The Secretary, Parliament Secre­tariat, Dhaka   (Appellant)

Vs.

Mr. Khandker Delwar Hossain and others (Respondents)

Supreme Court

Appellate Division

(Civil)

JUSTICE

Mustafa Kamal CJ

Latifur Rah­man J

Bimalendu Bikash Roy Choudhury J

AM Mahmudur Rahman J

Mahmudul Amin Choudhury J

Judgment dated : July 29, 1999.

Cases Referred to-

Ghulam Muhammad Mustafa Khar Vs. Chief Election Commissioner of Pakistan, PLD 1969 Lahore 602; Fazlul Chowdhury Vs. Muhammad Abdul Haque, PLD 1963 SC 486.

Lawyers Involved:

Mahmudul Islam, Attorney General, instructed by B. Hossain, Advocate-on-Record-For the Appellant.

Moudud Ahmed, Senior Advocate (M.A. Aziz, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record-For the Respondent Nos. 1 and 2.

Not represented-Respondent No. 3.

Civil Appeal No. 22 of 1999.

(From the judgment and order dated 27.8.98 passed by a Division Bench of the High Court Division in Writ Petition No. 1163 of 1998)

JUDGEMENT

Mustafa Kamal CJ.- This appeal by leave by the Secretary, Parliament Secretariat, Sangshad Bhaban, Dhaka, respondent No. 2 in Writ Petition No. 1163 of 1998, is from the judgment and order dated 27.8.98 passed by a Division Bench of the High Court Division in the said writ petition Making the Rule Nisi absolute and directing respondent No.1, Speaker, Bangladesh Jatiyo Sangshad (respondent No. 3 herein) to forward the dispute as raised by the writ-petitioners, the Chief Whip and the Deputy Leader of the opposition in their letters to the Speaker (Annexure-A and Al) regarding two BNP members  of Parliament to the Election Commission within 30 days of receipt of the order.

2. The events that led to the filing of the writ petition as described by respondent Nos. 1 and 2, the writ petitioners, are that Mr. Hasibur Rahman Shawpon and Dr. Md. Alauddin were elected as members of Parliament in the general election held on 12 June, 1996 from national constituency No. 67, Sirajganj-7 and national constituency No. 56, Rajshahi-5 respectively as candidates of Bangladesh National Party (BNP) and both of them were members of the parliamentary party of BNP. On being allured and induced by the ruling party the said members of Parliament changed their allegiance and joined the Treasury Bench. Ignoring parliamentary rules and practices and knowing very well that BNP is the principal opposition party in the Parliament and is opposed to the Government, the aforesaid members of Parliament took oath of office as Ministers of the present Government of Awami League on 9.2.98 and 17.2.98 in violation of the discipline of the party. In pursuance of a deci­sion taken by the Standing Commit­tee of BNP presided over by the Chairperson of BNP and Leader of the Opposition, Begum Khaleda Zia, Writ-Petitioner No. 1 (respondent No. 1 herein), Chief Whip of the Oppo­sition in Parliament, addressed a let­ter to the Speaker on 11.2.98 (Annexure-A) with regard to the seat of Md. Hasibur Rahman Shawpon, now a Deputy Minster and writ-petitioner No. 2 (respondent No. 2 herein), Dep­uty leader of the Opposition in Par­liament, addressed another letter to the Speaker on 18.2.98 (Annexure-Al) with regard to the seat of Dr. Md. Alauddin, now a State Minister, the contents of which are more or less the same. In these letters it has been alleged that the said members of Par­liament being the members of BNP and knowing full well that their own political party BNP is not a part­ner/supporter of the Hon’ble Prime Minister’s so-called “consensus Gov­ernment” have taken oath as Deputy Minister/State Minister of the Government ignoring parliamentary rules and practices and violating party dis­cipline. These Acts of theirs shall be deemed to be resignation from their own political parties under Article 70(1) of the Constitution and there­fore their seats have fallen vacant under Article 67(1)(e) of the Constitution. They requested the Speaker to publish notifications in the Bangla­desh Gazette to the above effect. Be­sides writing the aforesaid letters, the writ-petitioners and BNP took a pub­lic stand both in and out of Parlia­ment that the said Ministers could not longer continue as members of Parliament. The concerned members tried to defend their position by claiming that Article 70 of the Con­stitution was not violated by them nor their seats have fallen vacant. None of them has resigned from the BNP. Besides, the leaders of the rul­ing party claim that the concerned members had joined the so-called “consensus Government” by way of representing the BNP. All the major newspapers of the country covered these issues extensively for several weeks.

