Ministerial Responsibility in Bangladesh

Introduction

Every country in this world wants its government to establish as a result of the people’s benefit. People of a country trust the government to assure their safety and believe that the government work for their betterment. Because of this government the people of the country get united. It is the government of the country who teaches its citizen about ethics and moral values. Now as the world population is getting massive its becoming difficult for the government to safeguard everyone. The problem is resolved by developing hierarchy among government officials where each should know its responsibility. Starling from the highest ranked President to the lower order minister or government officials, everyone should know his duty and are hope to deliver the best in order to avail an overall development of the country. Among the hierarchy which has been discussed, ministers play an important roie. Any modern state stands on three basic pillars: executive, judiciary and legislature. Most of the newly independent states, while adopting their constitutions, have been vigilant about giving attention to the type, nature, and powers of the executive branch of the government.

Ministerial responsibility and the capacity of first ministers to direct the machinery of government are essential for the maintenance of constitutional government in the Westminster system. Their importance far outweighs whatever merit attaches to the popular wisdom that the principles of ministerial responsibility are not followed in practice and that first ministers have concentrated power in their own hands at the expense of ministers and Parliament. This article demonstrates the continuing significance of ministerial responsibility in the day-to-day functioning of government and shows how the appropriate exercise of the first minister’s machinery-of-government powers safeguards ministerial responsibility when its principles are applied throughout the organization of government.

Objective of the Study

To find out the historical background of that issue.
To finds out the Constitutional provisions relating to the Ministerial Responsibility.
Discussion about the Category of Ministerial Responsibility.
Discussion about the Hardship of Ministerial Responsibility.
Discussion about the Enforcement of Ministerial Responsibility.
To find out Recent Development.

Limitation of the Study

Every research study has some limitations. So this research monograph is not the exception of this limitation and limitations reduced the scope of the study in some changes. The main limitation of the study is that it is a time binding’s work. The time is not enough for the study. Another limitation is the lack of sufficient materials. No research or study is exhaustive one I think. This is because every study has no ends. So 1 could not claim that 1 cover all of the matter related to the in Bangladesh. There is something important may I left. Moreover, scarcity of information is another hindrance of an informative or a reliable research, I felt too much. I try best and take the essential measures to make the research reliable and informative. After all there are some mistake may have.

Research Methodology

To make this research monograph, the instruction of our course teachers followed. The whole research monograph has been done in an organized way. First, necessary divisions have been .selected. Then this paper made every possible effort to collect required information for each division.

The methodology followed throughout the research monograph has been pointed out below:

Planning the whole research.
Dividing the research monograph into different chapters & sub-sections.
Study & Discussion with the concerned supervisor.
Taking advice from honorable course teachers regarding the collection of necessary information and collection of study materials.
Collection of respective papers through internet browsing.
Concentrated study through many books, journals A: publications about the issues.

Abstract of the Research

This research aims to reveal the ministerial responsibility. So, in this research, I have tried to show historical Background and role of Bangladesh constitution. Also tiring to dear meaning of ministerial responsibility, category and its importance I have also tiring to show enforcement of ministerial responsibility and their enforcement under Bangladesh constitution. And, finally I have tried to show comparison ministerial responsibility in UK USA and Bangladesh.

HISTORICAL BACKGROUND

Historical Development of Ministerial Responsibility

On 16th December, 1971Bangladesh achieved its full formal independence. The Government-in-exile came to Bangladesh on December 22, 1971 and took the administration of the new born state. The State administration was being run according to the Proclamation of Independence. On January 8, 1972 Sheikh Mujib who was till then the President of Bangladesh” under the Proclamation was released from Pakistani jail and returned to Bangladesh on 10th January, 1972. The same day, to keep in line with his earlier commitment, Mujib expressed his intention not to act as the President but chose to be the Prime Minister of Bangladesh in line with a Westminster type parliamentary system. Accordingly on 11 January, 1972 as the President of Bangladesh Sheikh Mujib issued the Provisional Constitution of Bangladesh Order whereby the entire character of the government was changed[1]. The Presidential form was substituted by a form aiming at a Westminster type parliamentary system. The reason staled for changing the system was that it was the “manifest aspiration of the people of Bangladesh to establish a parliamentary democracy” and so in order to achieve this objective the new system was introduced. It is to be mentioned here specifically for the purpose of research that someone might comment that the Provisional Constitution of Bangladesh Order, 1972 acted as the second interim Constitution of Bangladesh. But this view seems to be wrong. Because the Proclamation of Independence along with it the Provisional Constitution of Bangladesh Order, 1972 acted as the single interim Constitution of Bangladesh (ill I6lli December, 1972. The Provisional Constitution of Bangladesh Order, 1972 did not actually supersede the Proclamation of Independence, 1971, nor was the Proclamation formally abolished; nor was the Provisional Constitution Order any formal amendment to the Proclamation. The Provisional Constitution Order changed only the character of the government i.e. from presidential to parliamentary form[2]. A minute perusal of both the documents and the functioning of the then government would necessarily give the idea that both the Proclamation and the Provisional Constitution Order were acting as the Constitution of the country.

Because though the Provisional Constitution Order changed the character of the government, it did not tell anything about the legislative power; nor did it give any power to the

Constituent Assembly to control the cabinet; nor did it tell anything about the exercise of executive power of the state. All executive and legislative powers were being exercised by the President under the Proclamation in an uncontrolled way. The main provisions of the Order, however, were as follows:

i. There shall be a cabinet of Ministers, with the Prime Minister at the head.

ii. The President shall in exercise of his entire functions act in accordance with the advice of the Prime Minister,

iii. There shall be a Constituent Assembly comprising of the elected representatives of the people of Bangladesh who were elected as MNAs and MPAs in the elections held in December 1970, January, 1971 and March, 1971 not otherwise disqualified by or under any law.

iv. The President shall commission as Prime Minister a member of the Constituent Assembly, who commands the confidence of the majority of the members of the Constituent Assembly. All other Ministers shall be appointed by the President on the advice the Prime Minister.

