Fundamental rights are reinforced in different ways with different emphasis within different legal systems-explain
Bangladesh is a democratic country, since independence we have passed 40 years but according to democracy and development we are lagged behind. In Bangladesh every political leader or party, civil or military, popular or unpopular, big or small, in or out of power, talks about democratic incessantly. Even so the nation has failed to put it into practice. Parties voted into power to strengthen democracy have all failed to encourage its values. Taking advantage of this situation, military leaders intervened to practice their own version of democracy, which only exacerbated the crisis. Fundamental rights are generally presumed a set of civil liberties in the context of a legal system. Fundamental rights are reinforced in different ways with different emphasis within different legal systems .
I. A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single collection or set of legal documents, those documents may be said to comprise a written constitution. Constitutions concern different levels of organizations, from sovereign states to companies and unincorporated associations.
II. Basic Organs of Bangladesh Constitution
As per the constitution of the republic it comprises three basic organs:
- Legislative Branch
- Executive Branch
- Judicial Branch
1. Fundamental rights (2011) In Wikipedia. Retrieved from <href=”#cite_note-0″>http://en.wikipedia.org/wiki/Fundamental_rights#cite_note-0
Illustration & Explanation
“A member of parliament has no power to vote against his party as per the constitution of Bangladesh, if he or she votes against the will of his party through the will are mollified. He/ she will lose his seat in the parliament”
1. Floor crossing or Political defection:
To resign from one party and to join another party is known as floor crossing. And in this case we are talking about parliament member’s right to vote against its own party and the consequence. 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
See, Halim, “CONSTITUTION, CONSTITUTIONAL LAW AND POLITICS: BANGLADESH PERSPECTIVE.” pp.176-178.
There are several reasons 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. It was a regular practice in the then Pakistan. This practice made the parliamentary system unworkable here
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. 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.
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.
See, nazrul, “Article 70 and the future of parliamentary government” pp.1-3
See , Halim, “Providions For Prevention of Floor Crossing In Article 70 of The Constitution and Parliamentary Democracy In Bangladesh.” pp.1-2
See, Baxter, Craig, Government and Politics in South Asia, 2nd edition. P-248.
The reasons why floor crossing occurs
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.
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.
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.
Khan, Ataur Rahman, Two Years of Chief Ministership, (in Bengali), p. 176-203
See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” P.187
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 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 form a group of within one political party.
2. If one elected member joins any other political party then it is the violation of Article 70
See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” pp.178-179
CONSEQUENCES OF ARTICLE 70 IN BANGLADESH
A. Lack of accountability 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 accountability of a government and a responsible government has got two main characteristics. However there is no provision in Bangladesh to perform the individual responsibility.
B. Challenge among the MPs
Article 70 doesn’t allow the MPs to vote against party’s undemocratic decisions or protest against it. 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.
C. Obstruct 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, basically the Article 70 is making the members a marionette.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.
See, Moudud, Bangladesh : Era of Sheikh Mujibur Rahman, p-108.
See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” P-180.
See, Nazrul, ““Article 70 and the future of parliamentary government” pp.1-3
D. Disagreement 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. 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. Therefore we are in a position which contradicts with the actual Parliamentary government spirit.
FLOOR CROSSING LAW IN BANGLADESH: FAVORABLE OR UNFAVORABLE
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?
I have discussed that how floor crossing law developed, 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?
See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” P-179.
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.
From my point of view stable and effective government system is always more important than the system. In the past and still now those politicians became corrupted and self interest, greed and power expectations among the political people are common phenomena. In terms of Bangladesh removing the law will be unrealistic and it will 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, in Article 70 few changes are need. 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. By changing this law the government will not fall and still there will be some implication of rule of law.
In our country we need responsible political parties and ministers who will be responsible to the legislation and parliament. This will help not to have 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. And this is not possible in reality. 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. By making the people representatives subservient to the political parties. In contrast, the executive branch has been consolidating its position in all unholy ways, making imbalance of power and diminishing the prospect of good governance. Nothing can contribute significantly to transform the parliament into country’s supreme political institution to represent the people’s will until MPs are set free from the tight rein of the political parties.
2. Haiman, Franklyn S. 1993. Speech Acts and the First Amendment. Carbondale, Ill.: Southern Illinois Univ. Press.
3. Hall, Kermit L. 1989. The Magic Mirror: Law in American History. New York: Oxford Univ. Press.
4. Nazrul, A. n.d. “Article 70 and the future of Parliamentary government.”
5. Khan, A. “Two years of chief ministership”, (in Bengali) n.d.
6. Halim, A. (1998)“CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE” . Dhaka: P.C. Culture
7. Chowdhury, N(1997)”The Legislative Law in Bangladesh: Politics and Functioning of then East Bengal Legislature 1947-58.
8. Baxter,C. (1991) Government and Politics in South Asia. 2nd ed. Oxford: West View Press.
9. Ahmed, M. n.d. “Bangladesh: Era of Sheikh Mujibur Rahman.”
10. Kamran, N. n.d. “Legislation by Ordinance”.
11. Tinker v. Des Moines School District, 393 U.S. 503 .
12. Wagman, Robert J. 1991. The First Amendment Book. New York: World Almanac.
13. Miller v. California (413 U.S. 14 )