Violation of Fundamental Rights of the Members of the Parliament

Introductory Notion:

Democracy is the most popular government system in the contemporary world. It means that the government is run by the people of the country, it is obvious, and people select representative persons by ballot as parliament member to formulate law for welfare of the country. Representatives stand from individual political party or none but majority representatives affiliated party forms the government. Parliament becomes the sources of all power and government is highly responsible and accountable to the parliament for their activities.

But in 1972 our constitution makers included Article 70 which is to prevent floor crossing in Bangladesh. Though primarily the rule was due to the unstable situation of the newly independent country, now the days it has become a law against the human rights. The term ‘floor crossing’ refers to vote against own party in parliament during the time of voting. It also says that, if a member doesn’t take part at the time of voting, the member will lose his seat from the parliament. But the law against floor crossing restricts the power of a parliament member to vote against the will of his party though he/ she is right in his own way.

Objectives of the study:

The objectives of the thesis are as following:

• to know the anti-defection law in Article 70 and the myth of parliamentary democracy in Bangladesh
• to scrutinise the exiting floor crossing law whether it serves as a violation of fundamental rights as enshrined  in the Constitution of Bangladesh or not
• to find out the lackings prevalent in the provision regarding floor crossing
• to recommend some important points which are needed to reduce the present problems for  existing floor crossing law in Bangladesh

Methodology

The work of this research includes both primary and secondary sources. In fact the research would otherwise be impossible without resorting internet. I had relied heavily on internet to get some very important information. In preparing this thesis, I have talked to some lawyers, concerned specialists, teachers of reputed  universities which immensely aided me a lot.

Floor crossing Laws in Bangladesh: A Historical Perspective

 Meaning of floor crossing:

In politics, the term ‘crossing the floor’ can mean either to vote against party lines, especially where this is considered unusual or controversial, or to describe a member who leaves their party entirely and joins the opposite side of the House, such as leaving an opposition party to support the government (or vice versa), or even leaving one opposition party to join another.[1] In Canada, for example, the term ‘crossing the floor’ is used exclusively to refer to switching parties, which occurs occasionally at both the federal and provincial levels.

For many reasons, floor crossing is regarded as being controversial. From the voter’s perspective, the political party is a team of candidates at election time. When voters chose candidates for public office, they delegate decision-making on public policy to political parties and to party-identified representatives. Repeated elections give voters the opportunity to hold parties responsible and accountable for policy decisions and outcomes. Thus, it is argued, that it would seem reasonable to expect parliamentarians to stick to the party labels under which they won the election.[2] Mershon & Heller note that in many democracies this expectation is upheld. For example, in the United States only 20 members of the United States House and Senate changed party affiliation between 1947 and 1997. Similarly, floor crossing is rare in the established parliamentary democracies of Western Europe (for example, Germany). In some settings, however, floor crossing during a legislative term is not uncommon (for example, Brazil).

 In broader sense, the term “floor crossing” refers to voting against one’s own party in the House or parliament during the time of voting. Not only that floor crossing also says that if one member is not present at the time of voting or passing a bill or doesn’t take part in the voting the member will lose his membership or seat from the parliament. This term “floor crossing” can also be called “political defection” or “side swapping”.

So, this law basically takes away the freedom or liberty of the ministers chosen by the people. Even if anyone wants to protest against a decision of his own party there is no option to do it. This law is found in countries like India, Pakistan, Bangladesh, Nepal, Sri Lanka, Malaysia etc.

In Bangladesh in the year 1972 our constitution makers incorporated Article 70 which is designed to prevent floor crossing in the parliament. This was an anti-defection or anti floor crossing law.[3]

This law basically blocs the development of the parliamentary government. The main spirit of the parliamentary government is that the government is accountable or responsible to the legislature. So, the executive is always not sure whether he is going to be supported or not and therefore it always tries to feel the pulse of the members or tries to be more responsive. But, under the anti defection or anti floor crossing law the government and the executive is in a position from where they can practice dictatorship, as there is none from the government to protest or vote against. So, the government as it is not going to be accountable to any of the members or legislature it can pass any unethical bill which can be detrimental to the country and there is none to protest or vote against.

But, we need to know the reason behind designing this law in the constitution of Bangladesh in 1972. In this essay, the background of this law, the Article 70 law, its drawbacks and the reality of Bangladesh politics and some recommendations will be discussed in brief.

History of Floor Crossing in Bangladesh:

If we look at the political defection or floor crossing in the then East Pakistan then we will know the reason behind the Article 70 or anti floor crossing law. Before the liberation war when Bangladesh was used to be a state of the then Pakistan we can see that members were used to cross the floor for their own interest. The lack of wisdom, illiteracy and politically unconscious people has actually crossed the floor. They were selfish in nature and never thought of the good of the parliament, instead they took the advantage of floor crossing and made such a situation which stopped the actual flow of parliament. Whenever something happened in the party which has hurt someone’s own interest he was used to cross the floor. It was a regular practice in the then Pakistan. This practice made the parliamentary system unworkable here. [4]

In the year 1954 United Front has won the election and formed government. But due to political defection the United Front was broken into pieces and the Awami League (AL) was created and became the opposition of United Front. In the year 1956 when United Front had to resign AL formed government both at center and the province of Pakistan. But, again due to disagreements in foreign policy between Suhrawardy and Moulana Abdul Hamid Khan Bhashani AL was divided and Bhshani came out of AL and joined NAP. Then Abu Hossain of United Front again formed a government which was in power for only a few hours. After Abu Hossain again AL came into power and was there for three months only. This chaos continued and it ended with the death of the then deputy speaker in the year 1958. The parliamentary government dies in the then Eat Pakistan with this. From 1958 October 7 Military government got the hold over the then East Pakistan.[5]

Due to political factionalism in Bangladesh a frequently quoted statement is “One Bengali is one party, Two Bengalis two political parties; and three Bengalis, two political parties with dissident faction in one of them.”[6]

The lack of cohesion and lack of unity among the members of the parties were the result of personal interest, conflict of interest, personal favor etc. Some members did not attend party meetings because lack of power. The floor crossing took place even because someone’s corrupted relatives were punished or not given any good job. There are hundreds of examples of such instance. For example-

1.One member’s name was not included in the local relief committee so in order to take revenge he defected or crossed the floor.

2.Money for flood affected people was sent in the name of a school secretary and not in the name of the member of the locality, so a defection or floor crossing took place.[7]

3.Some of the members crossed floors or did not attend part meetings out of whim.

4.One member felt that he is not getting enough attention in the House, so he defected or crossed the floor.

5.A member failed to influence the authority for her husband’s job and was absent from the parliament.

6.A member was caught due to black marketing and he looked for help from the Chief Minister. When he did not get the assistance, he crossed the floor or defected.[8]

There are other examples as well.

