The Concept of Floor crossing is not consistent with the principle of Freedom of Liberty

“The Concept of Floor crossing is not consistent with the principle of Freedom of Liberty”

INTRODUCTION

After passing the forty years of independence as a democratic nation, still our democracy is not net worth. In Bangladesh every political leaders as well as the civil and other people talks about democracy but the nation has failed to put it into practice. Parties voted into power to strengthen democracy have all failed to encourage its values. The country today is riddle with numerous problems threatening the very development of democracy. Our society with an

Under developed political culture and poverty ridden illiterate and incompetent masses is lacking democratic political organizations, institutions and practices. According to the constitution of Bangladesh a member of parliament under the ruling party can’t vote against his party which is not a practice of democracy and leading towards dictatorship. Voting for a malafide will leads to dictatorship because two third of the Member of Parliament are under the ruling party.

Floor- crossing law under Bangladesh constitution:

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”.

1. Nazrul, “Article 70 and the future of parliamentary government”

2. Retrieved from- www.google.com/url?sa=t&rct=j&q=parliamentary rights on voting in bangladeshconstitution&source=web&cd=3&ved=0CFcQFjAC&url=http://www.thedailystar.net/law/2005/11/03/opinion1.htm&ei=wlrgT4CBB8GFhQe8sbnADQ&usg=AFQjCNEwIt6e7ULV-u57lYFWaMRVJsrl5g

3. Nazrul, ““Article 70 and the future of parliamentary government”

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 [1]. This was an anti-defection or anti floor crossing law 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 [5]. 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

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 established 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.

4. retrieved from http://asiafoundation.org/resources/pdfs/OccasionalPaperNo11FINAL.pdf

5. Halim, “CONSTITUTION, CONSTITUTIONAL LAW AND POLITICS:BANGLADESH PERSPECTIVE.” P-179.

6. Khan, Ataur Rahman, Two Years of Chief Ministership, (in Bengali)

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 conform a group within one political party.

2. If one elected member joins any other political party then it is the violation of Article 70.

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 [6]. 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.

Dictatorship:

The most general term is despotism, a form of government in which a single entity rules with absolute power. That entity may be an individual, as in an autocracy, or it may be a group, as in an oligarchy. Despotism can mean tyranny (dominance through threat of punishment and violence), or absolutism; or dictatorship (a form of government in which the ruler is an absolute dictator, not restricted by a constitution, laws or opposition, etc) dictatorship may take the form of authoritarianism or totalitarianism.

Dictatorship is often defined simply as “not democracy”, where democracy is defined as a form of government where those who govern are selected through contested elections.

Article 70 law and dictatorship:

As floor-crossing is suppressed by the article 70 laws under the constitution of Bangladesh, it can lead to dictatorship, as the Member of Parliament can’t vote against his party, the ruling party can pass any law if they want even if it is malafide. So it’s violating the cultivation of democracy in Bangladesh.

Dictatorship is not welcome in a country which is democratic by constitution. Democracy is for the people, of the people, by the people where as dictatorship only cares about personal interest.

Effects of article 70 law and Floor-Crossing in Bangladesh:

According to Article 70 law the Mps can’t vote against partys even if it is undemocratic decision. But, they can express their opinion in team meeting because Article 70 don’t put any regulation in expressing their decision in team meeting. 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. This is clear sign of lack of responsibility and opportunity to dictatorship.

7.retrieved from https://www.lawyersnjurists.com/resource/articles-and-assignment/floor-crossing-law-under-bangladesh-constitution/

8.retrieved from http://www.pmo.gov.bd/pmolib/constitution/part5.htm

9. Retrieved from http://thinklegalbangladesh.com/home/article.php

Democratic practice or power of the people should not end with the casting of a ballot. But unfortunately for us, as soon as we have elected our representative lawmaker, he is out of our hands and in the clutches of the party that nominated him. No matter how much a particular party decision might affect the interests of his constituents or push the boundaries of his conscience, a lawmaker has no real power to vote against it.

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. 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.

The government asking the opposition to attend Parliament is a familiar media headline. But sadly, no party in power has taken a principled stance against Article 70, which practically renders the opposition powerless in Parliament. It means they can scream their hearts out but will never be able to vote the government down on an issue no matter how much popular support their cause might have. In a way, our Constitution, through Article 70, reiterates the old Bangla saying: “You’re invited to argue with me about who owns the taal-gachh, but keep in mind that the taal-gachh is mine!”

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.

After so many years of democracy and with the presence of such political system, unfounded fears of “floor-crossing” are hardly any justification for holding back MPs from doing what they are mandated to do. It seems likely that without a wholesale scrapping of the provision and addressing the issue head-on, the opportunity will go missing for a vibrant parliamentary culture. A constitution without Article 70 will at least give us a fighting chance of creating a matured parliamentary system where the government is checked and balanced by its own ranks and the opposition has a genuine say in the law making process of the country

RECOMMENDATIONS:

Whatever the reason is behind not changing or removing the anti floor crossing law but still its not changed. I think Article 70 should be changed or omitted. If it’s not omitted it needs a slight change in it. There should me some criteria regarding voting. 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. 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

10. Baxter, Craig, Government and Politics in South Asia, 2nd edition.

11.retrieved from http://en.wikipedia.org/wiki/Dictatorship

12.retrieved from http://thinklegalbangladesh.com/home/article.php

13. Moudud, Bangladesh : Era of Sheikh Mujibur Rahman,

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.

CONCLUSION:

For the betterment of the country and practice a fair democracy the Article 70 should be changed a little bit. Political parties or leaders can come out forward to make it possible. This will make the political leaders responsible and they will be sincere to their duty as country is depending on their voting

Bibliography:

Halim.A.(1998) “Constitutional Law and Politics: Bangladesh” Dhaka: P.C. Culture

Chowdhury, N(1997) “The Legislative Law in Bangladesh: Politics and Functioning of then East Bengal Legislature” .

Ahmed, E. (1992)“State law” University of Pennsylvania Press.

Baxter,C. (1991) Government and Politics in South Asia. 2nd ed. Oxford: West View Press.

Khan,M.(1962) “Friends not masters.” Oxford university press.

Nazrul, A. n.d. “Article 70 and the future of Parliamentary government.”

Mahmud.S.“Article 70 is no more welcome” retrieved from

http://www.thedailystar.net/newDesign/news-details.php?nid=217114

Kamran, N.(2001) “Legislation by Ordinance” Dhaka.

Meisburger.T.(2012) “Strengthening Democracy in Bangladesh” The Asia Foundation.

Chowdhury.A.M.(2011) “Floor crossing and expanding horizon of MPs” The Daily Star. Retrieved from,

http://www.thedailystar.net/law/2011/04/03/vision.htm

Molla.M.(2011) “Amending article 70” The Daily Star. retrieved from

http://www.thedailystar.net/newDesign/news-details.php?nid=182840

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