Article 70 of Constitution: It's a safeguard for democracy

Article 70 of the constitution, which deals with the cancellation of membership of parliament members for voting against their political party, works as a safeguard for democracy, the High Court has observed. 

“I am of the opinion that the present article 70 is not contravence with the constitution at all; rather it works as a safeguard for our democracy,” an HC bench of Justice Abu Taher Md Saifur Rahman said in a full text of its order released recently. 

Under article 70, lawmakers lose their seats in parliament if they vote in the House against the party that nominated them.

The bench on March 18 this year upheld article 70, summarily rejecting a writ petition that challenged the legality of the article.

Earlier on January 15, a two-member HC bench gave a split order on the same writ petition.

Justice Moyeenul Islam Chowdhury, senior judge of the bench, had issued a rule on the government, asking why the article should not be declared unconstitutional.

Justice Md Ashraful Kamal, the other judge, had summarily rejected the petition, saying that the petition is contradictory to the constitution.

Later, Justice Md Abdul Wahhab Miah, who was performing functions of the chief justice at that time, sent the writ petition to the bench of Justice Abu Taher for its hearing and disposal.   

In his order, Justice Moyeenul said parliament members could not discharge their duties properly as they could not express their opinions independently because of article 70. 

The MPs are not independent as they cannot vote against their party decisions and that is why they are subservient to their parties, he noted.

Political parties, not the people, are the source of all powers under article 70, although the people are the source of all powers under article 7 of the constitution, said Justice Moyeenul.        

The Supreme Court's Appellate Division has accepted the HC observation regarding article 70 in the judgment of the 16th constitutional amendment case, he said in his order.

Justice Moyeenul in his order said it was mandatory for the HC Division to abide by the Appellate Division verdict.

There are elements for issuing a rule in response to the writ petition that challenged article 70, he said.

In his order, Justice Ashraful Kamal observed that raising question over the article 70 was demeaning the 403 members of the Gono Parishad (national assembly), including Father of the Nation Bangabandhu Sheikh Mujibur Rahman, and the people of Bangladesh as well as the constitution. Article 70 was incorporated in the constitution in 1972. 

He rejected the petition, saying it is contradictory to the constitution.     

On April 18 last year, lawyer Eunus Ali Akond submitted the writ petition with the HC challenging the legality of article 70. In the petition, he said the article is against democracy and articles 7, 19, 26, 27, 44, 31 and 119 of the constitution.

In his order, Justice Abu Taher said, “The provision of present article 70 has been substituted by the Constitution Fifteenth Amendment. By way of the fifteenth amendment, the original provision of Article 70 has been simply substituted. So, by the fifteenth amendment nothing has been changed.

“The fifteenth amendment has not introduced any provision which can be said to have been made addition or alteration in any manner as contemplated under Article 142 of the constitution. In view of the constitution, there is no scope at all to challenge the present article 70 since it is the original form of article 70 of our constitution.

“So far, the observations as made by our High Court Division as well as Hon'ble Appellate Division as relates to present article 70 of the constitution in the sixteenth amendment case is concerned, I am of the view that the aforesaid observation was made during the course of delivering a judicial opinion, but one that is incidentally or collaterally and not directly upon the questions before the court and therefore not precedential though it may be persuasive.”

“In view of the aforesaid reasons as stated above I do not find any substance of this application. Hence this application is summarily rejected,” said Justice Abu Taher.

In the HC judgment on the 16th constitutional amendment case, Justice Moyeenul and his colleague Justice Quazi Reza-Ul Hoque had observed, "Keeping article 70 of Bangladesh constitution as it is, the members of parliament must toe the party line in case of removal of any judge of the Supreme Court. Consequently, the judge will be left at the mercy of the party high command.

“As regards article 70 of the constitution of Bangladesh, we must say that this article has fettered the members of parliament. It has imposed a tight rein on them. Members of parliament cannot go against their party line or position on any issue in the parliament. They have no freedom to question their party's stance in parliament, even if it is incorrect. They cannot vote against their party's decision. They are, indeed, hostages in the hands of their party high command.”