“Floor crossing law in Bangladesh a controversial issue”-evaluate
INTRODUCTION:
Bangladesh is a parliamentary democracy largely influenced by the British parliamentary system. Executive power is in the hands of the prime minister, who is the head of the Cabinet, and who must be a member of the 300-seat Jatiya Sangsad (unicameral parliament). She/he recommends the council of ministers to the president. The members of Jatiya Sangsad are designated as Members of Parliament (MPs).
The very idea of a parliament being a place where members come together and discuss an issue, try to convince fellow members to support their cause and then call for voting, is a concept alien to our parliamentary democracy. Bangladeshis have never even heard of a close vote in Parliament, let alone the government losing on a bill, no matter how unpopular a particular bill has been. No government has had to rally for public support on issues it has tried to push through the legislature. The question is, why would it have to, when it possesses the luxury of Article 70?
If one provision of law had to be singled out for its contribution towards holding back our otherwise promising parliamentary democracy, it would most certainly be Article 70 of the Constitution. Article 70 puts a bar on an MP from voting against his/her party and makes it illegal in Parliament. Originally designed to prevent MPs from engaging in what is known as “floor-crossing”,
The barrier of Article 70 is not absolute, in the sense that an MP can still vote against his party. But, the fact remains that s/he can only do so at the high cost of losing his/her Parliament membership and therefore at the same time.
Even after 15 amendments to the Constitution that was promulgated 40 years ago in 1972, Article 70 stands proudly and relatively unhurt, stating as follows:
“70. A person elected as a member of Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he
· resigns from that political party that nominated the member
· votes in Parliament against that party; but shall not thereby be disqualified for subsequent election as a member of Parliament
· abstaining from voting, either by abstention or absence, against the directive of the party whip
Most candidates are elected by the funding, support and brand name of the party, and therefore, resignation from the party voids the choice of the people. The prime objective of banning floor crossing is to prevent members from joining other parties for personal gains. This is crucial in marginal majorities, where a few majority members voting against the majority essentially changes the government party in power.
The ban on floor crossing stunts the members from speaking out against bad policies pitched by their party. This is considered harmful for parliamentary democracy, as the ban forces members to agree with their party leaders regardless of their own opinions or the opinions of their constituents.
The major reason for the apparent handicapped “growth” of our parliamentary democracy is attempted to critically analyze the notion that our parliament is a mere “rubber-stamp” to be used at the whim of the all-powerful executive.
TERMINATION OF THE MEMBER:
Article 78 of the Constitution provides immunity to the speeches, actions and votes of the members done within parliamentary sessions, and hold members not answerable for any such actions to the court. Many people may be surprised to learn that parliamentary members who vote against the will of his own party will be expelled from their seat because they violate the law in their country; though a member of parliament has no power to vote against his party as per the constitution of Bangladesh.
None except one MP, so far, has taken the leap against Article 70. Since the very inception of our country, successive governments have used our Parliament only as a rubber stamp to validate or legalize its predetermined actions. No party in power has feared the Parliament as a battleground where they can be defeated by the opposition or even public sentiment for that matter. Not only does the opposition never stand a practical chance of winning a vote against the government, no critic inside the ruling party holds any bargaining power against an unreasonable or harmful decision of the government. A ruling party MP speaking against the government is free to speak his mind on the Parliament floor but the freedom ends once the Speaker calls for votes. From the moment vote is called, a Member of Parliament must only blindly follow the commands of his/her superiors in the party.
THE REASON PARLIAMENT MEMBER VOTE AGAINST HIS PARTY OR SWITCH:
Various scholars have discussed motivational conflicts confronting deputies in their parliamentary behavior. Heller and Mershon see four factors in a legislator’s decision to switch or vote against, which is “some function of his or her ideal policy, his or her party’s policy position, his or her party’s ability to influence outcomes, and his or her contribution to that influence” (2008: 912). Subramanian describes the primary conflict simply and succinctly between two choices, which he calls the “Legislator’s Dilemma”.
THE ENGLISH LAW OF PARLIAMENT MEMBERS:
In politics, crossing the floor has two meanings referring to a change of allegiance in a Westminster system parliament. The term originates from the British House of Commons, which is configured with the Government and Opposition facing each other on rows of benches. Votes, or divisions, are taken by entering lobbies to the left and right of the chamber to have one’s vote tallied; the “Aye Lobby” is on the Government side and the “No Lobby” on the Opposition side. If one wishes to vote against one’s party, one must quite literally cross the floor to get to the other lobby. A notable example of the latter is Winston Churchill, who crossed the floor from the Conservatives to the Liberals in 1904, before later crossing back in 1924.
