Khondker Delwar Hossain Vs. The Speaker, Bangladesh Jatiyo Shangshad (Parliament)

Khondker Delwar Hossain (Petitioner)

Vs.

The Speaker, Bangladesh Jatiyo Shangshad (Parliament) (Respondent)

Supreme Court

High Court Division

(Special Original Jurisdiction)

JUSTICE

KM Hasan J

Md. Latifur Rahman J

Judgment dated : August 27, 1998.

Cases Referred to-

Rabi-S Naik Vs. Union of India AIR 1994(SC) 1558; Brundaban Nayak Vs. Election Commission of India, AIR 1965 page 1892, Para 12; Golam Mustafa Khair Vs. Chief Election Commission, PLD 1969 (Lahore) 602; Fazlul Kader Chowdhury Vs. Md. Abdul Hoque PLD 1963(SC) 486; Bradlaugh Vs. Gossett 1884 (12) QBD 271.

Lawyers Involved:

Moudud Ahmed with SK. Razzaque Ali, A.M. Mahbubuddin, Ms. Ireen Mahbub, Humayun Kabir Bulbul, Md. Anowarul Islam, Ms. Meherunnessa and Ms. Ferdous Akter Waheda- Advocates for the Petitioner.

Mahmudul Islam, Attorney Gen­eral with Obaidur Rahman Mustafa, Deputy Attorney General, Momtazuddin Ahmed, Deputy Attorney General, Obaidul Hasan Shaheen, Assistant Attorney General and Bazlur Rahman Chana, Assistant Attorney General-for the Respondents.

Writ Petition No. 1163 of 1998.

JUDGEMENT

KM Hasan J.- The Rule was issued calling upon the respondents to show cause why the refusal by the respondent No. 1, to refer the dispute raised by the petitioners in their letters dated 11.2.98 and 18.2.98 respectively, to the Bangla­desh Election Commission, under Arti­cle 66(4) of the Constitution, to hear and determine the dispute according to Act No. 1 of 1981, which he is bound by law to do, shall not be declared as illegal and without lawful authority.

2. The principal question, which this petition under Article 102 of the Constitution raises for our decision, relates to the construction of several Articles of the Constitution against defection by the members of Parliament. The question was raised by the two petitioners, Khondker Delwar Hossain and Professor A.Q.M. Badruddoza Chowdhury. Their case, as stated in the petition, is that Md. Hasibur Rahman Shawpon and Dr. Md. Alauddin were elected as members of Parliament in the general election held on June 12, 1996 from the national constituency No. 67, Sirajganj—7 and national constituency No. 56, Rajshahi-5 respectively. They were nominated as candidates by the Bangladesh National Party, hereafter called the B.N.P. and both of them were members of the Parliamentary Party of the B.N.P. Ignoring the parliamentary rules and practices and knowing very well that the B.N.P. is the principal opposition party in Parliament and it is opposed to the idea of a consensus Government, those members crossed the floor as members of Parliament and took oath of office as Ministers of the present Government of Awami League on 9.2.98 and 17.2.98  respectively, violating party discipline.

3. Thereafter, in pursuance of a deci­sion taken by the Standing Committee of the B.N.P. presided over by the Chairperson and leader of the opposition, Begum Khaleda Zia, the petitioner No. 1, Mr. Khondkar Delwar Hossain, in his capacity as the Chief Whip of the Opposition and the Chief Whip of the Parliamentary Party of the B.N.P. in Parliament addressed a letter to the Speaker, respondent No. 1 on 11.2.98 regarding the seat of Md. Hasibur Rahman Shawpon, now a Deputy Minister (Annexure A). Mr. A.Q.M. Badruddoza Chowdhury, the petitioner No. 2, in his capacity as the Deputy Leader of the Opposition in Parliament and the Deputy Leader of Parliament, also addressed another letter to the Speaker,  respondent No. 1 on 18.2.98 concerning the seat of Dr. Md. Alauddin now a State Minister (Annexure A1). They moved the Speaker for publication in Bangladesh Gazette by way of notification that the seats of the two members in respect of the constituencies mentioned above had fallen vacant. It was contended that their joining the Government of the Awami League as Ministers amounted to resignation from the B.N.P. and immediate cessation of membership of the Parliament under Article 67(i)(e) which refers to Article 70 of the Constitution. Besides writing these letters, the petitioners and B.N.P. took a public stand, both inside and outside Parliament, that the two members upon their joining the Awami League Cabinet ceased to be members of Parliament. On the other hand, each of the concerned members had tried to defend their position by claiming that Article 70 of the Constitution was not violated by him nor the seat had fallen vacant because none of them had resigned from the B.N.P. Leaders of the ruling party also claimed that the concerned members had joined the consensus Government by way of representing the B.N.P.

4. The respondent No. 1 briefed the members of press that it would take him some time to give a decision on the issue (Annexure-C). Instead he reallocated the seats of the aforesaid members from No. 299 for Md. Hasibur Rahman Shawpan and No. 186 for Dr. Md. Alauddin in the Opposition Bench, to seat No. 264 for Hasibur Rahman Shawpan and seat No. 262 for Dr. Alauddin in the Treasury Bench. It is claimed in the petition that the normal practice of parliament is that the Speaker allocates seats of Parliament, after consultation with the respective Chief Whip of the treasury bench and the Opposition, but in this case respondent No. 1 had allocated the seats for the two members without discussion with the petitioner No. 1, the Chief Whip of Opposition. In order to bring this matter to notice the petitioner No. 1 on 22.3.98 addressed a letter to Respondent No. 1 requesting him to inform, whether the seats allotted earlier to the aforesaid members, will be considered to have been vacated or not (Annexure-E). But none of the petitioners reply to any of the letters they have written to the respondent No. 1.

