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Advisers in the place of or in addition to Ministers: Constitutional quest for their appointment

Written By: NazirAhmed
20/06/2013 12:06
Contemporary Debate

In a parliamentary democracy the party (or parties if in coalition) which wins the general [national] election forms the government.  Its leader becomes the Prime Minister.  The Prime Minister selects his/her Cabinet choosing his/her most able and loyal supporters from Parliament.  The whole Cabinet holds its Office during the pleasure of the Prime Minister who can ask any Minister to resign or can ask the President to terminate his/her appointment if he/she fails to resign.  This is the conventional norms of a parliamentary democracy, although Minister’s resignation or termination rarely happens in our country, for the government of the day feels weakness in such approach (the recent incidents of Suranjit Sen Gupta and Suhel Taj are live examples).  The President is the constitutional (and, to a great extent, a ceremonial) head of the State.
Constitutionally in our country the President appoints as Prime Minister the Member of Parliament (MP) who appears to him to command the support of the majority of Members of Parliament (MPs), [Art 56(3)].  The President also appoints such other Ministers, State Ministers and Deputy Ministers as may be determined by the Prime Minister on the advice of the Prime Minister, [Art. 56(1) & (2)].  Under Article 56 of the Constitution, no one can be appointed as Minister, State Minister or Deputy Minister unless he/she is qualified to be elected as an MP and at least nine-tenths of their number shall have to be appointed from among the MPs.  Therefore, Article 56 plainly confirms that nine-tenths of the Cabinet would have to be from the MPs and one-tenths of the Cabinet may be technocrat Ministers.  Although the technocrat Ministers are not from MPs, they have to be qualified to be elected as MPs.  There is no provision in our Constitution for appointing Advisers in the place of Ministers with a view to cover the tasks of Ministers.  As such, it is unconstitutional to appoint the Advisers and then let them deal with the tasks of Ministers.  
In the current Cabinet of our Prime Minister Sheikh Hasina, there are quite a few Advisers with full Ministers’ rank and status (not less than seven) in different important Ministries, such as Foreign, Defence, Health, Education, Establishment etc.  Advisers in the place of or in addition to Ministers can be found, in a limited extent, more or less in all tenures of our democratic governments. For example, the last four party alliance government led by the BNP had Energy Adviser and Foreign Adviser with the rank and status of a State Minister.  However, the role, manoeuvres and visibility of Advisers in different important and powerful Ministries under the present government has reached to an unprecedented level.  The political analysts often say that the current government is Advisers dependent while the sharp critics of the government frequently say that the current government is run by the Advisers!
The Ministers, State Ministers and Deputy Ministers are oath bound.  That means they carry out their duties and responsibilities under oath.  While they are appointed as Minister, State Minister and Deputy Minister, they take Oath of Office by uttering "I ........................, do solemnly swear (or affirm) that I will faithfully discharge the duties of the Office of ...... Minister (or as the case may be) according to law: That I will bear true faith and allegiance to Bangladesh; That I will preserve, protect and defend the Constitution; And That I will do right to all manner of people according to law, without fear or favour, affection or ill-will." [THIRD SCHEDULE: Article 148, OATHS ANDAFFIRMATIONS, 2(a)].  Not only this, they are also required to take Oath of Secrecy by saying "I, ........................, do solemnly swear (or affirm) that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as ......... Minister (or as the case may be) except as may be required for the due discharge of my duty as ............ Minister (or as the case may be)."  [THIRD SCHEDULE: Article 148, OATHS AND AFFIRMATIONS, 2(b)].  The Advisers neither take the Oath of Office nor do they take the Oath of Secrecy.  That means they can carry out their tasks and deal with the State’s sensitive and confidential files without having to take any oath.  Can this or should this be allowed in a democratic country run by the constitutional government? 
As mentioned above, although the technocrat Ministers are not MPs, they have to be qualified to be elected as MPs.  In relation to the eligibility to become an MP, Article 66 of the Constitution clearly says, inter alia, 1) A person shall subject to the provisions of Clause (2), be qualified to be elected as, and to be, a Member of Parliament if he is a citizen of Bangladesh and has attained the age of twenty-five years.  (2) A person shall be disqualified for election as, or for being, a Member of Parliament who - (a) is declared by a competent court to be of unsound mind; (b) is an undercharged insolvent; (c) acquires the citizenship of, or affirms or acknowledges allegiance to, a foreign state; (d) has been, on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years unless a period of five years has elapsed since his release; (dd) holds any office of profit in this service of the Republic other than an office which is declared by law not to disqualify its holders; or (g) is disqualified for such election by or under any law.  It is widely believed that the current Foreign Affairs Adviser Dr Gowher Rizvi acquired the citizenship of a foreign country which does not allow or recognise dual nationality.  In fact, Dr Rezvi was neither seen nor his name was heard in Bangladesh until the military backed emergency government headed by Dr Fakhruddin Ahmed came into power after the 1/11 in 2007.  He was a renowned academic living abroad for a long period of time.  Therefore, it would not be unusual for him to have acquired the citizenship of that foreign country.  But the question is: is it prudent and constitutional for the government to appoint an Adviser who cannot even qualify to be an MP to become a technocrat Minister and thereby allow him to deal with the State’s sensitive and confidential files?  More importantly, the Foreign Affairs Adviser deals with and negotiates on behalf of our relatively weak and volatile country with big neighbour and some powerful States in the world, such as India, USA.  How can the nation be assured that the best interests of our country will be served by such a person who is neither an elected representative, nor working under oath, nor even qualify to be an elected representative?  The head of State and the head of government should think about it.  Otherwise, the history will never forgive them if any disastrous thing ever happens to our country.     
The Constitution is considered to be the supreme law of Bangladesh [Art. 7(2)].  The current government is of constitutional one, no matter how disagreement one may have with its ongoing activities.  All important Ministries have its’ own Ministers duly appointed under the Constitution and they carry out their duties under oath.  They are accountable to Parliament and to the electorates.  Why does the Prime Minister then need Advisers, in the place of or in addition to Ministers, whose appointments are not backed by the Constitution?  Does the Prime Minister feel that those Ministers are incompetent?  If so, what is the necessity of keeping them in those important positions?  Why does she not replace them with the competent ones?  If the Prime Minister still needs the service of those Advisers, she can make them technocrat Ministers if they qualify under the Constitution.  At least they would work under oath in dealing with the State’s secrecy and sensitivity.  The nation would thereby be assured on their allegiance, commitment and belongings.  If the Adviser (or Advisers) does not even meet the constitutional provision to be an MP to become a technocrat Minister, does the State really need his service in it’s secretive and sensitive arena?  It is better to realise this for the greater interest of the nation as well as keeping the constitutional provisions supreme, for the Prime Minister is, after all, under oath bound, among others, to preserve, protect and defend the Constitution.  

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About NazirAhmed

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  • Name: Barrister Nazir Ahmed
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    Nazir Ahmed is a UK qualified solicitor with many years of experience of advising and training the public sector on all aspects of immigration and nationality Law, civil litigation, constitutional law welfare rights law and environmental health and safety law.
    He is a director of Policyy Review Centre(PRC), London and a consultant with Lincolns Chambers Solicitors. He has conducted training sessions for many national organisations as well as local authorities. His notable clients include various government departments. 
    Apart from his legal profession he is a prolific writer, authored few books and analyst on socio political issues.
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