Article 70 of the Constitution of Bangladesh – A comparative study

Introduction

Freedom of speech and party liability are two issues discussed in parliamentary democracy. A member of parliament has his freedom of speech as well as party liability. When he is nominated by a party, he is bound to respect the opinion of that party. In this article, we have tried to highlight the extent of that boundary and also endeavored find out how much applicable and democratic is the provision of floor crossing.

Historical Background

In accordance with Article 70 of the Constitution, the seat of a member of parliament becomes vacant if he or she leaves the political party for which they were nominated and elected and votes against that party in the legislature. [1]

The Pakistan Muslim League replaced the All India Muslim League as of December 1947. The Muslim League has seen the most stunning fall in political party history since 1948. Organizations like Awami Muslim League, Nezam Islam, Khilafat-e-Rabbani Party, Krishak Sramik Party, etc. were founded by people who disagreed with Muslim League. As a result of the main party Muslim League’s dissolution, all of these parties were created. In the 1954 elections for the East Bengal Legislative Council, the Muslim League lost. In this election, United Front was victorious.

On October 7, 1958, martial law was enacted in Pakistan due to political unrest, which forbade any political activity.

In order to add Article 70 to our constitution, we had to draw lessons from Pakistan’s painful and horrible 25-year political history. The most heinous and abhorrent chapter in legislative political history was written from 1954 to September 1958; it is recorded in history and well known.

For these reasons, Awami League has been publicly pledging that its party will take decisive action to stop any potential instability within the legislature. As a result, the Awami League amended the 1972 Constitution to include Article 70.

The Bangladesh Constituent Assembly (Cessation of Membership) Order 1972, issued by President Justice Abu Sayeed Chowdhury, was the impetus for the creation of Article 70. The Prime Minister Sheikh Mujibur Rahman’s counsel was followed by the president. When K. M. Obaidur Rahman, a politician from the prime minister’s own party, questioned why the Bangladeshi Constituent Assembly lacked legislative authority, the prime minister became irate. The executive branch controlled the law-making process under the interim constitution in 1972.

Presidential Order No. 23, which was issued on March 23, 1972, and which cancelled the membership of Bangladesh’s Constituent Assembly members, served as the forerunner to Article 70 of the Constitution. If a member “resigns” from the party for which he was nominated as a candidate or is “expelled from that party,” membership may be revoked under one of two conditions. The draft constitution has the same. After the debate in Parliament, when the clause allowing for membership cancellation due to dismissal from the party was dropped, however, not much changed. Instead, it contained a more stringent provision that would result in the MP’s disqualification if he voted against the party.

Many people protested this clause, and at the time, opposition MP Suranjit Sengupta declared that Article 70 had a provision that was “undemocratic” and unfound in any other constitution in the world. I asserted throughout the broader debate of this clause that it only existed under the rule of Pakistani tyrant Ayub Khan. There is no precedent for this anyplace else, other from this. According to him, democracy was being “killed by pounding the cock.” Article 70 received more clarification as a result of the Fourth Amendment to the Constitution, which was ratified in January 1975. Explanation: If a member of parliament from the party that nominated him for office disobeys party directives and either (a) does not attend a vote in parliament or (b) does not attend any meeting of parliament, his vote will be counted against that party.

The Fourth Amendment to the Twelfth Amendment, passed in 1991, added Clauses (2) and (3) to the Article while maintaining the original Clauses and their interpretation. which reads, “If at any time there is any doubt as to the leadership of the parliamentary party of a political party, the Speaker shall call a meeting of all the Members of Parliament of that party in accordance with the rules of procedure of the Parliament for a split vote within seven days of being informed in writing by a member claiming majority leadership of that party in the Parliament.”

The parliamentary leadership of the said party shall be decided by a majority vote, and if any member fails to follow the directives of such determined leadership with regard to casting a vote in Parliament, he shall be deemed to have voted against that party in accordance with clause (1) and his seat in Parliament shall be vacant.

The fifteenth amendment brought about the following change. The 1972 Constitution took its place and repealed this item. [2]

Due to the painful historical experiences in Bangladesh, Pakistan, and India, anti-defection provisions were included to the constitution. Through the 52nd Amendment, India adopted the anti-defection clause to the Constitution in 1985. [3]

Overview of parliamentary democracy

With uttering the word ‘Democracy’, many may infer a serene plot with people enjoying parity, soundness, rights and justice etc. Many people may imagine a society where there is free trade, liberalism, or things along those lines. Whatever the case, they all share the trait of “a representation of pleasant things,” which is not always the case. Its original meaning was a political framework that divided social classes and governing ideologies [4]. Today, though, it covers a wider range.

