KHONDOKER DELOWAR HOSSAIN VS THE SPEAKER, BANGLADESH JATIYO SANGSAD 1999 BLD HCD

 

Statement of the Fact:

Md. Hasibur Rahman Sawpon and Dr. Md. Alauddin were elected as Member of Parliament. They were nominated as candidates by Bangladesh National Party. Ignoring the parliamentary rules and practices and knowing very well that the B.N.P was the principal opposition Party in parliament and it was oppose to the idea of a consensus Government, those members crossed the floor and took oath as Ministers of the present Government of Awami League violating the party discipline.

  

Argument from the Petitioner:

It was argued that

Ø  Article 70 of our Constitution was introduced to achieve stability and continuity of the Government at least for the term it is elected. If on the technicalities of the words another interpretation was given which was not consonant with the true intention of the Article, not only Article 70 but also the entire structure of the parliamentary system of the Government as conceived in the Constitution would be frustrated.

Ø  The concerned members by crossing the floor had not only betrayed the electorate but also violated the party discipline their membership of the party had ceased under Article 5 of the Party Constitution.

Ø  The Speaker had violated several provisions of the Constitution, Act I of 1981 and the Rules of Procedure of Parliament. If there is a dispute regarding a parliamentary seat being vacant, the Speaker shall have to refer the matter to the Election Commission. By not doing so, the Speaker had tried to resolve the dispute himself without any lawful authority.

Argument from the Respondent:

It was argued that

Ø  The members of the parliament in question had neither resigned from the B.N. P nor cast their votes in the parliament against it. Mere joining the Cabinet as Ministers do not bring their action within the mischief of Article 70 of the Constitution. The appointment of the two B.N.P members as Ministers did not amount to resignation from the party nor cause immediate cessation of membership under the mischief of Article 67(I)(e) of our Constitution. The appointments in question are in conformity with Article 56 of our Constitution.

Ø  Regarding the ruling of the Speaker on this issue it was submitted that this ruling is a part of the proceedings of the parliament and can’t be questioned in any court as per Article 78 of our Constitution.

Ø  Anti Defection Law as per 52^nd Amendment of Indian Constitution was also referred which says about a protection against the voting or abstention from voting contrary to the direction of his political party. 

Issues:

1.      Whether the dispute arising due to the joining two M.P of opposition party to the Ministry of the Government can be adjudicated by the Speaker or not?

2.      Whether the seats of the two aforesaid members of parliament have vacated under Article 70 or not?

Decision:

The Speaker had no authority to resolve the dispute arisen in this case. The Speaker was directed to forward the dispute to the Election Commissioner within thirty days of the receipt of this order.

Reasoning behind the decision:

The above decision was taken on the following grounds:

Ø  The resignation of the two B.N.P members of parliament from their party under Article 70(1) and the dispute caused by it does not fall within the meaning of proceeding in parliament, Regulation of procedure, Conduct of business, Maintenance of order in parliament under Article 78(1) and (2).

Ø  Article 70 does not stipulate nor require that resignation from a party should be in writing rather it can be inferred by conduct or any act against the party discipline. 

Principle:

Any act which violates the party’s discipline can be regarded as a ground of being vacant of seat in the parliament as per the provision of Article 70 and that can be determined only by the Election Commissioner as per the provision of Article 66(4) of our Constitution.

Importance of this case:

The decision of this case has widened the scope of Article 70 and clarified the provision of Article 66(4) of our Constitution. Article 70 was made actually for maintaining the party’s internal discipline which is required for maintaining the stability of an elected Government for its tenure. Again any dispute arises out of the provision of Article 70 is not within the jurisdiction of the Speaker rather the Election Commission has the sole jurisdiction to solve the dispute arising out of the vacancy of seats.