“Anti Floor crossing law is a bad restriction which simply impedes the true spirit of a democracy”. Discuss.
Introduction & Background:
Bangladesh, officially the Peoples Republic of Bangladesh is a sovereign state located in South Asia. The country is a unitary state and parliamentary democracy, with an elected parliament called the Jatiyo Sangshad (Wikipedia). Direct elections in which all citizens, aged 18 or over, can vote are held every five years for a legislative body. The Prime Minister, as the head of government, forms the cabinet and runs the day-to-day affairs of the country’s wellbeing. While the Prime Minister is formally appointed by the President, he or she must be an MP who commands the confidence of the majority of parliament. The President is the head of state but mainly a ceremonial post elected by the parliament. It is the eighth-most populous country and among the vividly developing nations in the world
The Constitution of Bangladesh was first drafted in 1972 and had undergone 15 amendments since; it is the supreme law of Bangladesh. It declares Bangladesh as a secular democratic republic where sovereignty belongs to the people; and lays down the framework defining fundamental political principles of the state and spells out the fundamental rights of citizens. The constitution proclaims nationalism, democracy, socialism and secularity as the fundamental principles of the Bangladeshi republic
A person who may be watching proceedings of the Bangladesh Jatiya Sangsad with the hope of witnessing a fiery debate over a controversial bill or a tense vote might not find the time to be well-spent. The very idea of a parliament being a place where members come together and discuss an issue, try to convince fellow members to support their cause and then call for voting, is a concept alien to Bangladesh’s parliamentary democracy. Bangladeshis have never even heard of a close vote in Parliament, let alone the government losing on a bill, no matter how unpopular a particular bill has been. No government has had to rally for public support on issues it has tried to push through the legislature. Then a question arise as why would the parliament have to, when it possesses the luxury of Article 70?
Constitution of Bangladesh more or less is good constitution in the world no doubt. But some articles are very controversial, in the sense that they do not coincide in the basics of democracy. The constitution itself proclaim that in article 11, “The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured.” -Islam (2011)
“On the other hand, if an issue comes to a vote in Parliament, Article 70 of the constitution mandates that all party members must vote with their party’s majority. In other words, crossing party lines when a member of parliament might, for reasons of conscience or judgment, vote against his or her own party is forbidden” John (2008). Given the power of the top leadership, this means that MPs essentially vote by following directives rather than weighing the merits of issues to decide their own position. “It was adopted in order to ensure that party members were less likely to respond to illegitimate incentives to vote against their party” John (2008). Yet, the result has been to undervalue membership in Parliament, as most members are not able to execute independent judgment.
Floor Crossing Law or Anti Defection Law is the name used for Article 70 of the constitution. 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. It is important to mention about the reason why this political defection law was first made. As written in an article on their website of The Lawyers & Jurists (2011)
“Before the liberation war when Bangladesh was used to be a state of the then Pakistan, members were used to cross the floor for their own interest. The lack of wisdom, illiteracy and politically unconscious people has actually crossed the floor. They were selfish in nature and never thought of the good of the parliament, instead they took the advantage of floor crossing and made such a situation which stopped the actual flow of parliament. Whenever something happened in the party which has hurt someone’s own interest he was used to cross the floor. It was a regular practice in the then Pakistan.”
Effect of Article 70 in Bangladesh:
· Lack of responsibility and scope of dictatorship:- There is lack of responsibility and immense opportunity of dictatorship of the government in the parliament of Bangladesh since its formation. “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.” The Lawyers & Jurists (2011). 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. So, as a result no matter how unrealistic or undemocratic the bill is it is approved and passed very easily.
What does it mean? In the parliamentary democracy, Parliament is the key place where debate takes place that means different opinions come from the Member of Parliament. It has the right to oppose anything which may not serve the countries people interest. The right to abstain from voting when the members want .If the parliament do not maintain the 70(1) provision, shall vacant seat? If this so, it is not democracy. However all theses fundamental of democracy is being violated.
“Indeed a bad restriction which simply impedes the true spirit of a democracy. There won’t be a functional parliament if such a provision in effect. Some may argue that there is a need of such a provision in order to prevent MPs from switching sides too frequently and effectively causing the government to fall.”[1] Shovon (2007) However for a country to prosper flourish and most importantly to claim that it is a sovereign country, first and foremost the authoritative party members must come to consensus to any decision that is being made for the betterment of the country. Freedom of speech, freedom of values and rights should begin from the parliament where the country’s future is set. This article can cause severe instability in a country.