Democracy can be categorized on a number of different criteria. However, the terms “Direct” and “Representative” are the ones that are most frequently used. The term “direct democracy” describes a system in which citizens directly participate in state government through voting. According to Representative 1, citizens elect their representatives and participate in the state’s government through those representatives. When the state area and the state population are both substantial, this is one of numerous conveniences.

There are further variations on democracy. Ayub’s Basic Democracy, Organic Democracy, Consensus Democracy, Presidential Democracy, and others. Some proved to be successful and well-liked while others were tyrannical and autocratic. We shouldn’t assume that there is a “genuine democracy” that naturally combines elements of good governance such as representative government, political fairness, equality, liberty, and human rights. Because such volatile chemicals may become unstable unless they are combined in precisely calibrated and supervised ways. [5]

Like ready-made clothing for everyone, ready-made democracy does not fit all states. While Rousseau declared democracy to be the system for Gods, not for people, states must yet give themselves with it revised and altered ideals in accordance with various aspects (culture, behavior, area, religion, language, wealth, health, etc.) of that very state.

Although there are significant differences, such as embracing supremacy of the Constitution rather than supremacy of the Parliament, the democracy practiced in Bangladesh and the subcontinent predates the West-Ministerial system.

Pakistan established a government in accordance with Western-Ministerial democracy following its secession in 1947. The 1935 Government of India Act was adopted by it as a temporary constitution. However, the disruption brought forth by the Governor General’s authority pulled the legislative procedure in many directions. With the rise of autocratic authorities, the beginning of such barrier later on had a significant impact on downward governance and made it difficult to move forward with democratic practices.

According to Rupert Emerson’s 1960 thesis, emerging governments that initially began as parliamentary democracies soon lost their way and reverted to authoritarian or dictatorial regimes. the same harm was done to Bangladesh’s first political system. With the intention of having a well-organized, quick, and effective guiding authority throughout the war and instability, the Proclamation of Independence, also known as the first and provisional Constitution of Bangladesh, granted the President total power. However, even if this hindered the exercise of parliamentary democracy, it did not have a significant impact on the BAKSAL because the earlier power was progressively transferred to other bodies.

When a state is emerging from the ruins of war, institutional prerequisites are more important for its smooth operation than non-institutional prerequisites. Absence of constructive opposition, one of the key preconditions, throws the efficiency of the parliament into question. The essential democratic concept of freedom—which was considered as both the political liberty, and almost an obligation, to participate in decision-making, as well as the private liberty to live more or less as one pleased—was likewise retrenched by the adoption of the regulations barring floor crossing. The ability to speak up in public forums for the greater good was the most crucial freedom. [6] Any provision retrenching that freedom to speak out, therefore, undermines the fundamental democratic ideal. The parliament without enough speech from each and every members turns the institution out into epicenter of democracy.

Effect of Article 70 in the parliament of Bangladesh:

In the context of parliamentary democracy, article 70 has both positive and negative features. Since Bangladesh’s founding, the impact of Article 70 has been seen throughout the whole democratic system, including the parliament. Since its inception, Bangladesh has mostly been a parliamentary democracy. There, the parliament had a significant impact on how the country was running. However, there was a significant period of presidential rule and army dictatorship from 1975 to 1991. Here, We will simply talk about the history of parliamentary democracy.

Although the Awami League predominated the constituent assembly in the early 1970s, prime minister Sheikh Mujibur Rahman voiced his displeasure when KM Obaidur Rahman, a member of the ruling party, asked an important question: Why was the constituent assembly not given legislative authority?

On the suggestion of the prime minister, the then-president Justice Abu Sayeed Chowdhury then issued the Bangladesh Constituent Assembly (Cessation of Membership) Order 1972. According to this, any resolution that wasn’t acknowledged and approved by the appropriate party in the assembly would result in that member’s expulsion. Later, the original 1972 constitution was added. [7]

In order to put an end to internal party strife and carry out party decisions, the Awami League introduced this matter. Many political parties at the time opposed it, but after joining the government, those parties did nothing to amend it. With regard to this clause, the Awami League has occasionally expressed opposing positions.

It was determined that the President will be chosen through the Open Ballot Voting System after the BNP won the 5th National Assembly elections.

There some Awami League party leaders opposed it and opined that it violates Article 70. Their argument was that in this system, MPs of their own party cannot vote outside their party’s decision. Whereas the original spirit of adding Article 70 to the Constitution was to prevent it from going beyond party decisions.

Political parties should have precedence above all else in public affairs, according to the Attorney General of the ruling party. The party’s mandate and deliberations are binding on MPs. People choose them based on which party they belong to, thus the citizens of a certain electoral district have a right to know for whom their representatives are casting ballots. [8]

On the other hand, there was a dispute between the two main political parties of Bangladesh regarding the literal meaning of Article 70 and it was resolved by the Supreme Court’s judgment.

After the 1996 elections, two MPs from the BNP joined the Awami League government. The BNP filed a case against this and said the two MPs were “deemed to have resigned” from their party.

