Is Bangladesh’s parliamentary system ready for floor crossing?

The Constitution Reform Commission of Bangladesh, consisting of nine members led by Professor Ali Riaz, has prepared a set of recommendations to be submitted to the government. The committee is going to submit the proposal to the chief advisor in the middle of January.

News sources and interviews with the commission head reveal several key recommendations. These include balancing the powers of the President and Prime Minister, limiting the Prime Minister to two consecutive terms, separating the roles of Prime Minister and party leader, introducing a bicameral parliament, amending Article 70, and ensuring the Deputy Speaker is chosen from the opposition party.

Now debates have arisen regarding Article 70, whether the commission will propose restoring parliamentarians' right to 'floor crossing' or voting outside party decisions by scrapping the controversial Article 70, or whether they will bring significant amendments to it if the article is amended, to what extent floor-crossing will be approved. 

Article 70 of our constitution says that if a person nominated as a candidate of a political party in an election and elected as a Member of Parliament resigns from that party, or votes against that party in Parliament, his seat in Parliament shall become vacant, but he shall not be eligible to become a Member of Parliament in any subsequent election.

According to the reform commission, Article 70 forces members of parliament into ultra-strict party loyalty, which is detrimental to democracy. If this section is repealed, members of parliament will be able to go outside the party and vote for their conscience and the interests of the people. Their position as members of parliament will also be intact.

However, eminent jurist Dr Shahdeen Malik doubts this. "If floor crossing is allowed in our parliament, do you think the government will sustain for even three days?"

"While floor crossing could promote democratic freedom, it could also lead to political chaos, undermining the principles of parliamentary stability."

Dr Cynthia Farid, lawyer and legal scholar

Floor crossing or anti-defection is typically used in two senses: first, where a parliament member crosses the floor (the aisle) to vote with another party, thus defying her own party's position on that issue, or second, when a parliament member leaves their political party from which they win political office to join a different political party — which costs that party that seat.

Bangladesh incorporated anti-defection in Article 70 of its Constitution in 1972. Some 40+ countries have anti-defection laws and most of them tend to be in the developing world/Global South.

Dr Cynthia Farid,  a lawyer and legal scholar, explained the rationale for including such a clause in these constitutions in a historical context. According to her, when new states decolonised, many had nascent political structures, unstable political party systems and weak norms for parliamentary behaviour yet to be fully institutionalised. 

In other words, the electorate was less familiar with political parties and often owed political loyalties to charismatic leaders, clans, or groups. Therefore, allowing politicians to be mobile across party lines would theoretically undermine the party system, weaken the institutionalisation of norms of parliamentary behaviour and impede processes of policy-making and representation. 

"Many nations, including Bangladesh, outlawed party defections in their constitutions, as opposed to statutory law, as constitutions are inherently difficult to change. Now, this naturally presents the question of the motivation of the framers of these constitutions, which often rested on the configuration of the party system and dealt with several dilemmas, including whether to prioritise regime stability over national integration," she said. 

"There has been a great disjunction between what floor-crossing intended to do and pragmatic considerations within the political system," she continued. Many countries including South Africa and Zambia have amended or relaxed prohibitions on anti-defection laws. 

South Africa, which has proportional representation had to deal with the difficult question of what happens if a member defects because their vote was based on their party ticket. Some systems can also allow a free or a conscience vote on issues such as religion, euthanasia, and same-sex marriage where parliamentarians may vote according to their conscience or constituents' preferences. 

"This is often done to discourage team members from crossing the floor. Pakistan allows for qualified floor crossing in that certain key issues like electing chief ministers, casting a no-confidence vote or a constitutional amendment etc will not allow defection but other issues will," Cynthia said.

And this is exactly why Dr Shahdeen Malik is considering thinking twice before jumping to any conclusion about the reform. "In the Pakistan period, there have been multiple times when the government or the parliament fell in just a few days, just because some members opposed a certain bill or crossed the floor. To bring stability, the prohibition of floor crossing was introduced," he said.  

When an idea or bill is proposed in the parliament before it gets to the voting stage, the parliament does not stop its members to question or criticise it. "But have you ever seen anyone doing that? No. Again, the ruling party has 170 members and the opposition has 120 members in the parliament. Now if the opposition manages (through bribery or other means) 30 members from the ruling party to submit a motion of no confidence in any proposed act in the parliament, the government will fail. How can you run a state if this continues to happen?" Dr Malik questions. 

He believes we need to think more about it before making any decisions to scrap this article.  

Dr Cynthia also believes that in Bangladesh's case, anti-defection laws may have to be reconsidered, "Primarily because of the entrenchment of dynastic rule and the absence of internal democracy within political parties." 

However, some cautionary considerations may be up for debate. Even if floor crossing is approved, to what extent it will be practised, must be discussed. 

"Given that the students might form a new party or parties or if factions arise in existing parties in the run-up to elections—we may need to consider to what extent floor crossing serves their interests. Having been institutionalised compared to new parties, bigger parties may benefit from floor crossing. They may induce smaller party members to defect to secure the necessary votes to create a new government or vote on an important policy issue — ultimately undermining the principle of participatory democracy," Dr Cynthia said.

Some party members could also be tempted to defect from their parties for personal gain such as in return for appointments in another party. "Moreover, in newer political parties, legalising floor-crossing may stifle internal debate as party members may be encouraged to jump ship. One might also wonder to what extent bigger parties like the BNP might support floor crossing due to fear of party fragmentation as 15 years out of parliament may have affected their internal party organisation and their grip on root-level members and representatives. 

"Finally, we also need to consider the possibility of bribery and corruption that might be enabled through parliamentary horse-trading or lobbying that might occur with unbridled floor-crossing. In other words, if the energy of parliamentarians is invested in negotiating the new balance of power post-elections then they might spend less time debating actual laws," Dr Cynthia ended. 

Article 70 will remain, but…

Everything hinges on whether Article 70 will remain in the constitution. To explore this, we spoke with Professor Ali Riaz, head of the reform committee.

"There have been discussions and criticism about Article 70 for many years," he said. "One of the most debated issues is that it prevents members of parliament from freely expressing their opinions. This concern is widely shared across the board. When we spoke with stakeholders, most of them echoed this sentiment. Political parties also suggested that floor crossing should be regulated to prevent the government from becoming overly powerful, as we've seen happen in Pakistan's parliament. Everyone is deeply concerned about this.

"We, the reform committee, have also considered this. The floor crossing should be there but it should not destable the parliament or the government. So in the reform recommendations, we are trying to keep the provision of Article 70, but in a way that it cannot establish one person's control by giving the member of parliaments freedom as well as it does not destabilise the government," Ali Riaz added.

But how are they going to do it, to which the committee chief refused to share details.