Universal Declaration of Human Rights 1948 depicts that everyone has the right to freedom of opinion and expression: Does Art 70 of the Bangladesh Constitution contradict the above statement? Justify.
Constitution is a set of well established and fundamental rules and regulations which are followed to govern a sovereign state or government. These rules are followed to make up or constitute the governing framework of a nation. In a written constitution, these rules are written down into a single collection or set of legal documents. The legal definition of constitution can be given as-
“The fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organization of the government and regulation, distribution, and limitations on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign powers.”
The constitution of Bangladesh is considered to be the highest law of the country. Our constitution declared Bangladesh as a worldly democratic republic, where the power of sovereignty belongs to the general people; and constitutes the structure defining fundamental political principles of the state and implies the basic rights of the people. The Constitution of Bangladesh has shaped the root for the political organization of the nation since its adoption on November, 1972. Many unexpected political changes have caused deferment of the constitution and have resulted in amendments in almost every section in almost every section, including the total review of some major provisions. According to the constitution of Bangladesh, the state has an affirmative role to play in restructuring society with a view to creating a free and equal citizenry and provide for the well-being of all. There are four basic principles of State Policy: Article (8) of the constitution which provides for four major fundamental principles of the state policy. They are-
According to Article 8 of our constitution-
“The principles of nationalism, socialism, democracy and secularism, together with the principles derived from those as set out in this Part, shall constitute the fundamental principles of state policy.”
Fundamental rights of the constitution are grants 18 fundamental rights for the citizens. The enjoyment and implementation of those rights by the citizens have been assured in the constitution. Making any law which is conflicting with the requirements of these fundamental rights is prohibited and if any law made shell be void to the extent of inconsistency.
There are similarities between the British and Bangladeshi parliaments as they accommodate political parties in a similar manner. After elections, a single political party or a coalition of parties must form a government– that is; they must form a block of votes within Parliament that confirms the passage of bills they may introduce. After the formation of the parliamentary majority, the majority leader is chosen as “Prime Minister” by the President of the sovereign. Once a parliamentary majority is formed, the president chooses the majority leader as prime minister and appoints other members of the majority as cabinet ministers. Parliament can function for a full five-year term if a single party or coalition can continue to guarantee a majority. If, however, opposition members attract enough votes to block a bill, the president can dissolve Parliament and call for new elections.
Under the circumstances of the case, we are concerned about the fact that whether a Parliament Member can be permitted to take on legislative activism of his/her own wisdom. To understand the answer a citizen must realize what kind of independence a Member of Parliament in relation to his/her party attachment. General opinion is that a legislator should be able to raise his/her voice or cast vote according to his/her sense of right or wrong even though his choice goes against the party decision. The dispute is that he has been designated by the people of his constituency and he should not take action merely as an ordinary party activist. But the increasing tendency in the progress of the party-system even in the matured democracies in developed countries, the members of parliament are compelled to maintain strict party discipline which obligates them to be loyal to the party monarchy, often forgoing his right to exercise freedom of choice and free thinking.
Notes from Article 70 & 71:
70.Vacation of seat on resignation, etc. (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 the 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.
(c) 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.]
71. Bar against double membership (1) No person shall at the same time be a Member of Parliament in respect of two or more constituencies.
(2)Nothing in clause (1) shall prevent a person from being at the same time a candidate for two or more constituencies, but in the event of his being elected for more than one-
(a) within thirty days after his last election the person elected shall deliver to the Chief Election Commissioner a signed declaration specifying the constituency which he wishes to represent, and the seats of the other constituencies for which he was elected shall thereupon fall vacant;
(b) if the person elected fails to comply with sub-clause (a) all the seats for which he was elected shall fall vacant;
(c) the person elected shall not make or subscribe the oath or affirmation of a member of Parliament until the foregoing provisions of this clause, so far as applicable, have been complied with.
Purpose of Article 70: Preventing “Floor Crossing”
The main purpose of incorporating Article 70 in the Constitution was to put a bar on a Member of Parliament from voting against his/her party in Parliament. The original reason why it was designed to prohibited MP’s from preventing in what is known as ‘Floor Crossing’.
Floor crossing refers to resigning from one party and joining 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”.