Under this system Justice Abu Sayeed Chowdhury became the President of Bangladesh and Sheikh Mujib became the Prime Minister.[3]

Background and role of Bangladesh Constitution

After the establishment of a new state it arranges a Constituent Assembly by the elected representatives with a view to making a new Constitution. Such an Assembly makes a new constitution through a long debate and discussion and once it has completed its task, it automatically dissolves. The constitution of USA is an example of tin’s method. Likewise in 1947.

India and Pakistan achieved their long cherished independence and following this they established Constituent Assembles to frame Constitution. Accordingly Indian Constituent Assembly adopted the Indian Constitution in 1949. Bangladesh through nine months liberation war achieved its independence in 1971 and in 1972 il adopted its constitution through a constituent assembly which will be discussed later on in this chapter.

A constitution may come into existence as the result of slowly working evolutionary changes. Beginning with an autocratic government, power may pass in fact, though not in law, to persons who represent the people. By long acquiescence and by the growth of political practices the authority of the latter may finally be recognized as legal. A constitution grown in this a way is said to be the child of evolution. Such a Constitution is largely unwritten and it appears in a series of documents rather than in a single document. The constitution of Britain is the best and, better to say, the only example of this type.

After independence Bangladesh received its new constitution adopted by a constituent Assembly. The constitution was given effective on 16^th December, 1972. Before the new constitution was made effective there was one interim Constitution in Bangladesh. It was initially the Proclamation of Independence (10^th April, 1997) and later, the Proclamation of Independence along with the Provisional Constitutional of Bangladesh Order, 1972.[4]

Constitution is a supreme part of the state, constitution play various type of important role. It can say that, “Bangladesh is a unitary independent, sovereign republic to be known as the Peoples Republic of Bangladesh.” Constitution also says about citizenship of Bangladesh, supremacy of the Constitution, fundamental principles of state policy, and fundamental rights of the country.[5]

MEANING OF MINISTERIAL RESPONSIBILITY AND CATEGORY AND IMPORTANCE

Meaning of Ministerial Responsibility

The convention of ministerial responsibility has been given different meaning by different constitutional law jurists. For example, Prof. Wade & Bradley defined the convention as: “Within a democratic state, those who govern should be accountable, or responsible, to whom they govern”. On the other hand, Marshall and Moody described ministerial responsibility as: “Ministers are responsible for the general conduct of government.[6]

Democracy requires that those who govern should be responsible to those whom they govern. The convention of ministerial responsibility seeks to achieve this aim. It is the central to the constitution, and plays a fundamental role in the relationship between the executive and parliament. For the doctrine of government under the law to be observed, it is essential that government be accountable to both parliament and the electorate and that government be conducted in a manner sufficiently open, subject to the requirements of the national interest, to inspire public confidence. Marsha and Moodier describe ministerial responsibility as follows Ministers are responsible for the general conduct of government, including the exercise of many powers legally vested in the Monarch; and ultimately, through Parliament and parties, to the electorate.[7] The principle that ministers are responsible to the House of Commons for their actions and those of their departmental officials. Compare: Cabinet solidarity; responsible government.[8]

According to Marshall & Moodie – “Ministers are responsible for the general conducts of government including the exercise of many powers legally vested in the Monarch and ultimately through Parliament and parties to the voters”.

Lord Salisbury Says — “It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet, who, after a decision is arrived at, remains a member of it, that the joint responsibility of Ministers to Parliament can he upheld and one of the most essential principles of parliamentary responsibility established”[9]

Category Ministerial Responsibility

Ministerial responsibility has tow category – a. individual Responsibility.

b. Collective Responsibility.

Individual Responsibility

The convention of individual ministerial responsibility slates that each minister is responsible to Parliament for the conduct of his or her department, and for the actions carried out by the department in pursuit of governmental policies or in discharge of responsibilities laid down upon him/her as a minister.

The rationale behind the convention of individual ministerial responsibility is to foster the sense of accountability and responsibility of individual ministers to Parliament and the electorate as well.[10]

According to Individual Ministerial Responsibility:

Ministers are individually responsible for the work of their departments and are answerable to Parliament for all their departments’ activities.[11]

They are expected to accept responsibility for any failure in administration, any injustice to an individual or any aspect of policy which may be criticized in parliament, whether personally or not.[12]

Individual Ministerial Responsibility is part of the wider doctrine of ministerial responsibility.

Individual ministerial responsibility or Ministerial responsibility is a constitutional convention in governments using the Westminster System that a cabinet minister bears the ultimate responsibility for the actions of their department of ministry.

In the Westminster system ministerial responsibility and (lie capacity of first ministers to direct the machinery of government are essential for the maintenance of constitutional government. Their importance far outweighs whatever merit attaches to the popular wisdom that the principles of ministerial responsibility are not followed in practice and that first ministers have concentrated power in their own hands at the expense of ministers and Parliament.[13]

Ministerial responsibility means that ministers must be answerable to Parliament for the way in which the powers assigned through statute arc being used. This applies to all forms of government organization. Note the deliberate use of the word “answerable” rather than “accountable.”[14]

According to A-H. Brich the doctrine of individual responsibility has two stands-

Firstly, the political head of a government and only the political head are answerable to parliament for all the actions of that department.

Secondly, the minister must receive the whole praise of what is well done and the whole blame of what is ill in the works of his department, and that in consequence he must resign if serious blunders are expressed.

Collective Responsibility

Lord Salisbury defined the doctrine of collective responsibility as: “It is only on the principle that absolute responsibility is undertaken by every member of the cabinet, who after a decision is arrived at, remains a member of it…” From this statement, the implication of the convention is that it emphasizes the unanimity of government and its accountability to Parliament.

