Barrier to the Voting Right of an MP: Article 70(1) of the Bangladesh Constitution
A member of the parliament has no power to vote against his party as per the constitution of Bangladesh. If he or she votes against the will of the party that is called floor crossing, so that, floor crosses 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. Vote against the party and development of democracy are very important concept in parliamentary government. In Bangladesh in the year 1972 our constitution makers incorporated “Article 70” which is designed to prevent floor crossing in the parliament. But it hinders development of pure democracy and encourages dictatorship.
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”
Under the anti-defection or anti floor crossing law the government and the executive is in a position from where they can practice dictatorship, as there is none from the government to protest or vote against. So, the government as it is not going to be accountable to any of the members or legislature it can pass any unethical bill which can be detrimental to the country and there is none to protest or vote against.But, we need to know the reason behind designing this law in the constitution of Bangladesh in 1972. In this essay, the background of this law, the Article 70 law, its drawbacks and the reality of Bangladesh politics and some recommendations will be discussed in brief.
2. History of the floor Crossing:
Before the liberation war when Bangladesh was used to be a state of the then Pakistan we can see that members were used to cross the floor for their own interest. The lack of wisdom, illiteracy and politically unconscious people has actually crossed the floor. “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 here”.
Due to political factionalism in Bangladesh a frequently quoted statement is “One Bengali is one party, Two Bengalis two political parties; and three Bengalis, two political parties with dissident faction in one of them”The lack of cohesion and lack of unity among the members of the parties were the result of personal interest, conflict of interest, personal favor etc. Some members did not attend party meetings because lack of power. The floor crossing took place even because someone’s corrupted relatives were punished or not given any good job. There are hundreds of examples of such instance.
There are some examples of floor crossing-
a) One member felt that he is not getting enough attention in the House, so he defected or crossed the floor.
b) One member’s name was not included in the local relief committee so in order to take revenge he defected or crossed the floor.
c) “Money for flood affected people was sent in the name of a school secretary and not in the name of the member of the locality, so a defection or floor crossing took place”.
d) Some of the members crossed floors or did not attend part meetings out of whim.
e) A member failed to influence the authority for her husband’s job and was absent from the parliament.
f) “A member was caught due to black marketing and he looked for help from the Chief Minister. When he did not get the assistance, he crossed the floor or defected”.
3. ARTICLE 70
One of the most important Articles of the Constitution is Article 70 which is known as the “Anti-Defection Law”. According to this Article 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 exclusive power over the members of his/her party. The Article has the provision for mandatory “vacating of his (or her) seat” on the ground of floor-crossing. It is understood that the main purpose of this article was to stop leaving of the position (government) or the opposition to join the other side for some gains. Thus, the purpose of this article was undoubtedly good for parliamentary practice. But unfortunately, allows an MP elected as independent to join any party. Therefore, all the provisions under this Article are not necessarily for good parliamentary functioning.
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. 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 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.
4. ARTICLE 70 under the Constitution of Bangladesh:
We know by now that the Article 70 was to prevent floor crossing. Under the 1972 Constitution there were mainly two conditions against floor crossing:
· If a member resigns from his party.
· If he votes against his party during voting time.
But the 4th Amendment and 12th Amendment added more conditions to it to strengthen the law against floor crossing. They are:
· If a member is present in the parliament but still doesn’t take part in voting.
· If a member doesn’t attend the parliament at all against the will or direction of his party.
· None ca form a group within one political party.
· “If one elected member joins any other political party then it is the violation of Article 70”.
5. EFFECTS OF ARTICLE 70 IN BANGLADESH:
· Hinder the practice of rule of law:
Rule of law should create a situation where there will be chance of discussion over a bill. The members or MPs should have their own rights to argue or debate on a proposed issue or over a proposed bill. But, the Article 70 prohibits the members of the ruling party to do this practice. So, as a result no matter how unrealistic or undemocratic the bill is it is approved and passed very easily. So, “basically the Article 70 is making the members a puppet. Most of the times 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”.
· Contradiction among the MPs:
Article 70 doesn’t allow the MPs to vote against party’s undemocratic decisions or protest against it. But, actually Article 70 doesn’t set any rule against expressing their opinions in the party meetings. 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 yet to be achieved. “Many of them said in the 5th and 7th parliaments that Article 70 is authoritarian”. Then the question arises why they are not trying to change the law or remove it. At the same time the knowledge of these politicians also arise as they are not even aware of the total application of Article 70. So the position of the MPs is kind of contradictory.
· Lack of responsibility and scope of dictatorship:
It can be undoubtedly said that there is lack of responsibility and immense opportunity of dictatorship of the government in the parliament of Bangladesh. A parliamentary government should pass or take every single step judging the pulse of the members of the legislature to avoid defeat 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 the fact 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 defeated on the floor by motion of confidence or no-confidence. Because, “nor member of the majority party can vote against his own parties”. So, Article 70 is allowing the government not to be responsible and account to the parliament and it is also providing the government enough room to practice dictatorship.
· Contradiction in the system or constitution:
We follow parliamentary government in Bangladesh. The idea of parliamentary government is that the government should be responsible to the parliament or legislature. On the other hand, under the presidential government, government is not responsible to the legislature. But as we can see that “Article 70 is blocking the system of being responsible to the legislature, so in Bangladesh we are actually not practicing the parliamentary government system. So we are in a position which contradicts with the actual Parliamentary government spirit”.
