“A Strengthen Democracy demands the need of a strong Floor Crossing law”. Discuss.
Introduction:
Bangladesh has a parliamentary democracy government. Parliamentary democracy means a political system in which the legislature in other words parliament selects the government according to party strength as expressed in elections; by this system, the government acquires a dual responsibility to the people and moreover on to the parliament.
The legislative branch of the government of Bangladesh is a kind of unicameral Parliament, or Jatiyo Sangsad (House of the People), where the laws are make for the state. Members of Parliament, who must be at least twenty-five years old, are directly elected from territorial constituencies.[1] The present legal and judicial system of Bangladesh owes its origin mainly to two hundred years British rule in the Indian Sub-Continent although some elements of it are leftovers of Pre-British period tracing back to Hindu and Muslim administration. The Judiciary of Bangladesh consists of a Supreme Court, subordinate courts and tribunals.
Democracy:
According to dictionary, Democracy is a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system. Basically Democracy means the government by the people. All the people should be able to have their say in one way another in everything that affects their lives. On the other manner , we are able to say that Democracy is an equal form of government in which all the citizens of a state together determine public policy, the laws and the actions of their state, requiring that all citizens have an equal opportunity to express their opinion.
A Lecture at Hilla University for Humanistic Studies (2004, January21) state that Democracy consists of four basic elements.
These are:
- A political system for choosing and replacing the government through free and fair elections.
2. The active participation of the people, as citizens, in politics and civic life.
3. Protection of the human rights of all citizens.
4. A rule of law, in which the laws and procedures apply equally to all citizens.
Dictatorship:
An autocratic type of absolute rule by leadership unrestricted by law, constitutions, or social and political factors insides the state. In other word we can say that where government is not obeying the constitution of the state and government do whatever they want is called Dictatorship.
Constitutions:
The constitution is the single most important document. It is the embodiment of the supreme will of the sovereign people. It depicts the fundamental objectives of the state and declares the fundamental rights grunted to the people. It also sate the rules the governing the principle function of the state. Bangladeshi Constitution was enacted on 4th November 1972 and it became effective from 16th December 1972.
Floor crossing
Floor crossing means to resign from one party and to join another party. In broader sense, the term “floor crossing” refers to voting against one’s own party in the House or parliament during the time of voting. Not only that floor crossing also says that if one member is not present at the time of voting or passing a bill or doesn’t take part in the voting the member will lose his membership or seat from the parliament. This term “floor crossing” can also be called “political defection” or “side swapping”.
In Bangladesh in the year 1972 our constitution makers incorporated Article 70 which is designed to prevent floor crossing in the parliament. This was an anti-defection or anti floor crossing law.
Article 70 under the constitution of Bangladesh:
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 the party or votes in parliament against that party.
If a member of parliament-
a) being present in the parliament abstains from voting
b) absent himself from any sitting of parliament
Ignoring the direction of the party which nominated him at the election as a candidate no to do so, he shall be deemed to have voted against that party.
Effect of article 70 in Bangladesh:
A) Lack of responsibility and scope of dictatorship:
It can be unquestionably said that there is lack of responsibility and huge opportunity of dictatorship of the government in the parliament of Bangladesh due to the article 70. A parliamentary government should take every single step judging the pulse of the members of the legislature to avoid beat on the floor. This practice is called the responsibility of a government and a responsible government has got two main characteristics, they are: Individual responsibility to the ministers and collective responsibility of the cabinet. However there is no provision in Bangladesh to perform the individual responsibility. But still there is a provision of Article 55 which state that the cabinet should be collectively responsible to the parliament. But, the truth is the Article 70 actually allows the government to get away from this responsibility too as the cabinet is sure and safe from getting beaten on the floor by motion of confidence or no-confidence, because, no member of the majority party can vote against his own party. So, Article 70 is allowing the government not to be accountable and responsible to the parliament and it is also providing the government enough room to practice dictatorship.
Contradiction among MPs:
According to article 70, MPs are not able to go against their party. As a result, they have to tolerate all commend or instruction which is determine by the party will or sometimes from the president himself or herself. They cannot say anything whether the will is right or wrong. However, many MPs don’t have a clear idea and do not speak freely even in the party meetings. As a result the good results of democracy are not been practiced. Thus MPs have to change this law. But nobody come forward to change it. For this reason, MPs are in contradictory situation.
No practice of rule of Law:
Rule of law gives the equal opportunities to members or MPs to discus about an issue. So, as a member of parliament they should have this chance to practice. But the Article 70 prohibits the member or MPs of ruling party to practice this rule of law. No matter how intelligent our MPs are , they just have to obey the party decision. That’s why our MPs are become Puppet. Most of the time in our country the ordinance is made a week before the parliament session and in the parliament it is only approved. No debate or argument or legislative actions take place at all. So, we can never expect the rule of law to flourish under this circumstance.
