Amendment of article 70: Towards a pro-people constitution in Bangladesh
Md. Rokibul Islam: The Constitution of Bangladesh is considered one of the finest constitutions in the world, yet it is argued to be surrounded by numerous controversies. In particular, the amendments to the Constitution of Bangladesh have been highly questioned by the stakeholders in many times. After the independence of Bangladesh, the constitution was drafted with remarkable speed. The Constituent Assembly of independent Bangladesh commenced on April 10, 1972. The constitution bill was passed by the Constituent Assembly on November 4, and the Constitution of Bangladesh came into effect on December 16, 1972. No other country in the world has ever drafted its constitution in such a short time.
The constitution of Bangladesh was drafted in the fastest time as compared to many other countries of the world. For example, the constitution of India took about three years to draft, which was completed in 1949 and came into force in 1950. It also took about four years to draft the United States Constitution, which took effect in 1789. Bangladesh has crossed over 50 years since independence, and in these 50 years, the constitution has been amended 17 times, which is highly questionable.
It is said that political parties in Bangladesh have used the constitution as their puppet and have repeatedly amended and altered it for their own benefit. Parliamentary democracy was overturned to introduce a one-party system, while military rule was legitimized twice through amendments to the constitution. For example, some of the major constitutional amendments and controversies include the Fourth Amendment (1975), which transformed Bangladesh’s parliamentary democracy into a de facto one-party system. The amendment increased the powers of the president and limited the independence of the judiciary, which was highly controversial politically.
Fifth Amendment (1979) The amendment legalized military rule from 1975 to 1979. This amendment blended military intervention with democratic processes by constitutionally recognizing military rule. The Seventh Amendment (1986), which legalized Ershad’s military rule from 1982 to 1986, was considered a major blow to democracy and constitutional rule.[1]
The constitution, which is supposed to be the fundamental document for governing the state, has been repeatedly tampered with, making it the sole property of political parties. The constitution of independent Bangladesh was amended four times in its first parliament alone. This is unprecedented in the history of any other constitution in the world and was highly undesirable in the context of Bangladesh. The reason why it is considered undesirable to amend a country’s constitution so frequently is that it undermines stability and credibility in the first place, a constitution is meant to be a stable, lasting framework for governance that provides continuity and continuity. When it is revised frequently, it creates uncertainty about the rules governing the country. This can undermine public trust in the political system, institutions and even at the international level.
Second, alleging the politicization of constitutions, if a constitution is treated as a tool for political parties to advance their own agendas, it becomes less of a neutral legal framework that serves the entire population. In the case of Bangladesh, amending the constitution 17 times in such a short period of time indicates that the amendments were probably driven by political motives rather than the greater good of the nation. This undermines the integrity of the Constitution and risks turning it into a political weapon rather than a fundamental, guiding document.
Thirdly, it leads to the erosion of democratic principles. Frequent amendments can distort the balance of power within the government. For example, one amendment (Fourth Amendment of 1975) severely limited the democratic process by abolishing the multiparty system and concentrating power in the hands of the executive branch. This leads to authoritarian rule, which is contrary to democratic principles. In this context, rapid and frequent change can destroy democracy and establish authoritarianism.
Looking at Bangladesh’s legislative processes, including the amendments to the constitution, it seems that lawmaking is a trivial activity for Bangladesh. According to the 2019 ‘Parliament Watch’ report published by TIB, the members of the legislature in Bangladesh spent only 12 percent of their time on lawmaking, except for budget sessions[2]. If measured statistically, it shows that it took an average of only 31 minutes to pass a bill. In contrast, neighboring India shows a different picture. In the sixteenth Lok Sabha, an average of 141 minutes was spent debating each bill before it was passed, which is nearly five times longer than in Bangladesh. How effective can lawmaking be for the welfare of the people when so little time is spent on it? The gravity of the situation becomes clear when we look at Article 70 of the Bangladesh Constitution.
A constitution is a document for governing the state, and the state is the property of the people. The constitution, the state, and the people are intricately intertwined. But when the constitution is used to protect political interests instead of the rights of the state and the people, isn’t it natural for it to be questioned? Isn’t Article 70 infringing upon the people’s rights? If the answer is no, then where are the people’s rights? When we look at Article 70 of the Bangladesh Constitution, it becomes apparent that even on a trivial bill, members of parliament cannot vote against their party. Article 70 has created this impediment. Let’s take a look at the article:
“70. A person elected as a member of Parliament as a candidate nominated by a political party shall vacate his seat if he—
(a) resigns from that party; or
(b) votes in Parliament against that party;
Provided that he shall not thereby be disqualified for subsequent election as a member of Parliament.”