The coalitions and disagreements in between the year 1954-1958 and the selfish nature of the members actually made a strong base for the Article 70 of 1972.

Floor Crossing Law in Bangladesh: An Analysis

Evolution of Article 70 under the Constitution of Bangladesh upto 12^th Amendment:

We know by now that that the Article 70 was to prevent floor crossing. The chaos of the past and the unworkable situations created by the members of the parties helped to establish this provision. Under the 1972 Constitution there were mainly two conditions against floor crossing:

1.If a member resigns from his party.

2.If he votes against his party during voting time.

But the 4th Amendment added two more conditions to it to strengthen the law against floor crossing. They are:

1.If a member is present in the parliament but still doesn’t take part in voting.

2.If a member doesn’t attend the parliament at all against the will or direction of his party.

Two more conditions were added in the 12th Amendment. They are:

1.None can’t form a group within one political party.

2.If one elected member joins any other political party then it is the violation of Article 70.[9]

These Amendments were to just create a situation in the parliament where the Executive has all the authority and can apply dictatorship. Here, there will be no chance of democracy. Whatever will be decided by the Executive will be final. The other members among the party can’t protest. As the Executive in our country is the Prime Minister he or she doesn’t need to be accountable to the legislature he or she can do anything on his or her will power. From 1991 to till date there were four elections and right now AL is in power with more than Two-third seats of the parliament. But still there is no sign or symptom to change this Article 70 or to remove it. Maybe it is because they want to perform dictatorship or they are afraid of the past history of the then East Pakistan (the chaos and defection or floor crossing of 1954-1958). I will discuss more of the intentions and applications of Article 70 inBangladesh in the next paragraphs.

Present Article 70 of The Bangladesh Constitution after 15^th Amendment:

Vacation of seat on resignation or voting against political party:

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-

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

Clause (1) of the Article has the provision for mandatory “vacating of his (or her) seat” on the ground of floor-crossing. It is understood that the main purpose of this article was to stop leaving of the position (government) or the opposition to join the other side for some gains. Thus, the purpose of this article was undoubtedly good for parliamentary practice. But unfortunately, Clause (3) allows an MP elected as “independent” to join any party. Therefore, all the provisions under this Article are not necessarily for good parliamentary functioning.[10]

The first condition of mandatory vacating of the seat of a Member of Parliament (MP) is resignation from the party from which s/he had been elected. Resignation from the nominating party is obviously to join the opposite bench for some benefit, and usually the direction of crossing the floor, if allowed, would be to the stronger from the weaker party. Since the ruling party is often the stronger one, without this safeguarding clause many from the opposition would easily join it for personal benefit, disregarding the electorate’s interest. [11]

In case of marginal majority of the ruling party, finding the party getting weaker (regarding popularity), some MPs from the government party could also join the opposition, effecting a change in the government and thus jeopardising parliamentary democracy. Therefore, barring MPs from resigning is an essential provision.[12]

The second part of Clause (1) includes “or votes in Parliament against that party.” This part literally bars an MP from saying anything against the party, and thus the provision forces him/her to always support the party decision even if the MP concerned has strong reasons to oppose it, and even if the decision is actually wrong. Thus, the article, unfortunately, “domesticates” every MP to always clap for the party leader in our obliterated democratic practice where the problem is not refusal or protest but sycophancy and unquestioning bowing down to the wishes of either this or that leader.[13]

To nurture the spirit of speaking the truth, the required protest against ill-designs of few politicians, and the refusal of unquestioned “obedience,” MPs must have right to vote against his/her own party. In essence, the right of registering protest against the nominating party’s bad stance is the minimum required democratic norm in the present democratic practice of Bangladesh.

It is well understood that an MP usually resigns from a party just to join another (for personal gain), but voting against the party is almost always out of question. Thus, after amendment, Article 70 (1) can read as: “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.” But the part “or votes in Parliament against that party” should be repealed forthwith along with the explanation thereof under (a) and (b).

Effects of Article 70 in Bangladesh:

A) Contradiction among the MPs:

Article 70 doesn’t allow the MPs to vote against party’s undemocratic decisions or protest against it. But, actually Article 70 doesn’t set any rule against expressing their opinions in the party meetings. However, many MPs don’t have a clear idea and do not speak freely even in the party meetings. As a result the good results of democracy are yet to be achieved. Many of them said in the 5th and 7th parliaments that Article 70 is authoritarian.[14] Then the question arises why they are not trying to change the law or remove it. At the same time the knowledge of these politicians also arise as they are not even aware of the total application of Article 70. So the position of the MPs is kind of contradictory.

 B) Lack of responsibility and scope of dictatorship:

It can be undoubtedly said that there is lack of responsibility and immense opportunity of dictatorship of the government in the parliament of Bangladesh. A parliamentary government should pass or take every single step judging the pulse of the members of the legislature to avoid defeat on the floor. This practice is called the responsibility of a government and a responsible government has got two main characteristics, they are: Individual responsibility to the ministers and collective responsibility of the cabinet. However there is no provision in Bangladesh to perform the individual responsibility. But still there is a provision of Article 55 which state the fact that the cabinet should be collectively responsible to the parliament. But, the truth is the Article 70 actually allows the government to get away from this responsibility too as the cabinet is sure and safe from getting defeated on the floor by motion of confidence or no-confidence. Because, no member of the majority party can vote against his own party.[15] So, Article 70 is allowing the government not to be responsible and accountable to the parliament and it is also providing the government enough room to practice dictatorship.

C) Hinder the practice of rule of law:

Rule of law should create a situation where there will be chance of discussion over a bill. The members or MPs should have their own rights to argue or debate on a proposed issue or over a proposed bill. But, the Article 70 prohibits the members of the ruling party to do this practice. So, as a result no matter how unrealistic or undemocratic the bill is it is approved and passed very easily. So, basically the Article 70 is making the members a puppet. Most of the times in our country the ordinance is made a week before the parliament session and in the parliament it is only approved. No debate or argument or legislative actions take place at all. So, we can never expect the rule of law to flourish under this circumstance.[16]

D) Contradiction in the system or constitution:

We follow parliamentary government in Bangladesh. The idea of parliamentary government is that the government should be responsible to the parliament or legislature. On the other hand, under the presidential government, government is not responsible to the legislature. But as we can see that Article 70 is blocking the system of being responsible to the legislature, so in Bangladesh we are actually not practicing the parliamentary government system. So we are in a position which contradicts with the actual Parliamentary government spirit.[17]

Floor crossing law in Bangladesh: Favorable or unfavorable

Now the question arises, is the floor crossing law favoring us or is it ruining our democracy and depriving us to enjoy the fruit of a fair Parliamentary government?