3. The Speaker, respondent No.  1 in the writ-petition, told the members of the press that it will take time for him to give a decision on the issue. A national debate started in the media over the dispute. There were continuous hartals and incidence of violence in the constituencies of the concerned members in protest of their joining the Government.

4. In the meantime, the Speaker reallocated the seats of the aforesaid members. Mr. Hasibur Rahman Shawpon whose seat No. was 299 in the Opposition bench was allotted seat No. 264 in the Treasury Bench. Mr. Md. Alauddin whose seat No. was 186 in the Opposition Bench was allotted seat No. 262 in the Treasury Bench. This was a confirmation that the said members had left the Opposition (BNP) and joined the Government (Awami League) byway of crossing the floor which could not have been done unless they had resigned from BNP and ceased to be members of that party. The Speaker reallocated the seats without Consultation with the respective Chief Whips of the ruling party and the opposition. Writ-petitioner No. 1 (Respondent No. 1 herein) addressed a further letter to the Speaker on 22.3.98 requesting him to inform whether the seats allocated earlier to the aforesaid members will be considered to have been vacated or not. The Spesker did not reply. A delegation comprising the writ-petitioners and some other members of Parliament belonging to the BNP called on the Speaker on 19.3.98 and 4.4.98 and emphasised on the dispute raised by them in there aforesaid letters dated 11.2.98 and 18.2.98 and urged upon the Speaker to refer this dispute to the Election Commission. They were assured that the Speaker would soon resolve this matter. At last after more than two months the Speaker stated in the Parliament on 21.4.98 that the seats of the aforesaid members had not fallen vacant since they had neither resigned nor voted in the Parliament against their party (BNP). Each of the writ-petitioner than sent a demand justice notice upon on the speaker and thereafter field the writ petition raising various issues of law.

5. The Speaker, who was respondent No. 1 in the writ petition, did not appear and file any affidavit-in-opposition Respondent No. 2, the present appellant, filed an affidavit-in-opposition and the main thrust of his defence was that unless any member of Parliament either resigns from the party on whose nomination he was elected or votes in Parliament against that party Article 70 of the Constitution is no attracted. The concerned members neither resigned from the BNP nor voted in Parliament against BNP. Therefore, there cannot be any reason to consider the point raised by the writ petitioners as a dispute within the meaning of Article 66(4) of the Constitution. It was the additional defence of the present appellant that two members of Parliament raised two substantive points of order in the Parliament as regards the membership of the concerned members. After considering the facts and circumstances of the said points of order, the provisions of the Constitution and the Rules of Procedure of Parliament the Speaker disposed of the points of order by giving his ruling in Parliament on 21.4.98. The Speaker thus acted within his jurisdiction and the ruling delivered by him is very much a part of the proceeding of Parliament which cannot be questioned in any Court of law as per Article 78 of the Constitution. It was also contended that Article 70 of the Constitution is a restriction on freedom of conscience and on the rights of the members of Parliament and its reach cannot be extended be­yond the literal meaning of the lan­guage used and therefore Article 70 is to be strictly construed.

6. The writ-petitioners filed an af­fidavit-in-reply.

7. What the High Court Division basically held is that there is a dispute within the meaning of Article 70 of the Constitution as to whether the concerned members should vacate their seats in terms of Article 70 and that it is not for the Speaker to come to the conclusion that a dispute has not arisen. It is the Election Commission which will proceed to investigate the dispute before giving its opinion. The Constitution does not require the Speaker to give a strict interpretation to the word “resign”. He is only to see whether there is a prima facie dispute that a seat should be vacated by a member of Parliament within the meaning of Article 66(4) of the Constitution and then refer it to the Election Commission.

