“Anti-defection/Anti floor crossing law” is favourable and suitable to the Bangladesh Parliamentary set up”
Introduction:
The phenomena of voting by a parliament member against his/her own party or own party’s will is restricted by Art.70(1) in the constitution of Bangladesh and punished through loosing his/her seat in the parliament. Voting against one’s own party or remaining absent in the parliament at the time of voting or not taking part in the voting procedure while passing a bill of own party is considered as “Floor crossing/Political defection/Side swapping”. In 1972, Art.70 was incorporated by the constitution makers in the constitution of Bangladesh in order to prevent this floor crossing act in the parliament which is called “Anti-defection/Anti floor crossing law”.
According to this law, a member of parliament shall be deemed to have voted against the party which nominated him and will have to vacate his/her seat in the parliament if he being present in parliament abstains from voting or absents himself from any sitting of parliament ignoring the direction of that party. This law literally bars a Member of the Parliament (MP) from saying against the party, and thus the provision forces him/her to always support the party decision even if the MP concerned has strong reasons to oppose it, and even if the decision is actually wrong which actually unfortunately domesticates every MP to always clap for the party leader in our obliterated democratic practice where the problem is not refusal or protest but sycophancy and unquestioning bowing down to the wishes of either this or that leader.
This law is actually like a hindrance/strong barrier in cultivating the real democracy as it takes away the freedom or liberty of the ministers chosen by the people which refers that even if anyone wants to protest against a decision of his own party there is no option to do it. The practice of this law ultimately appreciates the tendency of dictatorship because the parliamentary government is always accountable or responsible to the legislature. So, when the ruling party members are proposing a bill or trying to pass a bill, they are always not sure whether it is going to be supported or not and therefore it always tries to feel the pulse of the members or tries to be more responsive.[1] But, under the anti defection or anti floor crossing law, the government as well as the ruling party members is getting an opportunity to practice dictatorship as there is none from the government to protest or vote against as a result, the government as it is no more going to be accountable to any of the members or legislature and it can pass any unethical bill which can be detrimental to the country and there is none to protest or vote against it.
Background:
After the liberation war and our independence in 1971, due to the necessity of a law to keep a tight rein on the parliament members in 1972, the then ruling party policy makers gave birth to “The Bangladesh Constituent Assembly Members (cessation of membership) Order 1972” with a law of losing the seat in the parliament if a person resigns or becomes expelled by his/her own political party which was incorporated in the constitution for the first time as the form of Art.70 later on with a little modification of omitting the issue of expulsion from the party and including the clause of imposing restriction on MPs to cast votes in parliament against their own party.
In January 1975, through the constitution’s 4th amendment act, Art.70 was made more stringent by including two more clauses that if a member is present in the parliament but still doesn’t take part in voting or if a member doesn’t attend the parliament at all against the will or direction of his party, he/she will have to vacate the seat. The existing Art.70 was finally formed after the modification of adding the condition that none can form a group within one political part and if one independent elected member joins any other political party then it will be considered as the violation of Art.70 in the 12th amendment of the constitution on August 6, 1991.
From 1991 to till date this existing Art.70 has kept the MPs as “prisoners” of their own party by preventing them from playing due role in parliament freely even if till now 4 elections took place but still there is no sign or symptom to change this Art.70 or to remove it. Maybe it is because that our political parties want to perform dictatorship or they are afraid of the past history of the then East Pakistan (the chaos and defection or floor crossing of 1954-1958).
During 1954-1958, before the liberation war when Bangladesh was used to be a state of the then Pakistan, due to lack of wisdom, illiteracy and political unconsciousness the members were used to cross the floor for their own interest as they were selfish in nature and never thought of the good of the parliament. They hampered the actual flow and rules of parliament. Whenever something happened in the party which has hurt someone’s own interest he was used to cross the floor. It was a regular practice in the then Pakistan. This practice made the parliamentary system unworkable.[2]This unethical behavior of the parliament members from the past history has worked as a strong base for the formation of Art. 70 and also encouraging it’s practice till now in our country.