5. Meanwhile a delegation comprising of the petitioners, Mr. Abdul Mannan Bhuiyan, M.P. and a Vice Chairman of the B.N.P.  and Mr. M. K. Anwar. M.P. and a Vice Chairman of the B.N.P. called on respondent No. 1 twice on 19.3.98 and 4.4.98 to discuss the dispute raised by them in their aforesaid letters dated 11.2.98 and 18.2.98 and urge him to refer the dispute to the Election Commission. On both the occasions they were assured by the respondent No. 1 that the matter would be resolved soon. Instead, on 21.4.98, after a lapse of more than two months, the respondent No. 1 stated in Parliament that the seats of Md. Hasibur Rahman Shawpan and Dr. Md. Alauddin had not fallen vacant, since they had neither resigned nor had they voted in Parliament against their party, the B.N.P. The respondent No. 1, there­fore, refused to refer the dispute to the Election Commission as required under Article 66(4) of the Constitution.

6. Each of the petitioners, thereafter served a demand of justice notice upon the respondent No. 1 but have not re­ceived any reply (Annexures G-G1).

7. The petitioners assert that the two members namely, Hasibur Rahman Shawpan and Dr. Md. Alauddin, Elected to Parliament as the B.N.P. Candidates, having crossed the floor and joining the cabinet in violation of the political stand of the party in Parliament and without the consent of the leader of the Parliamentary Party of the B.N.P., have resigned from the party according to Article 5 of the party constitution. Article 5 Gha(2) of the Constitution of the B.N.P. reads as follows :-

Article 5 (gha)

(?) ?? ?????? ?????? ??? ???? ????? ??? ????? ???? ?????? ???? ????/??????? ?????? ???? ????? ????????? ??? ???????? ???? ?? ???? ???? ???? ??? ?????? ?? ????? ???? ???? ?? ?????? ???? ????????? ???????? ??? ??? ???? ????? ??????? ?? ??? ??????? ????? ??? ???? ????? ?? ?? ???? ????????????? ??????? ?????? ??? ???? ?????

Therefore, as far as the B.N.P. is con­cerned these two members will be considered to have resigned from the party.

8. They further assert that a dispute has arisen as seen as the petitioners have written the letters to the Speaker, who is under the constitutional obligation, to refer the matter to the Election Commis­sion under Article 66(4) of the Constitu­tion read with the provisions of Act 1 of1981 for the determination of the dis­pute.

9. It is further stated that three mem­bers of the Fifth Parliament of Bangla­desh, namely, Mr. Ebadur Rahman Chowdhury, Major General Mahmudul Hasan and Mr. Paritosh Chakraborty all belonging to Jatiyo Party joined the B.N.P. in 1995. The matter was referred by the then Speaker, vide his letter dated 14.5.95, to the Election Commission un­der Article 66(4) of the Constitution. The Election Commission, after hearing the parties concerned, declared the seats of the three aforesaid members of Parliament had fallen vacant and communicated this decision vide letter dated 30.8.95 to the Speaker, upon which a gazette notification to that effect was published.

10. Being aggrieved by the Speaker’s refusal to refer the dispute to the Elec­tion Commission the petitioners moved this Court and obtained this Rule.

11. Mr. Moudud Ahmed, the learned Advocate for the petitioner took us through the historical background for introducing Article 70 in the Constitu­tion. He submits that the compulsion for the inclusion of Article 70 in the original Constitution of 1972 and the amend­ments thereof up to 12th amendment, 1991 can be traced back to the bitter experience in the past when floor crossing and horse trading, to make and break governments, became a matter of concern for all. In order to achieve stability and continuity of government, at least for the term it is elected, Article 70 of the Constitution was introduced. This provision of the Constitution ensures a healthy, stable and viable parliamentary democracy in the country by way of maintaining party discipline.

12. It is submitted that under Article 70 of the Constitution which was substituted by the Constitution, (Twelfth Amendment) Act, 1991, if a member of Parliament belonging to the opposition, joins the ruling government and takes seat in the treasury bench, by crossing the floor from the opposition or vice versa, it will be construed that his allegiance has changed and he no more belongs to his party and his party membership has ceased. Therefore, he cannot hold his seat in Parliament. If on the technicalities of words, another interpretation, which is not consonant with the true intention of the Article is given, and this kind of horse trading and floor crossing is allowed then not only Article 70 but the entire structure of the Parliamentary system of government as conceived in the Constitution will be frustrated and have far reaching consequences in the further politics of Bangladesh.

13. It is further submitted that concerned members by crossing the floor have not only betrayed the electorate but violated the party discipline and it’s decision, earlier taken, against joining the so called consensus government of Awami League. Therefore their membership of the party have ceased under Article 5 of the party Constitution and their seats in Parliament have fallen vacant under Article 70 of the Constitution of the country. 14. The main ground the petitioner urges is that the Speaker, respondent No. 1 has violated several provisions of the Constitution, Act 1 of 1981 and the Rules of Procedures of Parliament and thereby committed illegality. The mandate under Article 66(4), 67(2), 70 and specially Article 66 as a whole of the Constitution read with Rule 178 of the Rules of Procedure and section 3 of Act 1 of 1988, is clear. The constitutional direction is that if there is a dispute regarding a parliamentary seat being vacant, the Speaker shall have to refer the matter to the Election Commission. By not doing so, the Speaker has actually tried to resolve the dispute himself, without any authority under the Constitution and thereby denying the Election Commission, a constitutional body, which has the mandate to determine such a dispute, from carrying out its function as an adjudicator of dispute. The refusal to refer the dispute raised by the petitioners in their letters dated11.2.98 and 18.2.98 is not only illegal, motivated, and malafide but also a deliberate non compliance of the mandate of the Constitution. It has resulted in jeopardizing the entire scheme of parliamentary democracy as envisaged in the provisions of the Constitution, including Article 70. Such an action by the Speaker is undesirable as it goes against the basic structure of the Constitution.

15. The next ground taken is that by his deliberate non appearance before this Court, the Speaker has admitted what­ever allegations are made against him. He is the person from whom the problem has emanated and only against him the relief is sought. But he has decided not to respond the rule issued by this court, instead, the Secretary, of the Jatiya Sangsad, who was made a party as respon­dent no. 2 on the insistence of this Court, has taken on his shoulder the burden of defending the respondent No. 1, but then again, by filing an affidavit-in-opposition on his behalf only and not on behalf of the Speaker.