The rationale for the convention lies in the need for govt. to present a united front to Parliament and the public in order to maintain confidence. A govt. which exhibits public disagreements over policy matters is one which will be regarded as weak, and will be subject to challenges to its authority to continue in office.[15]

Theoretically, a check is kept on the executive through the operation of the convention of CMR. Collective responsibility requires that all Ministers must accept cabinet decisions and action consequent thereon, or dissent privately, or speak out and resign; unless the doctrine is waived on any given occasion. CMR increases party discipline and unity within the government and also serves to strengthen the authority of the PM in relation to his colleagues. The doctrine of collective responsibility involves two rules:

The rule that the government would resign for failing to gain

“Vote of “No Confidence’. It means that a failure to convince Parliament that the government is strong and united may well lead to a ‘Vote of No Confidence’, which, if his by tin government, requires its resignation. In fact, the PM and his ministers are collectively responsible to Parliament for the conduct of national affairs. If the PM loses support in Parliament he must resign or seek dissolution of Parliament. However, only two governments, bunt in a minority in the Commons, have lost the confidence of the House; first one is in 1924 and the second one in 1979.

2. The rule that the government must express their views in one voice:

The first rule is that, once an agreement is reached in Cabinet, all members of Cabinet and many outside Cabinet – are bound to speak in support of the decision. There should be no criticism or dissent from the decision in public – irrespective of whether or not the particular member of Cabinet was party to the discussion. Equally, if a decision is reached by the Prime Minister in Cabinet Committee or the Inner Cabinet when only a small handful of members are present, the decision binds all.

The rationale for the convention lies in the need for government to present united front to parliament and the public in order to maintain confidence. A government, which exhibits public disagreements over policy matters, is one, which will be regarded as weak, and will be subject to challenge to its authority to continue in office.[16]

These principles are expressed the Ministerial Code in the following manner:

“Collective responsibility requires that ministers should be able to express their views frankly the expectation that they can argue free in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial Committees should be maintained. Moreover, Cabinet and Committee documents will often contain information which needs to be protected in the national interest. It is therefore essential that subject to the Act 2000, ministers take the necessary steps to ensure that they and their staff preserve the privacy of Cabinet business and protect the security of government documents.”[17]

Lord Morrison says –

All minister whether members of the cabinet or not share a collective responsibility including that for cabinet or cabinet committee decision in the reaching of which they have taken in part whatever The government must stand lo other as a whole and ministers must not contradict each, other,\otherwise cracks will appear in the governmental fabric all this is part of contract or service. U has to be endured as a condition of acceptance of office.[18]

Important features of the Convention of Individual Ministerial Responsibility

The convention advocate for policy culpability hiring parliamentary debates, motions and question time rest on the minister’s shoulders. A minister is required to answer questions, supply information and justify his department’s policies. He must accept responsibility for all polio, and administrative bungling that is subject to parliamentary scrutiny. This is a sound policy for open govt. but the issue to address here is that, as to what extent are these parliamentary procedures effective.

A minister is vicariously responsible to Parliament for acts of his civil servants. This convention preserves anonymity of civil servants and shields them from attack on the floor of the Mouse of Parliament. This convention is based on a sound rationale that is, it is the minister who represents the public lace of the department and who speaks for the department in Parliament.

A minister must resign if a vote of censure is passed against him. Such votes are, however, rare. For example Tony Blair’s first Cabinet casualty, Ron Davies who resigned as Welsh Secretary in Oct 1998 was mugged after apparently cruising for guy sex in a London park. See also cases like Secretary of State for Transport Stephen Byers, who resigned after months of criticism for the way he handled Britain’s creaking transport system; and also the Secretary of State for education Estelle Morris, a case which was on an inquiry into school grades and later it was found out that thousands of students taking the A-level exams had unfairly received lower grades. The PM said he accepted “Morris” resignation “with regret” (2002).

A minister must also open debate on departmental legislation. Some earlier examples on individual ministerial responsibility (mostly on personal conduct of ministers):

J Profumo resigned in 1963 as Secretary of State for War. This was because of associating with prostitutes, jeopardising national security and above all lying to the House.

The Conservative Home Secretary R Maudling resigned in 1972. This was as a result of using of using ministerial office to promote his private interest (see the Poulson Affair, where Maulding was alleged to have used his office to advance his private financial interests and those of his family, partly by securing contracts for architect Poulson, who rewarded him for those services).

Lord Carrington resigned in 1982 as Foreign Secretary due to the fact he failed to predict the Faikiands invasion by Argentina.

David Mellor resigned in 1992 as Secretary of State for National Heritage. This was as a result of extra-marital affair, accepting i.e., a receipt of a free holiday from a woman with Palestinian Liberation Organisation.[19]

Important Features of the Convention of Collective Responsibility

It emphasizes on the unanimity of govt. and its accountability to Parliament. In other words, govt. must speak with one voice.

The govt. must maintain the confidence of the HOC as a condition for its survival. Constitutional convention provides that if defeated on a vote of no confidence, the PM shall tender the resignation of his Cabinet. This is a sound policy for a govt. that claims to be answerable, accountable and responsible not only to Parliament but to the electorate as well.

The convention of collective responsibility requires the PM and his Cabinet must belong to Parliament in order to ensure answerability to Parliament. Apart from that it is to enable them to observe the convention of public unanimity. That is to say, they must speak with one voice; they must present a united front to the public, to Parliament and to the Monarch.

Under the convention of collective responsibility, Cabinet papers are treated confidential. In other words, ministers have a duty to observe secrecy in relation to Cabinet deliberations.[20]

ENFORCEMENT OF MINISTERIAL RESPONSIBILITY

Methods of Enforcing Ministerial Responsibility

Methods of enforcing ministerial responsibility may be classified into two groups:

A. Traditional Methods of Scrutiny; and

B. Modern Methods of Scrutiny.

A Traditional Method of Scrutiny

They are following:

1. Parliamentary Questions.

2. Prime Minister’s Question Time.

3. Vote of censure.

4. Cut motion.

5. Adjournment motion and

6. No- Confidence motion.

1. Parliamentary Questions

Parliamentary questions are used by MPs to seek information or to press for action. Ministers are obliged to explain and defend their work and actions of their Departments. All original questions and answers are set out in The Official Report, otherwise known as Hansard and on the Parliamentary Information Management System. Of the 80.000 or so asked each year only about 3,000 are oral questions answered by a Minister in the Chamber. The remainders are written questions. Parliamentary questions must fulfill several criteria. They must:

1) Either seek information or press for action;

2) Not offer or seek expressions of opinion;

3) Not convey information nor advance a proposition, an argument or debate:

4) Have a factual basis for which the tabling Minister is responsible:

5) Relate to a matter for which the Minister addressed is responsible as a Minister;

6) Not seek an expression of opinion on, or an interpretation of, a question of law, since this is for the courts to decide;

7) Not refer to a matter active before a UK court or court martial (including a coroner’s court), as this is prohibited by the House’s sub judiee rule;

8) Not ask for information: readily available elsewhere; or provided or blocked/otherwise denied by the same Minister in the same session;

9) Not be hypothetical or obviously about opposition policy.