6. FAVORABLE OR UNFAVORABLE floor crossing law in Bangladesh
I have discussed that how floor crossing law evolved, how it became a necessity and how it is hampering the development of the parliamentary government and stopping the rule of law. But then if it creates a lot of problems and obstacles to achieve democracy and Parliamentary government system then why are we not removing it. There were 14 Amendments of our constitution. But none of the government or political parties took the initiative to change or remove this law. One reason can be the two-third majority vote is needed to change or remove this law and not too often we see it. But, Bangladesh Awami League came in power with more than two-third seat in 2008. But still we can’t see any step to remove or change this law.
One reason can be the past experience or the history of the then East Pakistan. I have discussed before how in 1954-58 the floor crossing advantage was misused and exploited. This was the reason behind the inclusion of floor crossing laws in the constitution of 1972. So, maybe the politicians are afraid to witness such situation again and therefore not removing this law.
Another reason can be the politicians are happy with this law. Because, under this law they can perform authoritarian system which can never be challenged. The Executive is not responsible to the legislator or parliament under this Article 70, so if a party wants to pass an undemocratic law he has the power to do it. There is no chance of the executive getting defeated on the floor.
Whatever the reason is behind not changing or removing the anti-floor crossing law I believe stable and effective government system is always more important than the system. In Bangladesh we have witnessed in the past and still now that politicians became corrupted and self-interest, greed and power expectations among the political people are common phenomena. So, it will be unrealistic in terms of Bangladesh just to remove this law. Removing this law might create another unworkable situation and the government may fall and no stability like 1954-58 maybe witnessed once more. So, the prevention of floor crossing is needed for the stability of the government.
However, a slight change is a must in Article 70. I think the Article 70 should allow voting on motion of confidence and money bill or passing the budget. A budget or money bill is not necessarily connected to the stability of the government.
I am not saying only changing this law will make the parliament lively and meaningful, but still it will help us to have a stable government system as well as applying rule of law and democracy which is very important in order to achieve a responsible government. By changing this law the government will not fall and still there will be some implication of rule of law.
We need responsible political parties and ministers who will be responsible to the legislation and parliament. In that case we really do not need any Article 70 or anti floor crossing law. But, as we all know the political culture of this country it will not be wise to think that this situation will change overnight. So, we can’t just remove this law straight away. Though, I believe to establish the rule of law and to witness ultimate spirit of Parliamentary government we need to get rid of this law. But, this is not possible in reality. At best we can change it slightly the way I mentioned in the recommendation part so that we can enjoy some democracy. The position of the MPs will also be developed if these changes can be assured. It can also be the stepping stone to be a more responsible government.
For the development of any country the government must have this gesture to be accountable and responsible for its actions. We expect and hope by changing this law a little bit we will start to enjoy the good result of parliamentary government. In the long run maybe someday we will enjoy a system where there will be no need of such Article 70 and we will be able to apply rule of law. Our politicians will be confident and will be more responsible to parliament. A healthy and lively Parliament that is what we want to see.
1. Ahmed, M. n.d. “Bangladesh: Era of Sheikh Mujibur Rahman.”
2. Khan, A. “Two years of chief ministership”, (in Bengali) n.d.
3. Halim, A. (1998)“CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS: BANGLADESH PERSPECTIVE” . Dhaka: P.C. Culture
4. Baxter,C. (1991) Government and Politics in South Asia. 2nd ed. Oxford: West View Press.
5. Nazrul, A. n.d. “Article 70 and the future of Parliamentary government.”
6. Kamran, N. n.d. “Legislation by Ordinance”.
7. Chowdhury, M. “Government and Politics in Pakistan”.
8. Chowdhury, N(1997)”The Legislative Law in Bangladesh: Politics and Functioning of then East Bengal Legislature 1947-58.
9. The Daily Star,Sunday, April 24, 2011
10. Australian Parliamentary Library (2005) “Crossing the floor in the Federal Parliament 1950-August 2004,” Research Note: Information, analysis and advice for the Parliament (October 10), no. 11.
11. Democracy Development Programmed (2006) “Impact and Future of the Floor Crossing Legislation,” Political forum report, Forum, June 22.
12. Joubert, Leonardus Kolbe (2006) “The Mandate of Political Representatives with Special Reference to Floor Crossing: A Legal Historical Study.” Pretoria: University of South Africa: Unpublished Master of Laws Thesis.
13. Spiess, Clemens and Malte Pehl. (2004). “Floor Crossing and Nascent Democracies – a Neglected Aspect of Electoral Systems? The Current South African Debate in the Light of the Indian Experience,” in Verfassung Und Recht in ÜberseeLaw and Politics in Africa, Asia and Latin America, 37 (2), 195-224.
14. “NDP wants inquiry into Emerson’s floor-crossing”. CTV.ca. Retrieved 2010-04-16.
15. “Crossing the floor in the Federal Parliament 1950 – August 2004”. Research Note no. 11 2005–06. Australian Parliament. October 10, 2005.
16. Debelle, Penelope (May 31, 2008). “Independently inclined”. The Age.
17. Macafee, Michelle (April 11, 2006). “Proposed reforms would ban floor-crossing in Man.”. Canadian Press. Archived from the original on March 23, 2007.
18. “The Elections Reform Act – Schedule E”. Statutes of Manitoba. Manitoba Laws. 2006.
 See, Baxter, Craig, Government and Politics in South Asia, 2nd edition. P-248.
 Khan, AtaurRahman, Two Years of Chief Ministership, (in Bengali), p. 176-203
 See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” P-180.