16. Mr. Moudud Ahmed has also ar­gued that the Speaker’s ruling, on the two points of order, raised by two oppo­sition members is not sacrosanct and has nothing to do with the dispute raised by the petitioners in their letters on the two parliamentary seats falling vacant. To claim that the Speaker’s ruling on points of order, covers the dispute raised by the petitioners in their letters, is an indirect attempt to negate and defeat the purpose of Article 66(4) of the Constitution and to interfere with the scheme of the Con­stitution.

17. The learned Advocate argued that the words ‘resigns from that party’ in Ar­ticle 70(1) suggest that any resignation under this provision must be referred to the party and need not be sent to the Speaker. It is an internal matter of the party, nothing to do with the Speaker. Therefore, the Speaker by taking a uni­lateral decision without consulting the B.N.P. on the dispute whether the con­cerned members have resigned from the party or not, has acted malafidely and his decision is not tenable in law.

18. Mr. Moudud Ahmed has further argued that while interpreting the provisions of the Constitution the ‘golden rule’ of interpretation must be followed and any other suggestion for interpreta­tion of any provision of the Constitution should not readily be accepted by this Court.

19. In short, the main contention of Mr. Moudud Ahmed is that the petitioners are not challenging any parliamen­tary proceeding but there is a dispute which should have been referred to the Election Commission.

20. The learned Attorney General assailed the arguments of Mr. Moudud by submitting that the members of Parlia­ment in question have neither resigned from the Bangladesh Nationalist Party nor cast their votes in Parliament against it. Mere joining the cabinet as ministers do not bring their action within the mis­chief of Article 70 of the Constitution. Thus, there is no question of vacating their seats in Parliament by the said two members. In the absence of any prima facie evidence on their resignation or casting vote against the party decision, the question of referring the alleged dis­pute to the Election Commission under Article 66(4) does not arise.

21. He has further contended that the appointment of the two B.N.P. members as ministers does not amount to their resignation from the B.N.P. nor causes immediate cessation of membership of the party entailing the mischief of Article 67(1)(e) of the Constitution. It is denied that the two have crossed the floor as members of Parliament and took oath as ministers of the Awami League government violating party discipline. The appointments in question do not suffer from any legal infirmity, but are in conformity with the provisions of Article 56 of the Constitution and do not come  within the mischief of Article 70 of the Constitution and as such the  petitioners have no cause of action to file the present writ petition.

22. The learned  Attorney General while assailing the arguments of Mr. Moudud Ahmed has submitted that two substantive points of order raised in Parliament by Mr. Hafizuddin Ahmed and Mr. K.M. Obaidur Rahman, both opposition members of Parliament, regarding the membership of Mr. Hasibur Rahman Shawpan and Dr. Alauddin were disposed of by the Respondent No. 1, the Speaker, after considering the facts and circumstances and the provision of the constitution and Rules of Procedure of Parliament by his ruling in Parliament on 12.4.98. This ruling is now very much a part of the proceedings of Parliament and stands as precedent in the parliamentary case law and cannot be questioned in any court of law as per Article 78 of the Constitution. The learned Attorney General further argued that though the petitioners did not, in so many words, pray for a declaration against the ruling of the Speaker but indirectly came against it. As a rules two riles, i.e. the rule issued by this Court and the Speaker’s rule give on two points of order, new exist leading to a clash between the two.

23. By referring to some articles on the anti defection law published in the Indian ‘Journal of Constitution and Parliamentary Studies’ Vol XXI, Nos. 1-2, January-June issue, 1987, Vol. XXV, Nos.1-4 January-December issue, 1991 and a book titled “Anti-defection law and parliamentary privileges’, the learned Attorney General has argue that in India the Constitution (Fifty-Second Amendment) Act, 1985, which become known as anti-defection law, has been the subject matter of raising controversy from the very beginning. Fears have been expressed that the remedy provided by the amendment might prove worse than the disease. “Defection, it has been argued, is essentially a question of political morality for which cure is not to be sought by the enactment of law banning it … Any law which provides for disqualification for voting or abstention from voting in the House contrary to the direction of his political party without prior permission from the party, violates the freedom of conscience of legislators.” Therefore, the learned Attorney General submits that while approaching the anti defection law, as provided in our constitution, the Court should keep in mind that three issues are to be harmonised. They are (1) freedom of expression and conscience (ii) mandate from the people and (iii) party discipline which prohibits floor crossing and malpractices on the ground that the government will be estabilised. The learned Attorney General submitted that a balance should be drawn on all the three issues. Language has been given by the makers of the constitution to the anti defection law but it lies on the court to interpret it in a manner which will fine a balance on the above issues. In doing so, it shall have to determine whether the language of the relevant Articles of the constitution should be given an extended meaning or strict interpreta­tion to find that balance. According to him the words, “resigns from that party” used in Article 70(i) require strict inter­pretation, specially because the words, ‘votes in Parliament’, in the same clause have been given a wider meaning by ex­planations (a) and (b) to the clause. Therefore, if the court finds that Article 70 relates to resignation in its ordinary meaning then no case has been made up by the petitioner and the rule should be discharged.

24. He then argues that Article 70 is to be interpreted by referring to the con­stitution itself or any constitutional in­strument and not a party constitution. Framers of the Constitution were aware of the B.N.P. constitution which was framed much later than the constitution.

25. The learned Attorney General next argued, that nowhere in the petition nor in the letters addressed to the Speaker by the two petitioners, it is stated that the B.N.P. members have ten­dered their resignation from Parliament. What is stated in those letters is that their acts ‘tantamount to resignation ‘??????? ???????? ???? ???.’ If in either of the letters, written by the Chief Whip of Opposition and the Deputy Leader of Opposition and the Deputy Leader of Opposition, it was conveyed in clear terms that the two concerned members have tendered their resigna­tion, the Speaker would have definitely considered and if he found it necessary, referred the matter to the Election Com­mission. As the Speaker found no dis­pute relatable to Article 70 shown in these letters, he did not refer the matter to the Election Commission.

