As I wrote in the earlier part of the series, the idea of a new constitution is easier said than done. The Canadian Supreme Court in the case of Reference re Secession of Quebec observed that every citizen has the right to participate in democratic governance and this right includes the right to participate in constitution-making. This is a long and complex process involving “continuous process of discussion” and a duty to listen to “dissenting voices” and to seek “to acknowledge and address those voices.” Given the current status of the Bangladeshi interim government, and keeping in mind the more pressing need of institutional reforms, such a mammoth task of a new constitution making may not be feasible.
Whether or not Bangladesh requires a new constitution, it is widely acknowledged that the problems in Bangladesh’s political settlement and the rise of authoritarianism are fundamentally due to the existing constitutional structure. Therefore, surely something must be done to avoid any event similar to the July Revolution. This part deals with the anti-defection provision under article 70 of the Constitution and argues that this constitutional feature is a barrier to healthy democratic practice in the politics of Bangladesh and also an enabler to an authoritarian culture. This part also suggests some alteration to the Constitution to amend the anti-defection provision.
The history of the anti-defection provision
Article 70 of the Constitution contains the anti-defection provision, which stipulates that a Member of Parliament (MP) shall vacate his seat if he (a) resigns from the political party that nominated him as a candidate at the election; or (b) votes in the Parliament against that party. The contentious portion is article 70(b) of the Constitution, which deals with the concept of floor crossing.
The Constituent Assembly Debates of 1972 contain lively discussion on article 70. Suranjit Sengupta, the lone opposition member in the Constituent Assembly, criticized article 70 by observing it to be “undemocratic and not found in any other constitution in the world” (p 575 of the Constituent Assembly Debates, translated from Bengali by the author). In reply, Kamal Hossain (Minister for Law and Parliamentary Affairs and Constitution Drafting and Chairman of the Constitution Drafting Committee) said (p 576 of the Constituent Assembly Debates, translated from Bengali by the author): “If a person is elected by campaigning as a candidate of a party, he shall do all things in accordance with party discipline and party directives while performing his duties in Parliament.”
The legality of article 70 of the Constitution has been the subject matter of constitutional litigation. In Writ Petition No 5675 of 2017, the High Court Division, after an earlier split verdict of January 15, 2018, by its judgment and order dated March 18, 2018 and relying upon the Appellate Division judgment in the case of Secretary, Parliament Secretariat v Khandker Delwar Hossain reported in 19 BLD (AD) 276, held that the spirit of article 70 is that members elected to the Parliament should continue to maintain their allegiance to the party by which they have been nominated and to uphold the manifesto and program of that party in national politics, and article 70 was designed to avoid floor crossing and horse trading being offered by the opposition party.
Arguments for anti–defection
Anti–defection or floor crossing provisions are mostly found in third world or developing countries, where democracies are nascent and fragile. For example, significant number of member countries of the Commonwealth, including India, Kenya, Malawi, Mozambique, Niger, Nigeria, Papua New Guinea, Seychelles, Sierra Leone, Sri Lanka, Uganda, Zambia, etc have anti–defection or floor crossing provisions (Kenneth Janda, Laws Against Party Switching, Defecting, or Floor- Crossing in National Parliaments, 2009). It has been argued that floor crossing “affects the democratic process because it distorts party discipline and public confidence for reasons only entailing political and personal gains of politicians and parliamentarians” (Baseline Research on Floor Crossing in the Maldives, Transparency International, Maldives, 2015). Another argument advanced in support of anti-defection provision is that it reduces the risk of political instability that might ultimately result in the loss of a government’s ability to govern (Caroline Morris, Anti-defection laws in three small South Pacific parliaments: A cautionary tale, 2022).
Arguments against anti–defection
There is no gainsaying that given the treacherous political landscape in Bangladesh, we need some form of anti–defection or floor crossing provision to avoid instability in governance. There may be a variety of reasons for an MP to defect. It is a question of intent. At one end, defection may be caused by the concerned MP’s conscience or in the interest of his or her constituency. On the other, defection can also happen due to corrupt practices, lucrative inducement, political betrayal or subterfuge. So, in anti-defection law, there is an inherent tension between right and wrong.
The problem of article 70(b) of the Constitution, as currently drafted, is that its consequence does not differentiate between the casualties of the defection by the MP -- be it on account of conscience/constituency interest or ill-motiveness. And this indifference to the causality makes the current wording of article 70(b) problematic.