In the essay previously I have discussed that how floor crossing law evolved, how it became a necessity and how it is hampering the development of the parliamentary government and stopping the rule of law. But then if it creates a lot of problems and obstacles to achieve democracy and Parliamentary government system then why are we not removing it. There were 14 Amendments of our constitution. But none of the government or political parties took the initiative to change or remove this law. One reason can be the two-third majority vote is needed to change or remove this law and not too often we see it. But, incidentally in the year 2008 Bangladesh Awami League came in power with more than two-third seat. But still we can’t see any step to remove or change this law.

I have stated the fact that many MPs said that they are often in dilemma whether to stand against the party’s decision or not because of Article 70. As they are not sure they can’t even talk freely in the party meetings even. So, it can be now asked then still why these politicians are not trying to change this law?

One reason can be the past experience or the history of the then East Pakistan. I have discussed before how in 1954-58 the floor crossing advantage was misused and exploited. This was the reason behind the inclusion of floor crossing laws in the constitution of 1972. So, maybe the politicians are afraid to witness such situation again and therefore not removing this law.

Another reason can be the politicians are happy with this law. Because, under this law they can perform authoritarian system which can never be challenged. The Executive is not responsible to the legislator or parliament under this Article 70, so if a party wants to pass an undemocratic law he has the power to do it. There is no chance of the executive getting defeated on the floor.

Some Conflicting Issues in our Constitution: Whether Floor crossing violates fundamental rights or not:

Constitution of Bangladesh more or less is good constitution in the world no doubt. But some articles’ which are very controversial in that sense these are not coincide in the fabric of democracy.

 Our constitution itself proclaim that in Article 11, 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. Besides that, if we want to see the Article 39 (1), Freedom of thought and conscience is guaranteed.[18]

Unfortunately, it is very regret for us when we see the Article 70(1) which states that, 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.[19]

Under the 1972 Constitution there were mainly two conditions against floor crossing:

1. If a member resigns from his party.

2. If he votes against his party during voting time.

 But the 4th Amendment added two more conditions to it to strengthen the law against floor crossing. They are:

1. If a member is present in the parliament but still doesn’t take part in voting.

2. If a member doesn’t attend the parliament at all against the will or direction of his party.

Two more conditions were added in the 12th Amendment. They are:

1 None can’t form a group within one political party.

2. If one elected member joins any other political party then it is the violation of Article 70.[20]

 These Amendments were to just create a situation in the parliament where the Executive has all the authority and can apply dictatorship. Here, there will be no chance of democracy.

Floor Crossing Law in Bangladesh – Democracy or Dictatorship

In a vibrant democracy, democratic practice or power of the people should not end with the casting of a ballot. But unfortunately for us, as soon as we have elected our representative lawmaker, he is out of our hands and into the power command of the party that nominated him. No matter how much a particular party decision might affect the interests of his constituents or push the boundaries of his conscience, a “lawmaker” has no real power to vote against it.[14]

With this arrangement in place, sadly since the very inception of our country, our Parliament is only a rubber stamp to be used at the whim of the party in power. Not only does the opposition never stand a practical chance of winning a vote against the government, no critic inside the ruling party holds any bargaining power against an unreasonable or harmful decision of the government. He is free to speak his mind on the Parliament floor but the freedom ends once the Speaker calls for votes. From that moment onwards, a Member of Parliament, the representative of the people, must only blindly follow his herd.

After so many years of democracy and with the presence of a strong bi-partisan political system, unfounded fears of “floor-crossing” are hardly any justification for holding back MPs from doing what they are mandated to do. It seems likely that without a wholesale scrapping of the provision and addressing the issue head-on, the opportunity will go missing for a vibrant parliamentary culture. A constitution without Article 70 will at least give us a fighting chance of creating a mature parliamentary system where the government is checked and balanced by its own ranks and the Opposition has a genuine say in the law making process of the country.[15]

If we amended Article 70 to allow lawmakers to vote their consciences, then things might well not change for the better, indeed things might even change for the worse — but such a reform at least makes change for the better possible. Amending Article 70 might not solve all our political problems, but it is a necessary first step to reforming Parliament and allowing it to function as intended in a parliamentary democracy.[16]

From our past experience we saw if the parliament is not functioning well there is a big chance that unelected government took place the governing rule. And on the other hand when ruling parties has two third majorities it might be created big threat. Though the member has parliament has no rights to vote against party decision it may led out the ruling parties as a so called autocratic government.

Some Recent Incidents:

Bangladesh has been victimized due to this law several times. In August, 2003, Dr. Badruddoza Chowdhury was formerly a member of the BNP and the President of the People’s Republic of Bangladesh has some collations in ideas and views between him and the party. As a result he need to leave the party and form a separate one named Bikolpo Dhara Bangladesh (BDB).[17]

 Again, in July, 2009 Awami League general secretary Abdul Jalil gave a speech against the activities of this party. As a result, he has to face a huge controversy and finally he resigned from the party.[18]

 Very recently, in June, 2012 Tanjim Ahmad Sohel Taj, son of the country’s first prime minister Tajuddin Ahmad, resigned as lawmaker and declared that he would no longer be involved in active politics.[19] He had been elected into this parliament but his opinions were different from others. He had not the space to do the better things he wanted to do for his political area.

Concluding Remarks:

We need responsible political parties and ministers who will be responsible to the legislation and parliament. In that case we really do not need any Article 70 or anti floor crossing law. But, as we all know the political culture of this country it will not be wise to think that this situation will change overnight. So, we can’t just remove this law straight away. Though, I believe to establish the rule of law and to witness ultimate spirit of Parliamentary government we need to get rid of this law. But, this is not possible in reality. At best we can change it slightly the way I mentioned in the recommendation part so that we can enjoy some democracy. The position of the MPs will also be developed if these changes can be assured. It can also be the stepping stone to be a more responsible government.

For the development of any country the government must have this gesture to be accountable and responsible for its actions. I expect and hope by changing this law a little bit we will start to enjoy the good result of parliamentary government. In the long run maybe someday we will enjoy a system where there will be no need of such Article 70 and we will be able to apply rule of law. Our politicians will be confident and will be more responsible to parliament. A healthy and lively Parliament that is what we want to see.

Comparative Analysis

Protecting Parties with Anti-Defection Provisions in the Constitution[21]

Belize, Article 59. Tenure of Office of Members

(1) Every member of the House of Representatives shall vacate his seat in the House at the next dissolution of the National Assembly after his election.

(2) A member of the House of Representatives shall also vacate his seat in the House—

(e) if, having been a candidate of a political party and elected to the House of Representatives as a candidate of that political party, he resigns from that political party or crosses the floor.

Namibia, Article 48. Vacation of Seats

(1) Members of the National Assembly shall vacate their seats:

(b) if the political party which nominated them to sit in the National Assembly informs the Speaker that such members are no longer members of such political party.

