Democracy pays heavily for Article 70

The High Court on May 5 declared the Constitution's 16th amendment, which had empowered the Parliament to remove a Supreme Court judge on grounds of misconduct or incapacity, unconstitutional and void. The verdict made some lawmakers unhappy, as they blasted the court in Parliament, hours after the judgement was pronounced.  

Article 70 is the main reason that the amendment was declared "unconstitutional" as this controversial Article imposed a tight rein on MPs, who constitute the Jatiya Sangsad, making them powerless to perform their functions independently. In fact, one may argue that the High Court verdict on the 16th amendment might have been different had Article 70 not existed. This might seem like a paradox, as while the 16th amendment empowered the Jatiya Sangsad to remove a Supreme Court judge, Article 70, according to the High Court verdict, keeps them "hostage in the hands of their party." The HC verdict argues that Article 70 ensures that MPs cannot go against their party line or position on any issue in Parliament. 

The said Article states: "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. "
"They have no freedom to question their party's stance in the Parliament, even if it is incorrect. They cannot vote against their party's decision," observed the court ruling, adding, "They are, indeed, hostages in the hands of their party high command." 

In view of the HC, if Article 70 is retained in its current form, the members of parliament must toe the party line when the removal of a Supreme Court judge is raised. Moreover, the fate of the said judge will be left at the mercy of the party high command. This thereby proves the High Court's declaration that the 16th amendment is against the "independence of the judiciary", one of the basic structures of the Constitution. 

Additionally, as stated by the HC, in 63 percent of Commonwealth jurisdictions judges are removed from office for their misconduct/misbehaviour or incapacity without the intervention of the legislature. 

The HC, however, categorically cited the difference between the lawmakers in those countries, where parliaments have the power to remove a judge, as opposed to the situation in Bangladesh. 

The verdict further explained that in the US, the UK, Canada and Australia, lawmakers are free to perform their functions in the Parliament. No restrictions like the ones imposed by Article 70 exist in those countries, stressed the HC.

The HC's observations have upheld what Awami League MP, Asaduzzaman Khan, had forecasted over four decades ago. Asaduzzaman, who was a member of the Constitution Drafting Committee in 1972, strongly opposed the inclusion of Article 70 to impose restrictions on MPs. He had given a note of dissent against it, where he explained that the inclusion of this Article was against all principles of democracy and violated the rights of the electors, and that it would make MPs subservient to their party high-ups, and more so when they occupy top positions in the government. 

Two other AL MPs, Hafiz Habibur Rahman and Muntaquim Chowdhury, had also strongly opposed to the restrictions on MPs in Article 70, and like Khan had released notes of dissent in this regard.  However, their opposition did not work. Restrictions were imposed on MPs in the 1972 Constitution of the newly independent Bangladesh. 

Over the years, the reign on MPs, placed under the excuse of this Article, was not loosened. Rather, restrictions were only tightened in past. For example, the fourth amendment in 1975 incorporated an explanation in Article 70, which stated that "If a member of parliament - being present in parliament - abstains from voting or absents himself from any sitting of parliament, ignoring the direction of the party which nominated him at the election as a candidate not to do so, he shall be deemed to have voted against that party." Casting a vote against their own party means losing membership from the Parliament. By incorporating this explanation, the freedom of MPs was curtailed, giving them no alternative but to follow the party decision. This explanation remained in force until its cancellation by the 15th amendment in 2011. But the original restrictions persist till date. 

These restrictions limited the performance of our Jatiya Sangsad, as it could not emerge as an effective Parliament. Whether they belonged to the treasury or the opposition benches, MPs could never act independently. They have been forced to follow the party line, even when it is flawed. The restrictions have also empowered the parties in opposition to force their MPs to boycott the House proceedings mindlessly, and this 'boycott culture' has crippled our previous Parliaments. 

Many MPs of the opposition had not supported the House boycott in the past, but they could do nothing because of the restrictions. MP of BNP, Major (retd) Akhtaruzzaman, had joined the Parliament, defying his party's decision to boycott it. He had to pay for it by losing his membership in the House. Before participating in any discussion, MPs need to know about their party's stance on the issue, without going through any merit of the issue. For this, the House could not emerge as a focal point of all activities. Thus, the Parliament has been kept dysfunctional over the years, putting our parliamentary democracy in a sorry state. 

If our MPs now want to uphold the preeminent position of our Parliament, they should now open discussions on how to free themselves from these limitations. The reason is simple: the House will not be independent in the truest sense, until our MPs are freed from the restrictions imposed by Article 70. 

The writer is Senior Reporter, The Daily Star.