Reconsidering Article 70 in our Constitution

Floor crossing generally refers to the act of elected Member of Parliaments (MP) to vote against their party’s position in parliament. Article 70 of the Constitution of the People’s Republic of Bangladesh enshrines that MPs cannot vote against their party; otherwise, it may result in their seats getting vacated.

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The historical and political context in which Article 70 was introduced justified its adoption to ensure political stability. That said, it is crucial to examine if the current political landscape justifies reliance on this ‘stability’ argument anymore.

The incorporation of Article 70 was initiated in the Pakistan era arguably to prevent frequent and unprepared defections by the legislators, which contributed to political instability. The provision was enacted to discourage opportunistic floor-crossing, a crisis that destabilised governments in many parliamentary democracies. However, whether this stability should come at the expense of parliamentary independence is the question I want to focus on today.

Firstly, in our country, MPs are elected by the people, not by parties. Thus, their constitutional responsibility should not be limited to their party policies. Although Article 70 does not prohibit MPs from expressing dissent or criticising party policies during parliamentary debates, it significantly limits their ability to transform those views into parliamentary votes. Abstaining from voting and being absent from Parliament do not have the same weight as voting against bills introduced by our own parties. Hence, the effectiveness of parliamentary composure is diminished when MPs cannot vote independently on matters before the Parliament.

Secondly, Article 70 directly affects an MP’s freedom of thought and speech, which in turn affects the rights of the people. It is important to note here that Article 7 of the Constitution confers all power to the people of this country. If MPs cannot vote against their party’s directives even when they are directly or indirectly conflicting with the best interests of people of their own constituency in Parliament, the democratic spirit embodied in Article 7 gets undermined.

Furthermore, Article 70 also creates a barrier to establish the rule of law. Rule of law necessitates checks and balances, accountability, and transparency in the works of the executives as well as the legislature. However, the exercise of the anti-defection law creates limitations on lawmaking and compromises representation of the people. Notably, Article 11 of the Constitution provides that the republic shall be a democracy in which fundamental human rights and freedoms are guaranteed, and in which effective participation of the people through their elected representatives is ensured. Thus, Article 70 may create a hindrance in furthering the cause of democracy in the Parliament in cases when party proposals conflict with the public interest.

And lastly, the provision also contradicts the doctrine of Separation of Powers. In the parliamentary system of Bangladesh, the executive is formed from the majority party in the Parliament. Despite having the power to hold the executive accountable for its acts, the restrictions on voting obligations reduce Parliament’s practical capacity by giving greater control to the Party leadership. This issue was raised in the sixteenth amendment case (Government of Bangladesh and Others v Advocate Asaduzzaman Siddiqi and Others, 2017: p. 280) where the learned Senior Advocates Mr. Hasan Ariff and Mr. Rokonuddin Mahmud submitted that Article 70 effectively dilutes the doctrine of separation of powers by limiting the MPs freedom of speech in the Parliament which thereby weakens the parliament’s role as an independent check on the executive.

For these reasons, many countries allow floor crossing in their governance. For instance, in the United Kingdom, party discipline is maintained through the Whips’ system. However, MPs do not automatically lose their seats for voting against their party, and free votes are permitted on certain issues. Similarly, Canada has also recognised the issue and does not restrict party members from voting against their party. Even the Tenth Schedule of the Constitution of India allows an exception: if at least two-thirds of the members of a political party agree to merge with another party, they are exempt from disqualification under the anti-defection law.

Arguably, the historical and political context in which Article 70 was introduced justified its adoption to ensure political stability. That said, it is crucial to examine if the current political landscape justifies reliance on this ‘stability’ argument anymore. Therefore, I am of the view that Article 70 should be reformed to maintain the balance between parliamentary independence and political stability. Though the anti-defection law has significant importance to keep the members of the parties faithful towards the party, it still needs some reforms to ensure the rights of the citizens of the country as well as the MPs. Bangladesh can take lessons from the systems of the United Kingdom and Canada, where MPs are given the freedom to vote according to their conscience. Adopting a similar approach would help Bangladesh strengthen its parliamentary debates, enhance executive accountability and represent the best interests of the people.

The writer is student of Bangladesh University of Professionals (BUP).