Nepal, Article 49. Vacation of Seats

(1) The seat of a member of Parliament shall become vacant in the following circumstances:

(f) if the party of which he was a member when elected provides notification in the manner set forth by law that he has abandoned the party.

Nigeria, Article 68. Tenure of Seat of Members

(g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was

elected:

Seychelles, Article 81. Vacation of Seats

(1) A person ceases to be a member of the National Assembly and the seat occupied by that

person in the Assembly shall become vacant—

27(h) if, in the case of a proportionally elected member—

(i) the political party which nominated the person as member nominates another person as member in place of the first-mentioned person and notifies the Speaker in writing of the new nomination;

(ii) the person ceases to be a member of the political party of which that person was a member at the time of the election;

Sierra Leone, Article 77. Tenure of Seats of Members of Parliament

(1) A Member of Parliament shall vacate his seat in Parliament—

(k) if he ceases to be a member of the political party of which he was a member at the time of his election to Parliament and he so informs the Speaker, or the Speaker is so informed by the Leader of that political party;

Singapore, Article 46

(2) The seat of a Member of Parliament shall become vacant—

(b) if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election;

Zimbabwe, Article 41. Tenure of Seats of Members Janda: Laws Against Party Switching, Defecting, or Floor-Crossing 4

(1) Subject to the provisions of this section, the seat of a member of Parliament shall become vacant only-

(e) if, being a member referred to in section 38 (1) (a) and having ceased to be a member of the political party of which he was a member at the date of his election to Parliament,the political party concerned, by written notice to the Speaker, declares that he has ceased to represent its interests in parliament.

Nations with Laws Against Parliamentary Party Defections[22]

 Floor crossing law takes away the liberty of the ministers chosen by the people. Even if anyone wants to protest against a decision of his own party there is no option to do it. We can found the practice of this law in many countries like India, Pakistan, Nepal, Sri Lanka, Malaysia, Kenya, Nigeria, Thailand etc.[23]

 One expert makes the distinction between those African countries which strip an MP of their seat if party membership has been revoked and those who lose their seat upon resigning from their party.

 Although India has a “reasonably well crafted” anti-defection law, a former Election Commissioner of India believes that decisions on defections are often made by the Speaker of the House and are politically influenced.[24]

On the other hand, the Canadian Parliament is currently debating a bill on this very issue. Members of the British Parliament are at full liberty to decide their own mind regarding any motion tabled in the Parliament. This right is really democratic for them and pulling them on the way to success.

 According to standards set by the Organization for Security and Cooperation in Europe (OSCE), it is an individual who owns the mandate of a seat in parliament. If a seat is to be taken away for leaving the party, then this should be done “through a formal judicial or other adjudicative process laid out under the relevant legislation.”[25]

Floor Crossing in Developed Countries:

United Kingdom (UK)

Political and Electoral System

The United Kingdom is a long-established parliamentary democracy with a constitutional monarch as Head of State. The principle behind British democracy is that the people elect MPs to the House of Commons in London at a general election, held no more than five years apart. Each MP in the House of Commons represents one of 659 constituencies, or ‘seats’, in the UK and is also normally a member of one of the major political parties.[26]

The party that wins the most seats forms the government executive which determines policy. The executive includes devolved elected assemblies in Wales and Scotland. Devolution in Northern Ireland was suspended in October 2002.

The remaining MPs group into opposition and other parties, or are independent. The result is a body that reflects a broad range of political opinions, all of which have a voice in the debates about key government issues and police.

The system of political parties, which has existed in one form or another since at least the 18th century, is an essential element of UK politics. For the past 150 years the UK Parliament has effectively worked as a two-party system (namely the Conservative and Labour parties), with one party forming the government of the day, and the other the opposition.

Members of the House of Commons are elected, usually in a General Election, which must take place at least every five years. Politicians are elected according to the FPTP electoral system. The political party that wins the most seats (usually but not necessarily the party which gets the most votes in the General Election) or which has the support of a majority of parliamentarians usually forms the government. The largest minority party becomes the official opposition.

Historical Context

As mentioned previously, seating arrangements in both Houses reflect the nature of the party system. Both debating chambers are rectangular in shape. At one end is the seat of the Speaker (in the House of Lords, the Speaker is the Lord Chancellor and the seat is know as the ‘Woolsack’), and at the other end a formal barrier, known as the ‘Bar’. Benches for the members run the length of the chamber, on both sides. The government and its supporters occupy the benches to the right of the Speaker; the opposition and members of the other parties occupy those to the left. Leaders of the government and the opposition sit on the front benches, with their supporters – ‘backbenchers’ – sitting behind them. In the House of Lords there is also the Bishops’ bench on the government side and a number of crossbenches for peers who do not wish to be associated with a political party.

 Floor Crossing in the United Kingdom[27]

Floor crossing is permitted, being consistent with the doctrine that the electorate votes for the individual candidate and not the party (in fact, it wasn’t until 1970 that party affiliations were allowed on the ballot sheet). Thus, parliamentarians do not automatically lose their seats on switching their party. For example, Clare Short, elected by the people of Birmingham Ladywood in the 2005 general election as a Labour MP, left the Labour Party but did not resign from her seat in parliament. She will continue to sit through the present parliament as an independent. There has been some controversy regarding this, however, as some believe that a MP who gives up the allegiance that appeared on the ballot paper should have to come back to the people to gain their endorsement. Indeed, in the past, some MPs who switched sides in the past have done precisely that. Most, however, have not. For example, the Conservatives, Peter Temple-Morris, Sean Woodward and Alan Howarth did resign their seats on crossing the floor to join Labour. Indeed, if they were to have done so, it is likely that they would have lost their seat. Of the 29 MPs who transferred to the Social Democratic Party in the early 80s, only one was ready to forfeit his seat and fight it again: Bruce Douglas-Mann, at Mitcham and Morden. He lost.

Despite this likelihood, ever since the 1832 Reform Act, there have been several parliamentarians, who felt it wrong to continue without the specific approval of their constituents:

• The first after 1832 to stand down and seek re-election on changing parties was the famously turbulent Sir Francis Burdett, champion of parliamentary and prison reforms, castigator of slavery and a man for much of his life of such radical opinions that he even got locked in the Tower for refusing to compromise. Yet he ended his political life as a Tory: the electors of Westminster, having voted him in as a Liberal in 1835, duly voted him home again as a Conservative in the by-election two years later.
• In 1912, George Lansbury, who would one day lead Labour, resigned his East End seat to test the extent of support for votes for women. He lost the by-election.
• Among other cases, William Jowitt, who went on to be Labour’s lord Chancellor, gave up his seat at Preston in 1929 on leaving the Liberal Party and held it for Labour.
• In 1973 a by-election at Lincoln produced what one account describes as perhaps the greatest personal victory in British political history, when in a kind of foretaste of the later Social Democratic Party breakaway, the Labour MP Dick Taverne left the party, stood as a Democratic Labour candidate and took almost 60% of the vote at the consequent by-election.
• In 1904, Sir Winston Churchill crossed the floor, leaving the Conservative Party to join the Liberal Party. He then returned to the Conservatives in the 1920s.

