On resignation of Ministers and the constitution

As I see It Column

The Independent

April 27, 2012

M. Serajul Islam

During President Ershad’s tenure, there was a Law Secretary who used to pride himself that he could interpret any of the Government’s decisions as constitutionally correct given enough of coco cola to drink and a little time to think. The Secretary was addicted to the drink! He always found the legal reasons to defend the Government on constitutional issues. As long as HM Ershad was in power, most of the constitutional experts of the time did not raise commotions over his constitutional interpretations. 

In fact, till the end of the last term of the BNP, constitutional issues were more or less academic.  The AL, while in the opposition and fighting the last BNP government on the issue of the Chief Adviser of the CG, tried and succeeded in using the constitutional provision on the appointment of the CA to put a spanner on the government that ended by bringing the emergency and the army to assume power.  

On assuming power, the AL continued to uphold the importance of the constitution to bring changes aimed at re-establishing the constitution of 1972 and thereby, the democratic and secular character of Bangladesh. For a while, people who were not AL supporters and neutral thought that the AL’s faith in constitution was well intentioned. In particular, they welcomed the re-introduction of the secular character of the Constitution.  

Unfortunately, those who welcomed the AL’s faith in the constitution soon found that it was using that faith more in the interest of the party than the country. That was evident when it went to the Court for ending the 13^th amendment that had established the CG system. The Court ended the CG system but also recommended that given the nature of politics in the country, the CG system should be retained for 2 more national elections. 

The AL did not wait for the Court to write its full judgment. Instead, it went ahead and used its parliamentary majority to end the CG system for good where the whole process took less than 4 minutes to complete! That exposed the fact that the AL’s respect for the Constitution was intended more for furthering its political interests. It has now placed before the country a political problem that threatens to push it to the edge.  

In fact, the AL has shown the same mindset that President Ershad had shown by its acts related to the constitution. That mindset was evident in the Railway gate scandal concerning Suranjit Sen Gupta. When SSG addressed a press conference and resigned as the Minister for Railways the evening after meeting the Prime Minster, everybody took it for granted that he was not just out of the Railway Ministry but also out of the Cabinet. There was no reason for anyone to think anything to the contrary. There was a national outcry to sack him. Such a demand came from senior leaders of his party. The BNP of course wanted his ouster. 

The Prime Minister herself was never happy with SSG. He was a leading reformist in the party who had taken a stand that was designed to clip her wings when she was incarcerated under the CG. Thus when she became the Prime Minister, she clipped the wings of the reformists instead.  SSG was able to find his way to the Cabinet after being in the wilderness for nearly 3 years as he had become an embarrassment to the party by his criticisms that were directed even at the Prime Minister. Thus when SSG dug his own hole with Railway Gate, the Prime Minister firmly showed him the door. The media felt not the slightest doubt that he was out of the cabinet. 

His resurrection thus surprised everybody; a section openly mentioned that he owed his resurrection to the influence exercised upon the Prime Minister by a foreign power.  In addition, leading lawyers injected further controversy into the issue. They said that SSG would need to take a fresh oath as a Minister without portfolio to be in the cabinet that he has not done. Hence they concluded that his appointment as Minister with portfolio was unconstitutional.  

That incensed the Prime Minister. She stated that a Minister remained a Minister till she recommended to the President to accept the resignation. As she had not accepted SSG’s resignation as Minister of Railways, he did not cease to be a Minister and hence when he was made the Minister without portfolio, there was no need for a fresh oath. The same interpretation was used to maintain that Sohel Taj who had resigned as Minister for Home nearly 3 years ago was still a Minister although in this period he never attended his office! 

In using the constitution to answer the critics, the Prime Minister   stated that our Constitution does not give a minister the right to resign from the Cabinet!! Without going to the constitutional debate over the issue, the Prime Minister’s interpretation would make sense only under a dictatorship. A simple reading of Article 58 (1) nevertheless makes it unmistakably clear that SSG’s resignation was constitutionally in order; the Prime Minister had no right to deny him the right to resign and his appointment as Minister without portfolio was a new appointment. The critics were right that SSG’s appointment as a minister without portfolio was a fresh appointment and he was holding the post illegally with a fresh oath.  

The debate over the resignations and the constitution is nevertheless a waste of time. The constitution has always been interpreted in our history by those in power mainly to justify their actions.  In the case of SSG and Sohel Taj, the constitution has been used to deny the ministers their fundamental right to decide whether or not to remain in the government. The Prime Minister interpreted the constitutional provision incorrectly by assuming  a power that the constitution does not give her. Those advising the Prime Minister have acted in the same manner as the Law Secretary who never disappointed President HM Ershad in finding constitutional answers to his actions, a lot of which were debatable. 

Therefore those debating the issue would be using their time better if they tried to find out the real reason for resurrection of SSG as a Minister without portfolio. It does not make sense why the ruling party would waste the advantages it had regained when SSG resigned, by resurrecting him. Therefore there must be a mysterious reason to make him a minister again. It would be worth finding that reason.  

Meanwhile, Sohel Taj highlighted the futility of fighting the Prime Minister’s mindset and her interpretation of the constitution. He thus resigned from the Parliament to get beyond the reach of the Prime Minister to force him to remain a minister. Like Kadambini 36in Tagore’s famous short story who plunged into the well and died to prove she was dead, Sohel Taj resigned from Parliament to prove that he ceased to be a minister! 

The writer is a former Ambassador to Japan and Egypt