The New Nation - Internet Edition

Dr. M. Zahir

The categorical imperative of democracy as a principle of governing is a simple one. "Do not block the way of inquiry and of change with regard to social and economic matters." (Thomas Thorson, The Logic of Democracy 1962).

As former Chief Justice Earl Warren of the U.S. Supreme Court said, policy-makers "are not monks or scientists, but participants in the living stream of our life". (Earl Warren, "The Law and the Future", Fortune, November 1955). As such, they are expected to make mistakes; a democratic system must allow for such errors and allow for the changes that should follow once errors are uncovered.

According to Justice Warren the principle of democracy merely provides a democratically oriented, social system with a mechanism constructed by men on the basis of democracy's instrumental principles; that is those values such as "majority rule", and "minority rights" that spell out the fundamental democratic principle through which the wishes of the society can be continuously reflected and modified in light of further acquisition of knowledge.

As President Abraham Lincoln said in his first inaugural address:

"A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments is the only true sovereign of a free people. Whoever rejects this does, of necessity, fly to anarchy or despotismt"

If the majority rule principle is the only practical solution to the fundamental question of "who governs" or who controls in a democracy, then the instrumental principle of political equality is the antecedent concept that determines just who will govern. It means that, excepting citizenship and age no criterion - be it wealth, sex, place of residence, race, religion or intelligence - can justify a denial of one's right to vote and to have that vote counted the same as any other vote. "The ballot box is the democratic process. Equality in voting - one man and every man, one vote - does not - by any means, solve all the problems of democracy, but without it, democracy is a sham." (Leonard Fein, editor, American Democracy,1965).

Pluralistic democracy stresses the importance of groups within the political system. The sovereign majority, seen as a set of minorities, that is, similar groups aligned together on an issue, is held in restraint and limited in such a structure; opportunities for other minorities to present their ideas on matters of importance and for negotiations to take place between various groups-and their elected representatives, within certain limits-in order to produce a more constructive and meaningful public policy are built into the political mechanism. Justice Warren believed that in such an environment, conflicts and problems stand a good chance of being resolved peacefully.

Accessibility is vital to the continuance of a democratic system.

"The likelihood of peaceful adjustment to a conflict", wrote Robert Dahl, "is increased if there exist institutional arrangements that encourage consultation, negotiation, the exploration of alternatives, and the search for mutually beneficial solutions. Conversely, the prospects of deadlock and coercion are increased if institutional arrangements severely inhibit such activities." (Robert Dahl, Modern Political Analysis, 1963).

Article 70(1) of our Constitution severely inhibits such a prospect for consultation, pointing of errors and representations of minority views in a majority party. This Article provides that a person elected as a member of Parliament at an election in which he was nominated as a candidate by a political party shall vacate his seat if he resigns from that party or votes in Parliament against that party. Thus, if a member of Parliament being present in Parliament abstains from voting or absents himself from any sitting of Parliament, ignoring the decision of the party which nominated him at the election as a candidate not to do so, he shall be deemed to have voted against that party.

This, in effect, means absolute party dictatorship. Parliament is after all a group of elected individuals from their respective constituencies but no one belonging to a party can have a will of their own while voting. People's power to legislate is exercised through voting by members of Parliament but because of Article 70(1), this becomes a matter of simply raising hands like dummies. Where is the exercise of power to govern by 300 members? It may well be then not a matter of election of 300 members but an election to power of political parties, thus encouraging the idea of "winner takes all".

If no dissension is allowed then there can not be any meaningful democracy which necessarily means discussion. What is the point of a parliamentary debate if all members know which way they are going to vote at the dictates of their party? We should then do away with Parliamentary debates thus saving a lot of money and acrimonious exchange.

When this provision was inserted by the framers of the Constitution in 1972, probably the memory of the ill fated Abu Hossain Sarker Government in 1957 influenced the Constitution makers.

The Government was installed and brought down within a week. But this was also because Bhasani NAP then switched side. But conditions have changed. India has no corresponding disqualification for M.P.s and in Britain, the mother of parliamentary democracy, floor crossing is common. There is some talk of amending Article 70(1) to allow dissension in some matters but not on finance bills or foreign affairs. Why should an M.P. be stopped from disputing or protesting what he feels to be unjustified tax or an unconscionable foreign policy? Through his individual dissent he may strike a chord with the national conscience and force the Government to revise its policy.

Sad to note that none of the political parties today have mentioned revoking Article ·70(1) in their manifesto. This shows the natural propensity of our leaders to be dictators within the party and the lack of tolerance for views of others. No wonder we have witnessed failure or suspension of democracy for a very significant part of our existence as an independent nation. Tolerance of contrary views even to the point of permitting rebellion and crossing floors, only strengthens the democratic practice. Unfortunately, no one pays heed to this very basic concept of democracy.

The sooner we get rid of Article 70(1) the better for democracy.

(The writer is Barrister at-Law and Senior Advocate, Bangladesh Supreme Court )