Existing Art.70 from the constitution of Bangladesh:
The current anti-floor crossing law practiced by the government of Bangladesh under the Art.70 of the constitution of Bangladesh is given below-
(1) 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 party or votes in parliament against that party. If a member of parliament- (a) being present in parliament abstains from voting, or (b) absents himself from any sitting of parliament, ignoring the direction of the party which nominated him at the election as a candidate not to do so, he shall be deemed to have voted against that party.
(2) 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.
(3) If a person, after being elected a member of parliament as an independent candidate, joins any political party, he shall, for the purpose of this article, be deemed to have been elected as a nominee of that party.
Practice & Consequence of this law in Bangladesh:
The practice of this Art.70 in Bangladesh actually indicates towards the malpractice and corruption of the government due to the inability to ensure accountability and transparency of the cabinet by following the restrictions of Art.70.
The consequences of this restriction on voting rights of the parliament member’s against their own party are visualized in each and every small stages of our government system. Like-
· Nowhere in the democratic world, the decision of retaining or loosing membership of parliament, depends on a political party as a member of parliament is elected by the voters not by the party members. This sort of phenomena may be found only in a dictatorship where system of one party prevails.[3] The responsibility of a parliamentary government is to pass or take every single step judging the pulse of the members of the legislature to avoid defeat on the floor. But the Art.70 is providing our government to neglect this responsibility as they are sure and safe from getting defeated on the floor as no member of the majority party can vote against his own party which is also undoubtedly creating immense space for performing dictatorship.
· As casting vote against own party means losing membership, it has absolutely curtailed the member’s freedom by giving them no alternative, but to follow the party decision no matter whether it’s right or wrong. Even though Art.70 doesn’t set any rule against expressing their opinions in the party meetings, most of the MPs are not clear about the total application of this law and shows contradictory position as well as conflicting opinions which creates barriers in the way of practicing parliamentary democracy.
· This Art.70 has also been used as a major weapon of the opposition to continue the parliament boycott in Bangladesh. If a party decides to boycott the parliament, all of it’s members must honor that decision no matter it’s right/wrong. In the 7th parliament, one of the BNP MP, Major (retired) Akhtaruzzaman protested at the then opposition BNP’s decision to boycott the parliament and joined there which at the end resulted in vacating his membership in the parliament because of a complaint from the BNP.
· A parliamentary government has to be responsible to the parliament or legislature. Although it is said that Bangladesh follows a parliamentary government but actually Art.70 is blocking the system of being responsible to the legislature which contradicts with the actual Parliamentary government spirit. This restriction gave birth to a culture of flunkeyism in politics in which lawmakers are very often found to blindly appreciate the all-powerful executive’s performance, instead of discharging their oversight functions.
· The Art.70 prohibits the members of the ruling party to practice the rule of law and procedure about the rights to discuss, argue or debate on a proposed issue or over a proposed bill which provides room for unrealistic or undemocratic bills to be approved and passed very easily. As no debate or argument or legislative actions take place at all on any ordinance in the parliament, the proper flourish of the rule of law is almost impossible in Bangladesh until Art.70 is changed or removed.
Practice of this law in other countries:
This law of anti-floor crossing is mostly found in India, Pakistan, Bangladesh, Nepal, Sri Lanka, Malaysia etc. The developed countries like- UK, USA etc. doesn’t have this sort of law as they have a very strong well established & well organized judiciary and parliamentary system and they fully believe on the freedom of expressing opinion and also giving vote as per own decision for the parliament members elected by the public. In Pakistan if one party wants to pass an unethical or undemocratic bill someone from the same party can vote against it & if only in the case of election of the prime minister, motion of confidence and money bill someone votes against the party/do not attend in voting for the party then only he/she loses his/her seat in the parliament. In India there is a specific rule to vote against one’s own party, but if someone breaks that without permission then only he is to be guilty but if the party forgives him within 15 days then he will not lose his membership.[4] But in Bangladesh regardless of the issue if a member votes against his own party, he loses his membership. So, although this law also exits in our neighboring countries like India & Pakistan, it is more logical & practical there than us.
Suggestion:
Although this anti-floor crossing law is a barrier at the path of real democracy, it will be unrealistic in terms of Bangladesh just to remove this law as most of our politicians are corrupted & greedy of power. So, removing this law might create instability in the government again like 1954-58, but still slight changes can be made in Art.70 like- allowing voting on motion of confidence and money bill/passing the budget like Pakistan because a budget or money bill is not necessarily connected to the stability of the government. It is true that only changing this law will not solve all of the parliamentary problems of our country, but still by changing this law a little bit, the government will not fall and still there will be some implication of rule of law.
