Parliament’s missing ethics framework

The cases of Ferdousi Ahmed Misti and GaziNazrul Islam should not be treated simply as questions of personal morality.

They expose a distinction in Bangladesh’s constitutional framework between loss of parliamentary membership and accountability for parliamentary conduct.

The Constitution specifies several circumstances in which an MP’s seat may become vacant.

Under Article 67(1), a seat becomes vacant in circumstances including certain failures to comply with parliamentary requirements, prolonged unauthorised absence, dissolution of Parliament, disqualification under Article 66, and the circumstances specified in Article 70.

Separately, Article 67(2) allows an MP to resign by submitting a written resignation to the Speaker; the seat becomes vacant when the resignation is received.

This is the constitutional basis relevant to Misti’s case: if an MP voluntarily resigns, the Constitution provides a clear route by which the seat becomes vacant.

Her resignation is therefore legally different from a party disciplinary decision against an MP.

Article 70 addresses another, quite specific situation.

It provides that an MP elected as a candidate nominated by a political party vacates the seat if the member resigns from that party or votes in Parliament against that party.

That wording is important when considering Nazrul’s case.

Article 70 does not expressly say that an MP loses the seat merely because the political party expels him or her.

Expulsion by a party and resignation from a party are not the same constitutional event.

Consequently, party expulsion should not automatically be equated with an Article 70 disqualification without a proper constitutional determination.

The Constitution also provides a separate route for disqualification.

Article 66(2)(d) states that a person is disqualified from being an MP if convicted of a criminal offence involving moral turpitude and sentenced to imprisonment for at least two years, subject to the five-year qualification specified in the provision.

This is significant because it establishes a high legal threshold: an allegation, an internal party inquiry, an arrest or detention is not the same as a qualifying criminal conviction.

Article 66(4) further provides that where a dispute arises over whether an MP has become subject to a constitutional disqualification, or whether the member’s seat should become vacant under Article 70, the matter is referred to the Election Commission for determination.

These provisions reveal both the strength and the limitation of the present framework.

The Constitution is relatively precise about when a parliamentary seat can become vacant, but it is much less developed as a framework for dealing with ethical misconduct that does not amount to constitutional disqualification or a criminal conviction.

That is where the comparison with other legislatures becomes relevant.

The UK House of Commons has a Parliamentary Commissioner for Standards and a Committee on Standards; the United States Congress has dedicated ethics committees; and both chambers (LokSabha and RajyaSabha) of India’s Parliament have Ethics Committees.

These mechanisms do not simply decide whether an MP should lose his or her seat. They provide an institutional process for examining conduct against parliamentary standards.

Bangladesh has a Committee of Privileges, established within the parliamentary committee system.

But its constitutional and procedural function is to deal with questions of parliamentary privilege; it is not a general-purpose ethics and standards tribunal.

Article 76 provides for the Committee of Privileges and other standing committees, while the Rules of Procedure prescribe its functions in examining alleged breaches of privilege.

The constitutional reform question, therefore, should be framed carefully. The answer is not necessarily to make every ethical breach a ground for automatically vacating an MP’s seat.

That could undermine the constitutional distinction between political accountability, parliamentary discipline and criminal justice.

A more appropriate reform would be to establish, through constitutional amendment where necessary and legislation or revised parliamentary rules where sufficient, a Parliamentary Ethics and Standards Commission or Committee with a clearly defined mandate.

It could investigate alleged breaches of a binding Code of Conduct, conflicts of interest, undeclared financial interests, improper benefits, misuse of parliamentary position and other serious ethical matters.

The system should also distinguish sanctions. Lesser breaches might attract warnings or reprimands; more serious breaches could lead to censure, suspension of specified parliamentary privileges or other parliamentary sanctions.

Loss of the parliamentary seat should remain subject to the Constitution and should not become an automatic punishment imposed by an ethics body.

This approach would also clarify the relationship between Articles 66, 67 and 70. Article 66 deals with constitutional disqualification; Article 67 deals with vacation of seats, including voluntary resignation; and Article 70 deals specifically with resignation from a nominating political party or voting against it.

None of these provisions, by themselves, constitutes a comprehensive ethical code for MPs.

The Misti and Nazrul cases therefore point to a constitutional issue that is broader than either individual case.

Bangladesh has rules for determining when an MP ceases to hold a seat, but it lacks a sufficiently developed independent system for determining whether an MP has fallen below the ethical standards expected of parliamentary office.

That is the part of the parliamentary framework that now deserves reconstruction.