8. The High Court Division found that the Speaker’s ruling on two points of order raised by two BNP leaders was not placed before it. The writ-petitioners, it held, were not challenging the ruling of the Speaker but were 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 the contention of the present appellant, the High Court Division held, that a rul­ing has been given by the Speaker on the two letters written to the speaker by the two writ-petitioners but it was the appellant’s submission that a ruling was given on the points of or­der raised by two other BMP mem­bers. The dispute raised by the writ-petitioners could not have been set­tled through a Parliamentary pro­ceeding simply because Parliament is not the forum envisaged by the Con­stitution to address such a dispute, the High Court Division held.

9. Leave was granted to consider the submission of the appellant that no allegations having been made in the two letters addressed to the Speaker that the concerned members of Parliament have resigned from the membership of BNP, there was no prima facie dispute regarding appli­cation of the provisions of Article 70 of the Constitution and hence the Speaker was not required to refer the matter to the Election Commission in terms of Article 66(4) and that the High Court Division was wrong in holding otherwise upon an erroneous construction of the expression ‘re­sign” appearing in Article 70 of the Constitution. Leave was also granted to consider the further submission that a certain act or conduct does not qualify as “resignation” unless it is a formal renouncement of an office ac­companied by an act of relinquishment, that an act or conduct which cannot even be said to be a voluntary giving up or abandonment of an office does not amount to resignation and that in the facts and circumstances of the case there having been no allegation of resignation made in the letters, the Speaker was not required to act in terms of Article 66(4) of the Constitution and that the High Court Division was wrong in holding otherwise.

10. Leave was also sought for on the ground that the question of resignation from membership of BNP by the concerned members of Parliament having been raised in the floor of Parliament by way of points of order and the Speaker having given his ruling on the question, it became a part of the proceedings of Parliament which is immune from challenge in Court under Article 78 of the Constitution and the High Court Division was wrong in rejecting the said contention.

11. At the time of granting leave we held in the leave granting order that the learned Attorney General failed to point out from the records of the case as to what were actually the points of order raised in the Parliament and what was the precise ruling given by the Speaker so as to claim protection under Article 78 of the Constitution. We held that there have been vague assertions both in the writ petition and in the affidavit-in-opposition as to the points of order and the ruling but in the absence of any authentic materials we did not think that a plea of bar under Article 78 could be raised successfully. We therefore did not grant leave on this last point.

12. Before we advert to the respective submissions of the two parties it will be necessary to quote certain provisions of the Constitution and some statutory provisions to understand the questions at issue.

13. We will quote Article 70 of the Constitution in full as follows:

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) If, at any time, any question as to the leadership of the Parliament party of a political party arises, the Speaker shall, within seven days of being informed of its in writing by a person claiming the leadership of the majority of the members of the 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.

(3) If a person, after being elected a member of Parliament as an independent candidate, joins any political party, he shall, for the purpose of this article, be deemed to have been elected as a nominee of that Party.

We will next quote Article 66(4) and (5) which are as follows:

66. (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).

14. It will be noticed that in Article 70 a member of Parliament vacates his seat in the eventuality of two occasions happening, namely, (1) if he resigns from the party which nominated him as a candidate at the election, or (2) if he votes in Parlia­ment against that party. In the origi­nal Constitution, dating back from 1972, there were the following words, “but shall not thereby be disqualified for subsequent election as a member of Parliament”. Article 70 was sub­stituted by the 4th Amendment of the Constitution. By the Constitution (Twelfth Amendment) Act, 1991 (Act XXVII of 1991) the said Article stands further substituted as quoted above with effect from 18.9.91. The Expla­nation gives a wider application to the act of voting in Parliament against the party, but does not extend or curtail the width and breadth of the word “resign”. This latest amendment prompts the learned Attorney Gen­eral, appearing on behalf of the ap­pellant, to argue that while voting in Parliament against the party has been given an extended and fictional meaning by using the words “deemed to have voted”, the word “resign” has not been given any wider meaning so as to include any fiction of law by which a member is “deemed to have resigned”. It is not the case of the re­spondents, he submits, that the two members concerned had resigned from their party but it is their con­tention that they will be “deemed to have resigned” according the their party constitution. The relevant pro­visions of the Constitution of BNP provide as follows:

?? ????? ??