Oral questions are asked and answered on the floor.

They are entered into ballot and selected randomly. Written questions are used when more detail is required than could be offered in response to an oral question.[21]

A written question that was originally an oral question but was not reached at question time must have an answer on the day of the oral session. There is no rule that states an ordinary written question has to be answered by a certain date and there is little a Member can do about a delayed answer except ask more questions.

2. (Prime Minister’s Question Time ((PMQ)

Question time in a parliament occurs when members of the parliament ask questions of government ministers (including the prime minister), which (hey are obliged to answer. It usually occurs daily while parliament is sitting, though it can be cancelled in exceptional circumstances. Question time originated in the Westminster system of the United kingdom, but occurs in several other countries as well.

A regular period of time every week in the British House of Commons when the Prime Minister answer question asked by Members Of Parliament.[22] The session normally starts with a routine question from an MP about the Prime Minister’s engagements. This is known as an ‘open question’ and means that the MP can then ask a supplementary question on any subject.

Following the answer, the MP then raises a particular issue, often one of current political significance. The Leader of the Opposition then follows up on this or another topic. They are permitted to ask a total of six questions. The Leader of the Opposition is the only MP who is allowed to come back with further questions.[23]

In practice, the questions asked in question time are usually pre-arranged by the organizers of each party; although the questions are usually without notice. Questions from government backbenchers are either intended to allow the Minister to discuss the virtues of government policy, or to attack the opposition. A typical format of such a government backbencher’s question might be “Could the Minister discuss the benefits of the government’s initiative on issue, and is the Minister aware of any alternative policies in this area? Ministers may attempt to avoid opposition questions, but lying or intentionally providing misleading answers to Parliament is not permitted by the standing orders. The resulting political outcry could, and often does, result in that Minister being relieved of their position, and possibly suspended from the House. Skilled Ministers will often attempt to turn around the opposition’s questions, rather than answering the question asked using them to further attack the opposition.[24]

Most MPs will table the same question about engagements and if they do, only their names will appear on the question book. After the first engagements question has been asked, any other MPs who have tabled the same question are simply called to ask an un-tabled, supplementary question. This means, in theory that the Prime Minister will not know what questions will hi asked of him. However, the Prime Minister will be extensively briefed by government departments in anticipation of likely subjects he could be asked about.

3. Vote of Censure

Voting process in which members of a parliament show that they consider the government is responsible for something bad that has happened.[25]The voice of an individual in making a choice by many. The total number of voices given at an election; as, the presidential vote.

Votes are either given, by ballot, or viva voce; they may be delivered personally by the voter himself, or, in some cases, by proxy.

A majority of the votes given carries the question submitted, unless in particular cases when the constitution or laws require that there shall be a majority of all the voters, or when a greater number than a simple majority is expressly required; as, for example in the case of the senate in making treaties by the president and senate, two-thirds of the senators present must concur. When the votes are equal in number, the proposed measure is lost.[26]

4. Cut Motion

A Cut Motion is a veto used by members of a legislature against a specific allocation in Budget proposals; this motion tests the strength of the government in the House. If the motion is adopted, it amounts to a no-confidence vote and the government falls.

A Cut Motion can be of the following types:

a. Disapproval of Policy Cut.

b. Economic Cut.

c. Token cut.[27]

Cut motion is a veto power given to the member of the parliament to oppose a demand in the financial bill discussed by the government. This can turn into an effective tool to test the strength of the government. If a cut motion is adopted by the house and the government does not have the numbers, it is obliged to resign.[28]

5. Adjournment Motion

The primary object of an adjournment motion is to draw the attention of the House to a recent matter of urgent public importance having serious consequences and in regard to which a motion or a resolution with proper notice will be too late. The matter proposed to be raised should be of such a character that something very grave which affects the whole country and insecurity has happened and the House is required to pay its attention immediately by interrupting the normal business of the House.

The adjournment motion is thus an extraordinary procedure which, if admitted, leads to setting aside the normal business of the House for discussing a definite matter of urgent public importance.

An adjournment motion involves an element of censure against the Government In the event of to an adjournment motion being adopted, the House automatically stands adjourned.[29]

In committee, a motion which has the effect of adjourning the consideration of a matter without assigning a day for further consideration; the net effect is to end consideration of the matter.[30]

6. Vote of Co-Confidence

A motion of non-confidence is a parliamentary motion traditionally put before a parliament by the opposition in the hope of defeating or weakening a government, or, rarely by an erstwhile supporter who has lost confidence in the government. The motion is passed or rejected by means of a new parliamentary vote (a vote of non-confidence).[31]

Typically, when a parliament passes a vote of no confidence in an existing government, the head of state must respond in one of two ways:

a. ask another individual, whom he or she believes will command the confidence of parliament, to try to form a government.

b. dissolve the elected parliament and call a general election to elect a new parliament.

In determining whether another individual can command the confidence of parliament, the head of state examines whether that individual has the backing of a parliamentary party, a coalition of parties and MPs, or an agreement of support with enough parliamentary seats to withstand any confidence challenges against them. If this cannot be done, parliament is dissolved and a general election is called.[32]

B. Modern Methods of Scrutiny

Now the legislature is not so capable to make full inquiries into matters of interest to it or to consider any matter in detail through the traditional methods. For the demand of present time and the proper investigation of the executive and to carry out the task of continuous scrutiny some modern methods device have developed. They are as follows —

1. Control of Committee System.

2. Control by Ombudsman.

1. Contra f of Committee System

Parliamentary committees are the workhorses of parliament. Recognizing that it is not practical for parliament as a whole to undertake detailed oversight tasks, much of the close examination and careful work of parliament is done in committees: reviewing legislative proposals, scrutinizing budgets, examining the policies and programmes of departments, and keeping an effective surveillance over government. Additionally, parliamentary committees are usually empowered to recommend amendments to legislation as appropriate – including improvements to make laws more human rights friendly. Committees with human rights mandates may be set i as long-term ‘standing’ committees, as sub-committees of standing committees or on an ad he basis, session ally or for a specific purpose like fact finding or investigation.

