Political Hypocrisy and Article 70 of the Constitution of Bangladesh -By Mahmudul Hasan  

Democracy is the most popular government system in the contemporary world. It means that the government is run by the people of the country, it is obvious, and people select representative persons by ballot as parliament member to formulate law for welfare of the country. Representatives stand from individual political party or none but majority representatives affiliated party forms the government. Parliament becomes the sources of all power and government is highly responsible and accountable to the parliament for their activities.

In politics, the term ‘crossing the floor’ can mean either to vote against party lines, especially where this is considered unusual or controversial, or to describe a member who leaves their party entirely and joins the opposite side of the House, such as leaving an opposition party to support the government (or vice versa), or even leaving one opposition party to join another. In Canada, for example, the term ‘crossing the floor’ is used exclusively to refer to switching parties, which occurs occasionally at both the federal and provincial levels.

For many reasons, floor crossing is regarded as being controversial. When Members of Parliament take up membership of a political party other than the party that got them elected, the lines of vertical and horizontal accountability that are the cornerstones of representative democracy are affected.  From the voter’s perspective, the political party is a team of candidates at election time. When voters chose candidates for public office, they delegate decision-making on public policy to political parties and to party-identified representatives. Repeated elections give voters the opportunity to hold parties responsible and accountable for policy decisions and outcomes. So, this law basically takes away the freedom or liberty of the members 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 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. 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.

In Bangladesh in the year 1972 our constitution makers incorporated Article 70 which is designed to prevent floor crossing in the parliament. This was an anti-defection or anti floor crossing law. Though primarily the purpose was to handle the unstable situation of the newly independent country but, later, it has become a law against the fundamental aim of democracy and human rights. Article 70 puts a barrier on the exercise of freedom of vote of the Members of Parliament against his party decision. The provisions of Article 70 of the Constitution of Bangladesh are pushing the democracy in a back seat. This provision does not help the Parliament to uphold the democratic values of the Constitution. By this provision, the freedom of speech as enunciated in Article 39 of the Constitution becomes a useless tool in respect of giving vote inside the Parliament.

1. What is floor-crossing?

The term floor-crossing is a common concern in every democratic country. The term ‘political defection’ is otherwise called ‘floor-crossing’ or ‘side swapping’ which means resignation from one’s own party or desertion of a political party in order to join another one. The term floor-crossing in the constitutional and political terminology generally means to cross one members own party floor to another floor at the time of voting in the House. The term was first used to describe the process when Members of the British House of Commons crossed the floor to join the group of people (members of another political party) that was seated on the opposite site of the floor.

2.  Rationale behind prohibiting the floor-crossing

Floor-crossing has been provided in Article 70 to sustain the stability and smooth functioning of the government. Honorable Speaker to the eighth Parliament Barrister Jamiruddin Sorkar defended Article 70 of the Constitution which prohibits floor crossing by Parliament Members, saying “it would help strengthen and stabilize parliamentary democracy in the country”.  Some of the   Constitutional experts argue that Article 70 of our Constitution “was framed after much thought to ensure stability and strengthen parliamentary democracy”. That the compulsion for the inclusion of Article 70 in the original Constitution of 1972 and the amendments there of up to 12 amendment, 1991 can be traced back to the bitter experience in the past when floor crossing and horse trading, to make and break governments become a matter of concern for all. In order to achieve stability and continuity of government, at least for the term it is elected, Article 70 of the Constitution ensures a healthy, stable and viable Parliamentary democracy in the country by way of maintaining party discipline.

3.       How far this rationale is acceptable in the context of Bangladesh?

Stability may be maintained otherwise. Thinking like that the government will hold its office for five years as fixed in Article 72 (3) unless and until it is dissolved by the President. When a vote of censure or no-confidence is brought against particular government, the concerned Member of Parliament shall invariably vote for the party on whose ticket   he was   elected.   By this practice in Parliament, the stability of the government may be maintained. But no way the Member of Parliament should be freed to cross the floor to join another or ruling party to gratify his immoral lust. It is further argued that some parliamentary democracies having no such thing as Article 70 of our Constitution have not suffered from political instability.  In a conference, supported by various German institutions, was organized by “Bangladesh in Lower Saxony”, the speakers of the conference urged the stakeholders of Bangladeshi politics to review the Constitution of Bangladesh to consolidate and sustain democracy, and in this respect, suggested amending Article 70, which deprives MPs of freedom to exercise their own judgment.

