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Constitutionality of the cabinet

Mizanur Rahman Khan
THE validity of the cabinet is in question after the first public acknowledgement by the prime minister that she has the right to determine the fate of ministerial resignation letters.
The cabinet is now Coram non judice, meaning without proper juridsdiction, as there are two "strangers" (Suranjit Sengupta and Sohel Taj) in the cabinet. Our apex court frequently relies on the doctrine of Coram non judice. This week may also see a state minister seek dismissal of his corruption case in the High Court hearing. The minister is expected to argue that after the resignation of the commissioners, the then ACC became a Coram non judice and thus its filing of case against him was without lawful authority. The Apellate Division has already endorsed this view in similar cases.
Are our cabinet proceedings flawed? The PM initiated an interesting debate by not sending the two resignation letters to the president, which virtually amounts to "appropriating" the powers of the president. The April 21 issue of The Daily Star reports that jurists have unanimously opined that there is no question about acceptance of ministerial resignation letters. Indeed, resigning from any constitutional post is not subject to anyone's approval. In a monarchy, the resignation of a minister becomes effective only when the king approves it.
It will be interesting to see how the speaker deals with the vacancy of Sohel Taj's parliamentary seat after his resignation on April 23. Mahmudul Islam wrote in his Constitutional Law of Bangladesh (Page 353):' 'The members of Parliament, like holders of other constitutional posts and offices, have the unilateral right of resignation, effectiveness of which is not dependent on the acceptance of the resignation by any authority."
The PM's interpretation may have been appropriate if a proposed provision had been passed in 1972. The constitution framing committee, on June 3, 1972, recom-mended a provision to the Constituent assembly that "the president shall accept the resignation of a minister (other than the PM) on the advice of the PM." It was incorporated in Article 64 (15) but was dropped. So the president should act immediately to preserve, protect and defend the constitutionality of the cabinet to end the controversy.
"As the railway minister, I'm responsible for all the good and bad in my ministry," asserted our fallen crusader of ethical politics. It reminds us about the essence of ministerial responsibility. The issue of ministe-
rial resignation is essentially an ethical issue which derives from the master's (read public) grievance or perception far from authoritarian or legal compulsion.
In the UK, there are 11 different areas for which resignation can be enforced. They are personal, departmental error, sexual or financial scandal, policy disagreement, personality clash, performance, retirement, alternative appointment, reshuffle and "other controversy."
In 40 years we have not yet been able to sensitise the issue of ministerial resignation brought about by any of those categories. It is even unknown to our media and opposition that there are more significant usages of "calls for resignation," a benchmark of quality democracy. England saw 69 resignations in 56 years (1945 to 1991), 43 for individual responsibility and 26 were due to policy differences. But there were 123 "nonresignation" occasions where ministers refused to resign.
It has been more than one year since the Syed Abul Hossain episode, where the media or the opposition was not able to come up with any credible specific allegations. There were calls for the resignation of Sahara Khatun and Shajahan Khan among others, but without vigour. In UK, the opposition parties called for resignation 78% of the time when ministers do not resign and 66% of the time when they have resigned. Begum Khaleda Zia, after formation of the cabinet in 2001, said that a ministerial job was not permanent but was based on performance.
The convention of ministerial resignations is to hang on for as long as possible. How long a minister hangs on following protests by the opposition and the media depends on his or her political weight. Having a 55-year long multicoloured political career, Sengupta hung on for five days in the railwaygate scandal, succumbing only after meeting the PM.
I recall the high voltage resignation drama in India in 2005 regarding a minister without portfolio, K. Natwar Singh, being named as a "non-contractual" beneficiary of the UN's Oil for Food programme in Iraq. The Indian ministers hold office at the pleasure of the president not the PM. Mr. Singh, the then foreign minister, telephoned Manmohan Singh during his visit to Moscow and expressed his intention to resign. The PMO declared that "Mr. K. Natwar Singh met the PM and requested to be relieved, which was accepted. The PM wrote to the president that Mr. Natwar Singh will be minister without portfolio." Sengupta has resignd by "placing his resignation in the hands of the PM." Resignation is not defined in the constitution but it means the "discontinuation" of a minister's presence in the cabinet.
Resignation leaves an acid taste as argued by Stuart Weir and David Beetham: "Resignation usually ends a minister's career at the highest level." Shakespeare wrote: "Nothing in his life became him like the leaving of it" (Macbeth). If only the same could be said about the many who leave ministerial life in Bangladesh.
The writer is a journalist.
****Resignation is not defined in the constitution but it means the "discontinuation" of a minister’s presence in the cabinet.*****