Personal Research:
According to my perception, this hindrance is a strong barrier for cultivation of real democracy which in turns appreciates the tendency of dictatorship. Bangladesh is a parliamentary democratic country. In this country every people have the right to say. MPs are our representative. We the general people chose them by the election. They are chosen to bring democracy for us. But for constitution of Bangladesh Article 70, MPs’ rights are interrupted. They cannot talk and think freely. Do they have any interest on that specific will or not, they just have to obey that will. This is something like pushing them or bound them to do according to the party will. This tendency is indicating the dictatorship.
For article 70 known as “Anti-Defection Law” state that the seat of a Parliament member shall vacate if he votes against the party that nominated him as a candidate in the election whereby he became Parliament member. This single provision provides the prime minister with extreme power over the members of his/her party. So the dictatorship is climbing up in a huge range.
Article 11 states that the public shall be democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed and in which effective participation by the people through their representative in administration at all levels shall be ensured. But Article 70 of our Constitution is totally opposed to the democracy. It frustrates all positive procedure in the Constitution in the name of preventing floor crossing.
At a BBC dialogue (2009, December 26) Standing committee member of BNP Khandaker Mosharraf Hossain and AL presidium member Matia Chowdhury, also agriculture minister, said the culture of boycotting parliamentary session should be come to an end, as it is danger to democracy.
The article 70 has prevented the MPs from practicing their judgment. That is why many important issues such as budget are often passed without much debate. This provision has also put supreme power to the leaders of the ruling parties. So that they dominate their general members, who are would not speak for fear of losing his or her seats.
Rashed Khan Menon who is a MP said that “The article 70 of the Bangladesh constitution stripped the members of any initiatives, hinders the development of their skills and above all it makes them escapist. They take credit for anything that goes right, but does not take the responsibility of what goes wrong. They are also unlikely to focus on a specific policy area as being of value and in fact avoid any specialization, which may bring them in conflict with the leader”(Menon. 2009. Februray 2).
Article 70 was broke in 1998 and its consequences:
Mr. Hafizuddin Ahmed MP of Bhola-4 Bir Bikram raised a point to the speaker on 8-3-1998 saying that floor crossing was not allowed in our Constitution. But two BNP MPs joined the Awami League Cabinet last month which according to him, violated the Constitution. On the same day Mr. K.M. Obaidur Rahman who is a MP of Faridpur-2 raised another point to the speaker that the Constitution had been violated by Mr. Hasibur Rahman Swapan and Dr. Alauddin due to taking oath as Ministers and for crossing the floor they have lost their Membership under Article 70 of the Constitution.[2] The Deputy Leader of the Opposition Mr. A.Q.M. Badrudoza Chowdhury and the Chief Whip of the Opposition in two separate letters have mentioned that the seats of these two Members are vacant. They have mentioned that both of them were elected as the nominees of BNP and, as Members of BNP Parliamentary Party it was known to them that BNP was not a part of Government. Still they took oath as State Minister and Deputy Minister violating Party discipline and ignoring the parliamentary norms and practices which will be treated as resignation from their own Party under Article 70 of the Constitution.
Difference in Anti-Defection Provisions:
Pakistan, Article 63-A, If a member of a Parliamentary Party composed of a single political party in a House— resigns from membership of his political party or joins another Parliamentary Party.[3]He may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner and shall similarly forward a copy thereof to the member.
But in Bangladesh If, at any time, any question as to the leadership of the Parliamentary party of a political party arises, the Speaker shall, within seven days of being informed of it in writing by a person claiming the leadership of the majority of the members of that party in Parliament, convene a meeting of all members of Parliament of that party in accordance with the Rules of Procedure of Parliament and determine its Parliamentary leadership by the votes of the majority through division and if, in the matter of voting in Parliament, any member does not comply with the direction of the leadership so determined, he shall be deemed to have voted against that party under clause (1) and shall vacate his seat in the Parliament.
Suggested solution to solve this problem:
Some may argue that we need a provision in order to prevent MPs from switching sides too frequently and effectively causing the government to fall. This can cause impermanence in our country.
Here is a proposal to solve the problem:
(1) MPs will never lose their membership in parliament.
(2) Regular votes will be carried out just like other votes, where MPs can give their vote independently.
(3) Confidence votes will cast by the MPs like regular votes. However, they will be calculated using an “electoral college” system. Here is how the Electoral College system may work:
a. Within each political party, all the votes will be accounted first.
b. If there is a clear winning majority within the party, all votes from that party will be deliberated to have cast the same as the majority of the party.
c. If there is not a clear winning majority within the party, the party leaders will have an additional vote to break the tie. If the tie is broken, all the original votes from the party will be deliberated to have cast accordingly.
d. If the tie cannot be broken because the party leaders are unwilling to side with one of the majority factions, all the votes of that party will be deliberated “regular votes”, and will be used “as it is”.
