Article 70 – A Necessary Evil?

Article 70, an anti-floor-crossing provision, was inserted in the original Constitution of 1972 following the bitter experience of the- then Pakistani regime. ‘Anti-floor-crossing’ denotes voting against one’s own party in the Parliament or resigning from the Parliament in order to take the side of the other party in the house. Thus, Article 70 states that if a member of the Parliament votes against or resigns from the political party he/she was nominated from, he/she shall vacate his/her seat in the Parliament.

Obviously, this is a controversial Article in our solemn Constitution which guarantees democracy, human rights, freedom of expression and conscience. Now, a question may arise as to what triggered the Constituent Assembly to insert such a controversial and contradictory provision to the spirit of our Constitution?

Before independence, Bangladesh was a part of Pakistan. In the 1950s, Pakistan had a bitter and unprecedented experience of floor-crossing in its Parliament. In four years, from 1954-1958, Pakistan witnessed five different governments leading to political instability and chaos that finally invited an undemocratic military regime. Some of the constitutional experts argue that Article 70 was adopted after giving much thought to ensure stability and strengthen our parliamentary democracy.

Having anti-floor-crossing provision in the Constitution is nothing new in a parliamentary democracy. More than 40 democratic countries have anti-floor-crossing provision. But the problem with Article 70 is that, it automatically vacates the seats of MPs without giving them any opportunity to defend their stances.

Some argue that Article 70 is a contradiction with the spirit of our Constitution and/or with some other provisions of the Constitution itself (Article 11, 39, etc.) Article 39 guarantees the fundamental right of freedom of thought, conscience, and speech. MPs should have the right to vote like an ordinary citizen as the right to vote is equivalent to freedom of thought, conscience, and speech.

Conversely, there are different views regarding the right to vote of MPs in Parliament. In Abdus Samad Azad v. Bangladesh [44 DLR 354] it was held that an MP is not a free agent while voting in Parliament. Moreover, freedom of conscience under the Constitution would relate to private liberty to choose between the two alternatives as directed by the elector’s sense of moral values in those areas of life, where the result of one’s effort affects no one else but only the individual. That means, an MP’s vote in the Parliament does not affect him/her individually rather to a large extent. Freedom of speech, conscience and thought of an MP (while voting) are not exactly the same as that of a private person.

The Indian judiciary also held the same view regarding the anti-floor-crossing schedule (Schedule X) in its Constitution, but in a narrower sense. [See Kihoto Hollohan v. Zachillhu and Others  1992 SCR (1) 686, 1992 SCC Supl. (2) 651]

However, for a functioning and effective democracy, MPs should have the right to freedom of voting in the Parliament. This is because a party may take wrong decisions. Even a party may raise an anti-people bill. In such instances, MPs should be given at least some power to resist such a bill. Again, the current provision (Article 70) hinders the practice of rule of law, and invites dictatorship.

It is submitted that stability and effectiveness of the government are more important than the system. Even after having Article 70, Bangladesh has had a bitter experience of political instability and unconstitutional military regimes. Removing Article 70 entirely is too risky for a fragile democracy. This may lead to an unstable, unworkable and chaotic situation. Again, we might have to witness the incidents of 1954-1958 once more.

Nonetheless, Article 70 too should not be kept as it is. It can be amended giving scope to MPs to vote against the party after prior approval of the party, except on the motion of no confidence. That means, the amended article Article 70 would empower MPs –

1) to vote against the party with prior approval of the party;

2) However, not to vote against their party in a motion of no-confidence (as stability is of paramount importance in a fragile democracy like Bangladesh).

Writer:

Imtiaz Ahnaf

3rd Year Student, Department of Law, University of Chittagong