The provision to declare vacant the seat of a lawmaker for voting against the party lines in parliament, has once again come up for discussion after the Bangladesh Supreme Courtâ€™s verdict which scrapped the 16th Amendment. This was one of the main arguments against placing the power to impeach judges in the hands of the parliament. It was said that due to Article 70 of the constitution, the members of parliament did not have the scope to take any decision based on their own discernment or conscience.
In a parliamentary system of government, the party which secures more than half the seats in parliament through direct votes of the people, win the opportunity to run the government. Members of parliament in various countries of the world are elected in two different ways. One is that the candidates who wins the most votes among the contenders in a constituency, wins. The other is seat sharing among the contesting parties on the basis on proportionate vote.
In our country, the candidates who wins the most votes in a constituency is elected as a member of parliament. The prime minister and ministers are appointed from among the members of parliament. The prime minister is bestowed with the executive powers of the republic.
In a presidential form of government, though there may be a prime minister and a cabinet of ministers, the executive powers are exercised by the president. The president takes advice and assistance from the cabinet and the ministers perform their duties based on his approval. In some countries where there is a presidential form of government, the president is elected by direct votes of the people. In some countries, the president is elected by indirect vote, that is, by the members of parliament.
In our country, as in others, every adult has the right of franchise. When casting a vote, a person is driven by his opinion, conscience and personal freedom. It is a criminal office according to the law of the land to coerce anyone of unlawfully force anyone in the matter of casting their vote. Freedom to vote is a fundamental right as laid down in Article 39 of the constitution.
When our constitution was drawn up in 1972, Article 70 stated about resigning from a political party or voting against the party line, that â€œa 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 the party.â€Â However, he will not be disqualified from contesting the the next elections.
The fourth amendment made additions to this, stating that in such circumstances if a person disobeying party orders or abstaining to vote though remaining present in parliament, or remains absent from any parliamentary meeting, will be considered to have voted against the party.
Then the 12th amendment, keeping the changes of the fourth amendment in Article 70 intact, added clauses 2 and 3. Â It was stated therein that if any questions were raised about the leadership of the parliamentary party of any political party, then within seven days of the Speaker being officially notified of this, a meeting of all the parliament members of the party would be summoned and the parliamentary party leader of the party would be determined by majority vote. And if any members disobeys the orders of the thus determined leadership, he will be considered to have voted against the party and his seat will be declared vacant.
It was also stated that if any independent candidate elected to parliament later joins a political party, he will be considered to be elected member of parliament of that particular party.
Then the 15th amendment of the constitution took Article 70 back to its form as in the 1972 constitution and the the additions made to this article in the 4th amendment as the clauses added in the 12 amendment, were repealed.
Article 3 of the constitution speaks of fundamental rights, stating that any law contrary to fundamental rights shall be scrapped.
A review of Article 70 makes it apparent that this article violates the right of a member of parliament to exercise his voting rights in keeping with his views, conscience and individual freedom, which is apparently contrary to Article 39. Article 70 violates the guarantee given in Article 39 for a citizen to exercise his rights to freedom of thought, conscience and expression.
According to the present provisions of Article 70, parliament memberâ€™s seat will be declared vacant if he resigns from his party or votes against the line of his party in parliament. In the first instance, that is if a member of parliament resigns from the party, it is justified that he loses his parliamentary seat because in context of this country, the voters basically vote for the party symbol rather than the individual candidate in most cases. The parties go all out to ensure the victory of their respective candidates, with the party or party supporters often bearing all expenses of the election campaign. So, it amounts to betrayal if a parliament member denies the contribution of the party that brought him to parliament and resigns. In this case, it can hardly be considered undemocratic for the member of parliament to lose his seat.
The question is, if a member votes in parliament against the line of his party, whether it would be in keeping with democratic norms to vacate his seat.Â This has been debated since this provision was introduced in Article 70. When a voter elects a candidate to parliament, this is a chance for him to exercise his democratic rights in a limited manner. But this opens the door to massive responsibilities for the elected person.
While the basic premise of the parliament is to promulgate laws, a member of parliament must give much thought when voting for or against the law , as to whether it is in the interests and welfare of the people. After the election, a member of parliament represents his constituency. It does not matter who voted or did not vote for him. Other than drawing up laws, the parliament highlights the problems and sufferings of the various areas. It is the responsibility of the member of parliament to do so on behalf of all the people of his constituency.
In many instances, a member of parliament cannot take his thoughts, conscience or individual freedom into consideration even in the case of a law he deems detrimental, in fear of losing his seat due to the compulsions of Article 70. Similarly, a member also often sacrifices his views, conscience and personal freedom in accepting a project which does not tally with the countryâ€™s or the peopleâ€™s interests, but is in the interests of the party. He has no other choice.
The conscious people who vote for a person in keeping with their discernment, conscience and personal freedom, ask why the elected member of parliament who represents them cannot exercise his own views, conscience and individual freedom when voting in parliament. The violation of this right of the member of parliament is contrary to free thought, conscience and individual freedom, which are the preconditions of democracy. This is not only in conflict with democracy, but encourages autocratic and anarchic tendencies in a democratic garb. In order to uphold the spirit of democracy, thoughts, conscience and individual freedom must be nurtured, not curtailed.
Ikterdar Ahmed is former judge, and constitutional, political and economic experts. He can be contacted at firstname.lastname@example.org