Article 70: A tight rein on MPs

Shakhawat Liton

Photo: Star Archive

AS a provisional constitution, the Proclamation of Independence 1971 provided for a presidential system of government giving the president absolute power in view of the war situation. It made Bangabandhu Sheikh Mujibur Rahman the president and authorised him to exercise all the executive and legislative powers of the Republic and do other things that may be necessary to leave to the people of Bangladesh an orderly and just government.

In exercise of the legislative power, President Sheikh Mujib on January 11 of 1972 made and promulgated the Provisional Constitution Order 1972, introducing a parliamentary democracy in the sovereign Bangladesh and also made provision for a cabinet of ministers with the prime minister at the head.

Although the proclamation of independence order empowered the president with all executive and legislative powers, the provisional constitution order provided that the president would exercise all of his functions on advice of the premier.

The day after the promulgation of the provisional constitution order, Sheikh Mujib stepped down as the president to become the prime minister. The same day Justice Abu Sayeed Chowdhury was sworn in as the president. The new president's first official function was to administer the oath of office to Sheikh Mujib as the prime minister and eleven other members of his cabinet.

On advice of Prime Minister Sheikh Mujib, the president issued on March 22 of 1972 'The Constituent Assembly of Bangladesh Order' making provisions for functions of the assembly consisted of representatives elected to the national and provincial assembly in elections held in between December 7 of 1970 and March1 of 1971.

Despite having the executive's extraordinary authority and overwhelming majority in the constituent assembly, the ruling AL policymakers felt necessity of a law to keep a tight rein on lawmakers, who even were not given the power to oversee the executive's functions to ensure its accountability to the assembly.

Advised by the prime minister to this regard, the president issued 'The Bangladesh Constituent Assembly Members (cessation of membership) Order 1972', allowing the political parties to keep a tight rein on members of the constituent assembly.

According to that order, a person had to lose his seat in the constituent assembly for his resignation from or expulsion by a political party that nominated him as a candidate at an election.

In case of resignation or expulsion, the secretary of the concerned political party had to send a written notice to the speaker of the constituent assembly. On receipt of the notice, the speaker and in case of the absence of the speaker, the secretary of the assembly had no alternative, but to take measure to vacate his/her membership in the assembly.

The notice served by the secretary of the political party concerned of the resignation or the order of expulsion was conclusive evidence of such resignation or such expulsion and no court, tribunal or body had power to enquire into the validity of such resignation, or the order of expulsion or any proceedings upon which it is based.

Thus, the parliamentary democracy began its journey in independent Bangladesh under the leadership of country's all-powerful Prime Minister Bangabandhu Sheikh Mujib, who was also the supreme leader of ruling Awami League (AL). And in this way the constituent assembly began its journey on April 10 of 1972 having the only authority to frame the country's constitution. The constituent assembly was not empowered with the authority to enact other laws and hold the executive accountable to it.

The parliamentary democracy started functioning, but members of the constituent assembly did not have liberty. The cruel restrictions imposed on them made them subservient to the political parties.

Despite the restrictions, things were not moving smoothly. As many as 19 members of the constituent assembly lost their membership by being expelled from the ruling AL for reported violation of party discipline and three others lost membership as they resigned from the AL in protest of government corruption and malpractice.

The day after the beginning of its journey, the constituent assembly formed a constitution drafting committee consisting of 34 members under the chairmanship of the law minister Dr. Kamal Hossain.

The committee came up with the draft of the constitution. It included the restrictions imposed by the Bangladesh Constituent Assembly Members (cessation of membership) Order 1972 in the draft constitution in the form of article 70. Four members of the constitution drafting committee, who belonged to the ruling AL, strongly opposed some of the draft provisions including the article 70 and gave note of dissents.

“Nowhere in the democratic world, membership of Parliament ceases on the ground of one's expulsion from a political party. Such cessation of Parliamentary membership may be found only in a dictatorship where system of one party prevails. A Member of Parliament is elected by the voters and not by party members. Once he is elected, he becomes a member of National Assembly and he no longer remains simply a member of his political party,” says Hafiz Habibur Rahman in his note of dissent.

He said the system such cessation of membership would result in party dictatorship and dictatorship of party leader. A party can never have right to nullify the verdict of the people, i.e. election, he argued.

“…If such a system is retained, the members would not have courage to raise their voice against the misdeeds of his party-Minister and Prime Minister even in the parliamentary party meeting for fear of being victimised by the party,” asserted Habibur Rahman.

Abdul Muntaquim Chowdhury, another member of the constitution drafting committee, argued that countries in which parliamentary democracy has been firmly established were pulling on very well without a provision like this.

“But since we are going to introduce Parliamentary democracy for the first time in this country, we should, in the initial stage, guard against any possible attack on it. So, at least as a transitional arrangement it is necessary to put such restrictions on the members of the Parliament,” Muntaquim Chowdhury said in his note of dissent.

But he was against inclusion of the provision in the constitution. He suggested that such a provision could be made by enacting a law to achieve the same objective without a constitutional provision.