Therefore, this law mainly removes the freedom or liberty of the Members of the Parliament chosen by the people. Even if, a member of the Parliament wants to protest in opposition to a decision of his/her own party, there is no option to do such action.
“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 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.”
For Example, There are other countries where laws similar to Article 70 are found. These countries are- India, Pakistan, Nepal, Sri Lanka, Malaysia etc.
- In Macedonia, the parliamentary seat is retained by the party if a person leaves or is expelled from his/her party. The seat is filled by the next person on the original list.
- In Sri Lanka, the party also retains the seat. The MP is replaced by the next person on the original list.
- In Kenya, the MP loses his/her seat, but the seat is not retained by the party. A by-election is held for the seat. The same procedure is present in Pakistan, Malawi, Zambia, Zimbabwe and many other countries.
Article 70; A Barrier to Practice democracy:
· Basic right of the citizens of a democratic country is that the citizens should get the right to express their opinions freely and without any pressure. In the Article 19 of the Universal Declaration of Human Rights 1948, it is stated that-
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The Article 70 in the Constitution clearly violates this right as it prevents the citizens; the Members of Parliament express their opinion if it is against the party he/she is a part of.
· “Democracy is an egalitarian form of government in which all the citizens of a nation together determine public policy, the laws and the actions of their state, requiring that all citizens (meeting certain qualifications) have an equal opportunity to express their opinion. “The main purpose of democracy is to include all the citizens of the country in making public policy by electing their representatives to ensure their sound participation and giving the entire citizen their equal opportunities to express their opinion.
According to Article 11 of the Constitution-
“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.”
The Amendments of the Article 70 were made with the intensions to create a situation in the parliament where the executives can enjoy all the authority powers and can apply dictatorship. So, this will leave no chance for Democracy. Whatever decision is made by the Executive is made, it is the finalized action. No other member can protest against the decision. As the Executive in our country is the Honorable Prime Minister he/she has no accountability to the legislature, so he/she can do almost anything by exercising the power. The whole point of Parliament is to provide as a medium where the decisive national significance can be debated. So, the representatives of the citizens have to have the right to express their opinions freely and without any pressure or interference. But this is the fundamental right that is being violated through Article 70.
· Also according to the Constitution’s Article 39(2)(a) of the People’s Republic of Bangladesh it is stated that-
“39. (1) Freedom of thought and conscience is guaranteed.
(2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence–
(a) the right of every citizen to freedom of speech and expression; and
(b) freedom of the press, are guaranteed.”
Article 70 is also contradictory to Article 39(2)(a) of the constitution as it also violates the freedom of expressing their thoughts and feelings.
· Two types of voting system can be initiated ; i) Confidence vote- only used to form the government, ii) regular votes.
· More than the system of limiting floor crossing, stable and effective government system is more important.
· Removing the floor crossing law may cause malfunction in the system as it would create unworkable situation as the Government may fall on the phenomenon of uncertainty like happened in 1954-58. So, floor crossing is needed for the firmness of the government.
· However, I recommend a slight change in Article 70. The Article should allow voting on motion of confidence and money bill or passing budgets. Budget or money bill is not connected to the stability of the government.
· If we have responsible political parties as well as ministers who are responsible and subjected to the legislation and parliament, then we actually do not need Article 70 in our Constitution.
Democracy declares the freedom of expressing opinions of which choices are right and which are not. We cannot limit the power of democracy to the extent of merely voting power, but it should be extended to the fact of equal opportunity to take part in decision making. This function of decision making is done by electing representatives to act in their favor. But, parliament cannot function and serve its purposes properly if democracy itself cannot flourish. . Political parties cannot play a successful and major role in the parliament unless and until there is intra-party democracy ensuring sovereignty of parliamentarians for lawmaking activism. A mixture of policies or mechanisms should be considered in order to ensure such independence.
 “Abolish the Monarchy, but enjoy the party” by Brendan O’Neill Retrieved from: www.spiked- online.com/site/article/12508/
 “Floor-Crossing” Retrieved from: aceproject.org/ace-en/topics/pc/pcd/pcd03
 “amendments in Bangladesh Constitution” Retrieved from: www.scribd.com/doc/…/12–Amendment-in-Bangladesh–Constitution