Honourable Speaker, the ball is in your court

Following the recent circulation of a video on social media, Jamaat-e-Islami expelled its Member of Parliament Gazi Nazrul Islam from the party and referred the matter to your office for appropriate action. To the best of our knowledge, no decision has yet been made in this regard.

In such a situation, there are precedents from the past. Former Speaker Jamiruddin Sircar did not cancel the membership of former BNP lawmaker Abu Hena. Later, when former Awami League minister Latif Siddiqui was expelled from the party, Speaker Shirin Sharmin Chaudhury referred the question of his parliamentary membership to the Election Commission for a decision. However, Mr. Siddiqui resigned before the Commission could reach a decision.
Thus, uncertainty still remains over whether those expelled from their political parties should retain their membership in Parliament. We believe, however, that the authority to make a decision regarding Mr. Islam rests with you, in your capacity as Speaker, as well as with the Parliament and the Parliamentary Standing Committee on Privileges constituted under your leadership.

Many may not know that our existing Constitution explicitly mentions two standing committees: one is the Public Accounts Committee, and the other is the Parliamentary Committee on Privileges. In other words, these two committees are of the highest importance, and they are also composed of some of the most important officeholders.

For example, in our 13th National Parliament, the Parliamentary Committee on Privileges has been formed with 10 members under the leadership of the Speaker. Its members include Prime Minister and Leader of the House Tarique Rahman, Leader of the Opposition Shafiqul Rahman, Deputy Speaker Kaiser Kamal, Mirza Abbas Uddin Ahmed, Gayeshwar Chandra Roy, Md. Nurul Islam, Zainul Abedin Farroque, and Nahid Islam.

Article 78 of the Constitution of Bangladesh concerns parliamentary privileges and immunities. Under its provisions, Parliament may regulate its own proceedings, and the courts have no jurisdiction to question such proceedings. The freedom of speech of members of Parliament is absolute, and this too falls outside the jurisdiction of the courts. To provide protection in these matters, Article 78(5) directs that a law concerning the privileges of Parliament and its members be enacted; however, such a law has not yet been enacted. It should be noted that Articles 76(2)(c) and (d), and 76(3) of the Constitution also relate to parliamentary privileges.

The concept of parliamentary privilege originated in the British Parliament. Writing on parliamentary matters in his famous treatise A Treatise on the Law, Privileges, Proceedings and Usage of Parliament, parliamentary scholar Erskine May wrote: “Parliamentary privilege is the sum of certain peculiar rights enjoyed by each House collectively and by members individually, without which they could not discharge their functions. These rights are additional to those possessed by other bodies or individuals, and therefore, although parliamentary privilege is part of the law of the land, it provides a degree of exemption from the ordinary law.”

Parliamentary privileges can be divided into two categories: those that apply individually to members of Parliament and those that apply to Parliament as a whole. More specifically, the privileges and immunities applicable to individual members of Parliament include: (a) freedom of speech; (b) exemption from arrest in civil cases; (c) exemption from serving on a jury (although this does not apply in our country); and (d) exemption from being required to appear as a witness. These are essentially rights relating to immunity, and they ensure that individual members of Parliament can perform their functions freely. Rules 172–176 of the Rules of Procedure of the Bangladesh National Parliament contain provisions relating to these matters.

The rights and powers applicable to Parliament as a whole include: (a) the right to maintain discipline. This includes the power to punish any person, including members of Parliament, for violating parliamentary privilege or committing contempt of Parliament, as well as the power to expel members of Parliament for corruption, misconduct, wrongdoing, or other improper conduct. Such powers of Parliament are known as disciplinary powers. (b) The power to manage Parliament’s internal affairs and regulate its procedures. (c) The power to ensure the attendance and effective functioning of Parliament. (d) The power to conduct inquiries and summon witnesses and documents. Rules 201–203 of the Rules of Procedure of our National Parliament contain provisions relating to these matters. (e) The power to administer oaths to witnesses. Rules 204–205 of our Rules of Procedure are relevant in this regard. (f) The power to publish documents containing defamatory material.

For a clearer understanding, it is necessary to distinguish between privilege, power, and immunity. According to Justice Subba Rao of the Supreme Court of India, the power of Parliament to exercise exclusive control over its own internal proceedings may be regarded as a privilege. The right to punish a person for violating or showing contempt of the privileges of Parliament may be described as a power. Immunity is the right of a member of Parliament not to be held liable for anything said by him in Parliament. [Special Reference, Article 143, AIR (1965) SC 745]

In our country, parliamentary privilege is generally regarded as something related to the rights and benefits enjoyed by members of Parliament, and therefore it is hardly ever considered applicable. Nevertheless, it was invoked in the case of some members of the Constituent Assembly after independence, particularly those who had collaborated with the Pakistanis. At that time, several members were also accused of abuse of power, corruption, and nepotism.

To the best of our knowledge, on 23 March 1972, a presidential order was issued providing for the cancellation of the membership of Constituent Assembly members with a view to taking action against those accused. Pursuant to that order, 16 members were expelled on 16 April 1972, on allegations of corruption. Subsequently, on 22 September the membership of another 19 members of the Constituent Assembly was cancelled.

By contrast, in neighbouring India, disciplinary action has been taken against many members of Parliament on allegations of misconduct. For example, in 2005, 11 members were expelled simultaneously from India’s Lok Sabha and Rajya Sabha over allegations that they had accepted money in exchange for raising questions in Parliament and had engaged in irregularities in the use of funds allocated to members of Parliament for local development. The expulsions were subsequently challenged in court.

In Raja Ram Pal v. Speaker [(2007) 3 SCC], a Constitution Bench of the Supreme Court of India upheld the expulsions by a vote of 4–1. It is worth noting that the constitutional provisions relating to parliamentary privilege in India and Bangladesh are broadly similar.

Finally, the great Jatiya Sangsad, or “House of the People,” is the centre of parliamentary democracy, and the effectiveness of Parliament depends to a great extent on the competence, dedication, and character of its members. Through his conduct, Member of Parliament Gazi Nazrul Islam has undoubtedly brought the dignity and reputation of Parliament into disrepute in the eyes of the public. We therefore hope that the Honourable Speaker will, through the Parliamentary Standing Committee on Privileges constituted under his leadership, immediately initiate appropriate action against him and, if necessary, take steps to permanently expel him from Parliament.

Such action would also send an important message to other members of Parliament. At the same time, we hope that steps will be taken to enact a law on this matter promptly, in accordance with the constitutional directive. In this connection, it is pertinent to note that in the referendum held on February 12 (Item No. 48), the people gave their consent to the enactment of this law.

* Dr. Badiul Alam Majumdar, Secretary, Shujan (Citizens for Good Governance)
* The views expressed here are those of the author.
* This article appeared in Prothom Alo print and online and has been translated by Ayesha Kabir for Prothom Alo English Online