As an alternative arrangement if it has to be provided in the constitution, he further suggested relaxing the provision. “As an alternative, it may be suggested that if a member casts his vote against the decision of the political party, on the ticket of which he was elected to the parliament his membership of the parliament shall cease,” Muntaquim Chowdhury recommended in his written not of dissent.

In his note of dissent another member of the constitution drafting committee, Asaduzzaman Khan, was more critical on inclusion of article 70 in the constitution. According to him, inclusion of the article is against all principles of democracy and violation of the rights of the electors, that it would render the members of the party subservient to the party high-ups and more so, when they occupy top position in the government.

The restrictions drafted in the article 70 of the constitution modified little during the process of adopting the constitution by the constituent assembly. The modification however did not improve the situation; it has rather made the provision more stringent.

Photo: Star archive

The draft article 70 had provided that a member of parliament would lose his membership if he resigns from or is expelled by the political that nominated him as a candidate at the election. In modification, the issue of expulsion from the political party, which was one of the grounds for losing membership, was omitted. Instead, a new clause was incorporated in the article 70. The new clause imposed restriction on MPs to cast votes in parliament against the party that nominated him at the election. If one does it, s/he would lose membership. As a result, MPs were not allowed to cast votes against his/her own party line in parliament regardless of the party's decision whether it is right or wrong.

The constituent assembly adopted the constitution, the supreme law of the country, on November 4, 1972. Interestingly, the ruling AL lawmakers who gave note of dissents could not refrain from singing the constitution, which kept the tight rein on MPs.

Eminent political scientist Rounaq Jahan in her book styled 'Bangladesh Politics: Problems and Issues' analyzed the reasons behind the imposition of such restrictions on MPs. She wrote: “The Awami League's admiration for the Indian style single dominant party system arose over the years as it proved to be a stable system. Pakistan's own experience with parliamentary democracy in the 1950's was one of political instability where multiple parties made the average life span of cabinets extremely short. Since the Awami League was committed to parliamentary democracy and it also wanted a stable government, the Indian model of a single dominant party appeared to be the answer.”

“To ensure single party dominance, the regime made a constitutional provision that a Member of Parliament would lose his seat should he cross the floor, or resign from or be dismissed from his party. This unusual provision was incorporated, no doubt keeping the Pakistani experience in mind when parties were made and unmade in the parliament, put its impact was to perpetuate the Awami League's dominance in the country,” Rounaq Jahan observed in her book.

But in the constituent assembly, there was no other political party with the ability to make the life span of AL-led government short. The assembly started its journey with 430 members. The number had been reduced to 403 as 19 members lost their seats in the assembly by being expelled by the AL, three resigned from the AL in protest of government corruption and malpractice, one resigned and one disqualified himself by joining diplomatic mission. The remaining 403 members manned the constituent assembly to the last of its life. Out of them 400 belonged to the ruling AL, one belonged to National Awami Party and two were independent.

The AL regime however was not satisfied with the constitutional restrictions already imposed on MPs. The regime tighten the restriction more by enacting the constitution's fourth amendment act in January 1975 which also discarded the parliamentary democracy and switched over to the presidential form again in contrast with its commitment to the parliamentary democracy.

In doing so, the regime forgot the people's aspiration it cited just three years ago. “It is the manifest aspiration of the people of Bangladesh that a parliamentary democracy shall function in Bangladesh,” announced the provisional constitution order 1972 for introduction of the parliamentary democracy.

The nefarious fourth amendment act introduced one party system, dissolving all other political parties. Bangabandhu was made the president with the absolute authority to run the state. He was also given the power to take necessary steps for the formation of the national party. He was authorised to make order determining all matters relating to the nomenclature, program, membership, organisation, discipline, finance and function of the national party, which was formed and named Bangladesh Krishak Sramik Awami League, popularly known as BAKSAL.

The constitutional provisions made by the fourth amendment act forced MPs, who were elected in the parliamentary election held in 1973, to join the BAKSAL on the first day of formation of the national party to save their membership in the House. In case of failure to do so, s/he had to lose membership in parliament. Even none was allowed to contest the parliamentary or presidential election if s/he was not a member of the BAKSAL.

In addition, the article 70 was made more stringent by including an explanation in it. The explanation said- 'if a member of parliament- being present in parliament abstains from voting or absents himself from any sitting of parliament, ignoring the direction of the party which nominated him at the election as a candidate not to do so, he shall be deemed to have voted against that party.'

Casting vote against own party means losing membership. By incorporating this explanation, the MPs' freedom was curtailed absolutely giving them no alternative, but to follow the party decision.

However, the history took a tragic turn. Bangabandhu Sheikh Mujib was assassinated on August 15, 1975 and his government was overthrown. Martial law was declared making the constitution subservient to the martial law proclamations, orders etc, and the parliament constituted through the election of 1973 was dissolved.

