‘No freedom of voting against will of own party in the parliament: a strong barrier to cultivate democracy and a tendency towards dictatorship.’Discuss

Introduction

Jatiyo Sangsad Bhaban, the National Parliament of Bangladesh was created by architect Louis Kahn and is one of the largest legislative complexes in the world. It houses all parliamentary activities of Bangladesh. The current parliament of Bangladesh contains 345 seats including 45 women reserved seats distributed on elected party position in the parliament, the occupants of which are called Members of Parliament or MPs.

Membership – Article 66 of the Constitution makes membership open to any citizen of Bangladesh and only Bangladesh (dual citizenship is open for civilians, but not MPs) above the age of 25. Members are elected by direct polls in their respective constituencies, and whoever wins the most vote, regardless of turnout or proportion, wins. Members are elected for tenure of 5 years. The entire Parliament dissolves 5 years after the swear-in. Members can be re-elected indefinitely, and can be independent or contest through a political party. Members must not have served time in prison for more than 2 years to be eligible, unless they served this period 5 years prior to the elections.

  • “Bangladesh Constitution”. Parliament of Bangladesh. Retrieved 12 April 2011.
  • http://www.ecs.gov.bd/English/
    • http://www.ecs.gov.bd/English/MenuTemplate1.php?Parameter_MenuID=6&ByDate=0&Year
    • clause (1) by the Constitution (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991), s.12 (w.e.f 18-9-91). 2 The words “to the offices of President and Vice-President and” were omitted ibid., s.13 (w.e.f 18-9-91).

Floor crossing

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.

 In politics, crossing the floor has two meanings referring to a change of allegiance in a Westminster system parliament. The term originates from the British House of Commons, which is configured with the Government and Opposition facing each other on rows of benches. Votes, or divisions, are taken by entering lobbies to the left and right of the chamber to have one’s vote tallied; the “Aye Lobby” is on the Government side and the “No Lobby” on the Opposition side. If one wishes to vote against one’s party, one must quite literally cross the floor to get to the other lobby. An MP who switched parties would also need to cross the floor. A notable example of the latter is Winston Churchill, who crossed the floor from the Conservatives to the Liberals in 1904, before later crossing back in 1924. In most countries, it is most often used to describe members of the government party or parties who defect and vote with the opposition against some piece of government-sponsored legislation

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.

 EFFECTS OF ARTICLE 70 IN BANGLADESH

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.

Lack of responsibility and scope of dictatorship

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.

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.

Contradiction in the system or constitution

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. So we are in a position which contradicts with the actual Parliamentary government spirit.

FAVORABILITY OF FLOOR CROSSING LAW IN BANGLADESH

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? 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. 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 which clearly states that floor crossing is undesirable to them.

  • 2. “Mannan, Mahi quit BNP, Gen Nur Uddin AL”. Bangladesh Web. 11 March 2004. Retrieved 23 September 2011.
  • 3.  “Crossing the floor in the Federal Parliament 1950 – August 2004”. Research Note no. 11 2005–06. Australian Parliament. October 10, 2005.
  • 4. Debelle, Penelope (May 31, 2008). “Independently inclined”. The Age.

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:

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

Voting rights of ministers – 73A. (1) Every Minister shall have the right to speak in, and otherwise to take part in the proceedings of, Parliament, but shall not be entitled to vote 2[ or to speak on any matter not related to his Ministry] unless he is a member of Parliament also.

(2) In this article, “Minister” includes a Prime Minister, 3[ * * *], Minister of State and Deputy Minister.]

  • 5Article 73A was inserted by section 9 of the Constitution (Fourth Amendment) Act, 1975 (Act No. II of 1975)6 The words “or to speak on any matter not related to his Ministry” were inserted by section 7 of the Constitution (Twelfth Amendment) Act, 1991 (Act No. XXVIII of 1991)

    7 The words “Deputy Prime Minister” were omitted by the Constitution (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991), section 7(b).

  • 2. Chowdhury, Jashim Ali (6 November 2010). “Reminiscence of a lost battle: Arguing for the revival of second schedule”. The Daily Star. Retrieved 24 September 2011.
    • 3.  Molla, M A S (April 24, 2011). “Amending Article 70”

 Recommendation

Article 70 of our constitution says: “A person elected as a member of Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he resigns from that party or votes in Parliament against the party.”