Germany

Political system

Germany is a ConstitutionalFederalRepublic, whose political system is laid out in the 1949 Constitution called the Basic Law. As is the case in South Africa, the Constitution creates three separate arms of Government, namely the executive, the legislature and the judiciary. Germany operates on a parliamentary government system, in terms of which the Head of Government, the Chancellor, is elected by the Parliament. Although the President is the Head of State, this is an apolitical and largely ceremonial position.

The German Parliament consists of two Houses, namely the Bundestag (Federal Assembly), and the Bundesrat (Federal Council). The Bundestag is the supreme legislative body and represents the lower House of Parliament, which is elected every four years. The Bundesrat, which is the upper House of Parliament, represents the 16 Federal States and cooperates in lawmaking and administering the federation. The individual States appoints the Members of the Bundesrat. The Federal Constitutional Court oversees the constitutionality of laws.

Germany has been described as a prime example of a country with a strong party system and a government system that is both stable and powerful in leadership.[28] At present, the German party system on the national level consists of five parties. Of these, the two major parties are the Christian Democratic Union (CDU)/Christian Social Union (CSU) and the Social Democratic Party of Germany (SPD), whilst the three minor parties are the Free Democratic Party (FDP); the Left Party (a coalition of the Party of Democratic Socialism and Labour and Social Justice Party); and the Greens.

Historical context

Veen argues that the establishment of parliamentary democracy in Germany was a long process.[29] According to the author, a first attempt was made in Weimar in 1918, but it was inconsistent and half-hearted because the parties were not trusted with being capable of forming a government. The party system of the WeimarRepublic was heavily divided and ideologically fragmented. It especially lacked an understanding of its governmental responsibilities, i.e. the stable preservation of the government on the one hand and the responsible opposition on the other. Thus, anti-parliamentarian forces came to triumph and, from 1933 to 1945 the totalitarian national socialist dictatorship was able to eradicate parties and parliaments.

The German Constitution explicitly identified parties as key institutions in the development of an informed political opinion. It entrusted parliamentary parties with the formation of the Government and the election of the Federal President.[30] Furthermore, the parties themselves had learned their lessons after the collapse following the Second World War. They were conscious of their new role as fundamental representatives of democracy and as responsible forces of Government. In the newly formed Federal Republic it was clear from the outset that democracy in the modern mass culture could only be established with parties capable of acting. It was also clear that it should be a representative democracy, based on free elections, party competition, and the independent or representative mandate guaranteed by the Constitution.[31] It was consensus that democratic rule and legitimacy should primarily be mediated through the parties, as character and quality of a democracy are, above all, determined by political parties, their democratic structure, their political profile and performance.

Electoral System

The Federal Electoral Law of Germany[32] establishes a mixed electoral system for the country, comprising a combination of first-past-the post and proportional representation. In terms of this system, half of the Members of Parliament are elected by direct vote in constituencies (on a first-past-the-post basis), while the remaining half is elected through lists of candidates put up by the parties in the States (proportional representation). Under this system, each eligible voter has two separate votes that can be cast independently of each other. The first vote is cast for the candidate in his or her constituency, and the second vote is for one of the party lists. It is thus possible for one voter to vote for two different parties. In the first vote for direct candidates in constituencies, the candidate who obtains the most votes is the winner. In the second vote for candidates on party lists, the seats are distributed among the parties in proportion to the total amount of votes obtained by them in the country. Only those parties that have obtained a minimum of 5% of the votes in the country, or a minimum of three constituency votes, enjoy representation in Parliament.

Floor Crossing Legislation

The Parliament of Germany does not have any legislation in place that either specifically sanctions or prohibits floor crossing. However, Article 38(1) of the Constitution, which deals with elections, provides for Members of the German Bundestag to be elected in general, direct, free, equal, and secret elections. It also provides that Members represent the whole people, and are not bound by orders or instructions, but are responsible only to their conscience. This principle is referred to as the constitutional principle of independent mandate, and permits the withdrawal from a parliamentary party or the floor crossing to another parliamentary party.

Notwithstanding the independent mandate principle, floor crossing does not seem to be a common phenomenon in Germany. According to Veen,[33] floor crossings have seldom happened in German parliamentary history, and, where they did occur, it was without exception by members of smaller parties. Most of these Members came from the FDP and did either not agree to the change of coalition partner from the CDU to the SPD at the end of the 1960s and the SPD to the CDU in 1982 or, due to their beliefs, disapproved of the Government course of action.

 Canada[34]

Political System

Canada is a parliamentary democracy and its system of government holds that the law is the supreme authority. Canada is also a constitutional monarchy and a Commonwealth Realm,[35] with a federal system of parliamentary government and strong democratic traditions. The country operates under the Westminster political system, based on unwritten conventions and enshrined by the British Parliament in the Constitution Acts of 1867 and 1982.

Like South Africa, Canada has three arms of government, i.e. the Executive, Legislature and Judiciary. Executive authority vests in the Queen as the legal head of State; the Governor General as the de facto Head of State; the Prime Minister who is the head of Government; and Cabinet Ministers. Legislative authority vests in the monarch and a bi-cameral Parliament. The Parliament of Canada thus consists of the Crown, the Senate and the House of Commons, whilst judicial authority vests in the courts.

Political parties play a critical role in the Canadian parliamentary system. The Parliament of Canada Act and the By-laws of the Board of Internal Economy (the administrative governing body of the House of Commons) distinguish between political parties that are recognised in the House of Commons and those with less than 12 sitting Members. With regard to financial benefits, the Parliament of Canada Act provides additional allowances to the Leader, the Whip and the House Leader of a party that has a recognised membership of 12 or more persons in the House of Commons. The Board of Internal Economy also provides financial support to the caucus research units of ‘recognised parties’.

With regard to procedure, recognised parties are also extended certain considerations, though the definition of what constitutes a ‘recognised party’ is not as clear in this case as it is with financial benefits. Since the Standing Orders have never defined ‘recognised parties’, Speakers have relied on practice or a decision by the House. However, in recent practice, a procedural interpretation of the definition ‘recognised party’ has come to mean any party with 12 or more Members in the House.

At present, four major political parties enjoy representation in the Parliament of Canada, namely Bloc Québécois (social democratic); the Conservative Party of Canada (conservative, rightwing); the Liberal Party of Canada (liberal, centrist) and the New Democratic Party (social democratic, leftwing).

