The Code of Conduct Bill for MPs: Some reflections
M. Jashim Ali Chowdhury
THE Bangladeshi brand of parliamentary democracy is a species peculiar in itself. During the first two decades (1971-1991) of our history, parliament as an institution suffered a total inattention. In the next two decades (1991-2010) it has been able to draw some focus though not much for its role play. Absence, causal presence, irregular attendance and regular boycott have drastically reduced its capability. It has developed a credibility crisis as well. In an ingenious bid to make politics 'difficult for the politicians', peoples with questionable disposition found their place in politics and parliament en masse. And hence the allegations of misusing the duty free car import facility, telephone, medical, travel, dwelling and entertainment allowances do not surprise us any more. Recently added to these is the allegation of misappropriation of AC, refrigerator, furniture and even chal-dal-noon-tel from parliament cafeteria. Outside the parliament, patronizing the terrorists is a rule rather than an exception. Though there are some rules of conduct in the Rules of Procedure to make the Members behave within the House, absence of a full pledged Code of Conduct controlling both the indoor and outdoor activities has contributed to damage the collective image of the Parliament. Given the situation, the recently tabled Private Member Bill proposing a Code of Conduct for MPs shows us a stream in the desert.
A skim through the Code of Conduct Bill
The Bill is based on a fundamental assertion that great honor of representation burdens the MPs with the great obligation to keep-up to people's expectation. The statement of objects and reasons of the Bill underscores the truism that spirit of democracy should first be implanted in the MPs themselves, if they are to establish the democratic and constitutional rights of the people. And hence the Bill aims at enabling the MPs to keep strict to their duties by setting examples before the nation.
Ethical position of the MPs - Section 3 of the Bill enumerates the intrinsic qualities a Member of Parliament is required to possess. These include humanity, commitment towards the independence, sanctity and sovereignty of Bangladesh, profound belief in the equality of all irrespective of sex, religion, race, color etc, rational and constructive outlook, allegiance to the spirit of the liberation war, noninvolvement in any anti social activity and commitment towards the establishment of rule of law.
Duties of the MPs - Discharging parliamentary responsibilities as per the Rules of Procedure would be the core duty of the Members of Parliament. In doing so they shall play an active role in representing the people with commitment, in lawmaking and in ensuring the accountability of the executive (Section 4(1)(i)). They shall upheld the law in keeping with the trust the people deposited with them (Section 4(1)(ii)). They shall discharge their parliamentary and public duties without taking into account any material and financial gains (Section 4(1)(iv)).
Basic principles of conduct - The Bill lays down some behavioral norms which the Members of Parliament shall follow in discharging their duties. Section 4(2)(a)-(g) delineate the principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership. The Members shall declare personal interests and take steps to resolve any conflict of interest in a way that protects the public interest. There shall be openness regarding their decisions and actions. They must give reasons behind their decisions and may restrict information only when the wider public interest clearly demands. They shall take decisions solely in terms of the public interest and not to gain financial or other material benefits for themselves, their family or friends. They shall not place themselves under any financial or other obligation to outside individuals or organizations that might influence the performance of duties.
Additionally section 5(f),(g),(h) and (i) require them to refrain from recommending, influencing or changing the accepted rules of appointment in or promotion to or transfer from any public or private posts. They should also refrain from exerting personal or party influence in public procurement and approval or execution of public projects. Most importantly, as representative of the people they must refrain, in home or abroad, from doing all such things which may lower the image of Bangladesh as a sovereign country.
Section 6 embodies the 'No Paid Advocacy rule'. A Member of Parliament shall not make the public interest subordinate to any individual, coterie or party interest and must not vote on any bill or motion, or ask any question in the House or a committee, or promote any matter, in return for payment or any other material benefit.
Section 7 restricts the acceptance of gifts that may pose a conflict of interest or influence them in the exercise of their duties. They have to declare gifts exceeding 5000 taka to Ethics Committee to be formed under this Code and in 'appropriate cases', to submit the gifts or donations to the exchequer.
Section 8 provides that they shall utilize public properties and privileges as per law. Perhaps keeping in mind the In no circumstances the parliamentary privileges shall be used for income generating purposes.
Section 9 provides that subject to the Right to Information Act and any other law for the time being in force, Members must not knowingly and improperly use official information obtained in confidence in the course of their parliamentary duties, for the private benefit.
Section 10 requires the Members of Parliament to reflect democratic, progressive, tolerant, material and rational opinion in their speech and over all conduct.
