The Constitution of Bangladesh is the solemn expression of the will of the people and of course supreme law of Bangladesh. It is such a constitution where democracy, human rights, freedom of expression and conscience have been guaranteed.
If we look at the Article 11 of our constitution, it clearly states that: “The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured.”
However, it goes without saying that, there are a few Articles in our constitution which are very controversial in nature, and are inconsistent with the basic fabric of democracy. For example, Article 39(1) talks of a fundamental right by which freedom of thought and conscience is guaranteed. However, when we look at the Article 70 of our constitution, it says that a member of parliament will lose his membership if he votes against his party.
Article 70 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 the party.” The statutory explanation of this Article says that a parliament member shall be deemed to have voted against that party if he/she, being present in parliament, abstains from voting, or absents himself from any sitting of parliament, ignoring the direction of the party that nominated him.
What does it actually mean? We know in the parliamentary democracy, parliament is the repository of the state and of course the place where open debate takes place so that different opinions come from the members of parliament. They have right to oppose any bill which may not serve the peoples’ interest. They have the right to abstain from voting if they desire. However, if they fail to comply with the requirement of Article 70(1) of the constitution, their memberships will be vacant. Where is the freedom of expression of members of parliament here?
In our parliament, we have seen every government bill has been passed somewhat hurriedly no matter how much democratic or unfair it was for the reason that Article 70 does not allow dissenting voice against any bill placed in the parliament to pass or amend. Moreover, Article 55 of the constitution enshrined that the cabinet shall be collectively responsible to the parliament. This provision of collective responsibility has been meaningless because of Article 70 as the cabinet knows that it is not going to be defeated by motion of no-confidence, for no member of the majority party has the right to vote against the party line.
However, one of the strategic advantages of Article 70 is the stability of a particular parliament for the reason that no one can change or leave the political party by which he or she is nominated.
It is worthwhile to mention here that, Article 7(2) and 26 of the constitution of Bangladesh impose certain limitation on parliament in making laws. According to these Articles, no law which is inconsistent with any provision of the constitution can be enacted. Article 7(2) confirms that if any other law is inconsistent with the constitution that other law shall, to the extent of the consistency, be void. As a matter of fact, we have seen that within the constitutions, Article 70 is inconsistent with the two basic principles of the constitution, ie freedom of expression and democracy.
As far as the constitutional experts are concerned, this Article has been inserted in the constitution in 1972 because of some bad experiences in this subcontinent. But the way it has been used since 1972 which is certainly not the goal of our original constitution. To maintain and establish the basic democratic fabric and of course freedom of thought and conscience, this Article should be amended in such a way that the members of parliament have the right to oppose/support or abstain from voting any bill brought before the parliament.
Ideally, the parliament should be a place, in Tagore’s words, “Where the mind is without fear and the head is held high, where knowledge is free, where the world has not been broken up into fragments by narrow domestic walls, where words come out from the depth of truth, where tireless striving stretches its arms towards perfection, where the clear stream of reason has not lost its way into the dreary desert sand of dead habit, where the mind is led forward by thee into ever-widening thought and action.” We hope that our parliament will soon consider amending this provision of the constitution.