A High Court (HC) bench yesterday gave a split order on a writ petition challenging the legality of Article 70 of the Constitution regarding the cancellation of membership of a lawmaker for voting against his or her political party. Justice Moyeenul Islam Chowdhury, senior judge of the HC bench, issued the rule asking the government why Article 70 should not be declared unconstitutional.
On the other hand, Justice Md Ashraful Kamal, junior judge of the bench, summarily rejected the petition. According to Article 70, a lawmaker has to vacate his or her seat if he or she votes in Parliament against the party that nominated him or her.
While issuing the rule, the senior judge of the HC bench referred to the Supreme Court verdict that said, “In presence of Article 70, it is difficult for a member of Parliament to form an opinion independently ignoring the directions given by the party high command of the political party in power. That being the position, it cannot be said to be exaggerated that the members of the political party which gains majority in the Parliament cannot remain independent when the question of removal of a Judge would arise because the removal proceedings will be taken in the Parliament by the political party in power and under such scenario, it will be questionable as to what extent the members of Parliament would act impartially free from partisan political pressure at the time of exercising the power of removal.”
Referring to Article 7 of the Constitution, Justice Moyeenul Islam Chowdhury said: “All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution. But the members of Parliament cannot perform their duties properly due to Article 70 of the Constitution as they cannot give opinion or vote against their party that nominated them.”
But the junior judge of the HC bench summarily rejected the petition, saying it is the duty of the High Court to look into the laws passed by Parliament to see whether or not these laws are implemented properly.
Justice Ashraful Kamal said the Appellate Division had accepted the High Court order relating to the Article 70 in the case of the 16th amendment to the Constitution. However, the 16th amendment case was filed relating to the issue of the removal of judges by Parliament. It was (the 16th amendment case) not the case relating to Article 70 of the Constitution.
Justice Kamal also said that no-one, not even the government, has raised any question on Article 70 of the Constitution since its inception in 1972.
“The court has not formulated any laws. Rather it can give explanation whether the laws made by Parliament are legal or illegal. So, the court has no jurisdiction to impose order on Parliament members, who represent people, in formulating laws. The court cannot raise any question over the intention of formulating laws by Parliament members,” Justice Kamal added.
After passing the split order, the HC judges sent the petition to acting Chief Justice Abdul Wahhab Miah. As per the provision, after receiving the copy of the split order, Justice Abdul Wahhab Miah will assign another HC bench for final hearing and disposal of the petition.
Earlier, on April 18 last year, advocate Eunus Ali Akond, a Supreme Court lawyer, filed the writ petition with the HC challenging the legality of Article 70, saying that it is against democracy and contradicts Articles 7, 19, 26, 27, 44, 31 and 119 of the Constitution. Later, Akond filed a supplementary petition with the HC containing some observations made by the Appellate Division in the 16th amendment to the Constitution case verdict.
On August 8, the HC bench had started the hearing on the writ petition and came up with the order yesterday.
During the hearing, Akond told the court that an MP is a people’s representative. But he or she cannot give opinion independently against his or her parties due to the restrictions imposed on Article 70 of the Constitution, which is against the spirit of democracy as well as contradictory to some other Articles of the constitution, he added.
Deputy attorney-general Motaher Hossain Sazu opposed the writ petition, saying that Eunus Ali Akond has filed the writ petition to serve his personal interests, as he had said in the writ petition that he was a candidate for the post of President of the republic.