Bangladesh, like the Westminster system, follows the First Past the Post (FPTP) electoral system for electing MPs. However, under the Constitution, democracy has been conceived to be a combination of “candidate-centric” and “party-centric” exercise. On one hand, the Constitution captures “candidate-centric” features like participation of people through their elected representatives (article 11), election to Parliament on the basis of adult franchise (article 122(1)), membership based on constituencies (article 71(1)), and electoral disqualifications for individual contestants and not political parties (article 66). But on the other hand, through article 70, the Constitution also reflects the “party-centric” approach to democracy. In fact, article 70(b) tilts the scale more in favour of “party-centric” democracy because the MPs are shackled to party line and must move towards the direction the political party to which they belong drives, regardless of their own conscience or the interest of the constituency from which they are elected. In other words, article 70(b) of the Constitution, as it stands, squarely benefits the political party; not the people. Judged in this way, article 70(b) undermines the impact of article 11 of the Constitution under which democracy means effective participation by the people through their elected representatives in administration at all levels. To put it another way, due to article 70(b), the people are denied participation through their elected representatives in the governance of Bangladesh.
To make the above point more contextual, research has shown that anti-defection legislation in most cases proved to be problematic and even unworkable, and that is why few countries in the world have such laws (Sarah Miskin, Politician Overboard: Jumping the Party Ship, 2003).
Recommendation for change
My argument against anti-defection law does not support complete abolition of it. Let us be realistic here -- in the Bangladeshi political context, parties remain at the centre of all democratic activities. In most, if not all of the cases, voters look at a candidate’s political allegiance before deciding to vote. However, it is equally true and as observed by the Constitutional Court of South Africa in the United Democratic Movement case, that the freedom of elected representatives to take decisions contrary to the will of the party to which they belong is an essential element of democracy. Keeping these two competing interests in mind, I suggest that article 70(b) should be amended in either of the following two alternative ways:
- There should be a built-in due process clause in article 70(b) before an MP’s seat is vacated due to defection. It must be remembered that defection or floor crossing on the basis of ill-motive, lucrative inducement, political betrayal or subterfuge amounts to corrupt practice and defection on such basis is unpardonable. However, defection in the interest of an MP’s constituency should not result in vacation of the seat and to determine this, the concerned MP must be given a right to defend his or her position before the Election Commission. And despite such defense, if the seat is ordered to be vacated due to defection, then such decision should be justiciable by the Appellate Division by way of an appeal.
- If article 70 is not changed at all, then necessary provisions should be introduced in the Constitution to introduce a “recall clause.” A recall clause is a process whereby the electorate can petition to trigger a vote on the suitability of an existing elected representative to continue in office (Recall Elections, NSW Parliamentary Library Research Service, 2010). Recall is seen as an important, directly democratic tool for the electorate to remove from office those elected representatives seen to be ineffective (). In the US, 19 states allow recall elections, whereby citizens can attempt to remove an elected official from office (Recall of State Officials, National Conference of State Legislatures, online). There can be limited application (for example, recalling specific politicians like ministers only and not to force an early election), threshold requirement (specific percentage of electorate with signatures to trigger recall), timeline (not before a specific time), circulation time (specified time period for collecting the requisite number of signatures) and grounds for recall (for example, the US State of Alaska stipulates four grounds -- lack of fitness, incompetence, neglect of duties and corruption). The introduction of a recall clause will bring parity to the Constitution, which currently tilts towards “party-centric” democracy and will provide in the hands of the citizenry the power to play an enhanced role in the democratic process.
As I wrote in the first part of this series, things change with time and the Constitution is no exception. Again, to quote Thomas Jefferson, "manners and opinions change with the change of circumstances, and institutions must advance also, and keep pace with the times,” and to not allow constitutional changes with changing times is like “requiring a man to wear still the coat which fitted him when a boy.” There is no doubt that the framers of the Constitution in 1972 meant well while introducing article 70 and it was in order to bring stability and discipline among lawmakers. However, like most legal exercises, there is a discord between the “intent” and “effect” of article 70 of the Constitution. In particular, article 70(b) should be revisited to give some form of power back to people on whose shoulders the Members of Parliament ride and come to power to govern them.
Junayed Chowdhury is Advocate, Supreme Court of Bangladesh.