(?)…………………………

(?)…………………………

(?)…………………………

(?) ????? ?? ???? ?????????:

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

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

15. The learned Attorney General submits, as he submitted before the High Court Division, that in the absence of a wider or a fictional meaning assigned to the word “resign”, the word “resign” used in Article 70 must be given an ordinary or strict meaning. He refers to Black’s Law dictionary at page 1310 where “resignation” has been defined as “formal renouncement or relinquishment of an office” i.e., a written resignation and submits that is what Article 70 meant by resignation.

16. On the other hand, Mr. Moudud Ahmed, learned Counsel for the respondents, submits that the words “political party” used in Article 70 has been given an inclusive definition in Article 152 of the Constitution as follows:

“political party” includes a group or combination of persons who operate within or Parliament under a distinctive name and who hold themselves out for the purpose of propagating a political opinion or engaging in any other political activity.

17. He submits that by recognizing political party as a constitutional entity the Constitution   also recognized that a political party may have a constitution of its own to which all its members must subscribe and to which all its members must owe allegiance. A member, if he has to belong to BNP, a political party, is not only bound by the provisions in the constitution of BNP providing for a formal written resignation but is also bound by the other situations mentioned in the party constitution which bring his membership in the party to close. Article 70 provides that a member shall vacate his seat if he “resigns from the party” which nominated him as a candidate in an election. He resigns from the party and therefore his resignation must be addressed to the person who is competent to receive his resignation under the party’s constitution. He argues that Article 70 recognises the existence of a constitution of a political party and also recognises that a political party may prescribe methods other than formal resignation which will be equally a resignation from that political party. It is not a question of strict or liberal Constitution of Article 70, he submits. It is a question of the constitution accepting and recognizing the existence of a political party, its constitution and consequently its various methods and manners by which a resignation is effected. Re­plying to the learned Attorney Gen­eral he submits that in Black’s Law Dictionary “resignation” has been de­fined as “formal renouncement or relinquishment of an office”. Member­ship of a political party is not an of­fice and therefore the definition given by Black is inapplicable in the case of a mere member resigning from his political party. Mr. Moudud Ahmed submits that Article 70 need not give afresh a fictional meaning to the word “resign” as has been done in the case of voting in Parliament against the political party of a member by adding the explanation. It is the scheme of the Constitution which will determine whether the word “resignation” should cover the constitution of a po­litical party or not. He submits that there is a historical background be­hind the introduction of Article 70 in the original Constitution of 1972 and the amendments thereof upto the Twelfth Amendment, 1991. The peo­ple had bitter experience during the Pakistan period when the country enjoyed a parliamentary politics for a short period in fits and starts. Crossing of floor and horse-trading to make and break Government became a matter of concern for all. When the makers of the Constitution were drafting the 1972 Constitution they wanted to ensure stability and conti­nuity of Government and also to en­sure discipline among the members of the political parties so that corrup­tion and instability can be removed from national politics. Article 70 was introduced to achieve this objective. The spirit was that members elected to the Parliament should continue to maintain their allegiance to the party by which they have been nominated and to uphold the manifesto and pro­gramme of that party in national politics. It was designed to ensure that the party which forms the Gov­ernment can continue to govern the country and not be distabilised and dethroned by floor crossing and horse trading being allured by the other side and vice versa. This provision was deliberately inserted in view of the prevailing political culture of the country. Political party has been recognised as a constitutional entity for the first time in the Constitution of Bangladesh and indirectly in Article 70 the constitution of a political party is also recognised by use of the words “resigns from the party”.

18. The learned Attorney General draws our attention to Article 50(3) (the President may resign his office by writing under his hand addressed to the Speaker), Article 57(1) (a) (the resignation of the Prime Minister “by placing his resignation in the hands of the President”), Article 58(1)(a) (resignation of a Minister “by placing his resignation in the hands of the Prime Minister for submission to President”), Article 67(2) (resignation of a member of Parliament “by writing under his hand addressed to the Speaker”), Article 74(2)(d) (resignation of the Speaker or Deputy Speaker “by writing under his hand the delivered to the President), Article 96(8) (resignation of a Judge “by writing under his hand addressed to the President”), Article 129(3) (resignation of the Auditor-General “by writing under his hand addressed to the President”) and  Article 139(3) (resignation of a Chairman or other Member of a Public Service Commission “by writing under his hand addressed to the President”).

