Constitutional Reform, Article 70(b) Should Be Top of the Agenda
The Interim government has established a constitutional reform commission. It is now a top public demand that Article 70(b) or anti-defection law of the Constitution must be amended. This law is the main obstacle to the flourishing of parliamentary democracy and could lead to the creation of an electoral dictatorship or fascism. Moreover, it goes against the spirit of Constitutionalism and the Rule of Law. Due to Article 70(b), members of parliament (MPs), whether from the government or opposition, cannot enjoy independence and express their opinions. MPs are forced to follow their party leaders’ wishes, even if they personally believe it is wrong, unjustified or against the interests of their constituency because questioning the leader or party will risk their seats. The reasoning behind incorporating the anti-defection law into the Constitution was to strengthen and stabilise the Parliamentary government system. But, Article 70(b) is stricter than necessary.
MPs’ Responsibility and Article 70(b)
MPs are elected by voters to represent their constituency in Parliament, who are supposed to advocating the common interests on their behalf. However, evidence shows that MPs do not effectively participate in the law-making process. The quality of legislation may not be very rich, as many new laws return to parliament for further amendment due to unworkability. The main reason is that most MPs from the ruling party are reluctant to amend further, fearing loss of parliamentary membership. Thus, Parliament is not effectively working to ensure the public’s actual interest. The promotion of a Parliamentary system at a high standard, rather than a rubber stampor talking club, is essential. According to our Constitution, Parliament ensures the accountability and transparency of the government. Nevertheless, it is not possible to have a meaningful democracy without giving members of parliament the freedom of expression and independence.
Conflicting with Constitutionalism
‘Constitutionalism’ is the doctrine that governs the legitimacy of government action. It goes beyond the term ‘legality’, as it requires all acts to be conducted according to predetermined legal rules. To uphold Constitutionalism, there needs to be a predetermined rule to exercise deflection power. In relative proportion, Article 70(b) conflicts with individuals’ rights to freedom of expression and the notion of respect for individual status. This provision restricts individual opinions, enabling the implementation of the Head of the executive’s views. This power is exercised according to the will of the Head of the Executive and the power conferred by Parliament. Lastly, in line with proportion, Parliament often overlooks the desires of the electorate. It can be argued that in presence of Article 70(b), the actions and operations of ‘Constitutionalism’ are destroyed, compromising the essence of the Constitution.
Conflicting with the main state policy
The Rule of Law is an important element of every democratic society. Every single step should be taken according to the law. In Article 70(b), the door has been enlarged to allow the commission of unlawful acts to be made fair. According to the provision, MPs are bound to support the desires of their party leader, whether fair or unfair. As a result, the parliamentary process and legislation have lost their allure. The Rule of Law is more acceptable than the rule of man or party in a parliamentary system. Broadly speaking, laws are passed in a democratically elected parliament after thorough discussion and deliberation; these processes help eliminate undemocratic provisions from laws. Given that, it is undoubtedly asserted that due to Article 70(b), a bill may be passed undemocratically without parliamentary debate or discussion, as has been seen many times. This is further facilitated by government efforts to pass legalised ordinances, avoiding debate. If the parliament loses its democratic value, society will fall into a monopoly dictatorship. Consequently, the Rule of Law and good governance will be at risk.
Conclusion
It is the provision for which MPs are unable to divert their obligation of the constitutional duty. This creates a big gap in the legitimacy of parliamentary democracy and could lead to a democratic dictatorship. In terms of practicality, the bar of Article 70(b) should be imposed on a limited sector or used only within a limited scope such as the question of the government’s confidence, finance bill, and implementation of their election mandate bill. Without it, the parliamentary system may become ineffective, turning into a rubber stamp and talking club as seen in our last 50 years of parliamentary history, which also undermines the rule of law. It has also provided a scope to promote cronyism, corruption and even nepotism. Therefore, the Reform Commission should consider changing/amending it.
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The writer is a Barrister (Lincoln’s Inn) and Advocate, Supreme Court of Bangladesh