Conclusion:
For the development of any democratic country, the government must have to be accountable & responsible for its actions to the parliament to reduce corruption. But in our country the executive branch has been consolidating it’s position in all unholy ways, making imbalance of power and diminishing the prospect of good governance as the people’s representatives have become the subservient to the political parties due to the dark shadow of Art.70.[5] So, to nurture the spirit of speaking of truth, the required protest against ill-designs of few politicians, and the refusal of unquestioned obedience, MPs must have right to vote against his/her own party.[6]
Bibliography:
Ahmed, M. (n.d.). Bangladesh: Era of Sheikh Mujibur Rahman. Dhaka, Bangladesh.
Bangladesh Parliament. (as modified up to 2007, January 11). Rules of Procedure of Parliament of The People’s Republic of Bangladesh. Retrieved from http://www.parliament.gov.bd/rprocedure.htm
Barnett, H. (2004). Constitutional & Administrative Law (5th ed.). Portland, Oregon, USA: Cavendish Publishing.
Barrister M. Mazedul Islam, personal communication, June 10, 2012.
Floor Crossing Law Under Bangladesh Constitution. (2010, November 12). Retrieved from https://www.lawyersnjurists.com/resource/articles-and-assignment/floor-crossing-law-under-bangladesh-constitution/
Government of The People’s Republic of Bangladesh. Ministry of Law, Justice and Parliamentary Affairs. (as modifies up to 1998, December 31). The Constitution of the People’s Republic of Bangladesh. Bangladesh: Government Printing Office.
Halim, A. (1998). Constitution, Constitutional Law and Politics: Bangladesh Perspective. Dhaka, Bangladesh: P.C. Culture.
Institute of Governance Studies, BRAC University. (2009, August). The State of Governance in Bangladesh 2008: Confrontation, Competition, Accountability. Dhaka, Bangladesh: Author.
Islam, M. (2009). Constitutional Law of Bangladesh (2nd ed.). Chapter-4.9C (pp. 349-350). Dhaka, Bangladesh: Mullick Brothers.
Jahan, R., & Amundsen, I. (2012, April). CPD-CMI Working Paper 2: The Parliament of Bangladesh- Representation and Accountability. Retrieved from http://www.cmi.no/publications/file/4422-the-parliament-of-bangladesh.pdf
Kolstad, I., & Wiig, A. (2011). CMI Working Paper: Does Democracy reduce Corruption?. Retrieved from http://www.cmi.no/publications/file/4315-does-democracy-reduce-corruption.pdf
Nazrul, A. (n.d.). Article 70 and The Future of Parliamentary Government. Dhaka, Bangladesh.
Shakhawat, L. (2011, March 17). Article 70: A tight rein on MPs. The Daily Star. Retrieved from http://www.thedailystar.net/suppliments/2011/anniversary/section2/pg9.htm
Varsha. (2010, February 14). Comparative Analysis of Rule of Law in India & UK. Retrieved from http://www.legalserviceindia.com/article/l457-Rule-of-Law-in-India-&-UK.html
[1] See, Bangladesh Parliament. (as modified up to 2007, January 11). Rules of Procedure of Parliament of The People’s Republic of Bangladesh. Retrieved from http://www.parliament.gov.bd/rprocedure.htm
[2] See, Nazrul, “Article 70 and the future of parliamentary government” pp.1-3
[3] See, Shakhawat, L. (2011, March 17). Article 70: A tight rein on MPs. The Daily Star. Retrieved from http://www.thedailystar.net/suppliments/2011/anniversary/section2/pg9.htm
[4] See, Varsha. (2010, February 14). Comparative Analysis of Rule of Law in India & UK. Retrieved from http://www.legalserviceindia.com/article/l457-Rule-of-Law-in-India-&-UK.html
[5] See, Shakhawat, L. (2011, March 17). Article 70: A tight rein on MPs. The Daily Star. Retrieved from http://www.thedailystar.net/suppliments/2011/anniversary/section2/pg9.htm
[6] See, Barrister M. Mazedul Islam, personal communication, June 10, 2012.