Against this, Attorney General Mahamudul Islam said, there is no scope to interpret the constitution outside of the literal meaning.

But on behalf of BNP, Barrister Moudud Ahmed argued that the Constitution of BNP includes a provision describing some activities on the part of its members by doing which they may be “deemed to have resigned” from the party.

The Court accepted the interpretation of Moudud Ahmed and the term ‘resign’ was extended to mean “deemed to resign” as well. The seats of two state ministers were declared to be vacant. [9]

On the other side, what occurs when a person wins an independent election and joins a party after winning a seat in the House of Representatives. The Indian Supreme Court ruled in Jagjit Singh v. Haryana that a member of Parliament who is elected independently loses his position if he joins another party. But prior to the fifteenth amendment, Bangladesh’s constitution contained a clause that said that if a candidate wins on his own and then joins another party, it will be assumed that he is nominated by that party. But at the moment, the constitution is ambiguous in this regard. It brought about ambiguity. [10]

As a result of their opposition votes and resignations from their respective parties, many MPs have lost their seats. In the Seventh National Parliamentary Election of 1996, Major (Retired) Md. Aktaruzzaman, one of the top MPs of the Bangladesh Nationalist Party (hereafter BNP), was chosen from the Kishorganj-2 constituency. In the meantime, the Awami League won this election and established a parliament. On September 10, 2010, the BNP declined to participate in the 19th session of parliament. But only Mr. Aktaruzzam attended the parliament session, going against BNP party policy. Similar to this, a large number of MPs left their party. In the Fifth Parliamentary Election of 1991, three MPs—Mr. Ebadur Rahma Chowdhury, Major General Mahmudul Hasan, and Mr. Paritosh Chakroborty—crossed the floor. In the Seventh Parliamentary Election of 1996, three MPs—Md. Habibur Rahman Shawpon, Dr. Alauddin, and Mr. Anwar Hossain Monju, and Mr. Kazi Sirajul Islam, in the Eighth. [11]

The politics of defection in Bangladesh is very old. However, this defection cannot facilitate the change of the government, which is the main reason for the emergence of article 70 to prevent members of parliament. In previous elections, many were elected independently and joined many parties. Ambiguity is created by the fifteenth amendment so that it cannot favor any particular party. These ambiguities are often taken advantage of by political parties.

There are many debates about the place of democratic practice in Bangladesh. But many feel that article 70 hinders the practice of democracy within the parliament. But neither party wants to weaken their position. Consequently they do not change it. When there was an opposition party they condemned it a lot but after forming the government the parties took advantage of it.

However, it can be argued from the other side, a stable government is required for development and stable conditions in the country. This stable and strong government can be kept by article 70. It reflects the people’s voting for political parties.

But, to establish a strong government, it is a matter of seeing how undemocratic the parliament of a democratic country can be.

Comparative Analyses

A modern State’s administration cannot exist without democracy. Modern industrialized nations strive to promote a democratic culture in all facets of their noble deeds. The Bangladeshi Constitution’s drafters included numerous measures in many of its articles to guarantee genuine democracy. Preamble, Articles 7, 8, and 11 as well as Article 59 speak to the democratic nature of government. Article 39, on the other hand, is concerned with the right to free speech. [12]

All ideas, even those that can be extremely offensive, are protected by the right to free speech and expression. However, it carries obligations, and we think it can be legally limited. However, there are times when the right to free speech and expression may be curtailed. Hate speech and incitement must be outlawed by governments. Furthermore, limitations may be acceptable if they safeguard a particular public interest or other people’s rights and reputations. [13]

Any limitations on the right to free speech and expression must be specified in laws that, in turn, must be simple to grasp by all. Governments, employers, or anyone else imposing limits must be able to justify their necessity and ensure that they are proportionate. A suitable appeals procedure must be included, and all of this must be supported by safeguards to prevent the exploitation of these restrictions.

The word democracy comes from the Greek words “demos”, meaning people, and “kratos” meaning power; so democracy can be thought of as “power of the people”: a way of governing which depends on the will of the people. [14]

The moral authority of democracy and its widespread appeal are derived from two fundamental principles:

1. Individual autonomy: The principle that no one should be bound by laws imposed by others People ought to be in charge of their own life (within reason).

2. Equality: The notion that each individual should have an equal opportunity to influence social decisions.

“Voting is a right, not a privilege. In a democratic state in the twenty-first century, the presumption must be in favor of inclusiveness. Any deviation from the universal suffrage concept runs the risk of eroding the legitimacy of the democratically elected legislature and the legislation it enacts.” Court of Justice of Europe Court (Hirst v. UK)[15]

According to the above information and in the constitution of Bangladesh, every human being has the right to freedom of speech and democracy. Article 39 clearly guarantees freedom of thought and expression. The preamble, article 8 and article 11 of the constitution clearly mention democratic practice. How constitutional is Article 70 at this moment is a matter of concern. Many domestic and international organizations speak against it.

