High Court issues split order on the legality of Article 70 of constitution

The High Court on Monday issued a split order after hearing a writ petition challenging the legality of Article 70 of the constitution, which allows the cancellation of a lawmaker’s membership in parliament for voting against his or her political party. Justice Moyeenul Islam Chowdhury, the senior judge of the division bench, issued a ruling asking the government why Article 70 of Bangladesh Constitution should not be declared illegal, while junior judge Justice Md Ashraful Kamal rejected the petition entirely. As per the rules, the writ will now go to the acting chief justice, who will form a different bench for final disposal of the petition. Supreme Court lawyer Eunus Ali Akond filed the petition with the High Court on April 17, 2017, saying Article 70 was against democracy and contradicted Articles 7, 19, 26, 27, 44, 31 and 119 of the constitution. The cabinet secretary, secretary to the parliament secretariat and the law secretary have been made respondents to the petition. According to Article 70, a person elected as a member of parliament (MP) in a national election in which he was nominated as a candidate by a political party shall vacate his/her seat if s/he a) resigns from that party or b) votes in parliament against that party, but shall not thereby be disqualified for subsequent election as a member of parliament. After filing the petition, Akond told reporters that Article 70 is undemocratic and it creates obstacle to the values of constitutional democracy. “The state should run under the leadership of the elected representatives. This is the spirit of democracy. If parliament membership is cancelled for crossing the floor by voting against his or her political party, a lawmaker cannot independently vote for the public interest,” he said.

The points on which the judges differ

After the hearing, Justice Moyeenul Islam Chowdhury, senior judge of the High Court bench, said: “Article 7 of the Constitution states – all powers in the Republic belong to the people. But due to article 70 of the Constitution, the parliament members are not being able to perform their duties properly as representatives of the people. They do not have the scope to give opinions independently, beyond the party's decision. They do not have the scope to vote against the decision of the party chief.” In his judgment, Justice Ashraful Kamal, junior judge of the High Court bench, observed: “It is right that the Appellate Division has accepted the opinion of the High Court about Article 70 (of the Constitution) in the case related to the 16th amendment. But the 16th amendment case was concerned with the judiciary. Article 70 was not the primary concern there. “The Constitution of Bangladesh was enacted in 1972. The way Article 70 was incorporated in the Constitution at that time still remains the same. No question has been raised about the rationale behind this article by any government or parliament in the past. The people also did not raise the issue. And there is no precedence to show that article 70 was misused. “It has been accepted worldwide that the court does not enact Constitution or laws. (It) can only comment on whether the enacted law is contradictory to the Constitution or not. That is why the Supreme Court has given the judgment scrapping the 5th and the 13th amendments to the Constitution.” The junior judge mentioned: “The judiciary should be cautious about its own limits. The court ought not raise questions on what intent the lawmakers are enacting the laws.”The article was first published on banglatribune.com