Is Article 70(b) of the Constitution undemocratic & unconstitutional?
Dr. Md. Mahbub Hasan: In recent, the Interim- government has been formed a Constitutional Reform Commission. It is now first popular public demand that the Article 70(b) or the anti-defection law of the Constitution of Bangladesh should be amended/changed. Because itis the main obstacle to flourish Parliamentary democracy and facilitate to create electoral dictatorship or fascism. Moreover, it is unconstitutional and against the spirit of Constitutionalism and the Rule of law. In the Art. 70 states that
“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 – (a) resigns from that party; or (b) votes in Parliament against the party; but shall not thereby be disqualified for subsequent election as a member of Parliament”(The Constitution of the People’s Republic of Bangladesh).
That means, it does not allow the legislators to go against party policy in the Parliamentary voting.
The logic behind to incorporate the anti-defection law in Constitution to strengthen and stable Parliamentary government. In the Pakistan regime, this Country had learned bad experiences from the political defection and randomly had changed government within a short period (Ataur Rahman Khan, Two Years of Chief Minister),thus our Constitution makers had incorporated anti-defection laws in Constitution in 1972. However, the Article 70 has more tighter than our necessity. It has curtailed MPs freedom of expression, desires of the Voters of the concerned constituency and fundamental Constitutional rights.
The basic structure of our Constitution is participatory and the Constitution has guaranteed the fundamental rights, if any law and provision, which is contradicted with the provision of the fundamental of rights, that law should be void(Article 26,). In the oldest Westminster Parliamentary systemin the UK, there is no anti-defection provision but their Parliament has run very effectively and treated the “Role model” for the world.
Parliament, Member of the Parliament (MP)’s Responsibility and Art.70(b)
TheArt.65 of the Constitution of the Bangladesh provides the legislative powers for the Republic to the Parliament, and it is the ‘main character’ of Parliamentary democracy. The primary function of the legislature is legislation. The voters of a constituency elected by their representative named as Member of Parliament (MP) in national Parliament to speak about their common interest on their behalf in the parliament. Therefore, they have entrusted with the duty to properly represent their respective constituency.
David Beetham has defined the Parliament as the central institution of democracy. He has argued that as the elected body parliament represents society in all its diversity and has a unique responsibility for reconciling the conflicting interests and expectations of different groups and communities through the democratic means of dialogue and compromise(The Daily Star (Dhaka, 19 September, 2004).
Thus, Parliament is the body where all of the representatives of the citizens come to express an opinion on behalf of the citizens for enactment laws and policy, and this process should be an open forum. If all of the norms practices have been followed than only called, Democracy is ‘ruled by people’.
However, our MP’s responsibilities and duty are conflicting with the doctrine. MP’s either government or opposition both are not enjoying independence and can not express for free will due to Art. 70(b), MPs only do what his party’s leader wished even if any matter which is personally believed wrong or unjustified or against the interest of his constituency, other wise MPs will lose their seat. Parliament is sovereign, but they are not sovereign only for Art.70(b).
In practice, government bill has to be needed pre- approval by the Cabinet; where other major MPs have not accessed. After completing on different stages of the Bill, Speaker seeking to vote to pass the bill, which is seemed only formalities. Because as per the Art. 70(b), the MPs bound to vote according to cabinet’s desire, whatever he said in Parliament debate, whatever he thought. If the MPs do not act according to the interest of the people of his constituency; the main aim of the Parliamentary democracy has to be questioned and become worthless.
Evidence show that MPs in Bangladesh parliament do not participate effectively in law making process. The quality of the legislation might not very rich, it has found that much new legislations came back to parliament within a short time to further amendment or modified because of the unworkability. The main reason is that most of MPs from government party reluctant for further amendment or differ with the cabinet due loss of the Parliament’s membership, therefore Parliament it is real sense is not working effectively and not ensure actual desire of the publics.
In the developed democratic system in the world, the UK only the Cabinet members (Ministers ) have duty to uphold the policy of the government in Parliament and binding obligation to give vote in line with the government policy- which is called ‘Collective responsibility’ of the cabinet members to Parliament or Accountability of Government to Parliament. Moreover, in the Westminster system, if any Minister has not supported any decision or policy of the cabinet is expected to resign from the office and it is not accepted for ministers simultaneously to remain office and to criticise or disagreement themselves from the collective view of the cabinet.
In 2003, Tony Blair’s Labour government, Robin Cook, a former Foreign Secretary, resigned as a Leader of the House of Commons in protest of government policy on Iraq. However, the Prime Minister of the day could be suspended the full operation of collective responsibility due to intractable internal disagreements within the government. In 1975, Harold Wilson permitted ministers to take the different view subject to condition on the referendum on whether the UK should remain a member of the EU. The logic behind to reflection of the Public opinion because Ministers are the representative of the Parliament and actual reflection comes to their view which is impossible in Bangladesh due to Art.70(b).
