The Floor crossing law under Article 70 is a strong barrier in cultivating democracy-Explain
Introduction
“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.”- Article 70 of our constitution says.
Article 70 of the Constitution makes floor crossing illegal, and members engaging in floor crossing lose their membership. One of the reasons for which this jurisdiction has been included in the Constitution[1] is the floor crossing. But isn’t it a barrier in practicing perfect democracy. Definitely it is, because the members of the ruling party would never get any opinion about right or wrong from their own people if even they are wrong, which automatically makes the system less controlled. And independence of individual speech is violated which again a finger is pointing towards a democratic government.
But nevertheless this country has been under democratic rule since 1991, and so far the two main political parties, BNP and Awami League has been in power two times each. Sad but true, none of them has done any amendments in changing the notion. Even both of them have supported this in the parliament.
A brief history of the Article 70 follows the research with its consequences and some suggestions.
Brief history about Article 70
On January 11 of 1972 President Sheikh Mujib made and promulgated the Provisional Constitution Order 1972, introducing a parliamentary democracy in the sovereign Bangladesh and also made provision for a cabinet of ministers with the prime minister at the head.
The ruling AL policymakers felt necessity of a law to keep a good control on lawmakers despite having extraordinary authority of the executive’s and overwhelming majority in the constituent assembly. The lawmakers even were not given the power to oversee the executive’s functions to ensure its accountability to the assembly.
On the basis of the advice of the Prime minister, the president issued ‘The Bangladesh Constituent Assembly Members (cessation of membership) Order 1972’, allowing the political parties to keep a tight rein on members of the constituent assembly.
According to that order, a person had to lose his seat in the constituent assembly for his resignation from or expulsion by a political party that nominated him as a candidate at an election.
Certain cruel restrictions were imposed on them which made them subservient to the political parties. The parliamentary democracy started functioning, but members of the constituent assembly did not have liberty.
Although the restrictions were there, things were not moving smoothly. As many as 19 members of the constituent assembly lost their membership by being expelled from the ruling AL for reported violation of party discipline and three others lost membership as they resigned from the AL in protest of government corruption and malpractice.
Under the chairmanship of the law minister Dr. Kamal Hossain the constituent assembly formed a constitution drafting committee consisting of 34 members the day after the beginning of its journey.
The committee came up with the draft of the constitution. It included the restrictions imposed by the Bangladesh Constituent Assembly Members (cessation of membership) Order 1972 in the draft constitution in the form of article 70. Four members of the constitution drafting committee, who belonged to the ruling AL, strongly gave their opinions against some of the draft provisions including the article 70 and gave note of dissents.
The restrictions that were present in the draft in the article 70 of the constitution modified little during the process of adopting the constitution by the constituent assembly. The modification was not of any such use; however it did not improve the situation; it has rather made the provision more stringent.
The new clause imposed restriction on MPs to cast votes in parliament against the party that nominated him at the election. If one does it, s/he would lose membership. As a result, MPs were not allowed to cast votes against his/her own party line in parliament regardless of the party’s decision whether it is right or wrong.
By incorporating this explanation, casting vote against own party means losing membership, the MPs’ freedom was curtailed absolutely giving them no alternative, but to follow the party decision.
Democracy was restored through mass upsurge in December 1990 and the parliamentary democracy was also reinstated in the country in 1991 with the enactment of the constitution’s twelfth amendment act after a long dark episode. But at that time, the BNP-led government opted for retaining the constitutional provisions made by the fourth amendment to keep tight rein on MPs.
Begum Khaleda Zia, the then Prime minister, did move the bill for the 12th amendment[2] to the constitution, also proposed that membership of an MP will be vacated if s/he lose the membership of the party that nominated them or is expelled from it. She also proposed a stringent clause to punish such MPs by disqualifying them from contesting the parliamentary elections for the next five years from the date of their seats falling vacant.
As a barrier in practicing democracy
Basically, Article 70 holds that if you vote against your party in Parliament, you lose your seat. It is a real dozy in the Bangladesh Constitution.
The whole point of Parliament is to serve as a forum where the crucial issues of national importance can be debated. But there is very little point to debating an issue when the outcome of the argument is pre-ordained. It was included in the Constitution so that parliamentarians would not be able to sell their votes to the highest bidder — a laudable objective no doubt — but the problem it has created is worse than the problem it was intended to solve.
It is impossible to get anyone on the other side of the aisle to join forces with you for the simple reason that the Constitution forbids it. Under Article 70, it does not matter how persuasively you debate or with what clarity you can demonstrate that the other side’s position is untenable.
The idea was to create a system that would prevent parliamentarians from selling their votes. But even if parliamentarians do sell their votes, such a situation more closely resembles democracy than effectively not permitting them to vote at all. Article 70 therefore essentially guts the principal reason for having a Parliament in the first place. Now it could be argued that allowing a politician to vote his or her conscience is a laughable proposition in Bangladesh, and indeed this was the reason Article 70 was enacted in the first place. At least then they would be representing someone. Under the rules now in place a parliamentarian can represent no one other than his or her party leadership.
