Introduction:

Democracy is the most popular government system in the contemporary world. It means that the government is run by the people of the country, it is obvious, and people select representative persons by ballot as parliament member to formulate law for welfare of the country. Representatives stand from individual political party or none but majority representatives affiliated party forms the government. Parliament becomes the sources of all power and government is highly responsible and accountable to the parliament for their activities.

But in 1972 our constitution makers included Article 70 which is to prevent floor crossing in Bangladesh. Though primarily the rule was due to the unstable situation of the newly independent country, now the days it has become a law against the human rights.[1]

The Concept of Floor crossing

 The term ‘floor crossing’ refers to vote against own party in parliament during the time of voting. It also says that, if a member doesn’t take part at the time of voting, the member will lose his seat from the parliament. But the law against floor crossing restricts the power of a parliament member to vote against the will of his party though he/ she is right in his own way.[2]

 Some Conflicting Issues in our Constitution

Constitution of Bangladesh more or less is good constitution in the world no doubt. But some articles’ which are very controversial in that sense these are not coincide in the fabric of democracy.

 Our constitution itself proclaim that in Article 11, The Republic shall be a 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 elected representatives in administration at all levels shall be ensured. Besides that, if we want to see the Article 39 (1), Freedom of thought and conscience is guaranteed.[3]

Unfortunately, it is very regret for us when we see the Article 70(1) which states that, 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. [4]

Under the 1972 Constitution there were mainly two conditions against floor crossing:

1. If a member resigns from his party.

2. If he votes against his party during voting time.

 But the 4th Amendment added two more conditions to it to strengthen the law against floor crossing. They are:

1. If a member is present in the parliament but still doesn’t take part in voting.

2. If a member doesn’t attend the parliament at all against the will or direction of his party.

Two more conditions were added in the 12th Amendment. They are:

1 None can’t form a group within one political party.

2. If one elected member joins any other political party then it is the violation of Article 70. [5]

 These Amendments were to just create a situation in the parliament where the Executive has all the authority and can apply dictatorship. Here, there will be no chance of democracy.

 Effects of the Law

• We believe in parliamentary government in Bangladesh. Here, parliament member’s duty is to focus on the betterment of his area. The law is violating that as MP’s are not getting the full power. We can see that article 70 is blocking the system. So, in Bangladesh we are not actually practicing the parliamentary government system[6]. We are in a position that contradicts with actual parliamentary system and democracy.

•  Floor crossing law is creating a lot of problems and barriers that is obstructing the progress of the whole nation. There were 14 Amendments of our constitution. But no government or political parties took the initiative to modify 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, incidentally in the year 2008 Bangladesh Awami League came in power with more than two-third seat. But still we can’t see any step to remove or change this law.[7]

• Article 70 doesn’t permit the MPs to vote against party’s inequitable decisions or protest against it. But, actually Article 70 doesn’t set any rule against stating their judgment 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.

• A parliamentary government should pass or take every single step judging the beat of the members of the government 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. [8]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 cooperatively 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.[9]

• 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. 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.[10]

Floor Crossing Law in Some Other Countries

Floor crossing law takes away the liberty of the ministers chosen by the people. Even if anyone wants to protest against a decision of his own party there is no option to do it. We can found the practice of this law in many countries like India, Pakistan, Nepal, Sri Lanka, Malaysia, Kenya, Nigeria, Thailand etc.[11]

One expert makes the distinction between those African countries which strip an MP of their seat if party membership has been revoked and those who lose their seat upon resigning from their party.

Although India has a “reasonably well crafted” anti-defection law, a former Election Commissioner of India believes that decisions on defections are often made by the Speaker of the House and are politically influenced. [12]

On the other hand, the Canadian Parliament is currently debating a bill on this very issue. Members of the British Parliament are at full liberty to decide their own mind regarding any motion tabled in the Parliament. This right is really democratic for them and pulling them on the way to success.

According to standards set by the Organization for Security and Cooperation in Europe (OSCE), it is an individual who owns the mandate of a seat in parliament. If a seat is to be taken away for leaving the party, then this should be done “through a formal judicial or other adjudicative process laid out under the relevant legislation.”[13]

 Floor Crossing Law in Bangladesh – Democracy or Dictatorship

In a vibrant democracy, democratic practice or power of the people should not end with the casting of a ballot. But unfortunately for us, as soon as we have elected our representative lawmaker, he is out of our hands and into the power command of the party that nominated him. No matter how much a particular party decision might affect the interests of his constituents or push the boundaries of his conscience, a “lawmaker” has no real power to vote against it.[14]

With this arrangement in place, sadly since the very inception of our country, our Parliament is only a rubber stamp to be used at the whim of the party in power. Not only does the opposition never stand a practical chance of winning a vote against the government, no critic inside the ruling party holds any bargaining power against an unreasonable or harmful decision of the government. He is free to speak his mind on the Parliament floor but the freedom ends once the Speaker calls for votes. From that moment onwards, a Member of Parliament, the representative of the people, must only blindly follow his herd.