Historical context

The history of Canadian parliamentary institutions began in Nova Scotia. In 1758, the colony was granted an elected assembly, becoming the first Canadian colony to enjoy a representative political institution. No limit was set on the duration of a Legislature. In fact, the Assembly that was elected in 1770 sat until 1785. In 1792, legislation was passed limiting the duration to seven years and subsequently to four years in 1840. Following the example of Nova Scotia, Prince Edward Island was granted a popular assembly in 1773 and the newly designated province of New Brunswick in 1784. Each of the three maritime colonies continued to be administered by a British governor and an appointed executive council. Upper chambers (called ‘Legislative Councils’) were introduced as distinct legislative bodies in New Brunswick in 1832 and in Nova Scotia in 1838.

Beginning in the late 1850s and continuing into the early 1860s, there was increasing pressure on the provinces of British North America to unite. The movement was prompted by political difficulties in the Province of Canada and fuelled by collective prospects for economic advantage and improved military security. Such a federal union had been recommended by Lord Durham in his report and discussed more than once in the legislatures of British North America. On 1 September 1864, delegates from the Maritime Provinces met in Charlottetown to discuss the union of Nova Scotia, New Brunswick and Prince Edward Island. They were joined by representatives from both parts of the Province of Canada, with the result that a decision was made to consider a larger union of all the provinces. A second meeting was held in Quebec City beginning on 10 October 1864. This process culminated in the agreement by both Houses of the legislature of the Province of Canada to proceed with a confederation (known as the Dominion of Canada), which was introduced in the form of the British North America Act, which came into effect on 1 July 1867.

The Act entrenched the three principal elements of British parliamentary tradition, namely monarchy, representation and responsibility in a new federal form of government. A central government was created for national purposes, and provincial governments for matters of regional or local concern. The provincial governments were not to be subordinate to the national Government. Instead, provincial governments were to be largely autonomous within their own jurisdictions.

While the law enacting Canada’s Parliament only came into force in 1867, Canadian parliamentary institutions were created long before Confederation. The provinces of Canada (Ontario and Quebec), Nova Scotia and New Brunswick each possessed sophisticated systems of governance, including legislative assemblies and upper Houses, functioning according to historic, well-understood principles of parliamentary law and practice. While these parliamentary traditions were largely British in origin, they had been adapted over the years as the local political situation required. This body of domestic practices, traditions, customs and conventions grew with the result that, at Confederation, Canada’s parliamentary system was well adapted to meet the needs of governing a young, diverse and growing nation.

Electoral system

The Canadian electoral system is known as the single-member, simple-plurality voting system, or FPTP system. In this system, Canadian citizens 18 years of age or older are eligible to vote. Elections at the federal level are simultaneous and nation-wide. Voting is by secret ballot and a voter may cast only one vote and vote for only one person on the ballot. During the elections, the candidate who gains the most votes wins, even if he or she has received fewer than half of the votes.

Various Acts of Parliament govern the electoral process, rules regarding membership, and the number and distribution of seats. The main body of Canadian election law is found in the Canada Elections Act, which sets down the conditions in which parties and candidates engage in the election process and ensures the free expression of political choice by electors. Other statutes such as the Criminal Code and the Dominion Controverted Elections Act also contain provisions governing the electoral process.

Floor Crossing

The Parliament of Canada does not have any legislation that prohibits floor crossing. Although most Members are elected with a party affiliation (a very small percentage of Members are elected as independents), Members are not obliged to retain that party label during the whole of their mandate. “Crossing the floor” is the expression used to describe a Member’s decision to break all ties binding him or her to a particular political party. A Member who changes party allegiance is under no obligation to resign his or her seat and stand for re-election, as entitlement to sit as a Member is not contingent upon political affiliation. Moreover, unlike in South Africa, there are no predetermined criteria applicable to Members who wish to cross the floor.

Floor crossing does not seem to be a regular occurrence in the Parliament of Canada. Marleau opines that the decision of Members to leave the party under which they were elected to form a new group has occurred on at least three occasions since Confederation.[36] In February 1943, three Members from Quebec left the Liberal Party to form the Bloc populaire canadien in response to the introduction of conscription. In 1963, members of the Quebec wing of the Social Credit Party broke away to form a new group called the Ralliement des Créditistes. In 1990, in response to the failure of the Meech Lake Accord, eight Members of different political affiliations formed a new party, the Bloc québécois.

Floor Crossing in Developing Countries

 Brazil

Political System

The Constitution of Brazil, promulgated in 1988, establishes the country as a federal presidential representative democratic republic, after 21 years of military dictatorship. In terms of this system, the President is both Head of State and head of Government. The administrative structure of the State is a federation. However, Brazil has included the municipalities as autonomous political entities, which makes the federation tripartite, including the Union, the States and the municipalities. The legal system is based on Roman law.

The Union’s Executive power is exercised by the Government, headed by the President, who is elected for a four-year term, and is allowed to be re-elected for one further term. Legislative power is vested in the National Congress, which is bicameral, and which consists of the Chamber of Deputies and the Federal Senate.

One of the fundamental principles of the politics in the Republic is the multi-party system, as a guarantee of political freedom. However, Desposato argues that according to most measures of development, Brazil’s political parties rank among the most backward in Latin America.[37] This is ascribed to the fact that Brazilian political institutions discourage party development, which gives party leaders little control over their organisations’ behaviour and encourages intra-party competition and Member individualism. He thus argues that most parties have comparatively short life spans, and many are based on a prominent individual or leader, rather than on an aggregation of social interests.

Historical Context

Shortly after Brazil’s independence, the first political groups emerged with either pro-Brazilian or pro-Portuguese factions. During the second empire period (1831-89), the Conservative and Liberal parties alternated in power, and an embryonic Republican Party appeared in 1870. During the OldRepublic (1889-1930), sections of the Republican Party in the larger States held political power. During the brief opening of representative politics between 1934 and 1937, attempts were made to organise national parties.

After 1945, when parties and elections were permitted again, local factions in the interior that had been allied with the Vargas Government since 1930 organised the Social Democratic Party; the pro-Vargas groups in urban areas organised the Brazilian Labour Party; and all those opposed to Vargas initially formed the National Democratic Union. The Brazilian Communist Party operated freely from 1945 through 1947. However, the Federal Supreme Court cancelled its registry in early 1948.

By 1960 Congress had thirteen parties. Confronted with adverse results in the direct gubernatorial elections of October 1965,[38] President Castelo Branco (1964-67) decreed the end of this multiparty system and imposed a two-party system. His objective was to organise a strong majority support party and a loyal opposition. Thus, the National Renewal Alliance and the Brazilian Democratic Movement were born.