If this is an article of the constitution, which openly takes away a person’s right to vote and erects a barrier between right and wrong, it Would not be able to establish the rights of the people. This article prevents an individual, even if he is a member of a political party, from expressing his independent opinion. The fact remains that, above all, he is a free citizen of an independent country. It is an undeniable truth that as long as Article 70 exists in its current form, Parliament can never be used for the welfare of the people. A member of parliament may gain a reputation for brilliant analysis with logic, wisdom, knowledge, and information, but he will never be able to establish the rights of the people. Without any changes, Article 70 has rendered the Parliament ineffective. Under this article, members of parliament have no power to act beyond what the ruling party desires, which directly affects the people.
For making article 70 work fruitfully, this article can be structured differently. It is neither necessary nor appropriate to abolish the article entirely, but if we look at Article 63 of the Constitution of Pakistan, a better solution can be found. Let’s take a look at Article 63 of the Constitution of Pakistan:
“63.A.(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to—
(i) election of the Prime Minister or the Chief Minister; or
(ii) a vote of confidence or a vote of no-confidence; or
(iii) a Money Bill or a Constitution (Amendment) Bill;”
From this article, it is clear that a member of parliament will lose his/her seat only in cases of a vote of no-confidence or a treasury bill if his/her vote against the party. Otherwise, voting against the party on any other matter does not lead to the loss of a parliamentary seat. Such a provision would prevent political parties from using members of parliament as puppets to serve their own interests and, at the same time, would be a significant milestone towards making the state more democratic without any obstacles to establishing the rights of the people.
Now let’s compare Article 70 of the Bangladesh Constitution with Article 102 of the Indian Constitution. If we do so, Article 102 of the Indian Constitution will be far ahead of Article 70 of the Bangladesh Constitution. Article 102 of the Indian Constitution opens up opportunities for independent expression of opinions. Article 102 of the Indian Constitution ensures the freedom of members of parliament to express their own opinions. They can work in the interest of the people in their constituencies, going beyond the directives of their political parties, which is not possible under Article 70 of the Bangladesh Constitution. Article 102 of the Indian Constitution also guarantees freedom from party discipline, preventing obstacles in case of party changes. If a member of parliament wishes to switch from one party to another, they are free to do so. This allows them to follow their political ideology.
Article 102 of the Indian Constitution paves the way for fighting corruption. It includes provisions for disqualification of membership due to misconduct or conviction, which helps reduce political corruption. It ensures transparency and integrity. This is why we often see resignations of various leaders in India, as they are held accountable for corruption.
Through better representation, members of parliament become accountable to the people in their constituencies, providing an opportunity to formulate effective policies for the welfare of the public. Amendments and improvements under Article 102 ensure that the disqualification of membership based on misconduct does not affect the election process or the functioning of the government due to political instability.
But under Article 70 of the Bangladesh Constitution, these opportunities are closed off, and parliamentary members are used for party benefits, sidelining development and democracy, which necessitates urgent changes and reforms.
Reasons for raising the demand for the amendment of Article 70 of the Bangladesh Constitution: is that the Constitution of Bangladesh is surrounded by numerous controversies, with its amendments and particularly Article 70 being the most questioned. Article 70 restricts the freedom of opinion of members of parliament, preventing them from voting against their party’s directives. As a result, the parliament fails to effectively legislate or make decisions focusing the interest of the people, as MPs lose the freedom to represent the interests of their constituencies.
Although Article 70 aims to maintain party discipline, it poses a major obstacle to democratic processes. In contrast, the constitutions of Pakistan and India allow some degree of freedom for MPs to vote independently in certain cases. For example, Article 102 of the Indian Constitution allows MPs to express their own opinions. unlike Article 70 of Bangladesh’s Constitution, which is in conflict with the principles of representation and democracy.
Without amending Article 70, it will not be possible to make the parliament of Bangladesh as an parliament for the people.
The Writer Md. Rokibul Islam is a Student (Hon’s 2nd year) Department of law, Dhaka International University.
[1]Ahmed, Nizam. Parliamentary Control and Government Accountability in South Asia: A Comparative Analysis of Bangladesh, India, and Sri Lanka. Routledge, 2013
[2]https://ti-bangladesh.org/articles/story/5882<Published: 28 August 2019>