After so many years of democracy and with the presence of a strong bi-partisan political system, unfounded fears of “floor-crossing” are hardly any justification for holding back MPs from doing what they are mandated to do. It seems likely that without a wholesale scrapping of the provision and addressing the issue head-on, the opportunity will go missing for a vibrant parliamentary culture. A constitution without Article 70 will at least give us a fighting chance of creating a mature parliamentary system where the government is checked and balanced by its own ranks and the Opposition has a genuine say in the law making process of the country.[15]

If we amended Article 70 to allow lawmakers to vote their consciences, then things might well not change for the better, indeed things might even change for the worse — but such a reform at least makes change for the better possible. Amending Article 70 might not solve all our political problems, but it is a necessary first step to reforming Parliament and allowing it to function as intended in a parliamentary democracy.[16]

From our past experience we saw if the parliament is not functioning well there is a big chance that unelected government took place the governing rule. And on the other hand when ruling parties has two third majorities it might be created big threat. Though the member has parliament has no rights to vote against party decision it may led out the ruling parties as a so called autocratic government.

Some Recent Incidents:

Bangladesh has been victimized due to this law several times. In August, 2003, Dr. Badruddoza Chowdhury was formerly a member of the BNP and the President of the People’s Republic of Bangladesh has some collations in ideas and views between him and the party. As a result he need to leave the party and form a separate one named Bikolpo Dhara Bangladesh (BDB).[17]

 Again, in July, 2009 Awami League general secretary Abdul Jalil gave a speech against the activities of this party. As a result, he has to face a huge controversy and finally he resigned from the party.[18]

 Very recently, in June, 2012 Tanjim Ahmad Sohel Taj, son of the country’s first prime minister Tajuddin Ahmad, resigned as lawmaker and declared that he would no longer be involved in active politics.[19] He had been elected into this parliament but his opinions were different from others. He had not the space to do the better things he wanted to do for his political area.

 Recommendations

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.

• A slight change is a must be done 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.

• Only changing this law will not 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.

Conclusion

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. 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.[20]

For the progress of any country the government must be responsible and responsible for its actions. 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; people of Bangladesh will enjoy real democracy.

  Reference

1. Ali, Q. A. “Decentralized administration in Bangladesh”7^th Ed. Dhaka: University Press Limited
2. Brownlie, I. “ Basic documents on human rights.2^nd Ed. Oxford: Clarendon Press
3. Chowdhury, N(1997)”The Legislative Law in Bangladesh: Politics and Functioning of then East Bengal Legislature 1947-58.
4. Definition of floor crossing. Available at:http://en.wikipedia.org/wiki/Crossing_the_floor
5. [Accessed:17 June,2012]

1. Document On Bangladeshi Law. Available at:  http://www.kas.de/db_files/dokumente/7_dokument_dok_pdf_11847_2.pdf [Accessed:17 June,2012]

1. Floor crossing. Available at:http://www.natural-law.org/[Accessed:17 June,2012]

1. Party Discipline: Available at:http://en.wikipedia.org/wiki/Party_discipline[Accessed:18 June,2012]

1. Floor crossing under Bangladesh constitution. Available at: http://www.lawyersnjurists.com/resource/articles-and-assignment/floor-crossing-law-under-bangladesh-constitution/[Accessed:19 June,2012]

1.  Floor crossing Law under Bangladesh constitution. Available at: http://www.lawyersnjurists.com/resource/articles-and-assignment/floor-crossing-law-under-bangladesh-constitution [Accessed on: June 18, 2012]

1. RRT RESEARCH RESPONSE. Available at: http://www.unhcr.org/refworld/pdfid/4b6fe127d.pdf [Accessed on: 23 June, 2012

12.  Awami League General Secretary Abdul Jalil Resigns. Available at:  http://www.voanews.com/bangla/news/a-16-2009-07-21-voa1-94450789.html Accessed on:20[ June, 2012]

13.   Sohel Taj resigns from JS. Available at. http://www.thedailystar.net/newDesign/news-details.php?nid=231448[accessed on. 23 june, 2012]

1. Halim A. M, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” 5^th ed.pp.176-17

1. Definition of floor crossing. Available at:http://en.wikipedia.org/wiki/Crossing_the_floor Access at:17 June,20

1.  Constitution of Bangladesh. Available at http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf accessed on: 17June,2012

1. Halim, “Providions For Prevention of Floor Crossing In Article 70 of The Constitution and Parliamentary Democracy In Bangladesh.” pp.1-2

1. Cunstitution of Bangladesh. Available at:http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf Accessed on: 20 June, 2012

19.  Framework of caretaker government in the perspective of time. Available at:  http://www.newagebd.com/detail.php?date=2012-04-07&nid=6404  Accessed on: 18 June.2012

1. Khan, A. R., Two Years of Chief Ministership, (in Bengali), p. 176-203POLITICS:BANGLADESH PERSPECTIVE.” P.187

1. Document On Bangladeshi Law. Available at:  http://www.kas.de/db_files/dokumente/7_dokument_dok_pdf_11847_2.pdf [Accessed:17 June,2012]

1. Halim B. K, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” 3^rd Ed. pp.176-178

1. Floor crossing in Pakistan. Available at: http://www.partylaw.leidenuniv.nl/uploads/wp0209.pdf Accessed on: 15 June, 2012

1. Floor crossing Law under Bangladesh constitution. Available at: http://www.lawyersnjurists.com/resource/articles-and-assignment/floor-crossing-law-under-bangladesh-constitution Accessed on: June 18, 2012

1. Floor crossing in Pakistan. Available at: http://www.partylaw.leidenuniv.nl/uploads/wp0209.pdf Accessed on: 15 June, 2012

1. Document On Bangladeshi Law. Available at:  http://www.kas.de/db_files/dokumente/7_dokument_dok_pdf_11847_2.pdf [Accessed:17 June,2012]