Standing committees or permanent committees are usually set up from one term of parliament t the next and operate on a continuing basis. Sub-committees also operate from one parliament term to another and assist the standing committees. Other types of committees have limited duration and cease to exist on the completion of their objectives or on presentation of their fin; recommendations or report.

Committees provide an opportunity for parliamentarians to really engage with a specific subject in detail in an environment conducive to a deeper consideration of the implications of the proposed legislation. Committees play an important role in ensuring international treaties an entered into, effectively derailed and in legislation for compliance with human rights principles The composition of the committee itself is important and there are usually rules to ensure that < variety of political perspectives are equitably represented on the committee. More than diversity of political views, the composition of committees provides an opportunity for parliament demonstrate its commitment to human rights principles by, where possible, ensuring 2 membership that is gender-balanced and includes diverse backgrounds. Committees offer a .practical means to incorporate the aspirations of the people into parliamentary processes. Members of the public can usually make submissions and sometimes even presentations to the committee to draw their attention to that may have been overlooked or underestimated. Fn this context, committees can provide a useful mechanism for taking into account the interests of special groups, like memoirs or indigenous peoples. Routinely making final committee reports provides transparency and heightens their impact.

An effective committee is one that will take care to encourage effective public participation, by publicizing reviews, holding public hearings, and inviting members of the public to give evidence or to make written submissions. After all, it is not just what law is made, but also how it is made – and this includes participation of the people. Committee members travel throughout the country where public hearings are held. Respondents are invited to give evidence, and the public is invited to make written submissions. The public and the media can now attend committee sittings and the public can make submissions. This is made more accessible by a parliament’s website, which gives information on committee sittings, items to be discussed and guidelines for submissions.[33]

2. Control by Ombudsman –

The government of the People’s Republic of Bangladesh is considering the appointment of an ombudsman under Article 77 of the Constitution of Bangladesh. The Ombudsman Act, 1980, provides for the establishment of the office of ombudsman and defines his powers and functions and states that the ombudsman shall be appointed by the president on the recommendation of Parliament.

The ombudsman is a nonpartisan official who is essentially independent of legislative, judicial, and political control. The word “ombudsman” is of Swedish origin and means “representative.” The first country to establish an ombudsman was Sweden — the Swedish legislature introduced the position in 180′) and its function was to respond to public complaints against government actions. There are currently about 120 countries that have an ombudsman.

On a multinational level, the European Union created the European Ombudsman position in 1992 in the Treaty on European Union, also known as the Maastricht Treaty; the first European ombudsman was appointed in 1995. Finally, the United Nations General Assembly created the position of United Nations Ombudsman at the end of 2001 and made the first appointment in 2002.

The ombudsman has the power to launch an investigation against government employees cither on his/her own initiative or on the basis of a citizen’s complaint. The investigation may be for illegal activities, corruption, improper conduct of government or any other reason the ombudsman believes will improve the conduct of government and its proper relationship with the citizens. After a thorough investigation, the ombudsman can either mediate a solution or initiate prosecution in the courts.[34]

In other words, the ombudsman is a non-partisan watchdog who scrutinises the actions of government on a continuous basis. In Bangladesh, where corruption is rampant, the ombudsman can play a significant role in eliminating corruption by being the “citizens’ defender.”[35]

MINISTERIAL RESPONSIBILITY AND THEIR ENFORCEMENT UNDER BANGLADESH CONSTITUTION

Ministers Under Bangladesh Constitution

Ministers of the government, according to the Constitution of Bangladesh, are selected primarily from the elected members of house of Nation, also known as Jatiya Sangsad.[36] Cabinet Ministers arc heads of government departments, mostly with the office of the “Minister [function, e.g. Defence]”. The collective co-ordinating function of the Cabinet is reinforced by the statutory position that all the Ministers jointly hold the same office, and can exercise the same powers. Provided that not loss than nine tenth of their number shall be appointed from among members of Parliament and not more than one tenth of their numbers may be chosen from among persons qualified for election as members o. Hiament. The President shall appoint as Prime Minister the members of Parliament who appears to him to command the support of the majority of the members of Parliament. The president shall make rules for the allocation and transaction of the business of the government.[37]The Cabinet is the ultimate decision-making body of the executive within the parliamentary system of government in traditional constitutional theory of Bangladesh. This interpretation was originally put across in the work of the Bangladesh constitution in 1972. The political and decision-making authority of the cabinet has been gradually increased over the last few decades, with some claiming its role has been usurped by a “Prime Ministerial” (i.e. more “presidential”) government.

The Cabinet is the executive committee of The Prime Minister’s Office, a historic body which has legislative, judicial and executive functions, and whose large membership does include member(s) of the Opposition or Coalition. Its decisions are generally implemented either under the existing powers of individual government departments, or by the Cabinet Secretary.[38]

Powers of the Ministers

The business of the Executive in the modem state is very complex and multidimensional. The primary function of the executive is the carrying out of the administration of the laws enacted by the legislature.[39] The executive in the modem slate may be defined “as the machinery within the state which administers the law, carries on the business of the government and maintains law and order within, security from without the state.[40] (I) The various powers that are thus included within the expression “executive power” have been grouped by the authors of political sciences under the following heads:

(a) The administrative power,

(b) The military power.

(d) The legislative power.

(e) The judicial powers, and

(f) Miscellaneous powers.