26. Lastly, he has argued that the Speaker is not supposed to act as an automation, he has to decide whether there is a dispute or not. However lim­ited that function may be, he has to ap­ply his mind and only if he finds that there is a dispute in the nature contem­plated in Article 70 he would refer it to the Election Commission, otherwise not, and here no such dispute has been found.

27. Before we commence considering the submissions from both the sides we would like to mention that at the end of his submission the learned Attorney General asked for permission to give a written submission, which was allowed, but till the signing of this judgment no written submission by the Attorney Gen­eral is submitted.

28. It may now be convenient to refer to the relevant constitutional provisions and the Rules of Procedure of Parlia­ment. Let us first refer to Article 66(4) which falls to be construed in the pres­ent case. Article 66 reads as follows:-

66. (1) A person shall subject to the provisions of clause (2), be qualified to be elected as, and to be, a member of parliament if he is a citizen of Bangla­desh and has attained the age of twenty five years.

(2) A person shall be disqualified for election as, or for being, member of Par­liament who-

(a) is declared by a competent court to be of unsound mind;

(b) is an undischarged insolvent;

(c) acquires the citizenship of, or affirms or acknowledges allegiance to, a foreign state;

(d) has been, on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release;

(dd) holds any office of profit in the service of the Republic other than an office which is declared by law not to disqualify its holders:

or

(e) & (f) omitted

(g) is disqualified for such election by or under any law.

(2A) For the purposes of this article a person shall not be deemed to hold an office of profit in the service of the Republic by reason only that (he is a President, Prime Minister, Minister of State or Deputy Minister.)

(3) Omitted……….

(4) If any dispute arises as to whether a member of Parliament has, after his election, become subject to any of the disqualification’s mentioned in clause (2) or as to whether a member of Parliament should vacate his seat pursuant to Article 70, the dispute shall be referred to the Election Commission to hear and determine it and the decision of the Commission on such reference shall be final.

(5) Parliament may, by law, make such provision as it deems necessary for empowering the Election Commission to give full effect to the provisions of clause (4)’.

29. From a reading of the Article it may be summed up that clauses (1) & (2) deal with qualifications and disqualification for election of a member to Parliament, whereas clause (4) deals with disqualifications after election of a member of Parliament and disputes arising as to whether (1) a member of Parliament after election has become subject to any of the disqualifications mentioned in clause (2) of the Article or (ii) a member of Parliament should vacate his seat pursuant to Article 70.

30. Clause (5) of Article 66 provides how Parliament by passing law and farming rules may empower the Election Commission to give full effect to clause (4) of Article 66.

31. Next relevant provisions for us is Article 67 reads as follows:

(1) The member of Parliament shall vacate his seat-

(a)…………………………….

(b)…………………………….

(c)………………………………

(d) If he has incurred a disqualification under clause (2) of Article 66; or

(e) in the circumstances specified in Article 70.

(2) A member of Parliament may re­sign his seat by writing under his hand addressed to the Speaker, and the seat shall become vacant when the writing is received by the Speaker or, if the office of Speaker is vacant or the Speaker is for any reason unable to per­form his functions, by the Deputy Speaker’.

32. This Article deals with disquali­fication of a member after election, clause 2 of Article 67 lays down that a member of Parliament may resign his seat by addressing the Speaker in writing Under his hand.

33. We then come to Article 70 of the Constitution. Article 66 makes it relevant for us to refer to Article 70. This Article refers to the conditions for vacating a seat by a member duly elected to Parlia­ment.

Article 70 is to the effect:

Article 70(1):- “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 that party.

Explanation- If a member of Parlia­ment-

(a) being present in Parliament ab­stains from voting or

(b) absents himself from any sitting of Parliament, ignoring the direc­tion of the party which nomi­nated him at the election as a candidate not to do so, he shall be deemed to have voted against that party.

(2)……………………………

(3) If, at any time, any question as to the leadership of the Parliamen­tary party of a political party arises, the Speaker shall within seven days of being informed of it in writing by a person claiming the leadership of the majority of the members of that party in par­liament, convene a meeting of all members of Parliament of that party in accordance with the Rules of Procedure of Parliament and determine its Parliamentary leadership by the votes of the majority through division and if, in the matter of voting in Parlia­ment, any member does not com­ply with the direction of the lead­ership so determined he shall be deemed to have voted against that party under clause (1) and shall vacate his seat in the Parliament.

(4)………………………………………

34. It may be noted here that Article 70(1) relates to conditions for vacating a seat from Parliament by a member, such as, voting against and resignation from the party. whereas Article 67(2) deals with resignation from Parliament by a member.

35. Article 66 was in the original constitution of 1972 except clauses 2(dd) & 2A which were inserted by the second proclamation Order No. IV of 1978. Article 70 was substituted for the former Article 70 by the Constitution (Twelfth Amendment) Act, 1991. By inclusion of this article Bangladesh set an example against floor crossing which was later followed by other countries.

36. In the Indian constitution, the corresponding provision on disqualification may be found in Article 102 and 103 and section 6 of the Xth Schedule, the last one deals with disqualification of a member on ground of defection. Article 103 of the Indian constitution provides that the decision on questions as to disqualification of a member of either House of Parliament is left to the President who shall obtain opinion of the Election Commission and shall act according to such opinion and the decision shall be final whereas in section 6 of the Xth Schedule the decision on the question as to disqualification on the ground of defection is left to the Chairman or the Speaker as the case may be. Similar questions relating to members of the Legislative assembly or Legislative Council of a State are dealt with, under Article 191 and 192 of the Indian constitution.

