How Article 70 became a strong Barriar to democracy?

1Introduction

 In a democratic social order, political parties are essential whether recognized by the absolute law of the land or not. Parties that uphold relation with the citizens or their electorates through party platform stand by some beliefs and are formed by ideologies where electoral policy bridges the gap between hope and actuality. Once mandated by the electorates, the party forms the government and fulfills their electoral commitments where parliament passes the legislation reflecting the promises of the party which is usually congregation the aspirations of the citizens. Categorized according to the legislative strength, the parties proceed either as government or opposition. The parliament is the uppermost elected representative body where the parties in real sense articulate and aggregate people’s interest and translate into rule of law through rightful enforcement. Laws against crossing the floor (a phrase often used for party switching or defections in developing democracies, not just for voting with the opposition) are sometimes not mere “laws,” they are often enshrined in national constitutions

Effective communication between the parliamentary parties and the legislators has been found to be an important factor that contributes to legislative activism ranging from initiative to formulation of rules and enactment of laws, oversight to opposition Legislators activism within the parliament. Parliamentary Parties are meant to formulate party policy, elect legislative leadership, resolve internal party conflicts, and formulation of strategies for enactment of legislations or publicizing issues of public interest.[1]

Under the current circumstances, citizens are anxious about whether the Member of Parliament can be permissible to hold in governmental activism of his/her own insight. To get the answer the citizen must realize what sort of self-determination a member of parliament really enjoys in relation to his/her party association. General observation is that a lawmaker should be able to raise his voice or vote according to his common sense of right and wrong even if it goes against his party decision. The dispute is that he has been elected by the people of his community and he must work for the better concern of the nation even at the price of going beyond his party interest and should not act just as an ordinary party activist. But rising trend in the advance of the party-system even in the matured democracies in developed countries, the members of parliament are subject to maintain severe party discipline which compels them to be loyal to the party dominion, often forgoing his right to exercising freedom of choice and free thinking.

But a question is still in everyone’s mind, whether the elected representatives have the right to freedom of opinion and expression without interference as ensured in Article 19 of the Universal Declaration of Human Rights 1948, also as per the Article 39(2)(a) of the Constitution of the People’s Republic of Bangladesh. [2] The fact is, under the Article 70 of the Bangladesh Constitution, a Member of the Parliament elected with nomination from a political party shall resign from his seat if he resigns from that party or votes in Parliament against that party. It goes further, if even a member of the parliament is deficient or abstains from voting, it will still be counted as if he has voted against his own party. The Article 70 was substituted by the Constitution Act 1991. This is extremely opposing alteration (12th) and subject to right to primary freedom of a citizen and to be a member of the parliament she/he must be a citizen first. This is why, the civil society activists are continually demanding to make a member of the parliament a true delegate of the people rather than his own party.[3]

Rise of Article 70

As a temporary constitution, the Proclamation of Independence 1971 provided for a presidential system of government giving the president absolute power in view of the war situation. In exercise of the legislative power, President Sheikh Mujibur Rahman, on January 11 of 1972 made and promulgated the Provisional Constitution Order 1972, introducing a parliamentary democracy in the supreme Bangladesh and also made provision for a cabinet of ministers with the prime minister at the head.

Although the declaration of independence order empowered the president with all executive and legislative powers, the temporary constitution orders provided that the president would exercise all of his functions on advice of the prime minister.

 The day after the promulgation of the temporary constitution order, Sheikh Mujib stepped down as the president to become the prime minister. The same day Justice Abu Sayeed Chowdhury was sworn in as the president.[4]

On advice of Prime Minister Sheikh Mujib, the president issued on March 22 of 1972 ‘The Constituent Assembly of Bangladesh Order’ making requirements for functions of the assembly consisted of representatives elected to the national and provincial assembly in elections held in between December 7 of 1970 and March1 of 1971.

On advice of the prime minister, the president issued ‘The Bangladesh Constituent Assembly Members (cessation of membership) Order 1972’, allowing the political parties to keep a tight rein on members of the constituent assembly. According to that order, a person had to lose his seat in the constituent assembly for his resignation from or expulsion by a political party that nominated him as a candidate at an election. [5]

In case of resignation or expulsion, the secretary of the concerned political party had to propel a on paper notice to the speaker of the constituent assembly. On receiving of the notice, the speaker and in case of the nonappearance of the speaker, the secretary of the assembly had no alternative, but to determine vacate his/her membership in the assembly.

The notice served by the secretary of the political party concerned of the resignation or the order of eviction was conclusive evidence of such resignation or such eviction and no court, tribunal or body had power to enquire into the validity of such acquiescence, or the sort of expulsion or any actions upon which it is based.

After facing criticisms the precincts drafted in the article 70 of the constitution customized little during the process of adopting the constitution by the constituent assembly. The adjustment however did not recover the condition; it has somewhat made the provision stricter.

