Barrister Nazir Ahmed
Prime Minister Sheikh Hasina nowadays seems to be giving an impression to the nation that she is a real follower of the Constitution. Almost in each and every meeting she clearly says: “I will not go beyond the Constitution,” “I will not barge an inch from the Constitution,” “the opposition party’s demand cannot be accepted because it is unconstitutional” and so on and so forth. Is that what she really means?
The Prime Minister has clearly violated the Constitution by holding all the ministers’ resignation letters in her hand to enable her to ‘pick and choose.’ All ministers and state ministers submitted their resignation letters undated! Almost half a dozen ministers were seen in the media to have expressed their respect and gratitude to the Prime Minister by touching her feet (paye dhore salam)! It appears that the Constitution and its provisions are, unfortunately, made a game tool to play with.
For example, the Prime Minister has been refusing to accept the 18 party-alliance’s demand (backed by around 90% people of the country) for restoring the system of non-party caretaker government (CTG) saying that it is unconstitutional. But, is it constitutional when she says of all party interim government headed by her? Which constitutional provision covers the system of all party interim government? How can the government be all parties when the main opposition parties are not included? Party wise, eight parties are represented in Parliament, of which at least four parties have already declined the Prime Minister’s proposal of all party interim government headed by her. So, how can the forthcoming government, which the Prime Minister is desperately trying to set up, be a government of all party interim government? In fact, that government would be the government of her own Grand Alliance, which is already in the government headed by her.
Constitution is being misused
The Constitution is being used to fulfill the needs and wishes of those in power. Constitutionally, Ministers hold their office at the pleasure of the Prime Minister. The Prime Minister may at any time request a Minister to resign and if such Minister fails to comply, she may advise the President to terminate the appointment of such 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. These are: if a Minister, who became Minister as a Member of Parliament, ceases to be a Member of Parliament, [Article. 58 (1) (b)] or 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 either to accept or reject the resignation at her will. Once a Minister resigns, the resignation becomes immediately effective. 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 conscious dictates them to resign they must not be forced to be kept in the positions.
Partisan, selfish and one eyed Ministers have been trying to give their opinion on their resignations as they wish and as it suit them. They appear to say that their resignation will only be valid when it is sent to and accepted by the President. Do they consider the nation and its people fool? They are so shameless and desperate to cling on power that they do not bother in misleading the nation or misinterpreting the Constitution.
What experts say
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 of Bangladesh, said: “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.” Echoing him another eminent jurist late 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 of Bangladesh, “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 of Bangladesh during the Awwami League’s last government, “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, a renowned lawyer and academic (Head of the School of Law of 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.” Another eminent academic Dr Asif Nazrul, Professor of Law at the Law Department of Dhaka University, said: “After submission of a resignation letter, a Minister cannot be retained as a Minister with or without portfolio. There is no provision in the Constitution that suggest 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 (Minister) submits the paper.”
Country being misled?
It would appear from the above constitutional provisions and opinions of the country’s leading lawyers, academics and eminent jurists that the Prime Minister was either ignorant of the constitutional provisions or was knowingly misleading the country. She clearly violated the Constitution in the past by retaining Surenjit Sen Gupta as Minister without portfolio after resignation and hanging on to Suhel Taj’s resignation. Likewise, she has violated the Constitution again after the all the Ministers’ resignation afterwards.
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 norms and conventions we have seen in the developed democracy, particularly in the UK, considered the mother of parliamentary democracy.
Same norms and conventions, more or less, are also followed in India. Why should we be different, especially when we have a written Constitution with clear provisions? Does our Prime Minister consider her to be more democratic than her counterparts of those countries? Whatever one may think, by violating the Constitutional provisions he or she cannot be more democratic. Rather, it would appear to be the sign of dictatorship, arrogance and disrespect to the Constitution.
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The writer is an UK based Legal expert, analyst, writer and columnist. He can be reached vla
e-mail:ahmedlaw2002@yaho.co.uk
Source: Weekly Holiday
Our dear PM has become an ardent and enthusiastic follower of poet Ishwar Gupta who wrote: Jodi jaibi pashchime bolibi dakhine chalibi uttar mukhe; Shaper mathai vekere nachabi tobe to rohibi shukhe? (If you want to go west, say south, feign to go north; You’ll be happy if you can make the frog dance on the snake’s hood.) What she says, she does not mean it and what she means she does not say; and what she say, hardly does that. This is unique quality that takes an ordinary human being long, long practice. We are but stupids that we most often fail to understand that. But we must not blame her for it; we should rather look upon the old and jaded ones of the party who dance around her in pitiable submission. To think that some of her ministers are kissing her feet!! They have virtually insulted the voters who voted them to power.
And she gets away with all these with give-a-shit kind of arrogance, under the gleeful watch of our citizens – says something about the character of the nation itself! Bangladesh seems to be emerging as a nation that is completely intellectually numb and morally vacuous..