37. The corresponding Pakistani Article is Article 63 of the 1973 constitution and article 104 of the 1962 constitution. Article 63 states that in case of any question arising as to the disqualification of a member, the Chairman will refer the matter to the Chief Election Commissioner and if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member. The difference with our constitution is that in Article 66(4) of our constitution the Speaker is not mentioned specifically. However, as chapter-1 of part-5 of our Constitution deals with Legislature and Parliament it can without doubt be said that Article 66(4) refers to the Speaker who will forward a dispute to the Election Commission.

38. Reverting then to Article 66(4) the question we have to decide in the instant case is whether the Speaker, respondent No. 1, under the constitution is entitled to give his decision, without referring to the Election Commission, on the dispute raised by the Chief Whip of Opposition and the Deputy Leader of Opposition regarding the two B.N.P. members who have joined the Awami League cabinet.

39. The learned Attorney General maintained before us that on the wording of Article 70 there was nothing before the Speaker to show that the two B.N.P. members had resigned from the party and, therefore, there was no dispute and there was no occasion for the Speaker to refer to the Election Commission. Asked to explain it further, the learned Attorney General has pointed out that there was on written resignation from the concerned Members before the Speaker. By referring to sub clause(1) of Article 70 he has pointed out that it provides two grounds for vacating a seat of Parliament by a member: (1) if a member resigns from the party and (ii) if the member votes in Parliament against that party. A deliberate extended meaning is accorded to ground (ii) by explanations (a) and (b) to clause (1) of Article 70. Apparently the framers of the constitution wanted to give a winder meaning to the second ground i.e. voting in Parliament against his party dictates but no such extended meaning is intended to be given by the farmers of the constitution to ground no. (1), i.e. resignation of a member from the party. Therefore, the word ‘resigns’ used in the Article must be given an ordinary or strict meaning. He them refers to Black’s Law Diction­ary-page, 1310 wherein ‘resignation’ has been defined as ‘formal renouncement or relinquishment of an office’ i.e. a writ­ten resignation. He also refers to the case of Rabi-S Naik Vs. Union of India AIR 1994 (SC) 1558, wherein it is held that in the 10th Schedule of the Indian constitu­tion, which deals with disqualification of a member of House belonging to a politi­cal party, the word ‘resignation’ is not used instead the words ‘voluntarily given up’ of his membership from a political party are used. It was held that the words ‘voluntarily given up his member­ship’ are not synonymous with ‘resigna­tion’ and have wider connotation. A per­son may voluntarily give up his mem­bership of a political party and not for­mally tender his resignation from the membership of that party. Even without formal resignation an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs, but no such inference can be drawn from the word ‘resigna­tion’. In our constitution, the learned At­torney General argues, Article 66(4) spe­cifically refers to vacating of a seat by a member of Parliament pursuant to Arti­cle 70 and a strict interpretation of Article 70 requires formal resignations. But here was no formal resignation from the two B.N.P. members before the Speaker. Therefore, there was no dispute to refer o the Election Commission.

40. The learned Attorney General also submits that the two letters written by the Chief Whip and the Deputy Leader of the opposition do not state that the two B.N.P. members have resigned but only state that their act tantamount to resignation. Therefore, according to him the Speaker was right by not refer­ring the matter to the Election Commis­sion as there was no dispute of the na­ture contemplated in Article 66(4) of the Constitution before him. The language of the two letters are identical except the names of the concerned members the seats from which they were elected and the ministerial status they hold. They are as follows:-

Annexure — “A”

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????-?????

???? : ????? ????? ???? ??? ??????? ????? ????? ?? ??? ????? ???? ??? ???????????? ????? ??????????? ????? ??? ????????

????,

???????? ????????

????? ???, ???? ??? ??????? ????? ????? ???? ?????? ????????? ??, ????????? ? ??? ???? ???????? ??????????? ?? ?????? ?????? ???????????? ???? ????? ????????? ????????? ??? ???? ???????? ??????????? ???? ?????? ???? ???? ???????? ????? ?????????? ????? ??? ?? (??,??,??,) ?????? ?????? ???????? ??????? ???????? ??????? ????/?????? ?? ???? ?????? ?????? ???? ???? ???????????? ? ???? ?????? ??? ????? ?/??/???? ?????? ??????? ??????? ??-??????? ???? ??? ????? ????????, ???? ????????? ??(?) ???????? ??????? ??? ?? ???? ??????? ???????? ???? ????

?????? ???? ????? ???? ??? ??????? ????? ????? ?? ??? ????????? ??(?)(?) ????????  ??????? ????? ???????

????, ????????? ?????? ???? ????? ???? ??? ??????? ????? ????? ?? ??? ????? ?????? ????? ???????? ???????? ?????? ????? ????????? ?????? ???? ???????? ????? ????? ????? ???????

????????????,

?????

????????/-

(??????? ??????? ????? )

???? ?????, ???, ?????????-?

???

?????? ???? ??? ????,

???????? ????? ?????

Annexure-“A1”

?????-??/?/????

?????? ???????,

???????? ????? ????,

????  ???, ???? ????? ???,

????-?????

???? : ????? ????? ???? ??? ??? ????????? ?? ??? ????? ???? ??? ???????????? ????? ??????????? ????? ??? ????????

????,

???????? ????????

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?????? ???? ????? ???? ??? ??? ????????? ?? ??? ????????? ??(?)(?) ????????  ??????? ????? ???????

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41. The learned Attorney General has exercised great forensic skill in placing his argument but we are unable to accept it as it would go against the intendment of the constitution. At the very out set let us be clear that the observations on anti defection law made in the two journals and a book referred to by the Attorney General have no relevance in the face of the constitutional obligation under Article 66(4). These are only comments without any legal force behind them and no importance should be given to them as they are beyond the provisions of the constitution. Many people might think that Article 70 is undemocratic, but it is there in the constitution and all of us are bound by it.

