MP made prisoner of his party

SC verdict critical of Article 70; TIB recommends amendment; dy speaker sees no problem
The amended 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.
According to the amended provisions, parliament membership will be vacated if a lawmaker present in the House abstains from voting for their party that nominated them in the election, or does not attend any particular sitting of parliament ignoring party direction.
Demands for abolishing the provisions have never got momentum, which has allowed Awami League 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 parliament membership.
The original article 70 of the 1972 constitution imposed restrictions on MPs, saying parliament membership will be vacated if a lawmaker resigns from the party that nominated them in the election and votes against the party in parliament.
“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 and ATM Fazle Kabir delivered the judgement in the Anwar Hossain Manju versus Government of Bangladesh case. The verdict has become conclusive as the government did not file a regular appeal against it.
The restrictions were imposed in the 1972 constitution to prevent floor crossing of MPs for the sake of a stable government and parliament, legal experts observe.
But the 12th amendment to the constitution in 1991 imposed the more stringent restrictions, which denied a legislator the right to remain absent from any sitting of the House, ignoring the direction of their party.
Talking to The Daily Star informally on numerous occasions, many lawmakers of both Awami League and BNP criticised their party stances over parliamentary affairs, particularly on boycotting the House when the party was in the opposition. But they do not dare to speak freely for fear of severe consequences.
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.
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. Lawmakers, particularly belonging to the treasury bench, also cannot cast vote against any government decision–no matter whether it is right or wrong.
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.
Referring 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.
Against this backdrop, Transparency International Bangladesh yesterday recommended amending article 70 to allow lawmakers to play their role freely, thus ensuring transparency and accountability of the government by making the parliament more effective.
“It is the moral and social responsibility of a lawmaker to express independent view if a government takes any decisions against the interests of the country or the people,” the TIB said in defence of amending article 70.
Participating in a discussion on the TIB’s report titled “Parliament Watch 2009”, ruling Awami League lawmakers Mohiuddin Khan Alamgir and Saber Hossain Chowdhury supported the view.
Saber proposed imposing three “reasonable” restrictions on an MP to follow party direction: when a no-confidence motion against the cabinet is placed in parliament, regarding passing of the finance bill, and for formation of the government.
However, Deputy Speaker Shawkat Ali disagreed and said article 70 does not bar lawmakers from discussing, making statements and criticising their own parties. He said article 70 applies when the issue of casting vote arises.
“I personally think the consequence will be the same if article 70 is repealed as a whole since none of the ruling party lawmakers will cast vote against the government,” he said.
The Election Commission also recommended amending article 70 in its report on the outcomes of talks between the commission and political parties last year and even formed a constitutional committee to review the constitution during the tenure of the parliament to come.
But nothing has happened. The EC recommendations had come at a time when people were eagerly waiting for the ninth parliamentary election only and no other issue could influence their thoughts.
The Awami League, which was the main opposition in the fifth parliament, was against any amendment to article 70. Veteran AL leader Abdus Samad Azad moved a bill in 1991 on behalf of the party, seeking the 12th amendment to the constitution for restoration of parliamentary form of governance, but he did not propose any amendment to article 70.
The AL vehemently opposed the BNP government’s move to include the additional stringent clauses.
But the AL had to agree with the inclusions of some clauses “for the sake of switching to parliamentary system of government from the presidential one”.
During the passage of the 12th amendment bill, Salauddin Quader Chowdhury, who was then a lawmaker of the NDP, termed article 70 a “barbaric provision” and said a constitutional arrangement based on suspicion could never guarantee political stability. Salauddin is now a BNP leader.
BNP FOR REINING IN LAWMAKERS
The 1991 BNP government amended article 70 of the constitution to rein in its lawmakers, many of whom joined the party before the fifth parliamentary election and were elected on BNP nominations.
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 they 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 election for the next five years from the date of his seat falling vacant.
The BNP government even denied 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 parliament at that time.
BNP lawmaker Abdul Mannan moved to place a private members’ bill in the eighth parliament, seeking to relax the stringent provisions of article 70. But the then speaker Jamiruddin Sircar did not allow Mannan to place the bill before the House despite recommendation of the parliamentary standing committee on private members’ bills and resolutions.

Courtesy of The Daily Star