Casting vote against own party means losing membership. By incorporating this explanation, the MPs’ freedom was cut absolutely giving them no alternative, but to follow the party decision- A very concrete method to ensure whatever the governments wishes to do.
As published in the daily news paper, The Daily Star, “the article, unfortunately, “domesticates” every MP to always clap for the party leader in our obliterated democratic practice where the problem is not refusal or protest but sycophancy and unquestioning bowing down to the wishes of either this or that leader.” (April 24, 2011)
In another article of The Daily Star, “Nowhere in the democratic world membership of Parliament ceases on the ground of one’s expulsion from a political party. Such termination of Parliamentary membership may be found only in a dictatorship where system of one party prevails”. “A Member of Parliament is elected by the voters and not by party members. Once he is elected, he becomes a member of National Assembly and he no longer remains simply a member of his political party,” (March 17, 2011) says Habibur Rahman in his note of dissent.
“…If such a system is retained, the members would not have courage to raise their voice against the misdeeds of his party-Minister and Prime Minister even in the parliamentary party meeting for fear of being victimized by the party,” (March 17, 2011) asserted Habibur Rahman.
Abdul Muntaquim Chowdhury, another member of the constitution drafting committee, argued that countries in which parliamentary democracy has been firmly established were pulling on very well without a provision like this. He was against inclusion of the provision in the constitution. He mentioned, “as an alternative, it may be suggested that if a member casts his vote against the decision of the political party, on the ticket of which he was elected to the parliament his membership of the parliament shall cease,”[2] Muntaquim Chowdhury recommended in his written, not of ‘dissent.’
“Article 70 puts a reasonable restriction on the function of a member of parliament but the amended article 70 makes him a prisoner of his party. The party may still voluntarily allow him such freedom,” the Supreme Court said in a verdict on April 27, 2006.
Demands for abolishing the provisions have never got momentum, which has allowed AL and BNP–the parties that have ruled the country since 1991–to successfully rein in their MPs. The lawmakers have also always remained silent about it, failing to give any independent view for fear of losing their memberships in parliament. Sources, The Daily Star, (2011)
Need for Article 70:
For the sake of a fair report the necessity of Article 70, if any, should be mentioned- One reason can be the past experience or the history of the then East Pakistan, as mentioned before. 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 the 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.
Recommendation:
“Whatever the reason is behind not changing or removing the anti floor crossing law, stable and effective government system is always more important than the system.” The Lawyers & Jurists (2010). Bangladesh, in the past and still continues to witness that politicians becomes corrupted and self interest, greed and power expectations among the political people are common phenomena. So, it will be unrealistic in terms of Bangladesh just to remove the law. “Removing the law might create another unworkable situation and the government may fall.” The Lawyers & Jurists (2010)
However, judging the various articles and journals, the article should not be abolished. There is a need of a slight change in Article 70. The Article 70 should allow voting on motion of confidence and money bill or passing the budget. A budget or money bill is not necessarily connected to the stability of the government.
“Changing this law will make the parliament lively and meaningful, but still 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.” As mentioned an article of The Lawyers & Jurists (2010)
Conclusion:
From the overall assignment, it could be mentioned that article 70 of constitution should be amended but not totally abolished. If article 70 is totally abolished, then we don’t find any stable government. Because then the Member of Parliament will exercise their right when they desire. But also, in the case of Ordinary Bill, Article 70 should not be applicable. Clearly the people present at that meeting don’t want their MPs just to be backbenchers with no voice. They want real representation. As much as citizens need to be educated about the constraints MPs face, the current majority government – and all political parties – should learn that they need to listen to their own backbenchers and other MPs to be considered as true representatives of Bangladesh. The foregoing provides needed background for assessing the proper role for outside actors in helping Bangladesh to strengthen democracy.
