IN view of recent debate on article 147(3) of the Bangladesh Constitution, it seems well worth having some academic discussion on the issues relating to its legal meaning and making conjectures about the possible legal consequences for its contravention.

Article 147(3) of the Constitution, save its proviso, reads as follows - No person appointed to or acting in any office to which this article applies shall hold any office, post or position of profit or emolument or take any part whatsoever in the management or conduct of any company, association or body having profit or gain as its object. According to literal construction, this provision in general imposes two prohibitions- (1) any person holding a post mentioned in this provision will not hold any office of profit, and (2) such a person will not take part in the management or conduct of any company, association or body formed for making profit or gain. The aforesaid prohibitions apply to eight different kinds of posts and article 147(3) does not expressly stipulate any consequences in the event of its violation. Since these prohibitions do not apply to all of the targeted posts in similar manner, we shall restrict our discussion to the case of ministers only.

In order to understand the consequence of contravention of prohibition on holding or continuing to hold an office of profit by a minister, one will have to take into consideration two other provisions namely, article 58(1)(b) and 66(2)(f) of the Constitution. Article 58(1)(b) provides that an office of a minister will become vacant if he ceases to be a member of parliament. Article 66(2)(f) provides that a person will be disqualified for being a member of Parliament if he holds any office of profit in the service of the Republic other than an office excepted by the Constitution. Article 58(1)(b) and 66(2)(f) together signify that a minister if holds or continues to hold an office of profit will be disqualified for his membership in parliament and consequently his office of minister will become vacant. Therefore, any contravention of prohibition on holding or continuing to hold office of profit in Article 147(3) constitutes a disqualification for holding the post of a minister.

As for the consequence of contravening the prohibition on taking part by a minister in the management of any company, association or body it may be submitted that the most important expression- 'take any part whatsoever in the management or conduct' - does not carry any special legal implications and therefore, should be interpreted very carefully having regard to the consequences. Company, association and body- although are legal words have not been defined in the Constitution. It may be noticed that the wording of this part of article 147(3) does not envisage taking part in the management of a proprietorship concern.

Hence, one interesting legal issue would be if this parts of article 147(3) covers a partner in profit only who has no voice or functions in the affairs of a partnership? With regard to directorship in a company, an issue could be - can a Director of a borrower company take oath as a minister pending approval for his resignation from the lending Bank? In other words, should a Director of a borrower company, if asked to join the Cabinet, wait for approval for his resignation from the lending Bank? Or a leave of absence will suffice? Presumably, the public policy approach may justify joining Cabinet first because serving public office entails discharge of public duties and in appropriate circumstances the call for joining Cabinet may take priority over resignation from private posts.

It may also be pointed out that the literal meaning of 'take any part' does not mean resignation rather it signifies refraining from taking part in any functions of a company. Interestingly, the Companies Act, 1994 provides that the post of a director will become vacant if he remains absent in three consecutive meetings of the directors or any such meetings in three months without leave. It means if a director of a company who has been sworn in as a minister does not take part in the management of a company without leave, his position as director will fall vacant. If the director takes leave, he might still be regarded as complying with article 147(3) as he would not be taking part in the management of the company. However, such legal position will not be applicable to an entity to whom the Companies Act, 1994 does not apply.   

Now, issues concerning judicial remedies for contravention of article 147(3). It may be argued that an application under article 102(2)(b)(ii) of the Constitution (popularly known as writ of quo warranto) would lie in case of contravention of prohibition on holding an office of profit since it constitutes a disqualification for holding an office of minister. In this regard a related issue is - if a writ of quo warranto would also lie for contravention of prohibition on taking part in the management or conduct of a company and so on. As our conjecture goes, one point of view could be that since this part of article 147(3) does not refer to any disqualification, a quo warranto may not lie, however, such functions of a minister as would amount to taking part in the management of a company and such might be declared void and would entail no legal consequence. It seems in an appropriate situation, one could be sued for making good the loss for such void actions or transactions.

Ultimately, determining legal consequences for holding any posts in violation of the prohibitions mentioned in article 147(3) will depend on whether the prohibitions constitute fundamental condition for these posts or not.

The writer is an Advocate, Supreme Court of Bangladesh.