42. Moreover, Blacks definition of ‘resign’ is not followed by others. The Law Lexicon (1997 edition), Mitras Legal Dictionary (Fourth Edition) and Chambers Dictionary defines ‘resign’ simply as ‘giving up’; nothing about formal letter of resignation. If the framers of the constitution wanted the letter of resignation from the party in written form they would have indicated it in article 70(1), significantly, so, when Article 67(2) states that a member of parliament may resign his seat by writing under his hand. May be, when the Speaker says that he is not aware of the resignation he is talking about the resignation of an elected member from Parliament in writing under Article 67(2). Article 70 as referred to in Article 66(4) does not stipulate nor require that the resignation from a party should be in writing. Resig­nation by conduct or otherwise against the party discipline and dictates is also envisaged under these Article.

43. Here Mr. Moudud Ahmed has raised a very pertinent question. Ac­cording to him as Article 70 refers to resignation from the party, formal letters of resignation, if any, by the two B.N.P. members, from the party, would be ad­dressed to their party and not to the Speaker. How could then the Speaker, on his own, only because there was no letter of resignation before him come to the conclusion that such letters of resig­nation from the party by the two mem­bers did not exist, without making any enquiry from the party or replying to the letters of the Chief Whip and the Deputy Leader of Opposition? Indeed, he submits, it is not his job but of the Election Commission to investigate the dispute.
We believe that there is substance in his argument.

44. Moreover, we are not convinced that a technical or literal interpretation should be given to the letters addressed to the Speaker by the petitioners. It is true that the two letters (Annexures A & A1) do not specifically claim that the members have resigned from the party but what matters is the substance of the two letters and the Speaker should not have given only technical interpretation without looking at the substance of the letters, specially when Article 67(1)(e) & 70 of the constitution have been referred to in these letters.

45. In fact, by taking seat with the treasury bench, against the dictates of their party, from which they were elected to Parliament, the two members went beyond the control of the Chief Whip of the opposition, who was to maintain party discipline and this amounted to formal renunciation of ties with the party and cessation of membership from the B.N.P. The Speaker very well knew that he would have to allot the two members seats with the treasury bench, once they joined the Awami League cabinet. Rule 7 of the Rules of Procedure of Parliament clearly lays down:- “The member shall seat in such order as the Speaker may determine.” Under the circumstances, it would not have been wrong for the Speaker to ex­pect, that unless the B.N.P. took a differ­ent stand, a dispute would follow.

46. Therefore, we are of the opinion that there is a prima facie dispute in the nature contemplated in Article 66(4), formally initiated by the Chief Whip and the Deputy Leader of the opposition in their letters to the Speaker. The Speaker instead of deciding, that the two mem­bers have not resigned from the party should have, more properly, referred the matter to the Election Commission to investigate and decide. It is not at all clear under what basis and authority the Speaker had come to the conclusion that the two members had not resigned and thereby not vacated their seats in the parliament. It is significant to not that clause 4 of Article 66 expressly provides that the Speaker is not to decide the question, he can only refer it to the Election Commission and if the latter come to the opinion that members concerned have, by their action, vacated their seat, they then ceased to be members. Apparently the authority, contemplated by the constitution and the law, to take action on a dispute whether a seat of Parliament is vacated or not, is the Election Commission and not the Speaker. In this connection it is also pertinent to refer to Rule 178 and section 3 of Act 1 of 1981. We have already seen that clause (5) of Article 66 provides that Parliament may, by law, make such  provisions as it deems necessary for empowering the Election Commission to give full effect to clause (4) of Article 66.

47. The relevant Rule is contained in Article 178 of the Rules of Procedure of Parliament, 1974 which is as follows:-

Rule 178(1):- If any dispute arises to whether a member has after his election, become subject to any of the disqualification’s mentioned in clause (2) of Article 66 or as to whether a member should vacate his seat pursuant to Article 70 of the Constitution, the dispute shall be referred by the Speaker to the Election Commission.

(2) If the decision of the Election Commission is that the member has become disqualified or should vacate his seat, as the case may be, the member shall cease to be a member.

(3)………………………………

(4) If a seat of a member becomes vacant, the secretary shall cause a notification to that effect to be punished in the gazette and forward a copy of the notification to the member concerned and also to the Election Commission for taking steps to fill the vacancy thus caused.’

48. Procedure to be followed to implement Article 66(4) is laid down in Act 1 of 1981. The relevant sections of the Act are as follows:-

Section 3 of Act 1 of 1981:- Reference of disputes under article 66(4)-The Speaker shall within thirty days after a dispute has arisen prepare a statement containing the facts relating to the dispute, the name and address of the member of Parliament in respect of whom or in respect of whose seat the dispute has arisen and the name and address of the person who has raised the dispute hereinafter referred to as the parties to the dispute, and send the statement to the Election Commission to hear and determine the dispute’.

Section 4:- Procedure for hearing disputes by Election Commission-

(1) Where a dispute has been referred to the Election Commission by the Speaker for hearing and determination, the Commission shall, unless it is of opinion that a reference on any point re­garding the dispute is required to be made to the Speaker, commu­nicate, within fourteen days for the receipt of the statement men­tioned in section 3, the statement to the parties to the dispute ask­ing them to submit statement in writing, if any, on the dispute within such time as may be speci­fied by it.

(2) After the expiry of the time speci­fied for submission of statements, the Election Commission shall hear the dispute on such date and at such time and place as it may
determine.

(3) All parties to the dispute shall have the right to appear before the Election Commission in per­son or to be represented by advo­cates.

(4) The Election Commission shall give a reasonable opportunity to the parties to the dispute of ad­ducing evidence and of cross-examining witnesses.

(5) Except as aforesaid the procedure for hearing a dispute shall be such as the Election Commission considers appropriate in the circumstances of the case.

Section 5:- Powers of Election Commission-

(1) For the purpose of hearing and determination of a dispute, the Election Commission shall have all the powers of a Code of Civil Procedure, 1908 (V of 1908) in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and pro­duction of any document;

(c) receiving evidence on affidavit;

(d) issuing commissions for the ex­amination of witnesses or documents;

(e) such other matter as may be pre­scribed.