In 1985 Congress passed legislation easing the requirements for organising new parties. Thus, the National Constituent Assembly seated eleven parties in 1987, nineteen in 1991, and eighteen in 1995. With the exception of the Workers’ Party, traditionally all Brazilian political parties have been organised from the top down, with a compact group of professional politicians making major decisions. The party system suffered considerable fragmentation during the late 1980s and early 1990s, especially because of an exodus from the largest parties after 1988, similar to the fictionalisation in the 1950s and early 1960s. In 1987 the five largest parties accounted for 92.8%of the Chamber of Deputies. In 1989 this figure fell to 70.1%, and in 1992 it fell further to 61.4%. However, after the 1994 elections, a ‘reconcentration’ occurred, and by 1997 the five largest parties accounted for 83.6%.

 Electoral System

Brazil uses the open-list proportional representation system for legislative elections. Under this system, each State serves as a single district, and seats are allocated according to a skewed population formula. Voters may cast a single vote either for a party’s list of for an individual candidate. Seats in Parliament are allocated among parties based on the total number of votes each party and all its candidates receive. Parties allocate their seats among candidates based solely on the number of individual votes each candidate receives. Crenwelge argues that the absence of any significant national threshold for representation in Parliament means that parties can win seats with an extremely low percentage of the national or State vote, and that parties might even win seats simply by polling well in a particular State.[39] According to the author, these features of the electoral rules encourage the formation of numerous parties by enhancing the possibility that small or regional parties will win congressional seats.

Floor Crossing

Desposato opines that until 1981, the military government imposed a two-party system and did not allow floor crossing.[40] After 1981, the two parties were disbanded and many new parties were formed to fill the vacuum. During that period, most incidents of floor crossing occurred due to party survival. However, more recently there have been few party mergers, and the majority of floor crossing occurs from one existing party to another.

At present, Brazil does not have any legislation in place that either specifically sanctions or prohibits floor crossing. However, two distinctive features of the Brazilian electoral system allows for floor crossing by Members.

Firstly, the open-list proportional representation system gives voters unusual freedom in choosing individual candidates for office. Citizens do not cast votes for predetermined party lists, but for specific candidates. Thus, their votes completely determine the order of candidates within each party. Whether or not a particular candidate is elected thus depends on his or her ability to obtain individual votes. This gives politicians an unusual degree of autonomy over their parties, as parties do not have the power to decide which candidates will fill seats. Consequently, elected politicians often act independently of party rules, as they owe their mandates to their own work and not to their parties. This makes it easy for Members to cross the floor after elections.

Secondly, the candidato nato (birthright candidate) enhances the autonomy of Brazilian politicians with respect to their parties. This provision in the electoral law automatically gives Members of Parliament the right to be on the ballot for the same position in the next election, despite violations of their party’s programme and votes against its leaders. A Member can even switch parties between elections and still be guaranteed the right to run for office on the new party’s ticket, as the Brazilian electoral system does not prohibit floor crossing.

Lesotho

Historical Context

Lesotho is a former British colony, which attained its independence in 1966. It is a parliamentary democracy with a dual governance system that operates under the Westminster political system. In terms of this system, the King is Head of State. The country has a bicameral parliament with two houses, namely the Upper House (Senate) and Lower House (National Assembly). Lesotho’s Parliament is comprised of 153 legislators. The King appoints the 33 members of the Upper House, while the 120 members to the Lower House are elected.[41]

 The monarchy is independent of any electoral process and the incumbent automatically becomes Head of State, based on traditional prestige. By law, the monarch is required to appoint the Prime Minister.[42] Thus, Lesotho combines a traditional governance system with a modern democratic system.[43]

 Electoral system

Most of the former British colonies inherited and adopted the British parliamentary systems as their governance model. Lesotho, however, has reformed its electoral system and now employs a hybrid or mixed model, combining a constituency-based FPTP system, proportional representation and its traditional system. The Constitution of Lesotho deepens participatory democracy by allowing individual candidates to stand for the elections in their own wards as independents. In addition, political parties send a certain number of candidates through a party-based list system. The country is divided into 22 wards, so each ward has to elect its representative, and the majority party is based on a simple majority.[44]

 In 2002, Lesotho government reformed its electoral system hoping to curtail the unintended outcomes of floor crossing and adopted a new electoral system, which is called a Mixed Member Proportional system. The Mixed Member Proportional system combines a proportional representation system with a constituency-based FPTP system. Thus, 80 legislators are elected through a constituency-based system, while the other 40 seats are filled by means of proportional representation.[45]

 Floor crossing in Lesotho

On attaining independence in 1966, Lesotho adopted the FPTP system that permitted floor crossing.[46] From 1966 to 1970, Lesotho enjoyed a multi-party democracy. However, from 1970 to 1993, the political environment was largely dictated by a single party. Since 1993, Lesotho has once more changed to a multi-party system but this party system is weak. Floor crossings have occurred in 1997, 2001 and 2006.

 Through the observance of the unintended and adverse outcomes of floor crossing, it was felt that there was a need to re-think the law in this respect, as it promoted fragmentation of party political system and an unstable political system with a negative impact on participatory and representative democracy.

Lesotho’s Constitution permits members of Parliament to cross the floor to other parties without losing their Parliamentary seats. Based on 2002 electoral reforms, the newly adopted electoral system permits only the 80 members elected through a constituency-based electoral system to cross the floor without losing their Parliamentary seats, while the 40 members elected through a proportional representation electoral system cannot do so.[47]

 Impact of floor crossing on Parliamentary Representative Democracy

 Matlosa and Shale argue that despite the 2002 electoral reforms, floor crossing continues to impact negatively on parliamentary democracy and institutional effectiveness.[48] They note that floor crossing has destabilised the party system, leading to a proliferation of parties in Lesotho.[49] In turn, this proliferation of parties has weakened the capacity of parties to contribute meaningfully towards effective governance.[50] Party splits, tensions and the inability to manage such problems have combined to negatively affect the practice of parliamentary democracy in Lesotho. In addition, the increase in the number of established political parties has not been based on policy, principles or ideological lines, but rather on personal ambitions, which tends to compromise the principal mandate and quality service delivery.[51] Thus, Matlosa and Shale argue further that the right to cross the floor opened space for opportunism, negatively impacting on service delivery.[52]

 Matlosa and Shale also argue that allowing members of Parliament to cross the floor and retain their seats creates anxiety and hopelessness on the part of the electorate, as they feel forsaken by their legislators. This creates a legitimate crisis for the legislators, they will no long enjoy support and confidence in the public eye of the electorate,[53] leading to mistrust of the electoral process and ultimately affecting the legitimacy of Parliament as an institution.[54]

Kenya[55]

Historical Context 

Kenya is a former British Colony, which attained its independence in 1963. It inherited a number of institutional parliamentary challenges, such as the under-representation of Africans within the former British Parliamentary Colony set up (Kenya had stringent franchise qualifications). Taking into account the historical context, this section attempts to look at the implications, rationale and application of the floor crossing in Kenya. It is argued that floor crossing has its own significance and distinct functions in as far as the political system in East Africa is concerned. The idea of introducing floor crossing was meant to address the irrelevant, inherited franchise restrictions, as well as bring new life and ideas to the Kenyan Parliament.