“Certainly, the most important force for democratization is the people of Bangladesh, and the long history of striving for democracy shows that the country will continue along the democratic path regardless of setbacks. Nonetheless, Bangladesh has experienced removal of democratic institutions before, and problems do attend its efforts to consolidate representative government. Bangladesh is still in the process of consolidating democracy, and the outcome of that process is by no means guaranteed.” John (2008)
References:
1. B. John, 2008, Democracy promotion In Bangladesh: Role of Outside Actors, Retrieved from:http://www.asiaticsociety.org.bd/journals/Golden_jubilee_vol/articles/H_479%20(Burkdull).htm: Accessed date- June 19, 2012
2. I. Ariful Rony, Sunday 22 May 2011, Article 70 (1) Constitution of Bangladesh: Some Observation, My Earth. Retrieved from: http://ronyasia.blogspot.com/2011/05/article-70-1-constitution-of-bangladesh.html: Accessed date- June 18, 2012
3. M. Saqeb, April 2012, Can Parliament be more than a Rubber Stamp? Forum, The Daily Star. Retrieved from: http://www.thedailystar.net/forum/2012/April/price.htm: Accessed date- June 18, 2012
4. S. Moshiul, February 2, 2007; A Better Bangladesh Constructive thoughts about Bangladesh. Retrieved from: http://betterbd.blogspot.com/2007/02/article-70-of-constitution-of.html: Accessed date- June 19, 2012
5. The Lawyers & Jurists, November 10 2010, Floor Crossing Law under Bangladesh Constitution, Bangladesh: Author. Retrieved from: https://www.lawyersnjurists.com/resource/articles-and-assignment/floor-crossing-law-under-bangladesh-constitution/: Accessed date- June 19, 2012
6. The Lawers & Jurists, November 25 2010, Ammendment of Bangladesh Constitution and Basic Structure Doctrine, Bangladesh: Author. : Accessed date- June 17, 2012
7. M.A.S. Molla, April 24, 2011; Amending Article 70, The Daily Star, Bangladesh, Dhaka. Retrieved from: http://www.thedailystar.net/newDesign/news-details.php?nid=182840: Accessed date- June 17, 2012
8. M. Rayhann Uddin, November 26, 2011; Writing on Miscelleneous Issues: Article 70 of our Constitution should be Ammended. Retrieved from: http://mohammadrayhanuddin.blogspot.com/2011/11/article-70-of-our-constitution-should.html: Accessed date- June 19, 2012
9. L. Shakhawat, March 17, 2011; Article 70: A tight reign on MPs, The Daily Star, Bangladesh. Retrieved from: http://www.thedailystar.net/suppliments/2011/anniversary/section2/pg9.htm: Accessed date- June 17, 2012
10. R. Habibur, March 17, 2011; Article 70: A tight reign on MPs, The Daily Star, Bangladesh. Retrieved from: http://www.thedailystar.net/suppliments/2011/anniversary/section2/pg9.htm: Accessed date- June 17, 2012
11. C. Muntakim, March 17, 2011; Article 70: A tight reign on MPs, The Daily Star, Bangladesh. Retrieved from: http://www.thedailystar.net/suppliments/2011/anniversary/section2/pg9.htm: Accessed date- June 17, 2012
12. Wikipedia contributors, May 14 2010, Politics Of Bangladesh. Revision History Statistics. Retrieved from: <href=”#cite_note-15th-0″>http://en.wikipedia.org/wiki/Politics_of_Bangladesh#cite_note-15th-0: Accessed date- June 17, 2012
13. “Nasim swipes at Khaleda”. bdnews24.com. July 18, 2011. Retrieved 4 August 2011: Accessed date- June 17, 2012
14. The Lawyers & Jurists, December 5 2011, Ministerial Responsibility under Bangladesh Constitution. Retrieved from: https://www.lawyersnjurists.com/resource/articles-and-assignment/ministerial-responsibility-under-bangladesh-constitution-2/ : Accessed date- June 19, 2012
15. Wikipedia contributors, June 19 2012, Bangladesh, Revision History Statistics. Retrieved from: http://en.wikipedia.org/w/index.php?title=Special:Cite&page=Bangladesh&id=498317486: Accessed date- June 18, 2012
16. Wikipedia contributors, May 28 2012, Constitution of Bangladesh, History Statistics. Retrieved from: http://en.wikipedia.org/w/index.php?title=Special:Cite&page=Constitution_of_Bangladesh&id=494755106: Accessed date- June 17, 2012
[1] S. Moshiul, February 2, 2007; A Better Bangladesh Constructive thoughts about Bangladesh. Retrieved from: http://betterbd.blogspot.com/2007/02/article-70-of-constitution-of.html
[2] C. Muntakim, March 17, 2011; Article 70: A tight reign on MPs, The Daily Star, Bangladesh.