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Article 70 is no more welcome

Saqeb Mahbub
IF one provision of law had to be singled out for its contribution towards holding back our otherwise promising parliamentary democracy, it would most certainly be Article 70 of the Constitution. In line with the culture of our political parties, no party in power or in opposition has ever properly addressed the issue of MPs not being allowed to vote against their own party, as Article 70 stipulates. Consequently, this provision has haunted our parliamentary practice for four decades and promises to continue to do so in the foreseeable future.
Originally designed to prevent MPs from engaging in what is known as "floor-crossing" the barrier is not absolute, in the sense that an MP can still vote against his party, but only at the high cost of losing his Parliament membership and therefore ceasing to be a representative of his people. It is, therefore, hardly surprising that an MP has gone against a party decision in Parliament and sacrificed his membership only once in our 40-year democracy.
In a vibrant democracy, democratic practice or power of the people should not end with the casting of a ballot. But unfortunately for us, as soon as we have elected our representative lawmaker, he is out of our hands and in the clutches of the party that nominated him. No matter how much a particular party decision might affect the interests of his constituents or push the boundaries of his conscience, a lawmaker has no real power to vote against it.
With this arrangement in place, sadly since the very inception of our country, our Parliament is only a rubber stamp to be used at the whim of the party in power. Not only does the opposition never stand a practical chance of winning a vote against the government, no critic inside the ruling party holds any bargaining power against an unreasonable or harmful decision of the government. He is free to speak his mind on the Parliament floor but the freedom ends once the speaker calls for votes.
From that moment onwards, an MP, the representative of the people, must only blindly follow his herd.
This really begs the question — how effective, if at all, is the Parliament in debating national policy? The government asking the opposition to attend Parliament is a familiar media headline. But sadly, no party in power has taken a principled stance against Article 70, which practically renders the opposition powerless in Parliament. It means they can scream their hearts out but will never be able to vote the government down on an issue no matter how much popular support their cause might have. In a way, our Constitution, through Article 70, reiterates the old Bangla saying: "You're invited to argue with me about who owns the taal-gachh, but keep in mind that the
taal-gachh is mine!"
A couple of recent examples have illustrated the consequences of concentrating power in the hands of party high-ups instead of the elected lawmakers. Sensitive and nationally significant laws have been masterminded in a closed-door party forum and then passed in Parliament hurriedly and amid opposition from the ruling alliance's own ranks. The Constitution (Fifteenth Amendment) Bill 2011 was passed in the face of fierce opposition from Awami League's backbenchers and leftist allies; they had proposed amendments, debated on the floor, but to no avail. Only minutes later, they were all found to go through the "YES" door, silently complying. The Local Government (Amendment) Act 2011, dividing the
Dhaka City Corporation, was passed in four minutes, after a set of amendments to the bill proposed by an independent lawmaker was quickly gunned down by the ruling majority.
Now, although the Article 70-esque method of controlling the Parliament members is foreign to most developed democracies, it features in the constitutions of our close neighbours India and Pakistan. However, unlike our Constitution, the Indian version, in Articles 102(2) and 191(2) and the Tenth Schedule, and the Pakistani version, in Article 63A, only bars a member from voting against a specific direction "issued" by the party. Furthermore, the Indian Constitution allows condonation of the action while the Pakistani Constitution allows a chance of hearing to the member. Unfortunately, none of these flexibilities exist for a Bangladeshi MP. Once the vote has been cast against the nominating party, our Constitution shows him the door.
Recently, the Awami League government passed a minor amendment to Article 70, making it possible for an MP to abstain from voting even when his party decides to vote. But in votes that have followed, most significantly the DCC split vote, this change has hardly seen the fight of day in practice.
After so many years of democ-
racy and with the presence of a strong bi-partisan political system, unfounded fears of “floor-crossing" are hardly any justification for holding back MPs from doing what they are mandated to do. It seems likely that without a wholesale scrapping of the provision and addressing the issue head-on, the opportunity will go missing for a vibrant parliamentary culture. A constitution without Article 70 will at least give us a fighting chance of creating a matured parliamentary system where the government is checked and balanced by its own ranks and the opposition has a genuine say in the law making process of the country.
The writer, a Barrister-at-Law, Is Associate, Huq and Company.
Email: saqebmahbub@gmall.com