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Amending Article 70

M. ABDUL LATIF MONDAL
THE Transparency International Bangladesh (TIB) report, titled "Parliament Watch 2009," released on July 4, recommended, inter alia, amendment of Article 70 of the Constitution for allowing lawmakers to play their due role. Records show that the proposal made earlier by some constitutional experts and civil society members for amending or abolishing this article failed to get momentum.
Let us have a look into Article 70. Article 70(1) says: "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 resigns from that party or votes in parliament against that party.
"Explanation: If a member of parliament;
1. (a) Being present in parliament abstains from voting, or (b) absents himself from any sitting of parliament, ignoring the direction of the party which nominated him at the election as a candidate, he shall be deemed to have voted against that party.
2. If, at any time, any question as to the leadership of the parliamentary party
of a political party arises, the speaker shall convene a meeting of all members of that parliamentary party and determine its parliamentary leadership by the votes of majority through division and if, in the matter of voting in parliament, any member does not comply with the direction of the leadership so determined, he shall be deemed to have voted against that party under clause (1) and shall vacate his seat in the parliament.
3. If a person, after being elected a member of parliament as an independent candidate, joins any political party he shall, for the purpose of this article, be deemed to have been elected as a nominee of that party."
It may be mentioned that the constitution, which was adopted on November 4, 1972 and came into effect on December 16 of the same year, did not contain the explanatory part in Article 70. The above (a) and (b) of the explanatory note were included in Article 70 by the Constitution (Fourth Amendment) Act, 1975. The Constitution (Twelfth Amendment) Act, 1991 unanimously passed by the parliament to reintroduce parliamentary system of government added (2) and (3) to the explanatory note of Article 70. Article 70, as it stands now, has allowed both the /\L and BNP governments to successfully rein in their MPs. That is why they have not shown any interest in amending the article. The constitutional experts and civil society members who ask for amendment of Article 70 argue that it contradicts the fundamental rights as enunciated in Part 111 of the Constitution, thereby curbing the rights of the MPs as far as freedom of thought and expression is concerned.. ThQjerticleirh^r) usurped the powers of the MPs to defend the cause of the people who voted them to power.
It is further argued that parliamentary democracies having no such thing as Article 70 in their constitutions have not suffered from political instability. They have suggested suitable amendments to Article 70, incorporating the option of an MP to vote according to his conscience except on three fundamental and vital issues: (a) when a no-confidence motion is brought against a particular government, (b) regarding the passing of the finance bill; and (c) on sensitive defence matters which may be held in camera, if needed. Newspaper reports suggest that some MPs of the ruling party support this view.
The arguments put forward by the other group of constitutional experts and knowledgeable people are:
• Article 70 was framed after much thought to ensure stability and strengthen parliamentary democracy;
• Parliamentary democracy that was introduced in the constitution adopted on November 4, 1972 could not survive for more than three years;
• Bangladesh should be compared with other parliamentary democracies in South Asia.
Let us now see what the constitutions in our neighbouring countries say on the vacation of a seat by an MP on grounds of defection.
According to the Constitution of India, a member of either House (Council of States or House of People) of the union parliament or of the legislative assembly of a state belonging to any 'pofitioai party shalEfee disqualified from being a member ofthe house if (a) he has voluntarily given up membership of such party; or (b) he votes or abstains from voting in such house contrary to any direction issued by the political party to which he belongs without obtaining prior permission of such political party and such voting or abstention has not been condoned by such political party within 15 days from the date of such voting or abstention.
According to the Constitution of Pakistan, a member of a House (the national assembly or the senate) or of the provincial assembly shall lose his seat if he defects from a political party which nominated him, or votes contrary to any direction issued by the parliamentary party to which he belongs, or abstains from voting in the house against party policy in relation to a bill. He, however, gets an opportunity to appeal and the party chiefs decision is final.
Parliamentary democracy is yet to take root in our country. Amending Article 70 is a highly sensitive and debatable issue. It needs very close examination. A broad consensus among the political parties, particularly among the political parties having representation in parliament, is necessary before initiating any legislative process on the issue. In other words, nothing should be done in haste. M Abdul Latif Mondal is a former Secretary to the government