Gonofourm’s expelled MP and his parliamentary membership
Tasmiah Nuhiya Ahmed of DOT :
Sultan Mansur, the elected MP from Moulvibazar-2 constituency under Gonoforum’s banner, took his oath as a member of parliament on March 7, 2019 and on the allegation that he violated his party decision of not joining the parliament, on the very same day, he had been expelled from the party hours after taking oath.
According to the Article 70 of the Constitution of Bangladesh, a person elected as a member of parliament (MP) at an election at which he was nominated as a candidate by a political party shall vacate his/her seat if s/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.
However, in this case, Mansur has neither resigned nor voted in parliament against the political party by which he was nominated as a candidate at the 11th parliamentary election.
The case laws suggest that the term ‘resign’ may have an extended meaning. It has been held in Secretary, Parliamentary Affairs v. Khondker Delowar Hossain 1999 BLD 276 that joining the Ministry formed by one party after being elected on the nomination of another party may sometimes constitutes resignation from the latter party within the meaning of Article 70. Resignation by conduct or otherwise against party discipline and dictates is also envisaged under these Articles (Khondker Delwar Hossain and another v. Speaker, Bangladesh Jatiyo Sangshad (Parliament and another) 51 DLR (199) 1, Para 10). In such a case, resignation from the party on whose ticket he was elected shall not be the ground of the vacation of his seat in Parliament rather he should be continued to be treated as an independent candidate for rest period of the Parliament. Again, he should not be permitted to join another political party during the existence of the concerned Parliament because in both cases, he was elected to Parliament as the nominee of his earlier party and the people voted him to carry into effect the manifesto of that political party.
Floor-crossing means resignation from one’s own party or desertion of a political party in order to join another one. In the fifth Parliament, “three Members of the fifth Parliament namely, Mr. Ebadur Rahman Chowdhury, Major General Mahmudul Hasan and Mr. Paritosh Chakroborty, all belong to Jatiyo Party joined the Bangladesh Nationalist Party in 1995. The matter was referred by the then Speaker to the Election Commission. After hearing, the Election Commission declared the seats had fallen vacant and communicated the decision vide letter dated 30.08.95 to the Speaker and upon which gazette notification to that effect was published.
In the seventh Parliament, “two persons (namely Md. Habibur Rahman Shawpon and Dr. Alauddin were elected in the general election held on June 12, 1996 from the National Constituency No. 67, Sirajganj-7 and National Constituency No. 56, Rajshahi- 5 respectively) were elected on the nomination of Bangladesh Nationalist Party (BNP) and that they were appointed as ministers by the ruling party. They did not resign from Bangladesh Nationalist Party, but Bangladesh Nationalist Party wrote letters requesting the Speaker to publish notification under rule 178 of the Rules of Procedure stating that they vacated their seats as Members of Parliament as their conduct amounts to resignation from Bangladesh Nationalist Party. The Speaker refused to publish the notification or to refer to the Election Commission. The Speaker took the stand that there was no allegation of resignation or voting against Bangladesh Nationalist Party and as such there was no dispute to be referred to the Election Commission. The Appellate Division, affirming the judgment of the High Court Division, held that the facts and circumstances of the case disclosed a dispute regarding the alleged resignation of the two members and the Election Commission is the authority designated by the Constitution to determine the question as to what is meant by resignation and whether the two members resigned, and accordingly directed the Speaker to refer the matter to the Election Commission. The Speaker then referred the matter to the Election Commission which held that joining the Ministry of the ruling party constituted resignation from Bangladesh Nationalist Party attracting the mischief of Article 70. In the seventh Parliament, another Member of Parliament (Anwar Hossain Monju) elected on the nomination of Jatiyo Party did not fall within the mischief of Article 70 by joining the Ministry of the ruling party as the said Member joined the consensus government of the ruling party with the consent of the Jatiyo Party and its leader. In the 8th Parliament, “Kazi Sirajul Islam, who was elected Member of Parliament (MP) from Faridpur-1 constituency on Awami League ticket in general election of 2001, crossed the floor into the ruling-party Bangladesh Nationalist Party (BNP) on June 4, 2005. Upon a petition filed by the Awami League, the Speaker of Parliament declared on June 9, 2005 the parliamentary seat of Faridpur-1 vacant following the defection of Kazi Sirajul Islam.”
Therefore, even if Mansur’s joining of parliament against his party’s decision of not joining the parliament, is seen as resignation by conduct or otherwise from his political party , it cannot be treated as a ground of the vacation of his seat in parliament. Rather, Mansur may be treated as an independent candidate for the rest of the period of parliament. In Mansur’s case, we do not see any floor crossing as he has not left his political party to join another political party. Rather he was expelled from his political party, In a remote sense, we may try to see Mansur’s case as a case of floor crossing as happened in the seventh parliament where the Appellate Division held that the Election Commission (EC) is the authority designated by the Constitution to determine the question as to what is meant by resignation and whether the members resigned. As in that case, after the Speaker referred the matter to the EC, EC held that joining the Ministry of the ruling party constituted resignation from their own political party attracting the mischief of Article 70. If so happens, the fate of Sultan Mansur’s parliamentary membership would then depend upon the ruling of the Speaker of the parliament who can only refer the case to the EC for a decision. If the case of Sultan Mansur is referred, the EC would be the ultimate authority to make a decision on this matter.
Tasmiah Nuhiya Ahmed, an Advocate of Bangladesh Supreme Court and Executive Editor of Daily Our Time.