In Section 11, the Members are prohibited to mislead the Parliament or the people consciously by their statement or speech. Even if one unwillingly makes any mistake, he/she 'must' correct the records on his/her own accord. Section 12 of the Bill reiterates what is said in Rule 270 of the Rules of procedure. A Member of Parliament is required to show respect, courtesy and civility towards other Members of Parliament.
Conflict of interest and financial statement - Section 5 of the proposed Bill reinforces the Rule 188(2) of the Rules of Procedures in a larger plane by requiring the Members to publish in the prescribed from their conflicting interests (Section 5(b)), wealth and income along with that of their family members before the first session of parliament ends to be updated on yearly basis. These statements shall be subject to the scrutiny of Ethics Committee which shall be empowered to publish any one if it thinks fit (Section 5(d)). They are also to arrange their private affairs so as to prevent real, potential or apparent conflicts of interests (Section 5(b)). To resolve the conflict of interests they may seek necessary guidance from the Ethics Committee (Section 5(c)).
Ethics committee - A Nine (9) Member Committee headed by the Speaker (Section 13(2)) with proportionate representation of the political parties shall be formed (Section 13(3)) to oversee the enforcement of the Code of Conduct. The Committee may inquire into the allegations brought by any individual (Section 13(5)). Any incident covered by the electronic and print media may suo moto be inquired into (Section 13(6)). A show-cause notice will be served on the accused MP and if his response is found satisfactory, the Committee may discard the issue. If the response doesn't satisfy the Committee, it shall refer the issue to the House with recommendations for punitive measures (Sections 13(7) and 14(2)).
Some gaps to be filled up
In spite of embodying so many progressive features, the Bill in its present form bears every risk of becoming a mere paper tiger unless some important issues are addressed sincerely and vigorously.
First, while framing a law regulating the conduct of MPs, we must not overlook the essential difference between a Code of Conduct and a Code of Ethics though they are often used interchangeably. This Bill also has mixed them up. A Code of Ethics identifies those ethical values within a particular culture, time and place that are regarded as the foundation of a profession or institution. Such a Code is usually aspirational rather than prescriptive. How to bring issues like fairness, accountability, faith in democracy, justness within the four walls of legal language to make them strictly enforceable? A Code of Conduct, on the other hand, is usually more focused on the core functions of the profession or organization, involving a sanction against violation. Bribery, corruption and conflict of interest etc can easily be subsumed under a law. So a Code of Conduct consisting of so many ethical principles, as it is the case with this Bill, would be a net with loopholes.
Secondly, even the core justiciable issues finding place in the Bill may be seen by the public only as window-dressing if the proposed Ethics Committee is not reconsidered. Similar Codes of Conduct failed to improved things in UK and US. The Ethics Committee consisting proportional representation of the political parties will surely take partisan stance by dividing along party lines.
Rather a parliamentary officer, like the Parliamentary Commissioner for Standards in UK or Jurisconsult in Canada, may be assigned with the administration of the Code, while the enforcement shall rest with the Ethics Committee. The Commissioner shall have the duty to receive and investigate complaints concerning the Code, from parliamentarians and members of the public. On the basis of the recommendation of the Commissioner, ultimate sanctioning power shall be exercised by the Ethics Committee. To prevent the Committee from vitiating the recommendation, it may be provided that the Committee would ratify a report or reject it only on procedural grounds or because salient evidence has not been properly considered. In effect, the Committee shall operate as an appellate forum, charged with ensuring that procedural guarantees and natural justice have been observed. To attract vigorous public attraction, the report of the Commissioner must be made public before it is deliberated in the Committee. Moreover, to attract concrete punitive consequences for the Member found guilty, a breach of the Code should constitute misconduct and a breach of the privileges of Parliament.
Thirdly, while the Code requires the declaration of interests, it is slippery on the issue of specifying the specific interests that are required to be declared and registered. A concrete list may be inserted in the Bill defining the financial and non-financial interests which are always relevant and therefore must be registered.
Fourthly, best of the options shall be to introduce the Bill the House afresh as a Government Bill to do justice to the long felt demand for a binding Code of Conduct.
There is no denying that simply adopting a Code of Conduct would not cause a sea change in the situation. Perhaps it would not mark any difference at all. While even the ballot box fails to prevent troublemakers entering the Parliament, what a mere Code can do? Yet isn't it significant that at least one of the Members of Parliament have realized the magnitude of the credibility crisis the Parliamentarians face today? For now let us congratulate the MP responsible for the Bill and demand the approval of the Bill with necessary adaptations in the House.
The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka (The Author is grateful to the honorable MP Mr. Saber Hossain Chowdhury for making a copy of the Bill available).