4.       Provision of Floor-crossing in the Constitution of Bangladesh

Our Constitution aims at a representative democracy based on universal adult franchise without any restriction in all cases except under Article 70. Article 70 reads as follows: 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.  Again, 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. It does mean that Members of Parliament is bound to follow the direction of his political party. His ignorance of the party direction shall be treated as he voted against his party and as a result of this; his seat in Parliament will be vacated. Is it democracy? This is opposed to the idea of democracy as the opinion of the people is not reflected through the elected representatives.

5.       Whether democracy has been pushed to back seat by Article 70?

It is taken that a Member of Parliament has democratic right to resign from his political party. But question comes when a member of parliament resigns from his political party to join another political party or the ruling party. Can he resign and at the same time join another party or the ruling party? Should the Constitution permit him to do so? Definitely, he should not be permitted to do so. Because, it would amount to breach of trust with the people who voted him to Parliament as well as the betrayal of his own oath that “I will not allow my personal interest to influence the discharge of my duty as a Member of Parliament”. But, a member of parliament cannot vote against the party or against the   party decision, which nominated him at the election due to the operation of Article 70. Thereby the personal liberty of a Member of Parliament has been curbed and the democracy inside the parliament in case of decision making has been pushed to death. Right to vote against party decision, or to be absent in the house in protest of party’s undemocratic decision, or abstain from voting, is connected with the personal liberty of a Member. A Member of the Legislature who is elected directly by the people is always expected to act in a democratic sprit. People’s mandate is reposed on him not to act on undemocratic party line but to raise voice against whimsical or undemocratic decisions. But as the provision goes in Article 70, no Member of the ruling party can exercise his right to dissent even when the government passes an undemocratic law. As a result of this, the dark laws that grossly violate human rights and are used to harass innocent citizens.  Some constitutional experts and members of civil society argue that Article 70 of our Constitution “contradicts the fundamental rights as enumerated in part iii of the Constitution, thereby curbing the rights of the MPs also, as far as freedom of thought and expression is concerned”.

6.       Article 70 undermines the spirit of responsible government and leads to elective dictatorship in Bangladesh

In a parliamentary democratic country the government is directly responsible to the legislature but no provision for individual responsibility has been nor does it exist in the political culture. Provisions are made in the Constitution for collective responsibility to that effect that the cabinet shall be collectively responsible to Parliament’.  But ironically enough, this provision for collective responsibility has become a soundless vessel because of Article 70 as the cabinet is always sure that it is not to be defeated by motion of no confidence or confidence, for no member of the majority party has the right to vote against the party.

7.       Article 70 is a great hindrance to ensuring rule of law in the country

Rule of law as distinguished from rule of man and party, means rule of that law which is passed in democratically elected Parliament after adequate discussion and deliberation. When there is the scope of adequate deliberation and discussion over a bill, it creates environment to remove undemocratic provision from it. But because of Article 70 no dissenting opinion can be made by the members of the ruling party and as a result every bill, however undemocratic it may be, gets quickly passed or approved.

8.       Anti floor crossing law in neighboring countries

Some countries have inserted anti floor crossing law in their constitutions. The provision of Indian Constitution is almost similar to that of Bangladesh Constitution. But, Pakistan has taken a revolutionary step to curve the negative effects of anti floor crossing law. In Pakistan anti floor crossing law is applicable only in relation to an Economic Bill not all party decisions. He however gets an opportunity to appeal and the party chief’s decision is final. In countries Like Nepal, Fiji, Belize, Namibia, Nigeria, Seychelles, Sierra Leone, Singapore, Zimbabwe etc. inserted anti floor crossing law in their constitutions in relations to if a member of parliament ceases to be a member of the political party of which that person was a member at the time of the election or resigns from the parliament. But none of these countries upheld provisions like vacating a parliamentary seat as a consequence of voting in parliament against the party direction or being present in Parliament abstains from voting or absents himself from any sitting of Parliament.

9.       Floor-crossing in Bangladesh Perspective: Case Studies

 It can be mentioned about the floor-crossing that happened in the fifth Parliament. It is stated that “three Members of the fifth Parliament namely, Mr. Ebadur Rahman Chowdhury, Major General Mahmudul Hasan and Mr. Paritosh Chakroborty, all belong to Jatiyo Party joined the Bangladesh Nationalist Party in 1995. The matter was referred by the then Speaker to the Election Commission. After hearing, the Election Commission declared the seats had fallen vacant.

