[ALOCHONA] Acceptance of resignation & our constitution

Acceptance of resignation & our constitution



What was otherwise ordinary news in the media that "Suranjit is back" to the cabinet has turned into a matter of important constitutional debate with the prime minister taking the position that a resignation is valid only if it is accepted and a section of jurists saying there is no need for acceptance. The constitution in this case makes no mention of the requirement for acceptance.

Article 58(1) (a) of the country's constitution says the office of a minister other than the prime minister shall become vacant "if he resigns from office by placing his resignation in the hands of the prime minister for submission to the president". (The entire article has been reproduced at the bottom of this report for a better understanding for the readers.)

"Is a minister a service holder that his resignation has to be accepted? There is nothing for acceptance of a resignation. If a minister resigns, it takes effect immediately," said eminent jurist barrister Rafique-Ul Huq.

In his opinion, Suranjit 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 meeting?" questioned Huq.

While bashing the media on Thursday over reports on Suranjit's resignation, Prime Minister Sheikh Hasina claimed that a minister remains in the post until the prime minister accepts his or her resignation and the president signs the resignation letter. "We made Suranjit Sengupta minister without portfolio as we did not accept the resignation of the railway minister," she said.

However, jurists argue that as provided for in our constitution and as practised in parliamentary democracy acceptance of resignation is unnecessary not only for ministers but also for others holding constitutional posts. Their resignation takes effect the moment they submit it to the prime minister.

Dr M Zahir's echoed Huq and 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."

Former attorney general Hassan Arif categorically said there is nothing in the constitution for acceptance of a minister's resignation.He also raised a significant issue about what happens if a minister who has been asked to resign by the prime minister refuses to do so.

According to the constitution, he said that at any time the prime minister may request a minister to resign, and if the minister fails to comply with the request, the prime minister may advise the president to terminate the appointment of the minister.

However, a convention of acceptance of resignation is being forcibly developed in the country. "There will be a debate if anybody challenges it with the court terming the convention unconstitutional," Arif said.

The issue of resignation has become even more controversial with what has happened in case of Tanjim Ahmad Sohel Taj who was the state minister for home. Taj resigned in June 2009 and left the country. Yet his salary as a state minister is being deposited to his bank account every month. When the matter was brought to light, Taj in a statement has demanded that the government take back the money.

Later, Cabinet Secretary M Musharraf Hossain Bhuiyan told the press that since Taj's resignation was not accepted, he remains a minister without portfolio. This explanation also goes against the constitution.

Jurist Shahdeen Malik said the effectiveness of the resignation of Suranjit and Sohel Taj is not dependent on the acceptance of those by any authority. Rather their resignation took effect immediately after they sent the letters.

Former attorney general Mahmudul Islam analysed several verdicts by the apex courts in Bangladesh, India and Pakistan on resignation from constitutional posts in his book "Constitutional Law of Bangladesh".

He 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.

WHAT SAYS THE CONSTITUTION

Article 58 of Bangladesh Constitution deals with the tenure of office of other ministers in the following manner:

58. (1) 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 submission to the president;

(b) if he ceases to be a member of parliament, but this shall not be applicable to a minister chosen under the proviso to article 56(2);

(c) if the president, pursuant to the provisions of clause (2), so directs; or (d) as provided in clause (4).

(2) 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.

(3) Nothing in sub clauses (a), (b) and (d) of clause (1) shall disqualify a minister for holding office during any period in which parliament stands dissolved.

(4) If the prime minister resigns from or ceases to hold office each of the other ministers shall be deemed also to have resigned from office but shall, subject to the provisions of this chapter, continue to hold office until his successor has entered upon office.

(5) In this article "minister" includes minister of state and deputy minister.

http://www.thedailystar.net/newDesign/news-details.php?nid=231151

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