of Bangladesh and former Attorney General, ‘There is nothing in the constitution for acceptance of a minister’s resignation.’ In accordance with the country’s leading constitutional expert Mr Mahmudul Islam, senior advocate of the supreme court of Bangladesh and former Attorney General, ‘lawmakers, and holders of other constitutional posts and offices, have the unilateral right to resign, the effectiveness of which is not dependent on the acceptance of the resignation by any authority.’
Leading academics are also of the same opinion. Dr Shahdin Malik, renowned lawyer and academic (head of the School of Law at BRAC University) said ‘If a Minister has resigned from his post there is no question of accepting or rejecting that. According to the constitution when the resignation letter was sent to the Prime Minister’s office that becomes automatically effective.’ In relation to the position of a minister without portfolio, he further said, ‘It is not acceptable, in any organisation, that a person who has no work would receive salary and enjoy other privileges for doing nothing. To this extent it is also immoral.’ Another eminent academic Asif Nazrul, professor of law at Law Department of Dhaka University, said, ‘After submission of a resignation letter, a minister cannot be retained as a minister without portfolio. There is no provision in the constitution that suggests there would be a minister without portfolio.’ According to a former president of the Supreme Court Bar Association of Bangladesh, who wants to remain anonymous, ‘It is immaterial whether the prime minister submits it to the President, the resignation comes into effect the moment he (the minister) submits the paper. The prime minister has no authority to reappoint a minister, but the minister has to take fresh oath to hold office. He must be reappointed, not re-designed.’
It would appear from the above constitutional provisions and opinions of leading lawyers, academics and eminent jurists of the country that the Prime Minister was either ignorant of the constitutional provisions or, if she was aware of them, was knowingly misleading the country. She clearly violated the constitution in keeping Suranjit Sengupta, in the cabinet, as a minister without portfolio and Sohel Taj, forcefully against his will, as state minister without portfolio. Ministers are neither civil servants nor ordinary employees. Their positions are constitutional posts. In a constitutional post, there is no scope for submission of joining letter as after taking the oath a person is automatically installed in office. Similarly, there is no scope for accepting or rejecting the resignation letter. It becomes effective at the moment the concerned minister resigns. The Prime Minister has nothing to do, apart from regretting or saying some carefully selected words in the media on the exit of the resigned minister. This is the norm we have seen in developed democracies, particularly in the UK, the motherland of parliamentary democracy. The same norms and conventions are, more or less, followed in India. Why should we be different, especially when we have a written constitution with clear provisions? Does our Prime Minister consider herself to be more democratic than her counterparts of those countries? Whatever one may be, by violating the constitutional provisions one cannot be more democratic. Rather, it would appear to be the sign of dictatorship, arrogance and disrespect to the constitution.
The writer is FRSA FCMI FRSPH FCIArb LLB Hons (London), LLM (London), Barrister-at-Law
(Lincoln’s Inn), Advocate, Supreme Court of Bangladesh. Email: email@example.com
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