The term has passed into general use in other Westminster parliamentary democracies (such as Canada, Australia, New Zealand and South Africa) even if many of these countries have semicircular or horseshoe-shaped debating chambers and mechanisms for voting without Members of Parliament leaving their seats. In most countries, it is most often used to describe members of the government party or parties who defect and vote with the opposition against some piece of government-sponsored legislation — although this usage is not widespread in Canada, where the term’s usage is restricted to the second definition.
In Australia, one of the major parties (the Australian Labor Party)[3] forbids its members from crossing the floor while amongst other parties it is rare. Senator Barnaby Joyce of the National Party of Australia however, crossed the floor 19 times under the Howard coalition government. However, the record for crossing the floor in the Australian Parliament goes to Tasmanian Senator Sir Reg Wright, who voted against his own party (the Liberal Party of Australia) on 150 occasions.
BARRIER TO CULTIVATE REAL DEMOCRACY:
Scholars who believe that defecting from parliamentary parties contributes to party system instability and ineffectiveness typically favor anti- defection laws that require defectors to surrender their parliamentary seat and it will also create violation to the country’s law. Political defections attack the very root of democracy.
The modern view is to apply the same law over all persons in the State and to give equal rights and privileges for the protection of their human liberties. The concept of equality of all persons before law is the basis of what is called the, ‘Rule of Law’. In the first place, Rule of law states that, “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts”(Dicey)[4]. In the third place, the Rule of Law is the result of statutes and judicial decisions determining the rights of private persons.
Otherwise, democracy means government of the “demos” or people. The two other notions — democracy by the people and democracy for the people — then automatically follow, illustrating that the reach of the “demos” in governing the state does not stop at the point where they have chosen the representatives to protect their interests in the legislature. Rather, constant checks and balances must exist to ensure that those representatives are constantly representing the interests of the people and working for them.
In our system of parliamentary democracy, however, the power of the people ends at election time when they have chosen their delegates to the legislative assembly. Once an MP is elected, they have no further legal obligation to vote in Parliament as their voters direct, instead, our Constitution dictates that directions to be obeyed by them are to come from the party that nominated them. No matter how much a representative of the people may be influenced by their constituents, or regardless of how much their conscience may beg of them to contradict a party decision, they must follow their party superiors. Democracy then hits a brick wall.
So according to Rule of Law and democracy, people of the our country should know about what is happening in politics and should have right to raise his or her voice against void issues but in Bangladesh it is not seen and who tries to defend it he or she has to face problem because corruption among the members stop the country to be total democratic and make the citizens unknown about the incidents happen inside politics and rights are lost in some certain conditions.
DICTATORSHIP:
According to Bangladesh parliament law, no member has any power to vote against his own party; so definitely here democracy faces obstacle mean pure democracy does not reflect. And one can not go against his party’s will though his party is doing wrong things; he has to support to keep staying on his seat which in turns appreciate the tendency of dictatorship. In Bangladesh parliament things happen according to influential members and rest of the members just blindly follow them. That is why, the concern of dictatorship or monocracy arises. And I personally think that the hindrance that a member feels makes a strong barrier to a pure democracy which in turns recognizes the tendency of dictatorship.
REMEDIES OR SOLUTIONS:
If any one votes against his party for a particular reason then he will be eliminated from his seat but he can go beyond the implications for party politics, claim that party defections in parliament are inherently undemocratic.
The provision would suggest that-
· Firstly, that there must be an express “direction issued” by the party, meaning that in the situation that the party does not “issue” a “direction” upon its members, they can vote as they wish.
· Secondly, to avoid losing their seat, an MP has the option of seeking permission to vote against the issued direction.
· Thirdly, even if they fail to obtain permission prior to the voting, they still have the option of applying for condone within 15 days of voting.
COMPARATIVE ASSESMENT:
Bangladesh is not the only country with draconian restrictions on its MPs; her colonial cousins India and Pakistan have both incorporated provisions similar to Article 70 albeit with significant exceptions.
The Tenth Schedule of the Constitution of India while defining “defection” states that a member of parliament will lose his/her seat if s/he votes against or abstains from voting. The prior permission of a political party, person or authority of such voting or abstention has not been condoned by any of them within fifteen days from the date of such voting or abstention.
Article 63A of the Pakistani Constitution, the provision that deals with disqualification of parliament members, provides even wider exceptions to the general rule of party-line voting. The restriction on the member’s voting or abstention is limited to three situations only (i) election of the Prime Minister or the Chief Minister; (ii) a vote of confidence or a vote of no-confidence; or (iii) a Money Bill or a Constitution (Amendment) Bill.
According to Australian Parliament Library, 2005, “crossing the floor” sometimes refers merely to voting with the opposition, not to changing party affiliation.
