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New convention prevails over constitutional provision

Shakhawat Liton
PRESIDENT Zillur Rahman has finally "accepted" Syed Abul Hossain's resignation as ICT minister. The Cabinet Division announced it in a circular issued on Thursday (August 23). The president however took a month to do so. Abul had tendered his resignation to Prime Minister Sheikh Hasina on July 23, paving the way for her government to revive financial arrangements with the World Bank for the Padma Bridge project as the world money lender cancelled the loan agreement because of his alleged corruption in the project. The Cabinet Division also said the office of minister Abul, who was dubbed as "patriot" by PM Hasina for his resignation, fell vacant on July 23, the day he tendered his resignation.
The president did the opposite in the resignations of Suranjit Sengupta and Tanjim Ahmad Sohel Taj.
Suranjit tendered his resignation to PM Hasina in the wake of criticism after his aide was caught with sacks full of money at midnight in the city in April this year. While bashing the media on April 19 over reports on Suranjit's resignation, Hasina claimed that a minister remained in the post until the prime minister accepted his or her resignation and the president signed the resignation letter. She said: "We made Suranjit Sengupta minister without portfolio as we did not accept the resignation of the railway minister."
The issue of resignation had become even more controversial with what happened in the case of Sohel Taj, who was state minister for home. He had resigned in June 2009 and left the country. Yet his salary as a state minister was being deposited to his bank account every month. When the matter was brought to light Taj, in a statement in April this year, demanded that the government take back the money.
Then Cabinet Secretary M. Musharraf Hossain Bhuiyan told the press that since Taj's resignation was not accepted, he remained a minister without portfolio.
Sohel Taj finally got relief by resigning from parliament in July this year as his resignation disqualified him from holding the office of state minister. Only after his resignation from Parliament did the Cabinet Division come up with a circular saying Sohel Taj's appointment as state minister had become void following his resignation.
The way the president and the premier handled the resignation of Suranjit, Abul and Sohel Taj proved that a convention of acceptance of resignation of a minister has been forcibly deveopled in the country. And all credit goes to Hasina as it is she who alone invented the new convention of "acceptance” and "non-acceptance" of resignation. There is no such provision in the constitution and her invention does not comply with Article 58 (1) (a) of the Constitution that says: "The office of a minister other than the prime minister shall become vacant (a) if he resigns from office by placing his resignation in the hands of the prime minister for submis-
sion to the president."
The explanation she gave after resignation of Suranjit, however, drew criticism from eminent jurists who argued that, as provided for in our constitution and as practised in parliamentary democracy, acceptance of resignation is unnecessary for ministers. Their resignation takes effect the momen they tender it to the prime minister for submission to the president.
By "accepting" Abul's resignation, the president himself proved wrong the premier's constitutional interpretation she gave after resignation of Suranjit. (She claimed that a minister remains in the post until the prime minister accepts his or her resignation.)
So what? She is the supreme leader both in the cabinet and the ruling Awami League and there is none to question her decision and her interpretation of the constitution. To her party and cabinet colleagues, her words seem more worthy than the
constitutional provision. Eminent jurists may have not adequate expertise to interpret the spirit of the constitutional provision the way the premier has been explaining!
The Cabinet Division's circular also raised another crucial question about whether the president has any jurisdiction to "accept" resignation of a minister. Article 58 (1) (a) in no way provides the president with the jurisdiction to "accept" or "reject" resignation of a minister. Then, did the president cross the line of his jurisdiction by accepting or rejecting the resignation of Abul, Suranjit and Sohel Taj? Did the president do it on his own or on advice of the prime minister? Did the premier submit the resignation letters of Suranjit and Sohel Taj to the president?
The president, in exercise of his constitutional authority, appoints some high constitutional functionaries including the premier, ministers and judges of the Supreme Court. Can he claim any discretionary power to determine the fate of their resignation? The Indian Supreme Court came up with the answer to the crucial question in Union of
India versus Shri Gopal Chandra and others case in 1978. The Indian Supreme Court delivered the verdict disposing a petition filed with it centering the resignation of a High Court judge.
Citing Article 217 of the Indian Constitution, dealing with the appointment and conditions of the office of a judge of a High Court, the Supreme Court in the verdict observed: "It is manifestly plain that there is no relationship of master and servant, employer and employee between the President and the Judge of the High Court, because a Judge is not a Government servant so as to be governed by Article 310 of the Constitution. A Judge of the High Court appointed under Article 217 has a special status and is a constitutional functionary appointed under the provisions of the Constitution by the President. The mere fact that the President appoints him does not make him an employer of the Judge, in appointing a Judge, the President exercises certain constitutional functions as contained in Article 217 (1)."
About resignation of a judge of the High Court Article 217 (1) (a) says a judge may, by writing under his hand addressed to the president, resign his office.
Interpreting the provision on resignation, the Indian Supreme Court observed: "In the case of a Government servant, normally, the tender of resignation becomes effective and his service terminated when it is accepted by appropriate authority. In the case of a High Court Judge who is a constitutional functionary having under Article 217 (1), Proviso (a), a unilateral right or privilege to resign, his resignation becomes effective on the date from which he, of his volition, chooses to quit office."
It further observed that the concept of acceptance of resignation submitted by a High Court judge is completely absent from Article 217(1) (a), and the effectiveness of the resignation does not depend upon the acceptance of the resignation by the president.
"In view of the provisions of Article 217 (1) (a) and similar provision in respect to (other] high constitutional functionaries, the resignation once submitted and communicated to the appropriate authority, becomes complete and irrevocable and acts ex proprio vigore, "the Indian Supreme Court said.
Relying on this verdict, eminent jurist and former attorney general Mahmudul Islam in his book Constitutional Law of Bangladesh said 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.
But nothing can prevent the new convention of acceptance of resignation of a minister from forcibly developing in Bangladesh during the regime of Awami League-led government. Will the new convention to be continued to get priority over the constitutional provision in the coming days? What will be the fate of the convention if the BNP-led alliance forms the government in future?
The writer is a senior reporter of The Daily Star.
Email: shakhawatllton@gmail.com