19. From all those provisions of the Constitution the learned Attorney General submits that resignation from a party will mean the same thing and will be attended with the same formality as resignation of different kinds of Constitutional offices mentioned in other parts of the Constitution. Resignation has a different meaning from voluntary abandonment of an office. By resigning from the party a member loses his membership of Parliament, a Constitutional office. Therefor, a resignation from the party is akin to resignation of other holders of constitutional offices and must be formal in nature.

20. Mr. Moudud Ahmed on the other hand contends that by not prescribing in what manner or method a member of Parliament shall resign from his political party, the Constitution intended that this resignation will not be as formal as the holder of a constitutional post is required to observe when he submits his resignation. He argues that the absence of any specification of the manner of resignation in Article 70 as distinguished from the resignation of the holders of constitutional offices in other provisions of the Constitution clearly emphasises the informal nature of resignation of a member Parliament from his political party. It is only when he resigns from the membership of the Parliament that he has to observe a certain formality under Article 67(2) of the Constitution.

21. After we have summarised the relative contentions of both the parties we are left with no doubt whatsoever that there is not only a dispute but also a highly contentious dispute between the leaders of BNP and the concerned members as to whether the latter should vacate their seats pursuant to Article 70. The matter cannot be brushed aside by taking a position that no dispute exists.

22. We have earlier quoted Article 66(4) of the Constitution. Clause (4) merely provides that the dispute shall be referred to the Election Commission, but does not say who will refer the dispute. Clause (5) of Article 66 provides that 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).

23. Parliament has in fact acted by enacting members of Parliament (Determination of Dispute) Act, 1980 (Act No. 1 of 1991). The preamble of the said Act provides that it is “an act to make provision for empowering the Election Commission to give full effect to the provision of clause (4) of Article 66 of the Constitution”. Section 3 of Act 1 of 1981 provides as follows:

3. Reference of dispute under article 66(4)—The Speaker shall within thirty days after 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.

24. The point to note here which has been missed by the learned Counsels of both parties as well as the High Court Division is that the Speaker in section 3 of Act No. 1 of 1981 is not a constitutional function­ary when he refers the dispute to the Election Commission. He is a statu­tory functionary discharging a con­stitutional obligation. Being creature of a statute, i.e., a subordinate legis­lation, he is very much amenable to the writ jurisdiction of the High Court Division. The function which the Speaker discharges under section 3 of Act No. 1 of 1981 is not a function assigned to him by or under the Con­stitution but by or under a statute. His act of referring the dispute or not referring the dispute is a statutory Act or omission. His authority as a spokesman of the Parliament under the Constitution is not involved. The Speaker discharging a constitutional obligation in exercise of a constitu­tional power wears the hat of a con­stitutional authority. The Speaker ex­ercising or refusing to exercise his function under section 3 of Act No. 1 of 1981 wears the hat of a statutory authority.

25. The subject matter of Article 70 is within the exclusive domain of the Election Commission and the Speaker has neither any constitu­tional authority nor any statutory authority to thwart a decision by the Election Commission by including the subject matter in a parliamentary proceeding and by pre-empting any decision under the cover of a ruling which will be a usurpation of the constitutional power of the Election Commission. We therefore do not at­tach any importance to an unedited copy of the proceedings of the Jatiya Sangshad held on 21.4.98 produced for our perusal by the learned Attor­ney General.

26. Defending the Speaker’s exer­cise the learned Attorney General takes exception to the observation of the High Court Division that the Speaker is merely a post office in this regard. In assailing this observation he places his reliance on the case of Ghulam Muhammad Mustafa Khar Vs. Chief Election Commissioner of Pakistan, PLD 1969 Lahore 602, wherein it has been held with regard to Article 104(2) of the Constitution of Pakistan, 1962 that when a matter is brought to the notice of the Speaker with reference to the disqualification of a member he would have to apply his mind to the question contemplated in Article 104(2). Article 104(2) was as follows:

104. (2)—If any question arises whether a member of an Assembly has, after his election, become disqualified from being a member of the Assembly, the Speaker of the Assembly shall refer the question 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.

