Towards a “Consensual” ConstitutionalConvention?
M
Jashim Ali Chowdhury
Assistant Professor, Department of Law,
University of Chittagong.
Published in The Daily Star, Law and Our Rights (Page 12), (7th February, 2017)
Published in The Daily Star, Law and Our Rights (Page 12), (7th February, 2017)
This is the
second consecutive time that the President has constituted a Search Committee
to find some suitable candidates for the Election Commission of Bangladesh. The
2017 committee is different from that of 2012 both in formation and situation.
The 2012 committee consisted mainly of the senior judges of the Supreme Court
while that of 2017 has forged a combination of the judges, academics and career
bureaucrats and thereby stretched its root within the wider social circle. The
situational contrast between the two committees is also strikingly identifiable.
The formation of 2017 committee has attracted more deliberation and
consultation than the earlier one. Caretaker government being on the center of
political discourse then, parties and civil society groups did not take the
2012 Committee as seriously as they take the present one. Also the Election
Commission as an institution is much more suffocated now than it was in 2012. Caretaker
government being out of the agenda now, the 2017 committee has much more to
deliver than its predecessor.
Appointments
in the constitutional bodies like the Supreme Court, Election Commission, Public
Service Commission, Comptroller and Auditor General and autonomous bodies like
Anti-Corruption Commission and Human Rights Commission, etc have been widely
debated in our recent political discourse. The judiciary sought, with a little
success, to mitigate the “gravitational pull” of the Prime Minister’s political
advice by requiring constitutional consultation with the Chief Justice and
ensuring a primacy for the judicial opinion (Syed Dastagir Hossain v. Idrisur Rahman 15 BLC (AD) 49). A writ
petition pending before the High Court Division now seeks to remove the
remaining thread of the pull by calling for the formation of a search committee
to recommend judges in the High Court Division (Ragib Rouf Chowdhury v. Sec., Ministry of Law). Very little could
be achieved in relation to other constitutional and autonomous bodies however.
This
brings me to the fundamental issues surrounding a typical constitutional
convention. Sir Ivor Jennings prescribes a three prong test to know whether a
particular “practice” is a constitutional convention or not. First, Jennings
would ask, what are the precedents? Secondly, did the actors in the precedents
believe that they were bound by a rule? Thirdly, is there a reason for the
rule? (I. Jennings, The Law and the Constitution,
5th ed., London 1959, p. 136).
Now
in this search committee issue, answers to the first two questions are in the
negative. We have seen only two committees so far and this makes the committee
system a quite novice practice instead of being a long held and unbroken one. Also,
nobody will even think of suggesting that the Awami League government is acting
under a belief in a binding obligation whatsoever.
In
contrast, Jennings’ third question may have something to offer. Is there a
reason for the practice? Of course, the ruling party and opposition parties
have a very important reason for creating and nurturing a committee system like
this. While a constitutional convention is not “enforced” by the courts, it is
“recognized” as aids to judicial interpretation (Att.-Gen. v Jonathan Cape
Ltd [1976] Q. B. 752). The question then is – whether a novice practice
with a good reason uncoupled with a sense of obligation could ripe into a
constitutional convention.
To
avoid a lengthy academic analysis, constitutional conventions may be created within
shortest possible time through consensus or agreement of concerned parties. The agreement need not
necessarily be imposing an “obligation” on the actors (Joseph
Jaconelli, Do Constitutional Conventions
Bind?, Cambridge Law Journal, 64(1), March 2005, pp. 149–176). It will only
need a really convincing “reason” behind. David Hume, in his Treatise of Human Nature (1738), has
justified the interest of mutuality and reciprocity as a convincing reason for
a conventional norm. Professor Gilbert Harman has further synthesized the behavioral explanation as one of mutual adjustment between
members of society (G. Harman, Justice
and Moral Bargaining, (1983) 1 Social Philosophy and Policy, 114). German
political system is abundant in ready-to-refer examples of consensual
constitutional conventions emerging out of political agreements forged out of interest
rather than obligation (Greg Taylor, Convention by consensus: Constitutional conventions in Germany, Int. J. Const. Law (2014) 12(2):303-329).
Are the interests of transparency, credibility and
legitimacy not convincing enough for forging and recognizing a constitutional
convention of appointing search committees for selection in constitutional and
autonomous bodies?
.jpg)