On the other hand, MPs can be held accountable for their party. His party’s decision must be abided by. When a member of parliament is in office, he cannot be regarded as an ordinary citizen. He serves as both the party’s and the people’s representative. People have a right to know whether or not the representative of the party they supported is still affiliated with it. His own power to act as the collective representation of everyone may be constrained in this situation, making article 70 constitutional. [16]

On the other hand, Some Consequences of Anti-Defection Laws:

On the surface, prohibiting party defections in parliament appears to have two general effects—one spoken and the other sotto voce. The expectation is to maintain the post-election party splits for the duration of the current parliament. Legislation that forbids MPs from leaving their original parties likely would:-

· prevent larger parties from gaining control of government through seducing members of smaller parties with promises of governmental or financial gifts

· reduce party fragmentation from members leaving to create new parties, and

· bolster the 18th century definition of party by Edmund Burke as “a body of men united, for promoting by their joint endeavors the national interest, upon some particular principles in which they are all agreed.”

To put it another way, preventing parliamentary party defections will reduce corruption, increase party stability, and create more meaningful party labels with less personalism in government.

Sotto voce expectations hold that prohibiting party defectors would give party leaders more clout. This could promote more cooperation among party members during parliamentary votes and more centralized (and hence more coherent) party policies. The majority of party researchers would consider these implications to be crucial characteristics for any legislative body, but particularly crucial in parliamentary systems. In actuality, the three bullet points above are supported by these party attributes. Despite the validity of this reasoning, calls to give party leaders more authority are rarely favorably received by the general public and party members. Therefore, when advocating for or supporting legislation to outlaw party defections, the sotto voce expectation is suitably muted. [17]

On the other hand, the government is very stable in countries where there is anti floor crossing law. There has been relatively more development. Its best use has been seen in many countries including India, Israel, Mexico. Freedom of speech and democratic practice in the constitution of those countries did not prevent anti floor crossing law.

Table: Nations with Laws Against Parliamentary Party Defections [18]

On the other hand, in countries like English, Australia, even though there has been development, there has been a democratic environment and their names are towards the top of human resource development.

But as the culture and environmental conditions are different, it is normal to have differences. Bangladesh has gone through many different situations in the last fifty years. From those aspects, anti floor crossing law is useful for Bangladesh.

Conclusion

From the above discussion we understand that the provision of floor crossing has been introduced to various parliamentary democratic countries. They kept this provision in their country while keeping freedom of speech. This system has been found to be effective in South Asian countries and Africa where the government system is unstable. This system is very effective in keeping a stable government there. But it is widely criticized in developed world countries. There it is seen as black law. To understand how democratic it is, we need to understand what democracy actually is and who is defining it. Democracy is different for different people, so how much democratic article 70 of the constitution of Bangladesh is also different from different aspects. However, the two main political parties of Bangladesh have taken a stand in favor of this article.

References

[1] ‘Article 70 of Constitution: It’s a Safeguard for Democracy’ Thedailystar.

[2] ‘সংবিধানের ৭০ অনুচ্ছেদের বৈধতা নিয়ে বিভক্ত আদেশ’ Prothomalo.

[3] শহীদুল্লাহ ফরায়জী, ‘পর্যালোচনা: সংবিধানের ৭০ অনুচ্ছেদ’ Manabjamin.

[4] Bernard Crick, ‘Democracy: A Very Short Introduction’ Oxford University Press.

[5] ibid.

[6] ‘Parliamentary Democracy in Bangladesh’.

[7] Hasanuzzaman, ‘To Amend Article 70 or Not’.

[8] Abdus Salam Azad V Bangladesh 44 DLR 354 (Supreme Court of Bangladesh).

[9] Secretary, Parliament Secretariat V Khandaker Delwar 19 BLD(AD) 276 (Supreme Court of Bangladesh (AD)).

[10] Mahamudul Islam, Constitutional Law of Bangladesh.

[11] Sheikh Mohammad Towhidul Karim, ‘Is Anti-Floor Crossing Law in Bangladesh Contrary to the Spirit of the Constitution of Bangladesh? An Inquiry’ Kathmandu School of Law review.

[12] The Constitution of Bangladesh.

[13] ‘Free-Speech-Freedom-Expression-Human-Right’.

[14] ‘Democracy’.

[15] Hirst v UK.

[16] M. Jashim Ali Chowdhury, The Constitutional Law Of Bangladesh.

[17] Kenneth Janda, ‘Laws Against Party Switching, Defecting, or Floor-Crossing in National Parliaments’.

[18] ibid.

Written by- BDLRP Team of Khulna University.