(2) Any proceeding before the Elec­tion Commission under this act shall be deemed to be a judicial proceed­ing within the meaning of section 193 of the Penal Code (XLV of 1860).

Section 6:- Decision of the Election Commission. The Election Commis­sion shall communicate its decision on a dispute to the Speaker within one hundred and twenty days of the receipt of the statement mentioned in section 3.

49. From a reading of rule 178 of the Rules of Procedure and the relevant sec­tions of Act 1 of 1981 along with Article 66 of the Constitution it becomes obvi­ous that in case of a dispute of the nature contemplated in Article 66(4) it must be referred to the Election Commission by the Speaker. Act 1 of 1981 provides in detail the procedure to be followed to implement Article 66(4). Section 3 of the Act 1 further provides a time limit of thirty days within which the Speaker shall refer the dispute along with a statement to the Election Commission for it to be heard and determined. The law is so specific and the procedure laid down is so elaborate that the assumption by the Speaker of the role of deciding whether there is a dispute, to the exclusion of the Election Commission, makes the constitutional provisions on anti defection redundant.

50. It may also be useful here to refer to a Judgment of the Supreme Court of India delivered in the case of Brundaban Nayak Vs. Election Commission of India, AIR 1965 page 1892, Para 12 wherein it is held “what the said clause (clause 1 of Article 192 of the Indian constitution) requires is that a question should arise; how it arises, by whom it is raised, in what circumstances it is raised, are not relevant for the purpose of the application of this clause’. In para 13 it is further held. “Then as to the argument based on the words ‘the question shall be referred for the decision of the Governor’, these words do not import the assumption that any other authority has to receive the complaint and after a prima facie and initial investigation about the complaint, send it on or refer it to the Governor for his decision”.

51. In the case of Golam Mustafa Khair Vs. Chief Election Commission, PLD 1969 (Lahore) 602, similar question came up for consideration in a writ petition before the Lahore High Court, on the limited extent of power of the Speaker. It was contended that before making reference to the Election Commission, under Article 104(2) of the constitution, the Speaker was required to conduct a preliminary enquiry in which he had to give hearing to the affected members. It was held that the Speaker, while making a reference under Article 104(2) of the Constitution did not determine substantial right of the person affected and as such was not required to afford an opportunity of hearing before referring to the Election Commission. Further, there was no such words in Article 104(2) of the Constitution of 1962 and in the absence of such words it would not be right to assume an existence of such function by interpretation when dealing with a constitutional provision.

52. Mr. Mahmudul Islam, the learned Attorney General in his book, ‘Constitution Law of Bangladesh’, while discussing about vacating a seat by a parliamentary member under Article 70 of the constitution has stated in page 296. If any dispute arises as to whether a member of parliament after his election, become subject to any of the disqualification mentioned in Article 66(2) or whether he should vacate his seat in terms of Article 70, the dispute shall be referred to the Election Commission to hear and determine it and the decision of the Commission shall be final.”

53. It would not only be pertinent but useful to refer here to the well known case of Fazlul Kader Chowdhury Vs. Md. Abdul Hoque PLD 1963(SC) 486. In this case on reference was made by the Speaker with regard to the question whether Mr. Chowdhury had ceased to be a member of Assembly by assuming the office of profit. Therefore, the matter was directly brought to the High Court by certain member. Having regard to the difference in the language between clause (1) and (2) of Article 104 of the 1962 constitution of Pakistan, the High Court held that a reference was not nec­essary in a case covered by clause (I) which dealt with a member’s disqualifi­cation upon appointment as a Governor or Minister or to any other office of profit in the service of Pakistan. In contrast to clause (2) there was nothing in clause (1) about referring such disqualification to the Chief Election Commissioner. In this connection Mr. Justice Hamoodur Rah­man has made the following observation in the last but one para of his judgment; “under Article 104(2) the Chief Election Commission is set into motion by a ref­erence from the Speaker who may either act suo moto or upon a motion in the house by a member”. Similar observa­tions have been made by Cornelius C.J. and S.A. Rahman, J. in the same case.

54. From the above, we come to the conclusion that Article 66(4) requires that whenever a dispute, as contem­plated under the Article arises, it has to be forwarded by the Speaker to the Elec­tion Commission. Any dispute contem­plated by Article 66(4) shall be decided by the Election Commission alone and no other authority. The constitution does not require the Speaker to come to the conclusion, that a dispute has not arisen, because in order to come to such a con­clusion, he shall have to decide the main issue that the two members have not re­signed from the party, which the Speaker is not competent to do so as it is the do­main of the Election Commission. It is the opinion of the Election Commission which is in substance decisive. When the Speaker forwards the dispute to the Election Commission it can be assume that the Election Commission should proceed to investigate the dispute before giving its opinion. The framers of the constitution in their wisdom, by clause 4 of Article 66, thought it proper to pro­vide such a forum in the Election Com­mission and not to authorize the Speaker to investigate a dispute of the nature contemplated in the Article.

55. It falls for consideration what was the intention of the framers of the consti­tution in providing a forum in the Elec­tion Commission, as contemplated under Article 66(4) of the constitution. What they were looking for is an independent body, not directly involved with the day to day affairs of Parliament, to investi­gate that lure and lust for office is not behind the defection, which is forbidden by the Constitution or to protect the Speakers from being accused of bad faith.

56. It was contended by Mr. Moudud Ahmed that the Speaker did not deliberately refer the dispute to the Election Commission when the petitioners sent letters to the Speaker, stating the stand of the opposition party. It is claimed that if this opportunity had been availed of the petitioners would have been able to produce before the Election Commission all material facts, including the constitution of the B.N.P. The petitioners could have proved to the Election Commission, even upon the facts alleged, that the two members had resigned from the party within the meaning of the terms provided in Article 70, Rule 178 of the Rules of Procedure of Parliament and Act 1 of 1982, but they were deprived of it.

