Appointing the Advisers

At the moment, four Advisers namely Professor Jahanara Begum, Barkatullah Bulu, Reaz Rahman and Mahmudur Rahman holding different ministerial rank have been discharging ministerial responsibilities in the Ministry of Primary and Mass Education, Ministry of Commerce, Ministry of Foreign Affairs, and Ministry of Energy respectively.

The word 'Adviser' occurs only in article 58 of the constitution providing for the appointment of the Chief Adviser and other Advisers to the non-party caretaker government. Article 58(1) says that the non-party government shall consist of the Chief Adviser at its head and not more than ten other Advisers, all of whom shall be appointed by the President. Clause (3) of the same article specifies that 'the Chief Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Prime Minister, and an Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Minister.' During the period of the non-party caretaker government, an Adviser discharges the ministerial responsibilities in one or more ministries.

Rules of Business (ROB) made by the President pursuant to article 55(6) of the constitution for allocation and transaction of business of the government have laid down the power and functions of a Minister. All business allocated to a ministry / division shall be disposed of by, or under the general or special directions of the Minister-in-charge subject to the condition that the cases requiring the approval of the Cabinet, the Prime Minister and the President shall have be submitted to them. The Minister is responsible for conducting the business of his ministry/division in the parliament. It may be noted that the rules of procedure (ROP) made and adopted by parliament pursuant to article 75(1) of the constitution has elaborated the procedure for conducting the business of a ministry in parliament by the Minister-in-charge. The responsibilities of a Minister in parliament in respect of his ministry include, inter alia, moving for leave to introduce a bill, answering of written and oral questions, moving resolutions relating to matters of general public interest and making statements on matters of urgent public importance.

Let me now discuss as to whether the executive power exercised directly or indirectly by the Prime Minister enables her to appoint Advisers to discharge ministerial functions.

Like any other modern state, Bangladesh stands on three basic pillars: executive, judiciary and parliament. The executive authority is exercised by or on the authority of the Prime Minister. The Prime Minister has, however, not got unlimited executive power. The constitution and the ROB have determined the limit of the executive power of the Prime Minister. The executive power that the Prime Minister can exercise independent of others include, among others, appointment, resignation, and removal of chairmen and members of any non-statutory commission; appointment, promotion, transfer and posting of officers in certain civil and military posts; grant of permission to certain categories of public servants for private visits abroad for treatment, pilgrimage, etcetera; nominating Bangladesh citizens to important posts on executive and other organs of international bodies such as the International Monetary Fund, the World Bank, etcetera; sending messages to heads of foreign governments; sending delegation to international assemblies and conferences; yearly retention of temporary posts in the revenue set up and transfer of temporary posts to permanent set up in the revenue budget.

In a parliamentary form the cabinet headed by the Prime Minister is responsible to parliament. According to the ROB, no important policy decision shall be taken except with the approval of the cabinet. In particular, cases or proposals relating to (1) legislation including the promulgation of ordinance, (2) appointment of public commissions of inquiry of national importance, (3) commencement or cessation of a state of war, (4) proclamation or renovation of emergency, (5) budget, (6) creation of new corporations or companies, (7) vital political, economic and administrative policies, shall be brought before the cabinet for decision. The Prime Minister has to depend upon her cabinet colleagues for taking decisions on all such cases.

It is a fact that the President is a ceremonial head of state and he acts in accordance with the advice of the Prime Minister. The ROB contains a long list of cases that have to be submitted to the President for his approval through the Prime Minister. These include, inter alia, appointments to constitutional posts including Ministers, judges of the Supreme Court, first appointment to BCS cadre posts, appointment of Ambassadors / High Commissioners of Bangladesh in foreign countries, making of rules for custody of public money, summoning, prorogation and dissolution of parliament, etcetera.

The important point that comes out of the above discussion is that the constitution and the laws made thereunder have defined the limits of the Prime Minister's executive power which she exercises directly or indirectly and the executive power so exercised by her does not include the appointment of Advisers to perform ministerial functions.

For discharging ministerial functions and enjoying the ministerial privileges, a Minister / Minister of State / Deputy has to satisfy certain legal requirements and conditions. An Adviser cannot satisfy those conditions and requirements. First, the constitution, which is the supreme law of the republic, provides for the posts of Minister, Minister of State and Deputy Minister. Pursuant to the constitutional provision, the ROB and the ROP delineate the functions to be performed by a Minister [according to article 58(1) Minister includes Minister of State and Deputy Minister] in his ministry and in parliament. There is no post of Adviser in the constitution during the period an elected government functions. Under these circumstances, discharging the ministerial responsibilities by an Adviser either in his ministry or in parliament during the period of an elected government is in office is in contravention with the constitution.

Second, for discharging the ministerial responsibilities, a Minister, Minister of State and Deputy Minister have to take an oath of office and an oath of secrecy. In the oath of office, a Minister / Minister of State / Deputy Minister has to swear to faithfully discharge the ministerial duties according to law and to do right to all manner of people according to law, without fear or favour, affection or ill-will. Similarly, in the oath of secrecy, a Minister / Minister of State / Deputy Minister swears not to communicate or reveal directly or indirectly to any person any matter which shall be brought under his consideration or shall become known to him as Minister / Minister of State /Deputy Minister except as may be required for the discharge of his official duties. An Adviser discharging the functions of a Minister/ Minister of State / Deputy Minister does not take oath of office or oath of secrecy. So, he fails to meet the constitutional requirement for discharging ministerial functions.

Third, the constitution provides for a Cabinet for Bangladesh headed by the Prime Minister and comprising such other Ministers as the Prime Minister may from time to time designate. The Cabinet shall be collectively responsible to parliament. But the Advisers are not responsible to parliament.

Fourth, the Ministers, Ministers of State and Deputy Ministers (Remuneration and Privileges) Act, 1973 (as amended from time to time) determines the entitlement of personal staff, salary, allowances, transport, official residence, telephone, medical facilities, etcetera of a Minister, Minister of State or Deputy Minister. An Adviser discharging the ministerial functions is not entitled to enjoy the privileges granted to a Minister/Minister of State /Deputy Minister. Enjoying the ministerial privileges by an Adviser will suffer from illegality.

Let us see whether such a system exists in any of our neighbouring countries. Available information suggests that there is no instance of appointing Advisers to discharge ministerial duties in India, Sri Lanka and Nepal. However, the constitution of Pakistan provides for appointment of not more than five Advisers by the President on the recommendation of the Prime Minister on such terms and conditions as he may determine. The Advisers so appointed shall also have the right to speak and otherwise take part in the proceedings of either House (the National Assembly or the Senate) or a joint sitting or any committee thereof, of which he may be nominated a member (Article 93).

The question may arise as to why the Advisers have been appointed to discharge the ministerial functions and responsibilities.

Tconstitution provides that not more than one-tenth of the number of the Ministers, Ministers of State and Deputy Ministers may be chosen from among persons qualified for election as members of parliament. The general perception is that those who could not be accommodated in the ten percent quota of such technocrat Ministers, Ministers of State and Deputy Ministers have been appointed Advisers. The problem has arisen when some Advisers have been allowed to discharge ministerial responsibilities and enjoy their privileges. Here narrow political interest has reigned over legal and other factors.

To conclude, a constitutional government cannot afford to do anything that is in contravention with the constitution. The government must be conducted according to 'rule of law' as stipulated in the preamble of the constitution. In the instant case, the BNP-led alliance government should take immediate necessary steps for removing the irregularities in order to safeguard the supremacy of the constitution.

M. Abdul Latif Mondal is a former Secretary to government.