Sunday, August 27, 2017 http://dailyasianage.com/news/82508/article-70-favors-autocratic-rule-and-limits-democratic-practice
Eden Building to Stock Exchange
Article 70 favors autocratic rule and limits democratic practice M S Siddiqui
Article 70 of the constitution is to fetter the Members of Parliament (MP) to act out of their own consciousness and freely express their opinion and vote as per their choice in the proceeding of Parliament. It is a restrictive article on floor crossing by joining other parties and even more restriction on voting against the decision of his party. The object of this article is no doubt discernible that it is to ensure stability and continuity of government and also to ensure discipline among the members of the political parties so that corruption and instability due to political horse trading can be removed from national politics during Pakistan era. This provision is contradictory to the fundamental rights of freedom of thoughts, conscience and speech guaranteed under article 39 of Bangladesh constitution. The court has given different views saying (Secretary, Parliament V. Khondker Delwar Hossain, 1999 BLD(AD)276), the spirit is that members elected to the Parliament should continue to maintain their allegiance to the party by which they have been nominated. The article 70, are: Clause (1): A person elected as an MP 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. Clause (2) provided the manner of determining the leader of a party in case of dispute and directed that the direction of the leader would be the direction of the party for the purpose of article 70. Violation of any direction of the party will not necessarily lead to vacation of the seat. In order to attract article 70, the direction must be one relating to voting in Parliament on an issue. Clause (3): If a person, after being elected a MP 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. The explanation is: If a MP- (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 not to do so, he shall be deemed to have voted against that party. This floor crossing bar clause in the constitution has a chronological history. The first government of Bangladesh on 23rd March 1972, promulgated the Bangladesh Constituent Assembly Members (Cessation of Membership order), 1972 (P. O. No. 23 of 1972). It has provision of cessation of Membership in the event of floor crossing. Later on in the same year, the original constitution has been passed and effective date was 16th December 1972. This barring floor crossing article 70 incorporated in the constitution which has two clauses for vacant of sits of MP for (1) if a member resigned from his party, (2) if he vote in the Parliament against the party. This clause has been amended through the 4th amendment to the constitution inserting a clarification that "Voted against party" if he is (1) if a member being present but absent from voting, (2) if he, ignoring the declaration of his party, absent himself from any sitting of the Parliament. It has imposed a tight rein on MP that they cannot go against their party line or opposition and on any issue of the Parliament. Again by 12th amendment two more two condition regarding independent MP. If a MP joins any party after elected as independent candidate, he will come under preview of the article 70. The formation of group within a parliamentary party has been restricted and conditional and given direction of election leader of the Parliamentary party to regulate the split of any parliamentary party and selecting the leader of the group. In the twelfth amendment this article was substituted as under: "70(1) a person elected as a MP at an election of 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.
The explanation has been given as - If a MP (a) being present in Parliament abstains from voting. or (b) Absence himself from any sitting of Parliament, ignoring the direction of the party which nominate him at the election as a candidate not to do so, he shall be deemed to have voted against that party." In the said amendment, clause (2) of article 70 reads thus: "If, at any time, any question as to the leadership of the Parliamentary party of a political party arises, the Speaker shall, within seven days of being informed of it in writing by a person claiming the leadership of the majority of the members of that 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." By 15th amendment has brought back the original article 70 of the constitution adapted in 1972. In case of direction of party to remain absence to any session of the Parliament is a debatable issue, whether party can direct MP to refrain from attending the session. The opinion expressed by Advocate Mahmudul Islam in his book "Constitutional Law of Bangladesh", the violation of direction of a party to refrain from attending the sitting of Parliament will not attract the mischief of article 70 as the constitution contemplates the duty of the MP to attend the sittings of Parliament and provides for vacation of seat for absence from Parliament for a specified number of sitting days. (Constitutional Law of Bangladesh, Mahmudul Islam, 3rd Edn.) The floor crossing bar law identical to article 70 is found all part of the world. The Anti-Defection Law was passed in 1985 through the 52nd Amendment to the Constitution to 'combat the evil of political defections". ‌.which is likely to undermine the very foundations of democracy and the principles which sustain it,' disqualified a political party member not only if he or she gave up their party membership, but even if they voted contrary to the directions of their political party without prior permission. This provision was strengthened by a further amendment in 2003 to prevent whole party mergers. The court of India also supplements such law in a judgment saying "the provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution". [Kihota Hollohon vs. Zachilhu and Others AIR 1993 SC 412]. The Indian Supreme Court held that a member of Legislature who was elected as an independent candidate may support the government from outside, but if he joins any political party he has his seat vacated. (Jagjit Singh V. Haryana, (2006) 11 SCC 1). But Bangladesh law brings the MP under the preview of article 70 as if the MP is elected with the ticket of the party has joined. If look in to other part of the world. The Section 40 of the Constitution of Kenya states that a member who resigns from his party has to vacate his seat. The decision is by the Speaker, and the member may appeal to the High Court. Article 46 of the Singaporean Constitution says a member must vacate his seat if he resigns, or is expelled from his party. Article 48 states that Parliament decides on any question relating to the disqualification of a member. The Sections 47 of the Constitution of South Africa provides that a member loses membership of the Parliament if he ceases to be a member of the party that nominated him. Advocate Hassan Arif in this connection rightly argued as Amicus Curiae in the case of 16th Amendment case that this article places a MP within the clan and bounds of the political party to which he belongs and under which banner he was elected. He further submitted that there has been a chequered story of article 70 in keeping it in the constitution.
The court in the verdict also observed that the leader of political party who commands the support of the majority of the members of Parliament form the Cabinet which runs the government. The theoretical separation of power is completely diluted here, because the members who are in the majority of the Parliament legislate and the Cabinet which is formed from among them discharges the function of the executive part of the government. Therefore, legislation and administration fall in the hands of the same group of members of Parliament. In that view of the matter, article 70 in any format ensure adherence of members of Parliament belonging to a party to abide by the party instruction. Earlier in the same case, The High Court Division observed that by reason of article 70, it has imposed a tight rein on the members of Parliament that they cannot go against their Party line or position on any issue in the Parliament; that they have no freedom to question their party's stance in the Parliament, even if it is incorrect and flawed; that they cannot vote against their party's decision; that they are, indeed, hostages in the hands of their party high command; that what is dictated by the Cabinet of the ruling party or the shadow Cabinet of the opposition, members of Parliament must follow them meekly ignoring the will and desire of the electorate of their constituencies. The latimer Principal agreed upon by the Commonwealth Countries that the cessation of membership of a political party of itself should not lead to the loss of a member's seat. All the Judges of the Supreme Court of Bangladesh are of the view that in presence of article 70, it is difficult for a Member of Parliament to form an opinion independently ignoring the directions given by the party high command of the political party in power. Kamal Hossain submitted that having regarded to article 70 of the constitution, Members of Parliament, belonging to a particular political party, are constitutionally duty bound to act in support of the party decision. Like any other ordinary citizen, Member of Parliament should have this right in case of voting according to his choice. Right to vote is tantamount to freedom of conscience and speech as enshrine in the article 39 of our constitution. MPs have obligation to the voters as their agent to speak in favor of voters not only voice for the party. This is against healthy democratic state function and check balance in practicing democracy. The writer is a Legal Economist. He can be reached at mssiddiqui2035@gmail.com