“The executive power of the Republic shall in accordance with this constitution, be exercised by or on the authority of Prime Minister. And these powers may now be considered with reference to the Prime Minister[41] of Bangladesh. Though all executive action is taken in the name of the President, in fact such action is taken by the Government of the Republic, that is to say, by the Prime Minister directly or through the Ministers who arc all collectively responsible to the Parliament. It is already said above that the Prime; Minister under the Parliamentary system is the Executive head of the Slate. Bangladesh Constitution made it abundantly clear that the Prime Minister is the real and effective head of the government. He is concerned with the formation of the cabinet.

He selects the man of his team with whom he has to work. He has unfettered discretion to select and to drop any Minister. Under this Article the executive authority of the Republic should by exercised by the Prime- Minster c-ither directly or through officers subordinates to him. The executive authority ol the Republic has covered all matters with respect to which Parliament has the power to make laws. All executive actions of the Republic should be taken by on the authority of the Prime Minister. The expression ‘executive power’ is not defined in the constitution.

The executive power can be said to be the power to carry out the Executive functions of the government. Then the question may arise what may be the meaning of the “executive function” of the government. It connotes the residue of the governmental functions that remain after legislative and judicial functions are taken away. The executive function comprises both determinations of policy as well as carrying it, into execution. This includes the maintenance of Law and order, the promotion of social and economic welfare, the direction of foreign policy and in fact carrying on or supervisions of the general administration of the state.

In Bangladesh Ministerial Responsibility

According to Wade and Phillips “for every act or neglect of his Department a Minister must answer”[42] Collective responsibility is a great weapon in the hands of the Prime Minister through which he maintains unity and discipline in the cabinet. Collective responsibility of the cabinet is a convention in Britain but il was also a part of 1956 Constitution of Pakistan. It could not help the Constitutional crisis in Pakistan. History recorded the sordid story. The Principle of Collective responsibility as enshrined in clause 3 of Article 55 is both salutary as well as necessary. It is the Prime Minister who enforces collective responsibility and unity amongst the Ministers through his/her power to dismiss a Minister. The Late Prime Minister Jawahar Lai Nehru of India had an occasion lo explain the Principle of Collective responsibility as under:

A government after the Parliamentary model is one united as a whole. It has joint responsibility. Each member of the government has to support the others, so long as he remains in the government. It is quite absurd for any Minister to oppose or give even the impression of opposing; a colleague of his, opinion may be expressed within the cabinet. Outside, the government should have only one opinion. There is no question of a member of government being neutral in a controversial issue in which the government is ‘concerned, except in the rare cages which we may consider as mailers of conscience when freedom is given”.[43] Each Minister in his own Ministry bears the burden of answering questions, speaking and acting for the government when a particular Minister is under attack in the Parliament, the principle of collective responsibility means that the whole cabinet should come to the help of the Minister and defend his actions. A Minister who is not prepared to defend the policy of government has to resign. It is the duty of the Prime Minister to maintain unity in the government. For this purpose, he has a great weapon in his hand, for he can ask fur the resignation at any time of a Minister in his government. The convention of ministerial responsibility is central to the constitution and plays a fundamental rule in the relationship between the executive and parliament.[44] Ministers inform and explain apologies take remedial action or resign in support of the convention of ministerial responsibility. This is not an area regulated by statute rather practice has developed according to precedent and guidance. Most recently that guidance has become formali/cd in the Ministerial Code. According to the constitution of the people’s republic of Bangladesh, there shall be a Prime Minister and such other Ministers, Ministers of State and Deputy Ministers as may be determined by the Prime Minister. The appointments of the Prime minister and other Ministers, Ministers of Stale and Deputy Ministers shall be made by the President. In Bangladesh ministerial responsibility mentioned in article 55.

According to articlc-5 5:

1. There shall be a cabinet for Bangladesh having the prime minister at its head. (The Cabinet)and comprising also such other minister as the prime minister may from time to time designate.

2. The executive power of the republic shall in accordance with this constitution, be exercised by or on the Authority of the prime minister.

3. The cabinet shall he collectively responsible to parliament.

4. All executive actions ofthe Government shall be expressed to be taken in the name of the president.

5. The president shall by rules specify the manner in which Orders & instruments made in his name shall be attested or Authenticated, and the validity of any order or instrument so attested on Authenticated shall not be questioned in any court on the ground that it was not duly made or executed.

6. The president shall make rule for the allocation and transaction ofthe business of the government.[45]

Each Minister is also individually responsible to Parliament for the acts and efficiency of his own department. 1 le has to answer question regarding the affairs of its department in the Parliament, lie cannot shitt the responsibility of his department either on his official or another Minister. For every act or neglecl of his Department a Minister must answer. If the Minister has taken action with the approval of the cabinet the principle of collective responsibility applies and the whole cabinet should support and defend his actions. However, if the Minister has taken action without the cabinet’s approval, the cabinet may or may not support him. If the cabinet does not support him and his action, in that case, the Minister is to go and not the whole cabinet. But the cabinet cannot retain the Minister without owing his action and responsibility. Parliament may, sometimes insist on the resignation of an individual Minister rather than the resignation of the entire cabinet. Normally a vote of censure on any one department is regarded a vote of censure on the entire cabinet, unless it is a case of personal unpopularity, misconduct or incompetence of that particular Minister. But there is no provision under the Bangladesh Constitution for individual responsibility of Ministers to Parliament. It may be honestly suggested that in case of misconduct or incompetence of a particular Minister, the British Convention may be followed.[46]

Each Minister in his own Ministry bears the burden of answering questions, speaking and acting for the government when a particular Minister is under attack in the Parliament, the principle of collective responsibility means that the whole cabinet should come to the help of the Minister and defend his actions. A Minister who is not prepared to defend the policy of government has to resign. It is the duty of the Prime Minister to maintain unity in the government. For this purpose, he has a great weapon in his hand, for he can ask fur the resignation at any time of a Minister in his government.

