Introduction:

Many sudden political changes have delayed Constitution in the past. It had led to Adjustments in most sections which included the revision of some major provisions. The Constitution of Bangladesh has formed the basis for the nation’s political organization since it was adopted on November 4, 1972.[1]It is prominent that most regimes that came to power since 1972 contains major administrative changes in Constitution and has tried to bring changes by legally amending the basic document. 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.”[2]

Political parties, in a democratic society, are essential whether recognized by the supreme law of the land or not. Parties that maintain relation with the citizens or their electorates through party platform abide by some principles and are fashioned by ideologies where electoral policy bridges the gap between expectation and reality. The party forms the government and fulfills their electoral commitments where parliament passes the legislation reflecting the promises of the party, once permitted by the electorates. Grouped according to the legislative strength, the parties act either as government or opposition. The parliament is the highest elected representative body where the parties in real sense communicate and aggregate people’s interest and transform into rule of law through rightful enforcement.

The Bangladeshi and British parliaments have accommodated political parties in a similar manner[3]. After elections, a single political party or an association of parties must form a government– that is; they must form a pile of votes within Parliament that can pass the bill when introduced. Once a parliamentary majority is formed, the president chooses the majority leader as prime minister and appoints other members of the majority as cabinet ministers. Parliament can function for a full five-year term if a single party or association can continue to guarantee a majority. If, however, opposition members attract enough votes to block a bill, the president can dissolve Parliament and call for new elections. In order to prevent the bribing of members or the constant changing of members from one party to another, the Constitution declares that party members who abstain, vote against their party, or absent themselves lose their seats immediately.[4] In practice, whenever Parliament has been in session, a single party affiliated with the president has been able to command a solid majority.

 In recent times,  citizens are concerned about whether the Member of Parliament can be allowed to engage in legislative activism of his/her own wisdom. To get the answer the citizen must understand what kind of freedom a member of parliament really enjoys in relation to his/her party affiliation.

General idea is that a member should have the right to express his opinions in relation to the bill raised even if that means going against the party decision. The argument, here, is that he has been elected by the people of his constituency and ,as a result, he must work for the greater interest of the nation even if that means going against his party decision and should not act merely as an ordinary party activist. But increasing trend in the development of the party-system even in the matured democracies in developed countries, the members of parliament are subject to maintain strict party discipline which obliges them to be loyal to the party monarchy, often forgoing his right to exercising freedom of choice and free thinking.

Article 70 & 71 Says:

Article 70 of our constitution says: “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.”[5]

It was designed to prohibit MP’s from preventing in what is known as ‘Floor Crossing’. And it refers to resigning from one party and joining another party. In broader sense, “The term “floor crossing”[6] 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. In India, Srilanka, Malaysia they have same law like article 70.

Article 71 of our constitution says: 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.[7]

That means a person can be elected from more than one place. But they should be elected from any one party. He/she cannot be member of 2 or more political parties at a time. Then after election within 30 days, the person shall send a signed declaration specifying the electorate which he wishes to represent to the CEC (Chief Election Commissioner) ,and seats of the other constituents which he represent will be vacant. And after 90 days election again happen in those vacant constituents. So that means a person can represent only one party at a time. And he/she have to give full support for his/her party.

Discussion:

Firstly the question to ask is whether the elected representatives have the right to freedom of opinion and expression without interference as ensured in Basic right[8] of the citizens of a democratic country is that the citizens should get the right to express their opinions freely and without any pressure. In the Article 19 of the Universal Declaration of Human Rights 1948[9], it is stated that-

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[10] The Article 70 in the Constitution clearly violates this right as it prevents the citizens’

 The main purpose of democracy is to include all the citizens of the country in making public policy by electing their representatives to ensure their sound participation and giving the entire citizen their equal opportunities to express their opinion. According to the Constitution’s Article 39(2) (a) of the People’s Republic of Bangladesh it is stated that-“39. (2) (a) the right of every citizen to freedom of speech and expression”[11].That means Article 70 is also contradictory to article 39(2) (a).