 Purpose of the Legislation

Engholm & Mazrui argue that floor crossing should always be construed to suggest inefficiency, weak political institutions, leadership draught and stagnation of ideas, but should be viewed as a strategy to respond to institutional and political challenges presented by the British Parliamentary set up.[56] After Kenya’s independence, the issue of under-representation of non-Europeans was regarded as among the most urgent issues requiring attention on the part of the new government.

The introduction of a new legislative framework was urgently required for the establishment of a representative and African-led government. Thus, the introduction of floor crossing legislation came into effect in order to attain the goal of increasing representation and participation of Africans within the former British Parliamentary colony. In essence, floor-crossing legislation was introduced in order to address the issue of under-representation of non-Europeans within the Kenyan Parliamentary system.[57]

Secondly, it was meant to be a political management tool, to mitigate party political tensions, and also to curtail potential clashes between members of parliament of the different political groups.[58] Despite the potential for opportunism, its main objective was to propel transformation within the Kenyan Parliament.[59]

Another view is that floor crossing was introduced in Kenya to enable the government to proceed with the proposed constitutional amendments. The Kenyan government sought to reduce the powers of its seven regions, and to establish a republic. The floor crossing legislation was affected in order to ensure that the proposed Republican Constitution was adopted (the floor crossing legislative framework enabled the Kenyan government to reach the required constitutionally required 90% mandate in order to proceed with its envisaged constitutional amendments).

Application of the Floor Crossing   

Members of Parliament, who cross the floor to join other parties or to form their own political parties, do not lose their seats. Thus, on 14 April 1966, the Kenyan Vice-President resigned without forfeiting his parliamentary seat and established his own political party called the Kenya People Union (KPU). This offered an opportunity for members, who were dissatisfied with the manner in which the ruling party ran the government, to cross the floor in order to join the newly formed KPU and to retain their seats despite having done so.

These new political developments infuriated the President Mr Kenyatta, subsequently leading to constitutional amendments that attempted to bottleneck floor crossing. These amendments required that those who changed parties should be compelled to revert to their constituency for re-election.[60] Thus, in order for them to remain as members of Parliament they should be re-elected by their constituencies, instead of retaining their seats.

 Conclusion

In Kenya, floor crossing has not appeared to affect parliamentary stability, but rather it helped to ensure that inherited rigid franchises and obstacles were removed. Its introduction was primarily aimed at ensuring institutional reform and propelling parliamentary transformation in order to ensure that the composition of the Kenyan Parliament reflected the demographics of the country and to ensure fair representation.

Findings, Conclusion and Recommendations

Findings:

Contradiction among the Members of The Parliament:

Article 70 doesn’t allow the MPs to vote against party’s undemocratic decisions or protest against it. But, actually Article 70 doesn’t set any rule against expressing their opinions in the party meetings. However, many MPs don’t have a clear idea and do not speak freely even in the party meetings. As a result the good results of democracy are yet to be achieved.

Lack of responsibility and scope of dictatorship:

The truth is the Article 70 actually allows the government to get away from this responsibility  as the cabinet is sure and safe from getting defeated on the floor by motion of confidence or no-confidence. Because, no member of the majority party can vote against his own party.[61] So, Article 70 is allowing the government not to be responsible and accountable to the parliament and it is also providing the government enough room to practice dictatorship.

Hinder the practice of rule of law:

Rule of law should create a situation where there will be chance of discussion over a bill. The members or MPs should have their own rights to argue or debate on a proposed issue or over a proposed bill. But, the Article 70 prohibits the members of the ruling party to do this practice. So, as a result no matter how unrealistic or undemocratic the bill is it is approved and passed very easily.

Contradiction in the system or constitution:

We follow parliamentary government in Bangladesh. The idea of parliamentary government is that the government should be responsible to the parliament or legislature. But as we can see that Article 70 is blocking the system of being responsible to the legislature, so in Bangladesh we are actually not practicing the parliamentary government system. So we are in a position which contradicts with the actual Parliamentary government spirit.

Our constitution itself proclaim that in Article 11, 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. Besides that, if we want to see the Article 39 (1), Freedom of thought and conscience is guaranteed. Article 70 creates a bar for the exercise of the aforesaid articles.

Conclusion

We need responsible political parties and ministers who will be responsible to the legislation and parliament. In that case we really do not need any Article 70 or anti floor crossing law. But, as we all know the political culture of this country it will not be wise to think that this situation will change overnight. So, we can’t just remove this law straight away. At best we can change it slightly the way I mentioned in the recommendation part so that we can enjoy some democracy. The position of the MPs will also be developed if these changes can be assured. It can also be the stepping stone to be a more responsible government.[20]

For the progress of any country the government must be responsible and responsible for its actions. In the long run maybe someday we will enjoy a system where there will be no need of such Article 70 and we will be able to apply rule of law. Our politicians will be confident and will be more responsible to parliament; people of Bangladesh will enjoy real democracy.

 Recommendations:

Article 70 of our constitution 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.”

This is indeed a bad restriction which simply impedes the true spirit of a democracy. We can not have a functional parliament if we have such a provision in effect.

Some may argue that we need such a provision in order to prevent MPs from switching sides too frequently and effectively causing the government to fall. This can cause instability in our country.

Here is a proposal to solve the problem:

(1) Introduce two forms of votes:

a. Confidence Vote (Only used to form the government or show no-confidence)

b. Regular Vote (All other votes)

(2) MPs will never lose their membership in parliament based on their voting records

(3) Regular votes will be carried out just like any other votes, where each MP can cast his/her vote independently

(4) Confidence votes will also be cast by the MPs like regular votes. However, they will be calculated using an “electoral college” system (as used in the United States). Here is how the electoral college system may work:

a. Within each political party, all the votes will be accounted first.

b. If there is a clear winning majority within the party, all votes from that party will be considered to have cast the same as the majority of the party.

c. If there is not a clear winning majority within the party, the party leader will have an additional vote to break the tie. If the tie is broken, all the original votes from the party will be considered to have cast accordingly.

d. If the tie can not be broken because the party leader is unwilling to side with one of the majority factions, all the votes of that party will be considered “regular votes”, and will be used “as is”.

The above solution can be a starting point to come up with a modification to article 70. I hope our political leaders will take notice of this issue, and steer our nation toward a true democracy.