Responsible governance is the fundamental pillar of constitutionalism. H ensures the executive accountability of the ruling party to the legislature and ultimately to the populace during the period in between elections. Democratic accountability provides the justification of governmental policies, priorities, decisions and actions and enables the electorate to make informed choices at future elections. In Parliamentary democracies Ministerial responsibility is affirmed as ‘a central principle of constitutionalism.’ It is a term used widely to denote the political responsibility enforced through Parliament rather than legal responsibility enforced through the Courts. The doctrine has two limbs — individual and collective responsibility. As with so much of the constitution, there is vagueness on occasion as to the distinction between the two limbs which are both closely related and also complementary of one another.[47]

Individual Ministerial Responsibility in Bangladesh

What the Parliament can at best do is asking him/her parliamentary questions, demanding immediate discussion in the floor in a particular issue, scrutiny by the parliament cannot enforce his/her resignation until and unless the Prime Minister himself so wishes or it passes a motion of non-confidence which shall mean that fall of the whole cabinet. 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.[48]

Collective Ministerial Responsibility in Bangladesh

Article 55(2) of the Constitution provides for the collective responsibility of the Prime Minister and his Cabinet to the Parliament and the Cabinet is to fall if it loses the confidence of the Parliament. If the Prime Minister ceases to retain the support of a majority of the members of Parliament, s/he shall either resign his office his office or advise the President shall, if he is satisfied that no other Member of Parliament commands the support of the majority of the members of Parliament, dissolve Parliament accordingly. Again, the fall of the Prime Minister means the fall of the Cabinet. 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 the reality is that the Cabinet comprising the most powerful members of the political party enjoys majority in the parliament. Moreover, the gist of the Article 70 is that a Members of Parliament going against the decision of his political leadership runs the risk of losing his seat in Parliament. As a result legislature and executive get virtually converged in one hand. Gone with this are the practical utility of the provisions mentioned above.[49]

COMPARISON MINISTERIAL RESPONSIBILITY IN UK, USA BANGLADESH

Cabinet System of USA

The American constitution did not envisage any cabinet to aid and assist the president in the discharge of his function. However in course of time separate department of the government have being created each of which is under the charge of a secretary. These secretaries are the principles adviser of the president.

Appointment of member

They are appointed by every president when he enters upon his office, and are usually his ardent supporters in the political field.

Departments

As present there is 13 such department. Thus are follows:

1. Agriculture

2. Commerce

3. Defense

4. Education

5. Energy

6. Health & Human service

7. Housing & Developments

8. Interior.

9. Labor

10. State foreign affairs

11. Transportation

12. Treasury

13. Attorney-general.[50]

Powers

The American cabinet system differs greatly from the cabinet differs greatly from the cabinet system in other countries like India or England. The U.S president cannot put his responsibility on the shoulders of the cabinet nor can be make it responsible for the executive actions. In America, the cabinet is more like the president’s own council of adviser. In India, the president cannot afford to disregard the advisers cannot afford to disregard the advice of the cabinet. But in USA it is the president does sweet will whether to accept the advice of his cabinet or not. There is a classical example of the fact showing how utterly the president can disregard by seven member of president’s Abraham Lincoln’s Cabinet, with Lincoln in the chair, when it was put to vote. The seven members voted in the negative although, Lincoln himself wanted a decision in the affirmative. He wound up the decision be quietly saying “The vote is 7 noses and 1 eye. Therefore the aye has it”. This shows the utter subordination of the cabinet to the president. This cannot happen in Countries like India or the United Kingdom (UK).[51]

Utility of the Cabinet

The cabinet has a character and importance at its own. Memberships in it confines to be the ambition at many politicians and although there is a considerable variation in its prestige and influence from administration to administration, yet it must meet once a week transact two types of business.

Proceeding

Proceeding is informal and there are no joules of debate. No official records of proceeding are maintained. Hardly any voting in there because ultimately it is the well of the president that prevails. This is a contrast with the Indian or British cabinet, where all decision is taken by a majority vote regular records are maintained.[52]

Compare among USA, UK and Bangladeshi Ministerial Responsibility

There are two types of ministerial responsibility. Individual ministerial responsibility, In UK It is not constitution that a individual minister must resign for his own on his department fault. But it is convention that the failure minister must resign otherwise it will be inequitable for their convention. The minister can say that he does not resign. In that situation the prime minister can force him to resign if the fault is a major one. in UK their ministers are respectable to their convention even though it is not mandatory. The resignation may be committed two ways one is by the prime minister, other is vote of censure.

The classic example at Individual ministerial responsibility action was found in ” Crichel down : Sir Thomas Dugadle (1954). In the full debate of 20 July, on an adjournment motion . Dugadle gave a full account of case and die report’s findings and rested what he believed to be the constitutional position he announced at the end at his speech that he was resigning. Another case in that John Protumo” where he resigned for his fault.

However on the other hand the collective ministerial responsibility based on the collective responsibility of all government ministers, irrespective whether or Not they hold a place in the cabinet, all the ministers inside on outside of the cabinet must obey the cabinet decision. If any of the ministers disagree with the cabinet decision he must resign. That is because the doctrine lies government a account ability to parliament and through the parliament electorate.

The convention of collative responsibility based on the principles: 1) the confidence of collative responsibility based on thru principals:

• The confidence principal

• The unanimity principal

• The confidence principal.

A minister must not speak against government policy; Jennings asserts that a minister who is not prepared to defend a cabinet decision must therefore resign. Further from of minister point of view it means only that he must speak in defense of the government if the prime minister insists.

There is a provision that no minister cannot leak any ministerial to code to another. Because it is the decision of her majesty’s government. If any document leak then it will be harmful for this defense.

On the other hand the American constitution did not envisage any cabinet to aid and assist the president in the discharge of his functions. However in course of time, separate departments of the government have been created each of which is under the charge of secretary. These secretaries are the principal adviser of the president.

