The unique case of Sultan Mansur's parliamentary membership
The Speaker of the parliament holds constitutional authority to refer the matter to EC
Amidst much confusion as to whether Gonoforum-elect MPs would join sessions of the 11th parliament, Mr Sultan Mansur, the elected MP from Moulvibazar-2 constituency under Gonoforum's banner, finally took his oath as a member of parliament on March 7, 2019.
On the very same day, he was expelled from the party hours after taking oath, on the allegation that he violated his party decision of not joining the parliament. Referring to Article 70 of the Constitution, Attorney-General Advocate Mahbubey Alam commented to the media that the parliamentary membership of Sultan Mansur will stand as he neither resigned from the party nor voted against the party. Moreover, he is the only lawmaker from Gonoforum who has taken oath in parliament.
Professor Dr Ridwanul Hoque of Dhaka University, however, takes a different position and opines that the seat of Mr Mansur has become vacant in the parliament under Article 70. In response to a question by the Law Desk, The Daily Star, Professor Hoque said, "That Mr Mansur's decision to join parliament defying his party decision would not be affected by Article 70 is an interpretation that does not conform to the context and rationale of Article 70. His decision is nothing less than his resignation from the party. The very basis of Article 70 is to prevent horse-trading in the parliament, which has indeed occurred in this case though not in reference to a transaction in the House. The party which nominated Mr Mansur has expelled him, because of which the constitutional source of his being a member of parliament has been swept away. Article 70's scope is much wider than simply what is written under it."
The rationale of Professor Hoque's statement can be found in the Bangladesh Constituent Assembly Members (Cessation of Membership) Order 1972. Considered as the predecessor document from which came the genesis of Article 70, the 1972 Order in its Article 3(ii) provides that a member of Constituent Assembly was to lose his membership if he was expelled by such political party, and he was to cease to be a member of the Assembly for the unexpired period of his term as such member.
It seems that in the Constitution there is no direct solution to this unique problem. That is why, if Gonoforum appeals to the Speaker for vacating the expelled leader Sultan Mansur's seat in the parliament under Article 70 of the Constitution, it would be a constitutional law issue—first-of-its-kind—in Bangladesh. According to Article 70, membership of a lawmaker will be vacated if he or she resigns from the party or votes in parliament against the party.
Constitutional law jurist Advocate Mahmudul Islam, in his book Constitutional Law of Bangladesh, writes that the term "resign" may have extended meaning. If someone joins the cabinet/ministry formed by one party after being elected on the nomination of another party, this may sometimes constitute resignation from the latter party under the interpretation of Article 70. However, in the case of Sultan Mansur, he has not resigned from the party; rather the party from which he got nomination has expelled him for defying party decision. The question now is: will Sultan Mansur lose his parliamentary membership for defying the party decision?
In this regard, Advocate Mahmudul Islam comments that violation of any direction of the party will not automatically lead to the vacation of a seat. So this would mean that, in the present context, Sultan Mansur will not lose membership in the parliament. The Constitution of Bangladesh rather contemplates the duty of each member to attend the sittings of the parliament and provides for vacation of seat for absence from parliament for a specified number of sitting days as referred to in Article 67(1)(b). Therefore, the interpretation of the constitutional provision does not facilitate a valid direction to refrain from attending the sittings of parliament.
Despite all sorts of interpretations and uncertainties, the unique case of Sultan Mansur's parliamentary membership deserves due course of action as mandated in the Constitution of Bangladesh. In an earlier event, in the seventh parliament, two persons were elected with the ticket of Bangladesh Nationalist Party (BNP) and they were appointed as ministers by the then ruling Awami League. They did not resign from BNP, but BNP wrote letters to Speaker Humayun Rashid Chowdhury requesting him to publish notification under rule 178 of the Rules of Procedure (RoP) stating that they vacated their seats as members of parliament as their conduct amounts to resignation from BNP. The Speaker refused to publish notification or to refer the matter to the Election Commission (EC). Rather he took the stand that there was no allegation of resignation or voting against BNP and as such there was no dispute to be referred to the EC under Article 66(4) of the Constitution.
Article 66(4) of the Constitution provides that if any dispute arises as to whether a member of parliament has, after his election, become subject to any form of disqualification mentioned in Article 66(2), or as to whether he should vacate his seat in line with Article 70, the dispute shall be referred to the EC to hear it, and the decision of the Commission would be final.
BNP leader Khandaker Delwar Hossain subsequently challenged the ruling of the Speaker in the Supreme Court of Bangladesh. The Court in this case observed that the facts and circumstances of the case disclosed a dispute regarding the alleged resignation of the two members and the EC is the authority designated by the Constitution to determine the question as to what is meant by resignation. Accordingly, the Court directed the Speaker to refer the matter to the EC.
As the experience of the aforesaid case suggests, the fate of Sultan Mansur's parliamentary membership now depends 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.
Mohamamd Golam Sarwar and Emraan Azad work for the Law Desk, The Daily Star.