After a long dark episode, democracy was restored through mass upsurge in December 1990 and the parliamentary democracy was also reinstated in the country in 1991 with the enactment of the constitution's twelfth amendment act. But at that time, the BNP-led government opted for retaining the constitutional provisions made by the fourth amendment to keep tight rein on MPs. Even the BNP-led government had moved to make it tougher further incorporating a clause in it to punish 'disgruntle' lawmakers.

The then prime minister Khaleda Zia, who moved the bill for the 12th amendment to the constitution, also proposed that membership of an MP will be vacated if s/he lose the membership of the party that nominated them or is expelled from it. She also proposed a stringent clause to punish such MPs by disqualifying them from contesting the parliamentary elections for the next five years from the date of their seats falling vacant.

The BNP government even moved to deny the EC's present right to decide disputes over vacating parliament membership for the causes mentioned in article 70. It proposed that if any lawmaker violates any of the clauses of article 70, the leader of that party in parliament will communicate the fact to the EC in writing and the seat of that member shall fall vacant on the date of receipt of such communication by the EC.

All the three proposals were, however, excluded from the bill in the face of severe criticism and opposition in and outside of parliament at that time. But the stringent clause of article 70 made by the fourth amendment finally retained.

Thus, the existing article 70 of the constitution has kept MPs "prisoners" of their own party since restoration of parliamentary democracy in 1991, preventing them from playing due role in parliament freely. Lawmakers, particularly belonging to the treasury bench, cannot cast vote against any government decision--no matter whether it is right or wrong.

Therefore, parliament is unable to ensure accountability and transparency of the cabinet because of these restrictions although as per the constitution the cabinet is collectively responsible to the House. The restriction gave birth to a culture of flunkeyism in politics in which lawmakers are very often found to blindly appreciate the all-powerful executive's performance, instead of discharging their oversight functions.

"[Original] Article 70 puts a reasonable restriction on the function of a member of parliament but the amended article 70 makes him a prisoner of his party. The party may still voluntarily allow him such freedom," the Supreme Court said in a verdict on April 27, 2006.

A High Court division bench comprising justices ABM Khairul Haque, who is now the chief justice, and ATM Fazle Kabir delivered the judgement in the Anwar Hossain Manju versus Government of Bangladesh case.

In the monograph titled "The Changing Forms of Government in Bangladesh: The Transition to Parliamentary System in 1991, in Perspective", published by Bangladesh Institute of Parliamentary Studies, noted political scientist Prof Abdul Hakim portrays the image of an unchallenged prime minister due to article 70.

Hakim says there are few chances for a situation to arise in which, as per constitutional provision, the prime minister has to either resign office or advise the president to dissolve parliament for failing to retain the support of majority MPs.

The Chittagong University professor of political science says article 70, as it existed before and after passing of the 12th amendment on August 6, 1991, makes it an extremely risky task to break party rank. It is virtually unimaginable that a prime minister, who has majority of the MPs from his party, will cease to retain their support. Even the most disenchanted ruling party backbencher will have to think twice before taking such a stand that will put their parliament membership in jeopardy, Professor Hakim observed.

The article 70 has also been used as a major weapon of the opposition political party to continue the House boycott. If a party decides not to join the parliament, all of its lawmakers must honor the party's decision no matter whether it is right or wrong.

In the seventh parliament, BNP lawmaker Maj (retd) Akhtaruzzaman protested at the then opposition BNP's decision to boycott parliament proceedings and joined the House. His membership was ultimately vacated following a complaint from the BNP.

Demands for abolishing the provisions have never got momentum, which has allowed AL and BNP--the parties that have ruled the country since 1991--to successfully rein in their MPs. The lawmakers have also always remained silent about it, failing to give any independent view for fear of losing their memberships in parliament.

However, BNP lawmaker Adbul Mannan and Jatiya Party deputy GM Quader had piloted two separate bills in last eighth parliament regarding to the amendment of article 70 of the constitution to ensure MPs freedom for the greater interest of parliamentary democracy.

They submitted the bills in the parliament secretariat, proposing an MP, elected as a candidate from a political party, shall vacate his seat if he voluntarily resigns from the party or votes in a motion of no-confidence in the cabinet in parliament against his party.

The parliamentary standing committee on private members bills and resolutions recommended for allowing the lawmakers to place the bills in parliament seeking to amend the article 70. But the then speaker did not allow them to do so.

Latest, the ruling AL in its electoral manifesto pledged that MPs will be allowed to express differing opinions, except for some specific subjects related to the security of the state. But the AL-led government has yet to make any move to this effect in last two years of assuming office after the December 29 of 2008 parliamentary election.

Nobody knows how long the dark shadow of article 70 will remain in force, making the people's representatives subservient to the political parties. In contrast, the executive branch has been consolidating its position in all unholy ways, making imbalance of power and diminishing the prospect of good governance. Nothing can contribute significantly to transform the parliament into country's supreme political institution to represent the people's will until MPs are set free from the tight rein of the political parties.

The writer is a Senior Reporter, The Daily Star