The above solution can be a starting point to come up with a modification to article 70. I hope our political leaders will take notice of this issue, and climb up our nation toward a true democracy.
Conclusion:
Because of this Article 70, no MP can say anything against his/her party in the parliament. Basically an MP who is elected by his people cannot give his own opinion or speak for his own people; rather he always must support his party leader whether it is right or wrong otherwise he will be dismissed from the party. It does not matter who introduced it but now is the time to get rid of this harmful anti-democratic rule. Because of this article MPs cannot raise their voice against the evil. As a result Democracy is not practiced. According to the preamble, Democracy is one of the fundamental principles of the constitution. Not only is the democracy being affected by this constitution, Dictatorship also highly practiced in our country because of this constitution. So we are really very optimistic to have a amendment in this constitution to protect our democracy.
Bibliography:
[1] (1988, September). Bangladesh Index. Bangladesh Legislature. Retrieved from: http: http://www.mongabay.com/
2 Lecture at Hilla University for Humanistic Studies. (2004, January 21).What is democracy. Retrieved from http://www.stanford.edu/
3 Khasru, A.M.(M.P) (2000,May31). The Constitution Of The People’s Republic Of Bangladesh. Preface. p.i.
4Floor Crossing Law under Bangladesh Constitution. Introduction. Retrieved from: http://www.lawyersnjurists.com
5Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” pp.176-178.
6 Khasru, A.M.(M.P) (2000,May31). The Constitution Of The People’s Republic Of Bangladesh .Vacation of seat on resignation. p-26
7 Barrister Rabia Bhuiyan. (2008, November24).Parliamentary Rules of Procedure: A Quest for Democracy? Retrieved from: http://femabd.org
8Moudud, Bangladesh : Era of Sheikh Mujibur Rahman, p-108
9Nazrul, ““Article 70 and the future of parliamentary government” pp.1-3
10 Khasru, A.M.(M.P) (2000,May31). The Constitution Of The People’s Republic Of Bangladesh .Democracy and human rights. p-4
11(2009, December27). Culture of parliament boycott threat to democracy. Thedailystar. Retrieved from: http://www.blogs.com.bd/
12 Menon.R.A.(2009,Februray 2) A great role for parliament:The rules and the reality. Retrieved from: http://femabd.org/index.php?option=com_content&view=article&id=218
13( 1998, April 21). Seventh National Parliament. Eighth session.vacant. <href=”#61″>(61) Regarding two BNP MPs seats being vacant. Retrieved from: http://www.parliament.gov.bd/
14( 1998, April 21). Seventh National Parliament. Eighth session.vacant. <href=”#61″>(61) Regarding two BNP MPs seats being vacant. Retrieved from: http://www.parliament.gov.bd/
15 Section 22 of the Constitution (Eighteenth Amendment) Act, 2010 (10 of 2010), substituted Art. 63A, in its present form, (w.e.f. April 19, 2010), in place of the Art. as substituted by Item 8 of the Schedule to C.E.O. No. 24 of 2002 and validated by Section 10 of the Constitution (Seventeenth Amendment) Act, 2003 (3 of 2003),Retrieved from: http://pakistanconstitutionlaw.com/
16Section 22 of the Constitution (Eighteenth Amendment) Act, 2010 (10 of 2010), substituted Art. 63A, in its present form, (w.e.f. April 19, 2010), in place of the Art. as substituted by Item 8 of the Schedule to C.E.O. No. 24 of 2002 and validated by Section 10 of the Constitution (Seventeenth Amendment) Act, 2003 (3 of 2003),Retrieved From : http://pakistanconstitutionlaw.com/
`17 Kenneth Janda. (2009.August). Laws Against Party Switching, Defecting, or Floor-Crossing in National Parliaments.retrieved from: http://www.partylaw.leidenuniv.nl/uploads/wp0209.pdf
[1] (1988, September). Bangladesh Index. Bangladesh Legislature.
[2] (1998, April 21). Seventh National Parliament. Eighth session.vacant. <href=”#61″>(61) Regarding two BNP MPs seats being vacant.
[3] Section 22 of the Constitution (Eighteenth Amendment) Act, 2010 (10 of 2010), substituted Art. 63A, in its present form, (w.e.f. April 19, 2010), in place of the Art. as substituted by Item 8 of the Schedule to C.E.O. No. 24 of 2002 and validated by Section 10 of the Constitution (Seventeenth Amendment) Act, 2003 (3 of 2003),