The EC Search Committee: Towards a “Consensual” Constitutional Convention?

The EC Search Committee:

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)

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.

While I share the prevailing doubt as to whether most of the members in the present committee would actually be able to shun down their perceived “leaning” and recommend names objectively and whether the Prime Minister would actually be “willing” to forgo her constitutional privilege of advising the head of state, the two consecutive search committees for the Election Commission have a very crucial thing to offer. It is the possible emergence of a constitutional convention of consultation and specialized committee system for appointment in constitutional bodies and other autonomous bodies of constitutional significance.

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?Greg Taylor* * Honorary Professor, Philipps-Universität, Marburg, Germany; Associate Professor, Law School, Monash University, Melbourne. The author wishes to thank Werner Bachmann, Dr. Rüdiger Hitz, Ian Killey, P.S.M., Nicole Teschke and the Budget Committee of the Bundestag for their assistance in the research for this article, and Dr. Sabine Pittrof and the anonymous reviewer for useful comments. The usual caveats apply. This article was completed just after the general federal elections of Sept. 22, 2013. Email: greg.taylor@monash.edu. Search for other works by this author on: Oxford Academic PubMed

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