Explain the concept of “Floor crossing in article 70 under the Constitution of Bangladesh”

INTRODUCTION

Floor crossing can be simply generalized as voting against the proposal which is presented or supported by the party from which the member was nominated from. It also states that the member cannot be absent or not choose to vote during the voting period. As the consequence of this there is severe punishment in from of taking away the membership of the respective MP. This can also be termed as “political defection” or “side swapping”. Members of parliaments (MPs) are elected members of Jatio Songshod by the people of the concerned area for their representation. But this law prohibits them to go against a law which can be harmful for them. This takes “freedom of opinion” away from the MP. They have to vote for even if they are against it just to keep the membership. Similar to this kind of law can be seen mainly in the British and sub continental region, like India, Pakistan, Bangladesh, Nepal, Sri Lanka, Malaysia etc. former British colonies. 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.

Government is responsible for the legislation of a country and government is made of by the MPs. They head different ministries of the country. They make the policies and laws of the state. Main reason for the anti-floor crossing law is to make the decision of the government a solid one and no one from the government can go against the decision made by his/her nominating party. This enables the government to perform a form of dictatorship, there is none from the government can protest. 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.

Here in this paper I am going to discuss the background for forming this law and the effect of this law on the MPs and my opinion on this law.

HISTORY OF FLOOR CROSSING

History of floor crossing is quite old in the subcontinent region. Difference of opinion is quite natural in a multiparty parliament. And different parties tend to care for their own agenda and often we observe that few political parties form a coalition in the election and construct government. And in the vastly populated region there is never any shortage of political parties. In the opinion of Baxter, 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.”If we observe the history of political defection in the country, we can understand the reason for forming anti floor crossing law. In the past a major part of the parliament was formed by under educated MPs. They often crossed floor to obtain personal goal, some of the reason of which could be lack of wisdom, illiteracy and/or political unconsciousness of them. This created problem for the government to take decision and make policy. This hindered the normal flow of the parliament. For stopping the law was first introduced way back when Bangladesh was a part of Pakistan, also known as East Pakistan.

In the year 1954 United Front has won the election and formed government. But due to political defection the United Front was broken into pieces and the Awami League (AL) was created and became the opposition of United Front. Chaos continued and it ended with the death of the then deputy speaker in the year 1958. The parliamentary government dies in the then East Pakistan with this. From 1958 October 7 Military government got the hold over the then East Pakistan.

Recent examples of floor crossing for which the concerned MPs lost their membership was the case of M. A. Mannan and Mahi B. Chowdhury. They did this to from a new political party named Bikolpo Dhara. Fresh by-elections were held soon after the seats were vacated; Mahi B. Chowdhury retained his seat under the new party, whereas Mannan failed. Few other cases include, 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. Others include, some of the members crossed floors or did not attend part meetings out of whim. Other is of one member felt that he is not getting enough attention in the House, so he defected or crossed the floor. Except from M.A. Mannan’s case all the other does not concern the blockade on freedom of opinion

ARTICLE 70 under the Constitution of Bangladesh:

Floor crossing: Article 70 of the Constitution makes floor crossing illegal, and members engaging in floor crossing loses their membership.Floor crossing is described in the Constitution as:

1. Resignation from the political party that nominated the member,
2. Voting against the nominating party, or
3. Abstaining from voting, either by abstention or absence, against the directive of the party Whip.

Different corrections of this law

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 form a group within one political party. And (2) If one elected member joins any other political party then it is the violation of Article 70.

Comparison

MP’s in Bangladesh intends to go against their party decision but they cannot. They have to ensure loyalty to the party which banner they elected for.  Our two major political parties have little democratic practice. They say that their leadership is based on pure democratic beliefs, but in practice we observe the top leadership is chosen within same bloodline, which may result in a form of dictatorship. For this, many MPs lost their membership as they cast their vote against party decision.

