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Stripping Sircar of JS Membership

Experts tussle over House's authority

SHAKHAWAT LITON and RASHDUL HASAN
The all-party parliamentary probe body's recommendation for stripping Jamiruddin Sircar of his membership in parliament for corruption and contempt of House sparked extensive debate over the House's authority in taking away membership.
Parliamentarians of rival political parties and constitutional experts are divided over the authority of the House to cancel membership of a lawmaker. This issue has been raised for the first time in the country’s parliament history.
Internationally acclaimed parliamentary affairs experts of USA, UK and India, however, highlighted the power of the House to this effect as the parliaments of the advanced democracies accrued such power through
years of practice.
According to them, a House has the inherent authority to take action against anybody if he or she through misconduct takes advantage of the parliament's privileges.
Those opposing the parliamentary probe body’s recommendation have been arguing that Sircar’s membership cannot be cancelled until he is convicted of a crime involving improbity and sentenced to imprisonment for a term no Jess than two years.
Questions were also raised whether the graft charges raised against Sircar, former deputy speaker Akhtar Hamid Siddiqui and ex-ehjef whip Khandaker Delwar Hossain constitute offences involving turpitude. Criminal offences like extortion, theft, misappropriation of considered necessary to enable the I louse to discharge its tunc lions and safeguard its authority and privilege.'
Internationally acclaimed expert on Parliament Procedure and Practices. Thomas M Cooley, former chief justice of Michigan Supreme Court, in his book "A Treatise on the Constitutional Limitations" said each House has the power to punish a member for disorderly behaviour and other contempt of its authority, and also to compel a member for any cause, which seems to the body to render it unfit that he continues to occupy one of its seats.
"The power is sometimes conferred by the constitution but it exists whether expressly conferred or not. It is a necessary and incidental power to enable the House to perform its high functions and is necessary to the safety of the State. It is a power of protection." Cooley observed
Internationally acclaimed expert on Parliament Procedure and Practices. Thomas Ereskain MayofUKsaid, "The distinctive mark of a privilege is it is ancillary character. The privileges of the parliament are rights which are absolutely necessary for the due execution of its powers."
"They are enjoyed by the individual members because the House cannot perform its functions without unimpeded use of the services of its members and by the House for the protection of its members and the vindication of its own authority and dignity." Sir Ereskain May said.
In the face of uproar over unreasonable expenditure of MPs. Speaker of the House of Commons stepped down for the first time in the last three hundred years’ parliamentary history as he approved the bills of expenditure.
'Westminster cannot operate like some gentleman's club where the members make up the rules and operate them among themselves. If MPs continue to set their own codes and rules, henvever objectively they should try to do so. the public will ahvays question the transparency and the standards that they rightly' demand." British Prime Minister Gordon Brown said.
property. violation oi oam. rape, murder arc considered improbity.
Sircar and Akhtar Hamid were charged with violation of oath of offices and misappropriation of public money. Delwar was also charged with embezzling public money, for which evidence has been collected.
Sufficient evidence is preserved at the Parliament Secretariat to prove their unlawful deeds when they were in office during the last parlia-ment. With the disclosure of the facts in newspapers, people are shocked. They are questioning if the trio couldbe trusted.
. According to a Supreme ' Court verdict, wrongdoings that shake the moral conscience of the society in general are offence consisting improbity.
Former attorney general Mahmudui Islam in his book ’Constitutional Law of Bangladesh" said for considering an offence consisting turpitude, there must be an element of baseness and depravity in the act leading to the conviction. The act must be vile and hann-ful to the society in general or contrary to the accepted rules of morality, he added.
The Appellate Division of the Supreme Court in the case of HM Ershad, who was convicted for committing criminal misconduct under the provision of the Prevention of Corruption Act 1947, observed, "...when a person of such a position has been convicted and sentenced for such offence it shook the moral conscience of the society in general None can think of an act of such nature committed by a person who was at the relevant time the President of the country which was being run under the Presidential form of Government."
. His membership in parliament was vacated following the verdict of the Appellate Division.
But legal experts are now debating whether the House can strip Sircar of his MP status before he is convicted for crimi -nal offences.
Citing instances, the probe body said it is the inherent power of a parliament to scrap membership of an MP for his or her misconduct, no matter any specific provision exists in this regard or not
Constitutional expert and former attorney general Mahmudui Islam in his book also highlighted the inherent authority of the House ancTsaici article 78 of the constitution is silent about the illegal taking advantage of privileges and contempt ofHouse.
'But the absence of any provision is not conclusive. Privileges will have no meaning at all unless the parliament is conceded the power to take action against the breach of privilege. Thus the question is not one of existence, but of the extent of the power," noted Mahmudui.
Former speaker Sircar and some other legal experts, however. disagreed with the inher-• ent power of the House and said no one could be stripped of his or her membership without article 66 or 70 of the constitution beingappli cable.
According to article 66, if a court declares a lawmaker mentally sick, bankrupt or sentences them to two years or more in a criminal case involving turpitude, he or she would lose membership of the House.
And membership of a lawmaker shall fall vacant if they in parliament go against the decision of their party that nominated him or her in the election, according the article 70.
Talking to The Daily Star Friday, Sircar said, "These categories are not applicable in my case. I would take legal action if there is any attempt to cancel my membership in parliament."
Asked about the inherent power of parliament to scrap membership of a lawmaker. Sircar said inherent power of the House is ahvays practised for upholdingpeople's interests.
On contact, eminent jurist Rafique ul Huq yesterday said the House cannot cancel Sircar s membership exercising its inherent power.
> "It is an absurd idea and there is no instance of scrapping anyone's membership by exercising the inherent power of the House in Bangladesh." he said.
Barrister Rafique, however, saio iircar should resign and return the money he took as medical bills and for other purposes and seek apology to the nation.
The House can refer the matter for trial," he added. On Sircar’s undertaking that he would return the money if the Supreme Court asks him to do so, Rafique said, "What does the Supreme Court has to do with the issue?"
Noted jurist Shahdeen Malik echoed the same view and said the way things are dragging formal criminal investigation and proceedings of police, the Anti-Corruption Commission seems to be a logical next step unless Sircar resigns voluntarily.
Eminent parliamentary affairs experts MN Kaul and SI Shakdher. writers of "Practice and Procedure of Parliament with particular reference to Lol Sabha", said, "The power of the House to punish for conternp or breach of privileges has beer described as the keystont of parliamentary privilege ant