Our constitution permits an unelected person to be the Prime Minister

by Barrister Harun ur Rashid | November 27, 2013 5:53 pm

The headline of my article may sound unusual or strange but it is argued that an unelected person could become the Prime Minister under the existing provisions of our constitution.

The following brief account of the constitutional provisions will make it clear to the readers of the validity of my argument.

It is not correct to say that unelected persons have no place within the government or parliament. They have been allowed to play a significant role in both the organs of state (government and parliament) by the constitution.

Unelected persons may join the government or be selected as MPs in terms of the constitution and this has been possible by two ways:

· Women MPs from the reserved seats under Article 65( 3)

· Appointment of Ministers under “technocrat quota” as per Article 56 (2)

Under the amended Constitution, there are now 50 reserved seats of women ( currently 45 seats), in the parliament and they are appointed on proportional basis in the parliament by the parties representing the parliament. The criteria of selection are not known to the public and each political party decides in its discretion whom to appoint as women MPs from reserved seats.

Once the women are selected become MPs from reserve seats, constitutionally there appears to be no difference between the elected and unelected women MPs. This has been amply demonstrated by the election of the current Speaker of the parliament who has been a MP from the reserved seats and held the position a state minister (not a full cabinet minister) in the government

Many parliamentary experts had expressed reservations on the appointment of the Speaker from the reserved seats in the parliament. An elected woman MP could have adorned the position of the Speaker—the third highest in the country. The parliament is a forum of persons who are elected by people and its functions express the will of the people to whom belong all powers in the Republic..

Article 56 (2) of the constitution allows Ministers to be appointed subject to the condition that “Not more than one-tenth of their number may be chosen from persons qualified for election as members of Parliament.” This means for every ten elected members of the cabinet, one unelected “technocrat” minister may be appointed. If there are thirty members, three “technocrat” ministers could be appointed. It is up to the Prime Minister to decide.

The person appointed as a Minister under the “technocrat” quota must be qualified to be a member of parliament and there is no need for that person to be elected as a member of parliament. In the old days, an unelected person could join the government but was required to be elected to the parliament within 90 days. That requirement does not exist any more.

In the recent dissolved cabinet of the Prime Minister, three unelected ministers held important posts, including the vital post of minister for law, justice and parliamentary affairs.

The constitution as amended by the Fifteenth Amendment in 2011 even allows a Bangladeshi-born person, having a dual nationality (Bangladesh & any foreign country), to be eligible for election under Article 66 (2A). This means that constitutionally there is no bar for a Bangladeshi –born foreign citizen to become a Minister in the government on the basis of the “technocrat quota.”

It may be argued that the appointment of technocrat is often needed to enrich the personnel in the government and that was why at the first Bangladesh Constituent Assembly in 1972, Hafiz Habibur Rahman, a member of the Assembly, proposed to have a 60-member upper chamber of parliament in which members would be elected under proportional representation but his proposal was rejected. If there were an upper chamber of the parliament, many eminent technocrats or professionals could have easily joined the government as ministers drawn from the upper chamber.

There is a strong view among constitutional experts whether there is any need for reserved seats for women, especially when women have become the Prime Minister, the Leader of the Opposition, the Deputy Leader of the parliament and ministers with high profile portfolios.

Even many women MPs from reserved seats have expressed their desire to contest the next parliamentary elections their constituencies competing with men. Furthermore the existing 50 reserved seats could be divided into several elected constituencies in which women voters would elect the women parliamentarians from the reserved seats.

Besides the above role of unelected persons under the constitution, under the amended Rules of Business of the government, the Prime Minister can appoint as many Advisers as the PM deems thinks appropriate who are unelected persons with the rank, salary and privileges of a full Minister. The Advisers are allowed to attend the Cabinet meetings, although they do not take any oath as the Ministers do and as such they are not accountable to parliament.

In India and in Britain, Prime Minister’s Advisers (not more than two or three) do not carry the rank of ministers.

Furthermore although five Advisers to the PM have resigned on 26th November, six Advisers remain in the poll-time government which will carry only routine duties until the election. In that case many constitutional experts have questioned the retention of so many Advisers to the PM at a time when no policy decisions will be taken by the Prime Minister and the cabinet.

Finally, Article 56(3) of the Constitution states that the “President shall appoint Prime Minister the member of Parliament who appears to him to command the majority of the members of Parliament.” Please note that word “elected “member of Parliament does not exist. Therefore it may be argued that the current political impasse could be resolved if a non-partisan woman is appointed as MP from reserved seats first replacing a current woman MP and thereafter that person could be appointed as the Prime Minister with the majority support of members of parliament for non-party poll-time government under which the parliamentary elections could be held by the Election Commission.

Source URL: https://priyoaustralia.com.au/articles/2013/our-constitution-permits-an-unelected-person-to-be-the-prime-minister/