Could JatyaSangsad expel Ms Tamanna Nusrat, MP?

M Jashim Ali Chowdhury

Doctoral Candidate (Legislative Studies), King’s College London

Published in the Daily Star, Law and Our Rights, 17 December 2019

Link: https://www.thedailystar.net/law-our-rights/news/could-jatiya-sangsad-expel-ms-tamanna-nusrat-mp-1841359

Parliament Member from one of the women’s reserved seats, Ms. Tamanna Nusrat’s loathsome forgery in public examination, her permanent expulsion from the Open University and a subsequent expulsion from the local unit of the ruling party have put the whole fabric of parliament’s institutional morale in question. In this regard, it is pertinent to recall a writing of mine in the Daily Star, Law and Our Rights on August 1, 2009. Then, the Speaker of Eighth Parliament (2001-2006) Barrister Jamiruddin Sarkar was being investigated for a financial scandal in a grass cutting project within parliamentary premises. In that piece (A Probe into the Parliament’s Power of Expulsion), it was argued that Parliament could expel any of its members for conducts striking at the root of its institutional morale and integrity. It appears that Ms Tamanna Nusrat’s case in 2019 fits even more within my earlier arguments.

MP Nusrat’s punishment may start with the ruling party leadership asking her to resign from parliament or from the party. In the first scenario, the Speaker would simply accept the resignation. In the second case, Speaker would declare her seat vacant as per article 70 of the Constitution. If none of these are happening, the third route could be a corruption case in the court and a verdict of conviction for offence involving ‘moral turpitude’. Formally communicated by the court, either the Speaker or the Election Commission would declare a seat vacant by following articles 66, 67 of the Constitution and rules 172, 173, 176 of the Rules of Procedure (RoP). Problems with this route are several. It is lengthy. Its ultimate outcome is uncertain, and it does not add to the dignity and moral high ground of parliament. Hence the fourth avenue of expulsion by parliament requires consideration.

The United States Congress has an express expulsion power in Article I, section 5, clause 2 of the Constitution. Under that power. Though the substantive definition of the expellable offences is not found in the U.S. constitution, around 30 legislators have been expelled so far for offences involving moral turpitude and misdemeanour. The U.S. Supreme Court in Powell v. McCormack 395 US 486 (1969) recognised the Congress’s “interest in preserving its institutional integrity” as a permissible ground. RoP of Jatya Sangsad and the Constitution of Bangladesh however do not help us this way. Rules 15 and 16 of the RoP outlines the possible cases of “withdrawal” and temporary “suspension” of unruly and disruptive MPs by the Speaker and House acting together. Absence of express mention of “expulsion” in the Constitution and RoP forces us to see whether there is any express prohibition on “expulsion” for the sake parliament’s ‘institutional integrity’.

This is important because the Australian federal parliament is expressly denied the power of expulsion by the Parliamentary Privileges Act of 1987. Prior to that the Australian federal parliament used to have a power of expulsion. In 1920, it expelled one Mr Mahon for some of his “seditious and disloyal utterances” outside the parliament that allegedly made him “unfit” to serve. Interestingly, absent such a prohibition, the provincial parliament of New South Wales continues to enjoy a ‘limited power’ of expulsion as a means of self-protecting of its institutional integrity (Armstrong v Budd (1969) 71 SR (NSW) 386).

In terms of institutional argument, the U.K. parliament constitutes the best source of inspiration. British Parliament is doctrinally sovereign, and it regulates its procedure and constitution. Jurisprudence from the British judiciary suggests that judiciary is less likely to travel within the parliament’s protected empire (Bradlaugh v Gossett (1884) 12 QBD. 271). British parliament has expelled members for allegations like misdemeanour, breach of privilege, contempt of parliament and obstruction of the House. While the contempt of parliament argument may be an alluring point to jump over, we must overcome a problem before doing so. Unlike the U.K. parliament, ours is not sovereign one nor does it have power to regulate its composition.

We, however, may overcome the confusion of parliamentary sovereignty and its composition power by looking into Canada and India where a written constitution would bind the legislature in the way ours one does. Section 18 of the Canadian Constitution Act 1867 has bestowed all the privileges, immunities and powers of the U.K. House of Commons in the Canadian parliament. It has so far expelled four MPs for conduct bringing disrepute to the parliament. Articles 105(3) and 194 (3) of the Indian Constitution has granted similar scope to the Indian legislature until it enacts its own law. India has not enacted any law so far. Here are the two ways India and Canada may inform us.

First, while Bangladesh constitution does not expressly endow the House of Commons like privileges upon the Jatya Sangsad, article 78 authorises legislating the range of parliamentary privileges and immunities. Such law not being enacted so far, it may comfortably be argued that norms of the palace of Westminster would apply to ours as well. In that case, the question should not be one of 'existence'. It should rather be one of 'extent' of the parliamentary power (Mahmudul Islam, Constitutional Law of Bangladesh, 2^nd Edition, p. 424).

Second, the Indian Supreme Court’s decision in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, AIR 2007 SC 1448 clarifies the “extent” by holding that ‘expulsion’ resides within the power of self-protecting the parliaments institutional process, discipline and integrity. It is completely different from the parliament’s power to regulate its composition. 

People, and in Ms Tamanna Nusrat’s case - her party, remain free to elect new representative to the vacant seat. Only thing the parliament would need to ensure is a due and fair process of expulsion where the accused would be allowed a full right of defence and explanation. What is at stake is not the mere question of salary, privilege or status of an individual Tamanna Nusrat, MP. It is on this institutional rubric that I argue for expulsion of Ms. Tamanna Nusrat MP from Jatya Sangsad.