The draft article 70 had provided that a member of parliament would lose his membership if he resigns from or is expelled by the political that nominated him as a candidate at the election. In modification, the issue of expulsion from the political party, which was one of the grounds for losing membership, was omitted. Instead, a new clause was incorporated in article 70. The new clause imposed restriction on MPs to cast votes in parliament against the party that nominated him at the election. If one does it, she/he would lose membership. As a result, MPs were not allowed to cast votes against his/her own party line in parliament regardless of the party’s decision whether it is right or wrong.[6]

Article 70 & 71 in Constitution of Bangladesh

The Constitution of Bangladesh has formed the basis for the nation’s political organization since it was adopted on November 4, 1972.[7] . Legal definition of constitution can be given as:

“The fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organization of the government and regulation, distribution, and limitations on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign powers.”[8]

According to the Constitution of Bangladesh:

Article 70, Vacation of seat on resignation, etc., states:

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 the party. Explanation. – 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, convince 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.[9]

 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.

Article 71, Bar against double membership, states:

1. No person shall at the same time be a member of Parliament in respect of two or more constituencies.

2. Nothing in clause (1) shall prevent a person from being at the same time a candidate for two or more constituencies, but in the event of his being elected for more than one-

a. Within thirty days after his last election the person elected shall deliver to the Chief Election Commissioner a signed declaration specifying the constituency which he wishes to represent, and the seats of the other constituencies for which he was elected shall thereupon fall vacant;

b. If the person elected fails to comply with sub-clause (a) all the seats for which he was elected shall fall vacant;

c. The person elected shall not make or subscribe the oath or affirmation of a member of Parliament until the foregoing provisions of this clause, so far as applicable, have been complied with[10].

Reasons for issuing Article 70

The main reason for issuing article 70 is to hold parliament members from engaging what is known as “floor crossing” or changing political party after being elected. But the blockade of Article 70 is not supreme, in the sense that an MP can still vote not in favor of his party.  As a matter of the fact she/he can only do so at the high charge of losing his/her Parliament membership and therefore at the same time, ceasing to be a representative of his/her people.

Eminent political scientist Rounaq Jahan in her book styled ‘Bangladesh Politics: Problems and Issues’ analyzed the reasons behind the imposition of such restrictions on MPs. She wrote: “The Awami League’s admiration for the Indian style single dominant party system arose over the years as it proved to be a stable system. Pakistan’s own experience with parliamentary democracy in the 1950’s was one of political instability where multiple parties made the average life span of cabinets extremely short. Since the Awami League was committed to parliamentary democracy and it also wanted a stable government, the Indian model of a single dominant party appeared to be the answer.”[11]

Barriers to Democracy

The offered article 70 of the constitution has kept MPs “prisoners” of their own party since reinstatement of parliamentary democracy, preventing them from playing owed task in parliament freely. Lawmakers, particularly belonging to the treasury bench, cannot cast vote against any government decision–no matter whether it is right or wrong.

Consequently, parliament is not capable to make sure liability and clearness of the cabinet because of these limits although as per the constitution the cabinet is jointly accountable to the House. The limit gave birth to a culture of flunkeyism in politics in which lawmakers are very often found to blindly welcome the all-powerful executive’s act, instead of discharging their lapse functions.

Democracy is one of the four fundamental principles of our state policy. Article 11 reiterates that the Republic shall be a democracy. But Article 70 of our Constitution directly runs counter to the very idea of democracy. It frustrates all positive devices in the Constitution in the name of preventing floor crossing.

Article 55 (3) states, “The Cabinet shall be collectively responsible to Parliament.“[12] This provision of collective responsibility has become empty rhetoric because of article 70 as the Cabinet always rests guaranteed that it is not going to be overcome by motion of no assurance. As a result, every bill, whatsoever high-handed it may be, gets conceded.[13]

Floor-crossing tends to favor the ruling party and thus the government. Some countries have decided to prohibit floor-crossing to avoid the risks of MPs being “bought” (literally or figuratively speaking) over to the ruling party at the expense of a small and disjointed opposition.

Floor crossing in South Africa was a controversial system under which Members of Parliament, Members of Provincial Legislatures and Local Government councilors could change political party (or form a new party) and take their seats with them when they did so. Floor crossing in South Africa was abolished in January 2009. Floor crossing was originally enabled by amendments to the Constitution of South Africa and other legislation passed by Parliament.[14]

Conclusion

From above discussion, we can say that Article 70 of our Constitution should be amended but not totally abolished. If article 70 is totally abolished, members of Parliament will implement their right whenever they wish. In some countries there are some interesting laws according to this: In Nepal, a MP can leave his or her party and retain the seat only if 40% of the original party MPs decide to leave at the same time and either form or join another party[15]. In South Africa, floor-crossing was originally prohibited but is now allowed but only during two two-week periods during each (five-year) term, and only if at least 10% of the party’s MPs decide to leave the party at the same time.[16]  According to me, Article 70 should be valid only in case of no-confidence motions and money bills. But in the case of usual bills, Article 70 should not be valid. Nobody knows how long the dim outline of article 70 will hang about in force, making the people’s representatives deferential to the political parties. In contrast, the decision-making stem has been consolidating its position in all unethical ways, making inequity of power and losing ground the prospect of good governance. Nothing can contribute significantly to transform the parliament into country’s supreme political institution to represent the people’s will until MPs are set free from the tight rein of the political parties.