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Anti floor-crossing clauses: Protective or destructive to democracy?

Zia Uddin Ahmed |
Update: 2014-12-25 02:20:00
Anti floor-crossing clauses: Protective or destructive to democracy?

Voting against one’s own party in bill of parliament or resigning from a political party in order to take side of another party in parliamentarian democracy is floor-crossing or defection. Floor-crossing is considered to be a problem for newly democratic country or fragile democratic country. There are currently 40 national constitutions around the world that have anti floor-crossing provision.  Anti floor-crossing clauses have been adopted in article 70 of the constitution of Bangladesh.
 This article provides that seats of Member of Parliament shall vacate when a member of a political party by which he was nominated resigns from that party or votes against that party.  Indian constitution has anti floor-crossing clauses like article 70 of constitution of Bangladesh. But, there are some dissimilarities. In India, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified. And if two-third members merge with other party then they won’t be disqualified as Member of Parliament.  Pakistani constitution also adopts anti floor-crossing with giving opportunity of self-defense to the respective member.  It is argued that floor-crossing is threat to fragile parliamentary democracies like Bangladesh, India, and Pakistan. Political defection or floor-crossing has been a growing political disease in third world country like Bangladesh.  In third world country, democracy has not been institutionalized yet. Political parties do not run their activities according to ideology and morality. Politicians are not committed to their ideology rather they use their political power for self-interest.

 Bangladesh which was part of Pakistan had bitter experience of floor-crossing in 1950’s. In 1954 winning the landslide victory, United Front formed the provincial government of East Pakistan under leadership of A.K. Fazlul Haq. But this government couldn’t finish it tenure due to the floor-crossing. The unity of United Front had broken into pieces which resulted in change of government for 5th time within four year. That drama didn’t stop there. The chaotic situation of Parliament caused death to deputy speaker Shahid Ali and finally invited the military government in Pakistan.  That incident might be gone through the mind of constitution framer of Bangladesh while adopting the anti floor-crossing clauses after liberation war. Some of the Constitutional experts argue that Article 70 of our Constitution “was framed after much thought to ensure stability and strengthen parliamentary democracy”.  From the perspective of Bangladesh, anti floor-crossing is required to ensure stability of government. But the way, this provision has been adopted is quite counterproductive. This provision is self-contradictory to the fundamental rights of freedom of thoughts, conscience and speech guaranteed under article 39 of Bangladesh constitution.  Like any other ordinary citizen, Member of Parliament should have this right in case of voting. Right to vote is tantamount to freedom of conscience and speech. In a case, Indian court opined “The right to vote for the candidate of one’s choice is nothing but freedom of voting and it is the essence of democratic politics. While the right to vote is a statutory right the freedom to vote is considered a facet of the fundamental right enshrined  article 19(1)(a).”  Article-19 of Indian Constitution enumerates the freedom thought, conscience and speech which is similar to article 39 of Bangladesh constitution. On the other hand, there are different views regarding right to vote of parliament member in a bill. It is held that ”freedom of conscience under the constitution would relate to private liberty to choose the two alternatives as directed by the elector’s sense of moral values, in those areas of life where the result of one’s effort affects none else but only the individual. It is not to be extended to a voting system where the Member of Parliament is choosing a president both as an individual and in his capacity as a representative of the people.”  In Kihoto Hollohan v Zachillhu case, India’s judiciary held the same view in question of validity of anti-floor crossing clauses and opined  that ”..….. Its provisions do not suffer from the vice of subverting democratic rights of elected members of the Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended.”  The later view seems narrower than earlier one. Right to vote is one kind of freedom of expression. Right to vote of MPs is to be guaranteed for better function of parliament. Enactment of legislation is the basic function of parliament.  Participation of every Member of Parliament is a prerequisite to ensure effective and democratic legislation irrespective of their party ideology. They should take part in law making process effectively according to their thought and conscience. Parliament member shouldn’t always be loyal to their party stand. Party may take wrong position. Even party may move for anti-people bill or may take anti-people stand in parliament. In that case, parliament member should have enough capacity to resist anti-people bill.

Parliament is the place of debate and discussion. Parliamentarian should debate on bill before passing it. It helps to bring about the flaws and strength of bill to be passed as law. People are also benefited from such debate. People can learn more about the law. Public awareness will also be increased by reasonable debate. Though article 70 doesn’t prohibit debate, it puts a psychological pressure on parliament member to say something against party. As they know ultimately the have to vote in favour of party, they are reluctant to say something which goes against their party.

It is the responsibility of parliament to make government accountable. Under article 55 of Bangladesh constitution cabinet is collectively responsible to parliament. But accountability of cabinet can’t be ensured because of article 70 as the member of government party can’t vote against own party in parliament. So, in every case, they have to follow the direction of party chief. In reality, all power are centralized to single person. Party chief holds the office of leader of the house and prime minister simultaneously. It is very natural that when powers are centralized to single hand, s/he will exercise power according to his or her own sweet will. And it is unfortunate that constitutional provision like article 70 is patronizing the excess use of power rather than checking it.

Anti floor-crossing clause is necessary only to ensure the stability of government in Bangladesh, as there is possibility to loss the confidence of member because of floor-crossing in motion of no confidence. Article 70 of original constitution of 1972 has been substituted by 15th amendment of Bangladesh constitution. Now there are only two reason of disqualification of Member of Parliament in question of floor-crossing. These are; a) if a member of political party by which he was nominated resigns from that party; or b) if he votes against that party.  Till the 14th amendment, there were six clauses of disqualification. Four of them are repealed by 15th amendment. These are as follows;
If a Member of Parliament

A) being present in parliament abstains from voting.

B) absent himself from any sitting of parliament ignoring the direction of party by which
 nominated him….. he shall be deemed to have voted against the party. These two were explanatory clauses of ‘’vote’’ inserted by 4th amendment.

C) if at any time, any question arises as to the leadership of the parliamentary party, the speaker shall,……., convene a meeting of all members of parliament of that party…………..and determine its parliamentary leadership by the votes of the majority through division and if in the matter of voting in parliament, any member doesn’t comply with the direction of the leadership so determined, he shall be deemed to have voted against the party…….and shall vacate his seat in the parliament

D) if a person, after being elected as a member of parliament as an independent candidate, joins any political party, he shall ,…………., be deemed to have been elected as  a nominee of that party 
 The above mentioned changes   have some good impacts. Now members can abstain or absent from sitting of parliament by ignoring the direction of party, if he doesn’t want to vote for his party in parliament and such abstention or absence will not be deemed as vote against own party. In this way, member can exercise their own conscience and thought regardless of their party decision. On the other hand, if an independent member joins any party his status of independent member won’t be changed for the purpose of anti floor-crossing clauses. That means, he can vote against the party that he has joined.
Apart from these amendments, further amendment should be brought in article 70 to make this article more reasonable. In article 70, an explanatory clause may be added to limit the scope of  phrase “votes against that party”. It may be amended in way that parliament member should have voting right against own party except in a motion of no-confidence or confidence.   There is also an argument to limit the scope of resignation of party. It is argued that if any member resigns from party by which he was nominated for the election may hold membership of parliament as an independent candidate.  But people don’t elect a person only one’s individual capacity. People do not only consider an individual before election but also consider his party ideology. It is a true slap in the voter’s face when elected representative join another party without seeking approval from their voters.  So, the provision of “resigning from party” needs not to be changed.

Zia Uddin Ahmed, An LL.M. student,
University of Chittagong   

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