This is indeed a bad restriction which simply impedes the true spirit of a democracy. We can not have a functional parliament if we have such a provision in effect.

Some may argue that we need such a provision in order to prevent MPs from switching sides too frequently and effectively causing the government to fall. This can cause instability in our country.

Here is a 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) MPs will never lose their membership in parliament based on their voting records

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

(4) 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). Here is how the electoral college system may work:

a. Within each political party, all the votes will be accounted first.

b. If there is a clear winning majority within the party, all votes from that party will be considered to have cast the same as the majority of the party.

c. If there is not a clear winning majority within the party, the party leader will have an additional vote to break the tie. If the tie is broken, all the original votes from the party will be considered to have cast accordingly.

d. If the tie can not be broken because the party leader is unwilling to side with one of the majority factions, all the votes of that party will be considered “regular votes”, and will be used “as is”.

 Conclusion

The legislature of parliament was made for the discipline of the parliament procedures. If there is better option that can make life easy and maintain peace than modification should be made in regulations to bring that option because law is made for the people.

 Bibliography

  1. 1.       “Constitution to get back on ’72 track”. Thedailystar.net. 2010-02-03. Retrieved 2012-05-28.
  1.  Article 73A was inserted by section 9 of the Constitution (Fourth Amendment) Act, 1975 (Act No. II of 1975).
  2.  The words “or to speak on any matter not related to his Ministry” were inserted by section 7 of the Constitution (Twelfth Amendment) Act, 1991 (Act No. XXVIII of 1991)
  1.  The words “Deputy Prime Minister” were omitted by the Constitution (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991), section 7(b).
  1.  Prof. Sirajul Islam. “Constitutional Amendments”. Banglapedia. Retrieved 2012-05-28.
  1. “Constitution of Bangladesh: Part II: Fundamental Principles of State Policy”. Chief Adviser’s Office. Prime Minister’s Office. Government of the People’s Republic of Bangladesh.
  2. Prof. Sirajul Islam. “Constitutional Amendments”. Banglapedia. Retrieved 2012-05-28.
  3. “Constitution to get back on ’72 track”. Thedailystar.net. 2010-02-03. Retrieved 2012-05-28.
  4. “Index of /pmolib/constitution”. Pmo.gov.bd. 2009-06-14. Retrieved 2012-05-28.
  5. See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” pp.176-178.
  6. See, nazrul, “Article 70 and the future of parliamentary government” pp.1-3
  7. See , Halim, “Providions For Prevention of Floor Crossing In Article 70 of The Constitution and Parliamentary Democracy In Bangladesh.” pp.1-2
  8. See, Baxter, Craig, Government and Politics in South Asia, 2nd edition. P-248.
  9. Khan, Ataur Rahman, Two Years of Chief Ministership, (in Bengali), p. 176-203
  10. See, Halim, “CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” P.187
  11. See, Moudud, Bangladesh : Era of Sheikh Mujibur Rahman, p-108.
  12. See, Nazrul, ““Article 70 and the future of parliamentary government” pp.1-3
  13. See, Nazrul, ““Article 70 and the future of parliamentary government” pp.3-4.
  14. .Khan, A. “Two years of chief ministership”, (in Bengali) n.d.
  15. .Halim, A. (1998)“CONSTITUTION,CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE” . Dhaka: P.C. Culture
  16. Baxter,C. (1991) Government and Politics in South Asia. 2nd ed. Oxford: West View Press.
  17. Ahmed, M. n.d. “Bangladesh: Era of Sheikh Mujibur Rahman.”
  18. Kamran, N. n.d. “Legislation by Ordinance”.
  19. .Chowdhury, M. “Government and Politics in Pakistan”. Chowdhury, N(1997)”The Legislative Law in Bangladesh: Politics and Functioning of then East Bengal Legislature 1947-58.
  20. .Khan,M. “Friends not masters.”
  21. http://www.banglapedia.org/httpdocs/HT/P_0096.HTM
  22. http://bdlaws.minlaw.gov.bd/pdf_part.php?id=367&vol=15&search=1972.
  23. http://www.ecs.gov.bd/English/MenuTemplate1.php?Parameter_MenuID=6&ByDate=0&Year

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