19/08/2013 21:41 19/08/2013 21:32
Assistant Personnel Secretary (APS) of the former Railway Minister Surenjit Sen Gupta, Omar Faruq Talukdar, along with two other persons [former Railway General Manager (East) Yusuf Ali Mridha and its Dhaka Divisional Commander Enamul Haq] was caught in red handed with 70 lakh taka at midnight in Peelkhan, one of the highest sensitive and secured locations in the capital. They were evidently reported to be heading towards the residence of the Minister with the moneys. The moneys were reportedly collected as bribe from railway jobseekers at lower grades. With severe nervous tone and panic mood, Mr Gupta said three different things/versions in the three consecutive press conferences held by him. He was eventually forced to resign.
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.”
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? Surenjit Sen 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 Mr Gupta in the Cabinet after his 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.
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 Sen Gupta 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 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, “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 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.” 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.” Another eminent academic 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 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. 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 Surenjit Sen Gupta in the Cabinet as a Minister without portfolio. Minister is neither civil servant nor ordinary employee. His position is constitutional post. 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, the mother place of parliamentary democracy. 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 of dictatorship, arrogance and disrespect to the Constitution.
Mr Gupta’s another scandal has recently come out in the media where he asked for three crore taka(30 Million) bribe from a female institution called ‘female academy’ of his own constituency. He has opened up a Shopping Mall in his local area, the sources of money and funds are unknown. His son has become giant of telephone business since Mr Gupta became a Minister. All those corruption incidents and allegations are serious. There are overwhelming evidences of corruption and bribe against Mr Gupta. Mr Gupta is not an asset at all for the government. He is certainly a liability for the government. The sooner the government - and particularly the Prime Minister - realise this, the better for the nation.
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