Floor Crossing Law under Bangladesh Constitution
1.INTRODUCTION:
Floor crossing 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. 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. This term “floor crossing” can also be called “political defection” or “side swapping”.
So, this law basically takes away the freedom or 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. This law is found in countries like India, Pakistan, Bangladesh, Nepal, Sri Lanka, Malaysia etc.
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.[1]
This law basically blocs the development of the parliamentary government. The main spirit of the parliamentary government is that the government is accountable or responsible to the legislature. So, the executive is always not sure whether he is going to be supported or not and therefore it always tries to feel the pulse of the members or tries to be more responsive. But, 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.BACKGROUND:
If we look at the political defection or floor crossing in the then East Pakistan then we will know the reason behind the Article 70 or anti floor crossing law. 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. They were selfish in nature and never thought of the good of the parliament, instead they took the advantage of floor crossing and made such a situation which stopped the actual flow of parliament. 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.[2]
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. In the year 1956 when United Front had to resign AL formed government both at center and the province of Pakistan. But, again due to disagreements in foreign policy between Suhrawardy and Moulana Abdul Hamid Khan Bhashani AL was divided and Bhshani came out of AL and joined NAP. Then Abu Hossain of United Front again formed a government which was in power for only a few hours. After Abu Hossain again AL came into power and was there for three months only. This chaos continued and it ended with the death of the then deputy speaker in the year 1958. The parliamentary government dies in the then Eat Pakistan with this. From 1958 October 7 Military government got the hold over the then East Pakistan.[3]
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.”[4]
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. For example-
1.One member’s name was not included in the local relief committee so in order to take revenge he defected or crossed the floor.
2.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.[5]
3.Some of the members crossed floors or did not attend part meetings out of whim.
4.One member felt that he is not getting enough attention in the House, so he defected or crossed the floor.
5.A member failed to influence the authority for her husband’s job and was absent from the parliament.
6.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.[6]
There are other examples as well.
The coalitions and disagreements in between the year 1954-1958 and the selfish nature of the members actually made a strong base for the Article 70 of 1972.
3.ARTICLE 70 under the Constitution of Bangladesh:
We know by now that that the Article 70 was to prevent floor crossing. The chaos of the past and the unworkable situations created by the members of the parties helped to establish this provision. 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.[7]
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. Whatever will be decided by the Executive will be final. The other members among the party can’t protest. As the Executive in our country is the Prime Minister he or she doesn’t need to be accountable to the legislature he or she can do anything on his or her will power. From 1991 to till date there were four elections and right now AL is in power with more than Two-third seats of the parliament. But still there is no sign or symptom to change this Article 70 or to remove it. Maybe it is because they want to perform dictatorship or they are afraid of the past history of the then East Pakistan (the chaos and defection or floor crossing of 1954-1958). I will discuss more of the intentions and applications of Article 70 in Bangladesh in the next paragraphs.
4.EFFECTS OF ARTICLE 70 IN BANGLADESH:
A) 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.[8]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.
B) 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, no member of the majority party can vote against his own party.[9] So, Article 70 is allowing the government not to be responsible and accountable to the parliament and it is also providing the government enough room to practice dictatorship.
C)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.[10]
D) 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.[11]
5.FLOOR CROSSING LAW IN PAKISTAN AND INDIA:
In this section of my essay I am going to discuss about the countries around Bangladesh who are practicing this law of anti floor crossing. Anti floor crossing law is also found in our neighboring country India and Pakistan. But, in these two countries the law is more logical and practical. According to the constitution of Pakistan only in the case of election of the prime minister, motion of confidence and money bill 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. On the other hand, under the constitution of Bangladesh 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. Even in India there is a specific rule to vote against one’s own party, but if someone breaks that specific rule without permission then only he is to be guilty. But if the party forgives that person within 15 days then he will not lose his membership. Thus, we can see that compare to Bangladesh in both India and Pakistan the floor crossing law is much more lenient. [12]
6.FLOOR CROSSING LAW IN BANGLADESH: FAVORABLE OR UNFAVORABLE
Now the question arises, is the floor crossing law favoring us or is it ruining our democracy and depriving us to enjoy the fruit of a fair Parliamentary government?
In the essay previously 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, 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.
I have stated the fact that many MPs said that they are often in dilemma whether to stand against the party’s decision or not because of Article 70. As they are not sure they can’t even talk freely in the party meetings even. So, it can be now asked then still why these politicians are not trying to 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.
7.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.
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.
8.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. 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. I 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.
REFERENCE:
1.Khan, A. “Two years of chief ministership”, (in Bengali) n.d.
2.Halim, A. (1998)“CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE” . Dhaka: P.C. Culture
3.Nazrul, A. n.d. “Article 70 and the future of Parliamentary government.”
4.Baxter,C. (1991) Government and Politics in South Asia. 2nd ed. Oxford: West View Press.
5.Ahmed, M. n.d. “Bangladesh: Era of Sheikh Mujibur Rahman.”
6.Kamran, N. n.d. “Legislation by Ordinance”.
7.Chowdhury, M. “Government and Politics in Pakistan”.
8.Ahmed, E. (1992)“State law”.
9. Chowdhury, N(1997)”The Legislative Law in Bangladesh: Politics and Functioning of then East Bengal Legislature 1947-58.
10.Khan,M. “Friends not masters.”
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[1] See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” pp.176-178.
[2] See, nazrul, “Article 70 and the future of parliamentary government” pp.1-3
[3] See , Halim, “Providions For Prevention of Floor Crossing In Article 70 of The Constitution and Parliamentary Democracy In Bangladesh.” pp.1-2
[4] See, Baxter, Craig, Government and Politics in South Asia, 2nd edition. P-248.
[5] Khan, Ataur Rahman, Two Years of Chief Ministership, (in Bengali), p. 176-203
[6] See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” P.187
[7] See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” pp.178-179
[8] See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” P-180.
[9] See, Moudud, Bangladesh : Era of Sheikh Mujibur Rahman, p-108.
[10] See, Nazrul, ““Article 70 and the future of parliamentary government” pp.1-3
[11] See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” P-179.
[12] See, Nazrul, ““Article 70 and the future of parliamentary government” pp.3-4.