 This is why, the civil society activists are constantly demanding to make a member of the parliament a true representative of the people rather than his own party. The much talked about “Article 70 of the Constitution of Bangladesh has been found to be a crucial obstacle to the freedom of members of parliament, preventing them from criticizing party decisions, even if they go against the electorate who voted for them”[12]. The major political parties who enjoyed both the reserves or opposition benches during the last parliaments did not initiate any wise approach so that the bottom-line members could contribute in the party decision making process or could vote after reaching any consensual decision. Because the main decision of a party will be taken by party chairperson with the main members of party. Then according to them every other member should be vote in for them. Sometimes MP has to vote for their parties in the parliament without his/her wish to keep their position in their political party. So, that violates democracy. As Bangladesh is a democratic country. If democracy violates it is barrier for this country and its development.  “Surprisingly, recent move of amending the Constitution also avoided making any sort of amendment to Article 70”.[13]

Leaving your political party and either joining another or becoming an independent MP is allowed in most countries, and usually called floor-crossing. “There are three ways to decide what happens if an elected MP leaves the party:

1. The individual MP retains the seat;
2. The party retains the seat and fills it (from the original list or per their own decision). This is the list PR system. Example: Macedonia.
3. Neither the party nor the person keeps the seat. (Either the seat remains vacant until the next elections or a by-election is held to fill the seat) this is the FPTP system. example: Bangladesh”[14]

From overall discussion, we can say that article 70 in our constitution should be amended but not totally cancelled. If article 70 is totally cancelled, then we don’t find any stable government. Because then the Member of Parliament will exercise their right when they desire and that can be create violation among own members of one parties. And also unity among party members will not exists. It can be harmful for a country. In my view point, article 70 should be appropriate for budget bills and Non –confidence activity bills. But for ordinary bills article 70 is not suitable.

Considerations:

• Party strength: If the party can oust an MP from the party and keep hold of the right to the seat, this certainly strengthens party power. This may be good where the party system is weak and split, but can prove to be challenging from a democratic point of view, especially if (as Francesca noted) leadership does not consult with members on candidate selection. The party whip can be too strong and can warn MPs who want to speak up against the party line on a particular issue.[15]
• Democracy inside party: One can argue that internal party democracy is fortified if the party membership decides on the candidates both to the original list (or constituency) and to the substitute.
• Maintaining real party equilibrium: If floor-crossing is not allowed and the seat stays with the party, this is in a way with respect to the voters’ decision on party balance in the parliament.
• Gender considerations: If the state applies a quota to increase women’s participation in politics, it is interesting to know if the person who replaces him/her has to be of the same sex to keep the gender balance.
• Links to constituencies: If floor-crossing is acceptable and the original MP can keep his/her seat, this strengthens the perception that they (individually) represent the particular constituency, which is good for responsibility.
• Leading party systems: 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.
• Corruption: Floor-crossing is often seen as nurturing bribery and corruption, thus also reinforcing hostility against politics and politicians, who are seen to switch parties for personal gain.
• Cost of elections: The solution to use by-elections to fill the seat is alluring, but also costs a lot to systematize and administer, and can lead to voter fatigue.

Other interesting cases:

• 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[16].
• 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. ACE has a case study on floor-crossing in South Africa where you can read more.[17]

 Conclusion:

Democracy is about using voting as a means to achieve effective and meaningful change and not only about voting. Without institutions willing and able to carry out the people’s interest, the act of casting a ballot is meaningless. Clearly, Bangladesh has shown that it can categorize and execute well-run elections. Parliament cannot be said to be functioning, despite the participation of opposition parties and much power continues to be focused on ending the refuse. Political parties cannot play an effective and momentous role in the parliament unless and until there is intra-party democracy ensuring independence of parliamentarians for governmental activism. Various strategy or mechanisms should be considered in order to ensure such freedom