A probe into the Parliament's power of expulsion
M. Jashim Ali Chowdhury
EXPULSION of a Member of Parliament is not just the expulsion of an individual. It means the expulsion of his constituency from the legislature. And if a constituency is denied representation, it strikes at the very foundation of democracy. The concerns against the former Speaker of Bangladesh Parliament have crooked this apparently simple math into a knotty one.
Scheme of the constitution
Article 66(2) of the constitution relates to the 'disqualifications' and 'vacation' of seat of a MP. A person shall be disqualified for being chosen as, and for being, a member of Parliament if he is - of unsound mind, an undischarged insolvent, convicted for a criminal offence involving moral turpitude or sentenced to imprisonment for not less than two years etc. A casual reading of Article 66(2) favours the impression that the first say in the vacation proceeding resides with the Court. If the Court declares someone undischarged insolvent or of unsound mind or convicts him for offence involving moral turpitude etc the Court shall inform the Speaker about the decision (Rule 172, 173 of the Rules of Procedure). The Speaker in his turn shall inform the House of it (Rule 176). If any dispute is raised in the floor, the matter goes to the Election Commission whose decision is final (Article 66(4)). If no dispute is raised in the floor the Speaker declares his seat vacated as per Article 67(1)(d). The Speaker cannot proceed to declare his seat vacated on the basis of newspaper report unless and until the order of the Court is communicated to him through official channel (Hussein Mohd Ershad v. Abdul Muktadir Chowdhury 53 DLR 569, at p. 574).
Under Rule 15 of the Rules of Procedure the Speaker may order immediate 'withdrawal' of a Member from the House for grossly disorderly conduct. Under Rule 16 of the Rules of Procedure the Speaker may name a member who disregards the authority of the Chair or abuses the rules of the House by persistently and willfully obstructing the business thereof. If a member is so named and a motion is made in the floor, the Speaker shall forthwith put the question that the member be 'suspended' from the service of the House for a period not exceeding the remainder of the session. So clearly there is no provision for 'expulsion' either in the constitution or in the Rules of Procedure.
Hence some forcefully argue that the constitution makers had consciously used 'Disqualification' and omitted 'Expulsion'. These provisions are 'full and complete' as to disqualification of membership and vacation of seats covering the field in its entirety. No power of expulsion de hors the above provisions exists or is available to any court or authority including Parliament. As such 'by no stretch of imagination' expulsion can be considered as an incidental matter of disqualification (Justice R V Raveendran of the Indian Supreme Court in Raja Ram Pal v. Speaker, Lok Shaba  RD-SC 24). The concerns with the former Speaker, they suggest, be referred to the Court (criminal proceeding involving police or ACC) first. Let us wait for the Court's perusal (The Daily Star, July 14, 2009).
No doubt the argument hold substance. But the concern is with the uncertain future of the case due to the length and technicalities of the Court process. However that may halt the matter for an unreasonable time. This reality coupled with the exigency of restoring faith of the people in the high institution of Speaker calls for some sort of constitutional engineering to lift the Parliament's power of expulsion for the greater cause of democratic values.
Parliamentary privileges, contempt and expulsion
Parliamentary privilege may be the focal point of the intended engineering. Parliamentary privileges are provided in Article 78 with scope for further privileges determined by an Act of Parliament, which has so far not been enacted. There is no provision regarding the abuse or breach of privilege, contempt of parliament and punishment thereof. But privileges become futile unless Parliament is conceded the power to take action against the abuse or breach of privileges and contempt of Parliament. So the question is not of 'existence' but of 'extent' of the power (Mahmudul Islam, Constitutional Law of Bangladesh, p. 424).
Did the former Speaker unacceptably abuse the privileges attached to his High Office? Did he commit contempt of parliament, first by the alleged abuse of privileges and second by not responding to the call of the parliamentary probe body appointed in this regard? The all-party parliamentary probe body's report has answered all these questions in the positive. Now the question is whether the 'extent' of power to punish contempt includes 'expulsion' or not.
Learning from precedent: UK, India and USA
First of all, we should be clear that the UK parliamentary practice shall come to a little aid for us in this regard. UK parliament is a sovereign body having power to regulate its own constitution and to refuse to accept an elected representative in the House. This is not the case with us.
Unlike Bangladesh, privileges of the Indian parliament and its members [Article 105(3) and 194(3) of the Indian Constitution], until so defined (and it is not defined yet), are those enjoyed by the House of Commons at the commencement of the constitution. But in Special Reference No (1) of 1964, the Indian Supreme Court observed that the legislature in India unlike the House of Commons is not supreme and does not enjoy the power to regulate its own constitution. Like Bangladesh there is otherwise no mention of the power of expulsion in the Indian Constitution. Laws relating to disqualification and vacation of seats have been laid down in Articles 101 to 104 of the Indian Constitution (corresponding to 66 and 67 of Bangladesh Constitution).
Yet parliamentary practice in India indicates that the legislature has exercised the power to expel its members time and again latest being the Raja Rampal Case where the Supreme Court held that every legislative body has power to regulate its proceedings and observance of discipline by its members. It is totally different and distinct from the power to provide the constitution or composition, which undoubtedly is not possessed by Indian Parliament. In exercise of that power, it can suspend a member as well as expel him, if the circumstances warrant or call for such action. It has nothing to do with disqualification and/or vacation of seat.
The US Congress has got a constitutionally granted power of expulsion for 'disorderly behavior' (Article I section 5 of the US Constitution) which has been held to cover contemptuous conduct which directly obstructs the legislative process of the Congress (Mahmudul Islam, p. 425). But the Constitution is silent about the behavior, which does not directly obstruct the legislative process of the Congress - corruption, say for example.
The US Supreme Court records the dictum that the expulsion power 'extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a member'. In Powell v. McCormack 395 US 486 (1969), the allegation against the applicant was that he deceived the House Authorities in connection with travel expenses and made certain illegal payments to his wife. The Court observed, "unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and in extreme cases, to expel a member."
The US Court seems to accept that Congress has a right to 'preserve its institutional integrity' and expel a member for this purpose - a ground of expulsion not mentioned in the US Constitution. This instance can shed some lights to our perspective to untie the jot.
Let me conclude quoting Cooley: 'this power (expulsion) is sometimes conferred by the constitution, but it exists whether expressly conferred or not. It is a necessary and incidental power, to enable the house to perform its high functions. It is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene, and abusive language (Treatise on the Constitutional Limitations, 1972 Ed, p. 133).' Parliament may manifest this power checking any scope of vindication.
M. Jashim Ali Chowdhury is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.