CONCLUSION:
For any legal system it is a challenging task to draw line between the own party members. If though they are wrong but a single member can not go or vote against his party. It also breaches the country’s and parliament law which is not preferable according to democracy too. The English law and legislation refers the exact thing that no parliament member has right to vote against his party’s will; even most of the countries refer this too whatever the political condition of his party belongs to.
And if he or she tries to go against then it is sure that he or she will loser his or her seat from the parliament. So, a member can only follow the other higher passion’s members whether they do right or wrong. So, most of the countries Parliament members have no power or right to vote against their party like Bangladesh but for true free-flowing parliamentary democracy to flourish, anything less than complete freedom to vote is insufficient.
REFERENCES:
Books and articles:
Arnold, Terrence (2005) “Electoral amendment Bill,” Legal advice to the Attorney General, Australian Ministry of Justice (November 5), available at http://www.courts.gov.nz/bill- of -rights/ bill-list-2005/e-bill/electoral-integrity-amendment-billhtml. [Accessed on 23 June 2012]
Australian Parliamentary Library (2005) “crossing the floor in the Federal Parliament 1950- August 2004,” Research Note: Information, analysis and advice for the, Penelope (May31,2008)”Independentlyinclined”.TheAge. http://www.theage.com.au/national/independently-inclined-20080530-2jzv.htmlParliament (October 10), no.11. [Accessed on 23 June 2012]
“Crossing the floor in the Federal Parliament 1950 – August 2004”. Research Note no. 112005–06.Australian Parliament. October 10, 2005. http://www.aph.gov.au/LIBRARY/Pubs/RN/2005-06/06rn11.htm. [Accessed on 23 June 2012]
Macafee, Michelle (April 11, 2006). “Proposed reforms would ban floor-crossing in Man.”. Canadian Press. Archived from the original on March 23, 2007. http://web.archive.org/web/20070323022203/http://www.canada.com/cityguides/reddeer/story.html?id=3d05619e-313e-4cce-a7a2-f5beed56b228&k=3864. [Accessed on 22 June 2012]
The Elections Reform Act – Schedule E”. Statutes of Manitoba. Manitoba Laws.2006. http://web2.gov.mb.ca/laws/statutes/2006/c01506ee.php.[Accessed on 21 June 2012]
‘1972 clause set to be invoked’. Bdnews24.com.5 April 2011. http://www.bdnews24.com/details.php?cid=2 & id=192055&hb=3. Retrieved 24 September 2011 [Accessed on 21 June 2012]
“Hold ruling party accountable”. The Daily Star. 26 January 2009. http://www.thedailystar.net/newDesign/news-details.php?nid=72956. Retrieved 23 September 2011 [Accessed on 21June 2012]
Ilam, M Rafiqul (22 January 2011). ‘Sovereignty debate’ The Daily Star. http://www.thedailystar.net/law/2011/01/04/index.htm. Retrieved 24 September 2011 [Accessed on 22 June 2012]
“Crossing the Floor”- Wikipedia, the free encyclopedia. En.wikipedia.org/wiki/Crossing_the_floor
William B. Heller and Carol Mershon, ‘Dealing in Discipline: Party Switching and Legislative Voting in Italian Chamber of Deputies, 1988-2000. [Accessed on 22 June 2012]
Australian Parliament Library (2005) “Crossing the floor in the Federal Parliament 1950-August 2004” Research Note: Information, analysis and advise for the Parliament (October 10), no.11.
A.V. Dicey, “ Law of the constitution”
Arun Kumer Sen and Jitendra Kumar Mitra(2011-2012)27th ed
Matiur Rahman, “Dictatorship in democracy”(2011), http://www.thedailystar.net/newDesign/news-details.php? [ accessed on 22 June 2012]
Democracy and Dictatorship in South Asia, http://www.chillibreeze.com/…/DemocracyandDictatorshipinSouthAsia [Accessed on 23 June 2012]
Political Parties, http://www.globalsecurity.org/military/../bangladesh/political-parties.htm
Shawkat Ara Husain, “Development and working of the Legislative Council of Bengal”, Politics and Society in Bangladesh: A Legislative Perspective (Dhaka: Bangla Academy, 1991)
Moudud Ahmed, “Democracy and the Challenge of Development” (Dhaka: UPL, 1995), pp 56-65, 98-103.
[1] Saqeb Mahbub, ‘Can parliament be more than a rubber-stamp’ (2012), Issue 04, volume 6.
[2] “can parliament be more than a rubber-stamp” Saqeb Mahbub. http://wwwthedailystar.net/forum/2012/april/price.htm [Accessed on 22 June 2012]
[3] “Crossing the Floor- Wikipedia the free en cyclopedia. En. Wikipedia.org/wiki/Crossing_the_Floor
[4] A.V. Dicey, “ Law of the constitution”
Arun Kumer Sen and Jitendra Kumar Mitra(2011-2012)27th ed