For an example of floor crossing outside the sub continental region, in Britain, on November 9, 2005 MPs in England have overpowered Blair’s effort to narrow civil liberty.  Civil liberty groups and Muslim minority communities were skeptic about the law because it would allow police to exercise wider power. But Blair’s seemed very obstinate. To vote in favor of the propose bill he called two of his cabinet colleagues from their foreign visit. This is an example of floor crossing in England. It’s his own party men who cast vote against Blair but it’s not the opposition that defeated Blair.  The song of British Parliamentary democracy was sung by the backbenchers. Though Members of the British Parliament have their full liberty to decide their own mind but its quiet impossible in Bangladesh due to constitutional obligation of MPs. MPs should have the liberty to cast their vote in parliamentary democracy and politicians in Bangladesh might take lesson from the British example. They could think of amending Article 70 of the constitution of Bangladesh that prohibits floor crossing in the parliament.

Anti-floor crossing law is also found in our neighboring country India and Pakistan. But the law is more logical and practical for these two countries. In Pakistan, in prime minister’s election, if someone votes against the party or do not attend in voting for the party then only he or she loses his or her own seat or membership. But in the case of  Bangladesh they regardless of the  issue if some member votes against his own party or does not participate in voting at all or be absent during the voting he loses his membership. So, in Pakistan if one party wants to pass an unethical or undemocratic bill someone from the same party can vote against it, but in Bangladesh there is no such opportunity. So as happens in India. But if someone breaks that specific rule without permission then only he is to be guilty and he will not lose his membership if the party forgives him within 15 days. So in the circumstances above, we can see that compare to Bangladesh in both India and Pakistan the floor crossing law is much more lenient.

FLOOR CROSSING LAW IN BANGLADESH: PROS AND CONS

Floor crossing law has some necessity but it’s also hampering the development of the parliamentary government and stopping the rule of law. But we are not removing it when it has created a lot of problems and obstacles to achieve democracy and Parliamentary government system. Our constitution had 14 Amendments. But none of the government or political parties came forward to change or remove this law. The two-third majority vote is needed to change or remove this law but they didn’t. In the year 2008 Bangladesh Awami League came in power with more than two-third seat. But they never took any step to remove or change this law.

Many MPs are often in dilemma whether to stand against the party’s decision or not because of Article 70. Even they can’t even talk freely in the party meetings. So, now the question arises, still why these politicians are not trying to change this law? A reason can be the past experience or the history of the then East Pakistan. In 1954-58 the floor crossing advantage was misused and exploited. In the constitution of 1972 this was the main reason behind the inclusion of floor crossing laws.

Another reason is that the politicians are happy with this law as under this law they can perform authoritarian system which can never be challenged. So there is no chance of the executive getting defeated on the floor.

There are some good sides of this law as it ensures unity among the members of a single party, but there are several problems such as Contradiction among the MP, Lack of responsibility and scope of dictatorship, Hinder the practice of rule of law, Contradiction in the system or constitution. But the main problem is that because of this sometimes corruption can happen, the main systematical problem in Bangladesh.

RECOMMENDATIONS

Stable and effective government system is always more important than the floor crossing system. The   common phenomena’s among the political people are that they are corrupted and self-interest, greed and power expectations. So, it will be unrealistic in terms of Bangladesh just to remove this law. If we remove this law it might create another unworkable situation and the government may fall and no stability like 1954-58 maybe witnessed once more.  The Article 70 should allow voting on motion of confidence and money bill or passing the budget. Only changing this law will make the parliament lively and meaningful, but still it will help us to have a stable government system. Applying rule of law and democracy is very important in order to achieve a responsible government. By changing this law still there will be some implication of rule of law and the government will not fall. Several people in Bangladesh tried to change or retire this law in different time, mainly in recent years, sadly all in vain. Here is my proposal to solve the problem

(1)Introduce two forms of votes:

a. Confidence Vote (Only used to form the government or show no-confidence)

b. Regular Vote (All other votes)

(2) Regular votes will be carried out just like any other votes, where each MP can cast his/her vote independently

(3) Confidence votes will also be cast by the MPs like regular votes. However, they will be calculated using an “electoral college” system (as used in the United States)

CONCLUSION

Sadly enough most of the political people in Bangladesh are corrupted; later on they become the MPs. Because of this article honest MP’s cannot speak against their dishonest party leaders when there is a need. Basically an MP who is elected by his people cannot give his own opinion or speak for his own people; rather he always must support his party leader (whether it is right or wrong)! Otherwise he will be dismissed. So this law must be changed to ensure the rule of law and freedom of opinion and this is essential to stop the corruption among the leader’s political parties (with some exceptions).

Then we can hope for a better corruption free Bangladesh with more freedom of opinion.