Keeping Suranjit and Sohel at Cabinet: The Constitutional Debate

Mr. Suranjit Sengupta was eventually forced to resign after the alleged Railwaygate money scam amounting to 70 lac reported to have collected as bribe from Railway jobseekers at lower grade.

However, he was taken back to the cabinet without oath within 30 hours and kept as a minister without any portfolio.

The Prime Minister said the Railways Minister’s resignation was not accepted. According to the 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! Sheikh Hasina said, at the 40th Founding Anniversary Gathering of Bangladesh Krishok League (BKL), farmers’ wing of Bangladesh Awwami League (BAL), held at Bangabandhu International Conference Centre, “We made Surenjit Minister without portfolio as we did not accept the resignation of the Railway Minister.” This is one incident.  

Another one is that Tanjim Ahmed Sohel Taj [the son of first Prime Minister of independent Bangladesh] joined Prime Minister Sheikh Hasina’s Cabinet as a State Minister for Home Affairs on January 2009.  Within less than five months of being in the cabinet, he resigned from his position saying he was not being able to perform his duties and tasks independently.

His resignation was kept in hanging for the last three years, while he was being paid salary.  Interestingly, Mr Taj’s account was suddenly deposited with salaries of nearly three years which surprised him and he subsequently asked the cabinet division to take the money back.

But the government did not take those back.  The Prime Minister and his Office said that Taj’s resignation was not accepted.  

Mr. Gupata 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 in 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 the salaries of nearly last three years?

Mr. Gupta is also drawing salary for doing nothing.  Is it legally and morally right to waste public funds [tax payers’ money] in such a way?  These are the valid political, moral and legal questions.  

However, we would seek in this article to evaluate the constitutionality of the Prime Minister’s decision for keeping them in the cabinet after their resignation.

Constitutionally, ministers hold their office during 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 with the request, 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.   

In relation to Sohel Taj’s resignation as a State Minister, one of Prime Minister’s close and senior colleagues, Mrs. Choudhury, has recently publicly said “Sohel Taj’s resignation was not accepted by the Prime Minister because of her emotion involved in this matter.”

This is very damaging and reckless statement.  Is the Prime Minister restricted and controlled by the emotion from taking right decision as per Constitution?

If that is so, then she has clearly violated her constitutional oath, for the Prime Minister 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, 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.”

In relation to the retention of Suranjit as a Minister without portfolio, Barrister Huq further said: “Surenjit 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 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 take money and enjoy other privileges for doing nothing, and to this extent it is immoral also.”

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. 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, but not re-designed.”                    

It would appear from the above constitutional provisions and opinions of the 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, 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 a 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 norms and conventions we have seen in the developed democracy, particularly in the UK. Same norms and conventions, more or less, are followed in India. Why should we be different, especially when we have written Constitution with clear provisions? Does our Prime Minister consider her to be more democratic than her counterparts of those countries?

Whatever one may be, by violating the constitutional provisions he cannot be more democratic. Rather, it would appear to be the sign disrespect to the Constitution.    

Barrister Nazir Ahmed is an Advocate of the Supreme Court of Bangladesh