On the consider this proposition, it could argue that Art. 70(b) approach need to be changed, it is needed to be modified or suspended in some circumstance for the better reflection of the public and democratic norms. It can be achieved undoubtedly Bangladesh Parliamentary system in very high standard rather than a Rubber stamp or talking club. As per our Constitution, Parliament ensures accountability and transparency of the government. It is not possible to meaningful democracy without giving the power of the parliament member’s freedom of expression and independence. It also ensures the ownership and participation of the people in power, so it is the time to be needed repeal/amend the Art.70(b).
(2) Legal validity of the Art. 70(b) and Supreme Court power to declare unconstitutionally
One of the state policies of the Republic is a democracy and human rights as enshrined in Art 11 of our Constitution. If the Parliament cannot run as to the desire of the Citizen of the state, it could be defeated the main spirit of the Constitution of Arts.7 and 11 and it eventually frustrates the whole purpose of parliamentary democracy. The Art.32 of our Constitution to ensure personal liberty to the entire Citizen of the state. MPs are also a human being; they have own liberty, own choice, own view, but they cannot express their own justification freely in Parliament. However, the people elect them; as per the Constitution obligation, they have to bind to work for the interest of his electoral people, that the reason they got a mandate by the people.
However, if they were given a vote against their party line, they should be lost his post. Even if his party is doing anything unfair and unjust. One of the most important fundamental right of our Constitution which is guaranteed by Article 39(1) ‘Freedom of thought and conscience’, when they are in session if the MPs cannot apply their own justification, how do they represent the people?
On the other hand, Art. 26(a) declared itself “any laws which are inconsistent with the fundamental rights to be void”. Those are guaranteed by the Constitution. Therefore, the weight of the fundamental rights is higher than the Art.70(b) because the state has given guarantee for ensuring the fundamental rights.
Therefore, it is argued that the Art. 70(b) itself is unconstitutional provision. Parliament can enjoy passing any legislation subject to passing Art.7 test, where the clearly stated that any laws which are conflicting with the fundamental rights should be void. It is arguable that Art.70(b), which is part of the constitution and conflicting with the stated guaranteed fundamental rights, basic pillar of the Constitution and the preamble of the constitution- would be void and unconstitutional.
Bangladesh has a written form of Constitution, and it is stated that the function of the Republic, duties, the state policy, the main fundamental structure of the Constitution and also guaranteed Human rights. There is to scope to act override the provision of the Constitution. Thus, the Parliament has not enjoyed exclusive sovereignty, like the Westminster Parliamentary System. The Parliament can pass any Act subject to the Constitutional guaranteed fundamental rights. In the Article 27 where it is clearly stated that if any law or part of the law which is contradictory and conflicting with the fundamental rights should be a cartel. It can be raised a question that the provision of the Part of the Constitution is being treated any law? Or the Art. 27 stated that any laws conflicting with fundamental rights so it does mean including any provision of the Constitution?
As per the Art.152 where defined law, however, the constitution does not provide direct explanation whether law including Constitutional provision or not ? Justice Badrul Haider Chowdhury, Former Chief Justice of Supreme Court of Bangladesh observed in Anwar Hossain v. Bangladesh, as per Paragraph 166 as follows as:“…….The exclusionary provision of the kind incorporated in Article 26 by amendment has not been incorporated in Article 7. That shows that the law ‘law’ in Article 7 is conclusively intended to include an amending law. An amending law becomes part of the Constitution but an amending law cannot be valid if it is inconsistent with the Constitution.”
It is clear that his Lordship observed that Constitutional provision also law. Otherwise, if it is given literal interpretation under the provision Art. 7(2) Constitution is the supreme laws in the country. On the consider of the provision, part of the constitution or provision is also laws. Thereby, it is would be strictly defined that provision of the Constitution is also laws. So, if any provision of the Constitution of the which is conflicting with fundamental rights is void. On the other hand, the important significance comparatively the Westminster System that , our Judiciary is the guardian of the Constitution, if the Parliament enacted any laws or imposed or amended any provision in constitution which is not supporting the basic pillar of the constitution and fundamental right, this provision should be void- this principle has established by the Supreme Court of Bangladesh in the Constitution 8th Amendment case (Anwar Hossain v Bangladesh (1989).By a majority of 3:1 Appellate Division held that it is unconstitutional to alter or damage and amendment of the basic structure of the Constitution. Dr. Kamal Hossain, Senior Counsel for the Appellant argued that
“the amending power is a power within and under the Constitution and not a power beyond or above the Constitution. It does not empower Parliament to undermine or destroy and ‘fundamental feature or structure pillar’ of the Constitution (Mridha’s case, 25 DLR 335)”.