It can be traced back to seventh Parliament in which two persons (namely Md. Habibur Rahman Shawpon and Dr. Alauddin) were elected on the nomination of Bangladesh Nationalist Party (BNP) and that they were appointed as ministers by the ruling party. They did not resign from BNP, but BNP wrote letters requesting the Speaker to publish notification under rule 178 of the Rules of Procedure stating that they vacated their seats as Members of Parliament as their conduct amounts to resignation from Bangladesh National Party. The Speaker refused to publish the notification or to refer to the Election Commission. The Speaker took the stand that there was no allegation of resignation or voting against Bangladesh National Party and as such there was no dispute to be referred to the Election Commission. The Appellate Division, affirming the judgment of the High Court Division, held that the facts and circumstances of the case disclosed a dispute regarding the alleged resignation of the two members and the Election Commission is the authority designated by the Constitution to determine the question as to what is meant by resignation and whether the two members resigned, and accordingly directed the Speaker to refer the matter to the Election Commission. The Speaker then referred the matter to the Election Commission which held that joining the Ministry of the ruling party constituted resignation from Bangladesh National Party attracting the mischief of Article 70.

10.   Recommendations:

After the above discussion on democracy, freedom of speech and floor crossing in the light of our Constitution, the following measures are recommended to be taken to ensure parliamentary democracy through the medium of freedom of speech of the members of parliament:

• A Member of Parliament has every right to resign from his political This is his constitutional right as guaranteed in Articles 31 and 32. Mere resignation from his political party should not be the ground of vacation of his seat in Parliament. If it would happen then Article 67(2) will be meaningless. It provides for the resignation from of the Membership of the Parliament not from the Party. He should be treated as an independent candidate in case of resignation from his party. But he should not be allowed to resign from his party to join another party in Parliament or cross the floor to gratify his undemocratic lust because the people elected him as the nominee of that political party. So, he is under a moral obligation not to join with another political party for his personal interest.
• If a Member of Parliament resigns from his political party in defiance of the decisions of his party, his seat should not be vacated and he should be treated as an independent candidate as if he were elected as a Member of an independent candidate for the rest period of the Parliament. Just the opposite of Article 70 (3) that 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. So, amendments should be made to Article 70 in that behalf.
• If he does not resigns from his political party but votes in Parliament against that party except the following three, he should continue to be regarded as a Member of Parliament as well as a candidate of his political party.

1. when a vote of censure or no-confidence is brought against a particular government, the concerned MP shall invariably vote for the party on whose ticket he was elected;
2. he shall not vote against the Finance Bill or against the smooth passage of the Annual Budget so that the financial activities of the government should not be harassed;
3. on sensitive defense matters which may be debated in camera, if needed. Because this is not the concern only of a political party but the concern of all people living in Bangladesh.

• In other cases, e.g. abstention from voting or being absent in parliament by a Member of Parliament should not be a ground for the vacation of a parliamentary seat. Because this provision is a grave violation of the fundamental principle of democracy and freedom of expression. A Member of Parliament should be allowed to speak and vote freely maintaining the decorum of the House.

The Constitution of Bangladesh in its preamble states that democracy will be the ultimate goal of the government and government will ensure democracy. But to ensure democracy, freedom of expression for a Member of Parliament is an important aspect. This aspect of democracy is manifested in majority rule, and in the centrality of then legislative body through which the people’s representatives act. But this representation is not possible under the present Constitution of Bangladesh because of Article 70. Article 39 rightly mentions no restriction in case of exercising the right to vote inside the Parliament. Again, Article 78(3) prescribes immunity to the Members of Parliament in exercising his right to vote that he will not be liable to proceedings in any court in respect of the publication of vote by the authority of Parliament. But Article 70 is contrary to the spirit of the democratic character of the Constitution. Now it is high time to think over it. In 8^th, 9th and 10^th Parliamentary election it is seen that the ruling party got more than two-third majority. So, this is high time to amend Article 70 as recommended above. Otherwise, the proper functioning of the democratic government which is ultimate aim of the Constitution of the People’s Republic of Bangladesh will be an unfulfilled dream.