57. It is no doubt true that these and many other questions would have arisen before it was found out whether the two B.N.P. members had resigned from the party and thus vacated their seats. Many disputed questions of facts would have been resolved upon such evidence as might have been led by the parties. But this investigative job, under the constitution, is not left to the Speaker, his job is make a reference to the Election Commission. What is important to member is that the Speaker has not power to adjudicate upon the matter in dispute. He is only to act as a ‘post office’. The learned Attorney General repeatedly tried to impress that a strict interpretation of the word ‘resigns’ in Article 70 of the Constitution will establish that the Speaker acted by the constitution, as there was no formal letter of resignation from the two members before him. He may in his endeavour to strengthen his argument, give a strict interpretation to the word ‘resigns’ but not the Speaker, simply because it is not required of him to give a strict interpretation to the word ‘resigns’. Such function is not entrusted upon him by the constitution. He is only to see whether there is a prima facie dispute concerning a seat being vacated by a member of Parliament within the meaning of Article 66(4) and then refer it to the Election Commission.

58. Now that we are convinced that a prima facie dispute as contemplated under Article 66(4) prevails, we take up for our consideration the next issue, whether the ruling given by the Speaker on two points of order raised by two opposition members, bars this court from interfering in the matter. It is sought to be argued on behalf of the Speaker, Respondent No. 1, that the question involved in this case was taken out of the jurisdiction of the court by provision of Article 78 of the Constitution. The Attorney General relied on Article 78 of the Constitution which reads as follows:-

78. (1) The validity of the proceeding in Parliament shall not be questioned in any Court.

(2) A member or officer of parliament in whom powers are vested for the regulation of procedure, the conduct of business or the maintenance of order in Parliament, shall not in relation to the exercise by him of any such powers by subject to the jurisdiction of any Court.

(3)………………………

(4)………………………

(5)………………………

59. It is suggested that the matter complained of in the petition, is related to the conduct of business of Parliament or parliamentary proceeding, as it has bee disposed of by the Speaker by his ruling on two points of order raised by the two B.N.P. members and as such, the courts have no jurisdiction. The Speaker’s ruling cannot be challenged in a court of law either directly or indirectly as what takes place within the four walls of Parliament is not open to adjudication by court. This principle was laid down long time back in the case of Bradlaugh Vs. Gossett 1884(12) QBD 271, but it is not opposite in the circumstances under consideration here. The petitioners are not challenging the ruling of the Speaker on the points of order raised by two B.N.P. members of Parliament, but challenging the Speaker’s refusal to refer to the Election Commission the dispute raised by the Chief Whip and the Deputy Leader of the opposition, in their letters addressed to him. It is not contended by the respondents that a ruling has been given by the speaker on the two letters written to the Speaker by the two leaders of the opposition, but it is submitted that a ruling is given on points of order raised by two other B.N.P. members. Nor is it argued that once a ruling is given on point of order, the Speaker cannot be addressed by other members on the same subject mat­ter, in any other manner, like in the in­stant case by writing letters to him. The only argument put forward is that the Speaker has already given a ruling on two points of order and it cannot now be challenged in the court of law. The Speaker’s ruling on two points of order raised by two opposition members, how­ever, was not placed before us.

60. The question, therefore, falls for determination is, that whether the dis­pute regarding two seats of Parliament, fallen vacant, due to resignation of the two members, relate to proceedings in Parliament, regulation of procedure, conduct of business, and maintenance of order in Parliament under Article 78(1) & (2) and should not be brought under re­view of this court. First let us point out that from the mere fact that the Speaker was chosen to be the person who is to make a reference to the Election Com­mission, it does not follow that the law or the parliamentary practice requires a debate to take place and the decision of Parliament is to be ascertained for mak­ing the reference under Article 66(4) of the constitution. It only requires of the Speaker to refer such a dispute to the Election Commission.

61. May’s Parliamentary Practice, (Seventh Edition, Page 62) defines Par­liamentary proceeding in following terms:- “The primary meaning, as a technical Parliamentary term,  of proceedings (which it had at least as early as the seventh century) is some formal ac­tion, usually a decision, taken by the House in it’s collective capacity. This is naturally extended to the forms of busi­ness in which the House takes action, and the whole process, the principal part of which is debate, by which it reaches a decision. “In our opinion the dispute which has arisen because of the two B.N.P. members joining the Awami League cabinet, does not come within the above purview. In the instant case the two letters of the B.N.P. leaders were neither debated, nor a decision taken, nor any formal action taken by Parliament. Moreover, it cannot be brought within the meaning of ‘conduct of busi­ness’ as it was never dealt with in parliament. Therefore, the resignation of the two B.N.P. members of parliament from their party under Article 70(1) and the dispute caused by it, as a whole, does not fall within the meaning of a proceeding in Parliament, the conduct of business and definitely not a matter fal­ling within the meaning of ‘regulation of procedure’ or ‘maintenance of order’ in Parliament.

62. At the end, we would again like to emphasize, that the dispute raised by this two B.N.P. leader by their letters to the Speaker could not have been settled through parliamentary proceeding sim­ply because Parliament is not the forum envisaged by the constitution, to address such a dispute. The Constitution clearly defines the forum to be the Election Commission. Consequently Article 78 is not attracted and the Court’s Jurisdiction is not ousted.

63. The jurisdiction of the High Court can prominently be invoked under Article 102 of constitution to correct any error of law or any transgression of jurisdiction by any person or authority of the state if the order passed is repugnant to any provision of the Constitution. The scheme for the distribution of the distribution of powers between various organs or authorities of the state and to the superior judiciary, as laid down in the constitution allots to the judiciary the very responsibility of containing all other organs and authorities of the state within their jurisdiction. Legal issues of the nature raised in this case could only be resolved in case of doubt or dispute by the superior court exercising judicial review. This function ‘has been assigned to’ the High Court Division of the Supreme Court by the Constitution.

64. The result is, the rule is made absolute. In view of the fact that it has unnecessarily been protracted we advise the respondent no. 1, the Speaker, to forward the dispute as raised by the Chief Whip and the Deputy Leader of opposition

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