So it is appear from the above discussing that in UK and U.SA cabinet system. There is a lot of difference. However now we will compare with our ministerial responsibility (Bangladesh Ministerial responsibility)

The convention of individual ministerial responsibility

The Convention of ministerial responsibility antedates the modern party system. It developed at a time in the nineteenth creatures when the role of the government was limited and a competent minister was limited and a competent minister could be assumed to have personal control of a department. The growth at mass parties, and the welfare state have changed this nature of the convention, but it remains are important aspect of the UK Political system and the unmodified constitution. There are a number of interconnected practical demonstration of accountability that a Minister can make which can give effect to the requirement of individual ministerial responsibility to parliament a to the public, in addition to any professional sanction or punishment. Note the comment of the defense select committee in the Westland

Affair A minister does not discharge his accountability to parliament merely by acknowledge a general responsibility and, if the circumstances warrant it, y resigning. The four main options individual ministerial responsibilities are as follows:

Inform and explain

The basic requirement of accountability is those ministers explain their actions and policies to parliament, and inform parliament of event or developments within their sphere of responsibility. Thus ministers make statements on all sorts of issues from transport accidents to proposed new policy initiatives and make available detailed explanations through parliamentary answers, Consultation paper, white and green papers and so in.

Apologize

Minister who admit an error of whatever kind either by them personally or non behalf at their official, will usually be expected to parliament, as part of a full explanation, whether or not a resignation or dismissal is involved. It is often said that the house at commons is generous and forgiving to those members and ministers who admit their mistakes and atone for them, especially when the mistakes are not regarded as sufficiently serious for resignation.

Take action

A minister who is responsible for an unsatisfactory state of affairs will be expected to take appropriate remedial steps to correct it and to ensure that it should not happen again. This applies whether or not any resignation or dismissal are involved.

Resign

This is the ultimate accountability action and sanction. It is also the most difficult to categories and explains. While the other action noted above are essentially, in constitutional terms, administrative, executive actions, of ministers carrying out their ministerial duties to account in a substantive way to parliament resignation cases including those where resignation was successfully resisted, at last for some time and cases of sideways’ or other reshuffle can develop into essentially political battles, often but not always, of a partisan nature. Lord Carrington and his two junior ministers resign because Argentina successfully took possession at the FalklandIsland in April 1982, or because foreign office policy failed to prevent it, because it was flawed.

Recent developments in the convention of ministerial responsibility” The development of ministerial code of conduct

Beyond the relevant of the criminal and civil law and parliamentary rules of conduct affecting members generally there are few if any ‘rules’ regarding ministerial responsibility which guide and bind ministers in their official capacity, the first official guidance note for ministers, question of procedure for ministers (QPM) was published in may 1992 although it had been in existence before this is as a confidential internal circular and was well known unofficially in the media, academic texts and in parliament. Fallowing consideration by the treasury and civil service committee QPM was amended in 1995 to include the obligation not to misled parliament; minister must not knowingly misled parliament and the public and should correct any inadvertent errors at the earliest opportunity. Withholding information only when discloser would not be in the public interest, which should be decided in accordance with established parliamentary convention, the law any relevant government code at practice.[53]

Findings

Ministerial Responsibility is one of the major aspect of democracy in the country. It’s a duty of a minister to play his role properly Prime Minister and other minister of responsible to the parliament for the work of their department. Ministerial Responsibility is two kinds individual responsibility and collective Responsibility. So all Ministers are Responsible individually and collectively they are personally responsible to parliament for every failure of department policy and administration.

But some time the minister is not perform their duty properly. They use their power for own benefit and use political power for strong position of their political field. All kind of power and function of the minister include in the constitution and they have some accountability also so this reason all time they can’t abuse their power. But the political system and role is not run properly in our country.

In our country all department or authority always not follow proper democracy rule. Our every minister of the parliament is corrupted and they not do their public work properly for all departmental problem. Our minister and politician are not proper qualified because our politic follow family policy. All activities of the department are not using proper systematic way. Our common people are not well educated and they are not conscious about their political and other rights.

Recommendations

The ministers are the head of all government departments of the state. Prime Minister exercise the controlling power all mechanism of the country. Some politician said accountability is must be necessary for prime minister. Because prime minister exercises most power full post and prime minister take major part of the decision in the country. So when he bound to give accountability in the parliament then there have no scope for corruption or abusing of power. Other Polities said accountability is not necessary because prime minister and other ministers is not play all kind of role in the state. Their power, duty and responsibility is limited by the constitution. So it is necessary to give more power to the ministers. The main duty of ministers generally remained in law making process and the ministry actually runs by the secretariats.

I think in our country the prime minister and the cabinet members or other ministers are more powerful and if they want then they can use their power in proper way for the benefit of the common people and the department of the country, but some time they abuse their power for their personal interest and political betterment. So for this reason accountability is necessary. When the ministers follow democracy system and apply democracy rule, when they are not corrupted, all organ of the state run by systematic way then the concept of ministerial responsibility can be fulfill.

The appointment of ministers should surely be based on the needs of the country and the roles that must be fulfilled. A fixed number for the size of the cabinet should surely be rules out as it may not be possible to foresee on scenarios to fit all times.

The political parties of Bangladesh always talk about democracy but when the form the government they always try to articulate more power. We should come out form this evil practice.

Conclusion

Ministerial responsibility lies at the heart of our democracy, and it remains central to the way in which we are governed, notwithstanding the criticisms leveled against the continued relevance of the doctrine and despite the damage caused by excess concentration of policy and spending power in the hands of first ministers

However, constitutional provisions have been incorporated in order to ensure the dominance of the Prime Minister. A new clause has been added so that the lack of democratization within the major political parties makes the Prime Minister’s position virtually become unchallengeable. Further, the mode of election of the President has been made in such a way that unless a person is nominated and approved by the Prime Minister he or she cannot be elected, “thus making the relationship between the President and the Prime Minister not one of equals. It seems that the President is almost subordinate to the Prime Minister. As such the executive in Bangladesh, at present, is overridingly Prime Ministerial.

In conclusion, it may be argued that the present understanding of ministerial responsibility relies upon a series of distinctions which are open to manipulation and “abuse by government, and that Parliament appears to be currently deprived of the ability to challenge-and to challenge such manipulation and make its own determination as to where responsibility should be located from a position of comprehensive knowledge.’ It may be further contended that the dogmatic application of these rules to ‘ chief executives and the-continued accountability of ministers for the workings of the Next Step Agencies seems illogical and likely to undermine the demarcation of duties between ministers and officials, which the agencies are supposed to follow and uphold.

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