The Amendment with conflicting basic pillar is unconstitutional because of the Art.70 (b) has been changed five times and all formed of change are conflicting with a basic pillar of the Constitution, fundamental rights, and preamble of the constitution. Now the question may come out that last 50 years of our constitutional history, it has been changed 5 times, and each and every amendment has been conflicting with the fundamental rights and basic pillar of the Constitution. Unfortunately, no one has been yet challenged it in the Court.
If anyone now challenges in the Court, which amendment to be challenged ? This question has been solved by the Justice Shahabuddin in his Judgment in Anwar Hossain v. Bangladesh 1989 BLD (Spl) 1, and opined that it should be the last amendment. In that case,Justice M H Rahman stated at paragraph 417 that
“It appears that Art. 7 were inserted in the constitution to emphasise the supremacy of the constitution because even without that Article the Constitution, the fundamental law of the country, would have not been supreme”.
However, the MPs enjoyed some sort of immunity regarding their personal activities in session, but not arguably, any Act passed by parliament. According to the constitution, it is scope every peach of legislation scrutinised on the compare to the constitution.
On the consider of the proportion, it is argued that the basic principle of the Constitution, is the participatory democracy. The owner of the state is public and should be reflected their free will in Parliament. Art.70(b), is an unconstitutional provision, which is not supportive the basic principle of the Constitution, conflicting with the fundamental rights and also the bar to reflect the freedom of will of the public in the country. It is also arguably, so the supreme court may have the power to declare this power unconstitutional and strike out from the constitution, which is established the principle in the case Anowar Hossain vs Bangladesh(1989 BLD (Spl)1).
It is not unfair by telling that it was also historical wrong to incorporated Art.70(b), which has, blocked the independence of the parliamentary democracy and against the spirit of the Constitution. Thus, the Supreme Court has the power to declare this provision an unconstitutional, which is asserted that the 8th amendment and 11th Amendment cases. However, this is very sensitive issues, so the Supreme Court needs to com open heart to analyses this issues for the greater interest of our democracy.
Conflicting with Constitutionalism
‘Constitutionalism’ is the doctrine, which governs the legitimacy of government action(Hilaire Barnett). As per the meaning of the doctrine, it is “in relation to constitutions written or unwritten- conformity with the broad philosophical values within a state”. It is express something more than the term ‘legality’ which is required all acts to be conducted according to pre-fixed legal rules. On this point, the Art. 70(b) has created uncertainty, and wide power to the head of the Executive, when and how- it is being used, there is no restriction- which is vague and arbitrary and illegitimate action. However, the English Constitutional Expert Prof. Hilary in her book ‘Constitutional & Administrative Law’ describes ‘doctrine of Constitutionalism’ as follows:
“(a) the exercise of the power must within the legal limits permitted by parliament and those apply to power must be accountable to law; (b) the power must be exercised by the legal authority and ensure to the notion of respect for the individual and the individual citizen’s rights;(c) the power conferred on institutions within a state- whether the legislative, executive or judicial be sufficiently dispersed between the various institutions so as to avoid the abuse of power; and(d) the government, in formulating policy, and the legislature, in legitimating that policy, are accountable to the electorate on whose trust power is held.
Hilary also argued in her book that if at least those elements are presented in any state, constitutionalism could be ensured at that State. On the concept of that doctrine, the Art. 70(b) has not any limitation or restriction, how far it is applicable; and it is fully desired of the Head of the executive of the Government and Parliament not conferred to any limitation. It may be used against legitimate, lawful democratic and logical voting of a bill or expression or vise verse. By compiling the Constitutionalism, it is necessary prefixed rule to exercise defection power. On the top , the head of the executive has decided policy but arguable why and how took the decision or not accountable to the law.
In regards, the proportion (b), the anti-defection rule is conflicting with the person’s rights to freedom of expression and notion of respect for individual status- the provision has imposed a restriction to consider individual personal opinion, it is facilitated to implement the Head of the executive views. On the consider the proposition (c), this power has exercised according to the will of the head of the Executive and power conferred by the Parliament. Many times in our parliament exercised this power by rejecting legitimate and democratic and constitutional demand by the opposition of the Parliament by through Art.70(b).
At last proportion of the doctrine (d), which is the main argument of this essay, randomly in the Parliament overlook the desire of the electorate on whom she trust power upon the MP. Parliament making policy, Acts according to the desire of the Head of the Execute, and all individual MPs of the Power party gave assent to the bill without considering their constituency’s electoral people. Actual under the anti-defection rule, they have to any chance to consider other opinion or view, otherwise lost their membership.