Comparison of the law in other countries
Anti floor crossing law is also found in our neighboring countries India and Pakistan. But the law is more logical and makes sense. According to the constitution of Pakistan, only in the case of election of the prime minister, motion of confidence if someone votes against the party, he/she losses the seat from parliament. So in Pakistan if one party can pass a bill unethical, someone from same party can vote against the party.
Even in India there is a rule of voting against one’s own party. But if someone breaks it without permission, he will be guilty. But if the party forgives him less than 15 days, he will not lose his seat.
Only in Bangladesh no one can vote against his own party under the Article 70.
Effects of Article 70 in Bangladesh
Lack of clarity among MP’s
MP’s do not have the right to vote against any decision taken by their respective political parties in the parliament. But actually there are no such restrictions about expressing opinions against party according to this article 70. Many of the MP’s do not have a clear idea about it, and they do not speak out in party meetings. Thus this becomes a barrier to propagate healthy democracy. Many of them even said that Article 70 is authoritarian. Then why aren’t they changing law or trying to reform it? At the same time the knowledge of these MP’s also arise as they are not even aware of the application of this article.
Less conscious about true democracy
There is a clear scenario seen in the government of Bangladesh regarding lack of responsibility and a tendency to 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. A government is said to be responsible if it has two main characteristics: first to have individual responsibility to the ministers, and second the responsibility to the cabinet. There are no examples in Bangladesh or scope to perform individual responsibility. But it is mentioned in another article that the cabinet should stay responsible to the parliament. But however the truth is article 70 gets the cabinet away from its responsibility as the cabinet well knows from getting defeated on the floor by motion of confidence and non-confidence. Because no member of the majority party can vote against his own party, thus Article 70 is actually making the government irresponsible and accountable to the parliament. Definitely there also remains a good amount of opportunity for practicing dictatorship.
Hinder the practice of rule of law
Rule of law should create a situation where there is chance of discussion over a bill. The members should have their own rights to argue or debate in a proposed issue or over a proposed bill. But the article 70 prohibits the members of the ruling party from doing this practice. Thus no matter how unrealistic or undemocratic the bill is it is approved and pass very easily, Most of the times in our country the ordinance is made just a week before the parliament session and in the parliament it is only approved. No debate or argument takes place in the legislature.
Constitution or system contradiction
The idea of parliamentary democracy is that the government should be responsible to the legislature. But as the article 70 is blocking us from being responsible, we are actually not practicing parliamentary democracy. So we are in a contradiction as whether we are at all practicing democracy.
Recommendations
There is no exact solution to this problem until the article is active. But some suggestions can be taken into consideration which can help the present condition of the MP’s.
1) There can be two types of voting system introduced ; i) Confidence vote- only used to form the government, ii) regular 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.
The way to create a functional Parliament is to create a Parliament that is able to function. First you must build the institution — only then will it be possible for politicians to amend their behavior accordingly.
If we amended Article 70 to allow lawmakers to vote their consciences, then things might well not change for the better, indeed things might even change for the worse — but such a reform at least makes change for the better possible. Amending Article 70 might not solve all our political problems, but it is a necessary first step to reforming Parliament and allowing it to function as intended in a parliamentary democracy.
Bibliography
1. Moshiul Shovon ., (February 2, 2007). In A Better Bangladesh. Retrieved June 18, 2012 fromhttp://betterbd.blogspot.com/2007/02/article-70-of-constitution-of.html
2. Unknown Author., (n.d). In Article 70: A Tight Rein on MPs. Retrieved June 18, 2012 fromhttp://www.thedailystar.net/suppliments/2011/anniversary/section2/pg9.html
3. Unknown Author., (n.d). In Bangladesh Constitution. Retrieved June 24, 2012 from http://www.scribd.com/doc/2599618/12-Amendment-in-Bangladesh-Constitution
4. Unknown Author., (n.d). In Constituent Assembly. Retrieved June 24, 2012 from http://en.wikipedia.org/wiki/Constituent_assembly
5. Unknown Author., (n.d). In Constitution. Retrieved June 23, 2012 from http://en.wikipedia.org/wiki/Constitution
6. Unknown Author., (n.d). In Democratic government. Retrieved June 23, 2012 from http://www.enotes.com/history/discuss/what-democratic-government-14753
7. Unknown Author., (n.d). In Dictatorship. Retrieved June 23, 2012 from http://en.wikipedia.org/wiki/Dictatorship
8. Unknown Author., (n.d). In Floor Crossing Law under Bangladesh Constitution. Retrieved June18, 2012 from http://www.lawyersnjurists.com/resource/articles-and-assignment/floor-crossing-lawunder-bangladesh-constitution/
9. Unknown Author., (n.d). In Jatya Sangsad. Retrieved June 23, 2012 from http://en.wikipedia.org/wiki/Jatiyo_Sangshad
10. Zafar Sobhan., (24 June, 2012). In Article 70, Guts Parliament. Retrieved June 19, 2012 fromhttp://www.sunday-guardian.com/analysis/article-70-guts-parliament
[1] See http://en.wikipedia.org/wiki/Constitution
[2] See http://www.scribd.com/doc/2599618/12-Amendment-in-Bangladesh-Constitution