On November 11, all 52 ministers and state ministers, at the request of the prime minister, submitted their resignations to pave the way for the formation of an all-party interim cabinet. Questions have been raised as to whether the ministers, having submitted their resignation letters, can continue to perform their responsibilities as ministers.
The cabinet system, as it functions under our Constitution, has much similarity with the practices and conventions of the British Cabinet system. Though in Britain executive power belongs to the monarch, it is exercised by the prime minister along with his/her cabinet, being collectively responsible to the parliament.
In Britain, all executive actions of the government are taken in the name of the monarch, while in our case, it is expressed as having been taken in the name of the president. According to Article 56(2) of our Constitution, appointment of the prime minister is made by the president, who chooses the leader who holds the majority in the parliament.
The prime minister has exclusive power to choose his/her cabinet members. Their appointments are given by the president on the advice of the prime minister [Article 48(3)].
When it comes to resignation of the ministers, there are two distinct manners of resignation by ministers under our constitution.
One is the resignation of a minister given on his/her own volition covered under Article 58(1) of the Constitution. The other method under Article 58(2) is provided for ministers to resign at the request of the prime minister.
If the request is not complied with, the prime minister may advise the president to terminate the appointment of such ministers according to Article 58 [Tenure of office of other Ministers], which is reproduced here below:
(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.
Upon the resignation offered under Article 58(1), the office of the minister will become vacant if he/she resigns from office by placing his/her resignation in the hands of the prime minister for submission to the president, whereas under Article 58(2) providing the resignation of a minister upon the request of the prime minister does not automatically make the office vacant.
It is known to the world from news media that all the ministers handed over their resignation letters to the prime minister in response to the request of the prime minister who apparently wanted to reshuffle her cabinet during the interim period, to accommodate some members of other parties.
The prime minister therefore requested her cabinet colleagues to resign [Article 58(2)]. It is evidently not a resignation under Article 58(1). Resignations under Article 58(2) in compliance with the request of the prime minister does not ipso facto vacate the office of the minister as is the case for resignation by a minister on his/her own volition under Article 58(1).
A resignation offered in response to the request of the prime minister under Article 58(2) will not bring an end to the office he/she holds, until the prime minister, on her own discretion so advises the president, followed by the directive of the president terminating the appointment of the ministers.
There is precedence in our cabinet system of such a situation, during 1974-75 when all the members of the cabinet of Bangabandhu Sheikh Mujibur Rahman were requested to submit their resignation letters to the prime minister and they were kept with Bangabandu.
The resignation of some came into effect much later when Bangabandhu so advised the president. It is beyond dispute, as would be evident from a plain reading of Article 58(2), that until the prime minister advises the president to terminate the appointment of the ministers tendering resignations, concerned ministers would continue their official responsibilities; it would be their constitutional duty to so carry on.
I, therefore, do not see any derogation of the practice and convention of the cabinet system as is so well articulated in our Constitution.