It could be argued under the operation of the Art. 70(b), the total action and operation of the ‘Constitutionalism’ have destroyed and demolished the beauty of the Constitution and main spirit of the Constitution. The aim of the Constitution has not served properly or does not work effectively . The mechanism of Constitutionalism would be worked properly if the at least the Art.70(b) to be amended in at least limited form. So ‘Constitutionalism’ has control to the limitation of the power, the separation of the power and the doctrine of responsible accountable government, which are essential elements to run the Constitution in the democratic system.
She argues that a democratic conception of Constitutionalism should rest on the idea that ordinary citizens must be allowed to propose, deliberate and decide upon important constitutional transformations through the most participatory methods possible. However, it is fully blocked by the Art. 70(b), where citizens opinion could bedenied or undermined by the Head of the Executive but nothing have been protested by MPs- which is fully conflicting against the Concept of Constitutionalism.
Conflicting with the main state policy – the Rule of law
The Rule of Law is an important element of every democratic society. Every single step should be taken according to the law. In theArt.70(b) has enlarged the door to take the unlawful act to be made fair. As per the provision, the MPs are bound to support allowing to the desire of their party leader whether it is fair or unfair, where they like or dislike. As a result of the Art.70(b) the parliamentary process or legislations has lost its attraction as it is conflicting with the Rule of law. The Rule of law more acceptable than the rule of man or party in a parliamentary system. In the broad sense, the law is passed in a democratically elected parliament after adequate discussion and deliberation; as those process helped to remove the undemocratic provision from the Act.
On the consider on point, it is undoubted asserting that by the operation of Art 70(b), a bill may be passed undemocratically approval through without parliamentary debate or discussion, which have been seen many times. It has also facilitated by the government always with a view to avoiding debate makes legalised ordinance. Moudud Ahmed remarked that ‘ this is an attitude that has become ingrained in our society resulting morass into which politics in this country has sunk’(Ahmed, Maoudud, Basic : Era of Sheikh Mujibur Rahman). Halim stated that the ‘misuse of power’ and remarked that Bangladesh Parliament does not legislate but legitimates. If the parliament lost its democratic value, the society becomes a monopoly dictatorship. As a result, the Rule of law and good governance will be threatened.
It is, therefore, the Rule of law is important under democratic system, because under the Constitution peoples are the real owner of the state, so that they want to know ,when , what and how has been done and according to pre-fixing rules something for the people by the government. According to the constitution of Bangladesh Government is the servant of the people, so they do not do anything that does not permit by the Constitution . The Executive enjoyed arbitrary power, so their might be high chances to use arbitrarily or excessive use, so need to be Parliamentary scrutiny through free voting. On the other hand the Rule of the law is the basic concept of the constitution of the Constitution, so what the government does, what the Constitution has to be permitted. Thus, the Art. 70(b) has to need to amendment and to be facilitated library to the MPs for express free will in the interest of the public.
Conclusion
Parliament has a Constitutional obligation to oversee and scrutinised all of the activities of the government for the interest of public and transparent. As per the Constitution, the people are the owner of the country and peoples have been elected to the members of the Parliament to act on behalf of the public. So their priority to give emphases what the public want or what the need for the public, not for the head of the executive. Under the operation of the Art. 70(b), MPs are unable and diverted their obligation of the Constitutional duty, if it is literally expressed there are bound to do so as per the desire of the head of the executive or cabinet, otherwise they to lost their post.
It may big gap of the legitimacy of the parliamentary democracy and it could be accommodated to create a democratic dictatorship. It is fully conflicted, the basic structure of the Constitution and also the fundamental spirit of the of the constitution. It could be arguable that, if it has not given any restriction, it may lose the rigidity of government or lose to no confidence is motion, which is a fundamental requirement of the parliamentary system. It may true, because, our politics are not full flourished and the nature of the politician where they are interested to do everything with self-interest. However, it may be true, but it is not acceptable to imposed unconstitutional provision in the Constitution more than legitimacy.
It is fully conflicting with the basic principle of the Constitution and fundamental rights. On the basis of practicality, the bar of the Art.70(b), may be imposed on the limited sector or use an only limited scope- such as the question of the confidence of the Government, finance bill and their election mandate implementation bill. In the Constitutional law which is legitimate and logical. It is applicable all over the matter, as such the parliamentary system may become useless and becomes a rubber stamp and talking club which has been found our last 50 years parliamentary history, it is not yet effective and is also bar the Rule of law. It has provided also scope to facilities to promote cronyism, corruption, and even nepotism. Therefore, it is time to change/amended it, to make the Parliament effective, democratic and maintain political stability.
Writer: Dr. Md. Mahbub Hasan, Barrister-at-Law(Lincoln’s Inn), Advocate, Supreme Court of Bangladesh, Head of the Chambers, Dr. Mahbub & Associates.