27. In the same decision it has been held, however, with which we agree, that the Speaker’s function under Article 104(2) “is clearly of a very limited character. That had to be so, because in so far as the decision with regard to the disqualification lay with the Chief Election commissioner, he (Speaker) might be accused of bad faith if he refused to make a reference and thus stifle an inquiry by the Chief Election Commissioner, which is a matter which lies within his jurisdiction and not that of the Speaker.”

28. In the present case, the Speaker has taken the position that no resignation has taken place within the meaning of Article 70 of the Constitution and that is a decision which the Constitution does not require the S to give. It is the Election Commission which will decide the meaning of resignation in its totality raking account of the various languages concerning resignation employed in the Constitution, reallocation of seats made by the Speaker and other attendant facts and circumstances including the arguments advanced before the Commission. It must be said, flowing the decision cited and relied uopn by the learned Attorney General, that the Speaker is merely performing an administrative function in referring the dispute to the Election Commission. It has been clearly held in the case of Fazlul Chowdhury Vs. Muhammad Abdul Haque, PLD 1963 SC 486, that in a proper case the Speaker might be Directed by the higher Court to make a reference where he has refused to do so if a petition for that relief was brought.

29. We are aware that since our Constitution was framed in 1972 and Article 70 was substituted by the Twelfth amendment a lot of changes has taken place in the concept regarding independence of parliamentarians. A Joint Colloquium on “Parliamentary Supremacy and Judicial Independence……….Towards a Commonwealth Model” was held at Latimer House in the United Kingdom, from 15-19 June, 1998. Over 60 participants attended representing 20 Commonwealth countries and 3 overseas territories. The Colloquium was sponsored by the Commonwealth Lawyers’ Association, the Commonwealth Legal Education Association, the Commonwealth Magistrates’ and Judges’ Association and the Com­monwealth Parliamentary Associa­tion. On 19 June, 1998 Latimer House Guidelines for the Commonwealth was proclaimed by the Collo­quium. Item III contains the Guide­lines on preserving the independence of Parliamentarians and it provides as follows:

III. Preserving the Independence of Parliamentarians

1. Article 9 of the Bill of Rights 1688 is re-affirmed. This article provides:

“That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament.

2. Security of members during their parliamentary term is fundamental to parliamentary independence and therefore:

(a) the expulsion of members from parliament as a penalty for leaving their parties (floor-crossing) should be viewed as a possible infringement of members independence; anti-defection measures may be necessary in some jurisdic­tions to deal with corrupted practices;

(b) laws allowing for the recall of members during their elected term should be viewed with caution, as a potential threat to the independence of mem­bers;

(c) the cessation of membership of a member’s seat.

30. However, the above-quoted provisions are merely guidelines and are intended not to be binding on the interpretation of a particular Com­monwealth Constitution. These are goals to be achieved by stages. If at any time our country, because of maturity in Parliamentary practices, achieves a position which penders the application of Article 70 unnecessary or rare, than perhaps the guidelines given above can even be applied to the interpretation of our Constitution. But as our democracy is a nascent one we cannot afford to ignore the mandate of the Constitution provided in Article 70 read with Article 66(4) of the Constitution.

31. As the Constitution is very emphatic that any dispute as to whether a member of Parliament should vacate his seat pursuant to 70 shall be decided by the Election Commission it was neither appropriate for the Speaker to pre­empt the decision by putting his own interpretation on the word “resigna­tion” nor will it be appropriate for us to give our mind away as to what we think about the language of Article 70. We shall serve the Constitution better by refraining from expressing our opinion in the matter and if the High Court Division or this Division in our respective judgments have passed any opinion on any of the matters dispute exists the Election Commission shall ignore the same and come to its decision independently.

32. For the purpose of this appeal, we have only decided that a dispute exists and that the Speaker ought to have referred the dispute to the Election Commission in exercise of his statutory authority.

33. In the result, the appeal is dismissed without any order as to costs. Respondent No. 3, Speaker, House of the Nation, is directed to refer the dispute as to whether Md. Hashibur Rahman Swapan and Dr. Md. Alauddin, members of Parliament, should vacate their seats pursuant to Article 70 of the Constitution to the Election Commission within 7 (seven) days from receipt of this order.

Ed.

Source : 19 BLD (AD)(1999) 276