Setting up the National Constitutional Council

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Enayet Rasul
The Adviser for Law and Information, Barrister Mainul Hosein, unveiled a plan last week that deserves the support of all well intentioned people in the country. He informed the press that a draft ordinance was being prepared to set up a National Constitutional Council (NCC). The avowed purpose of it is to create a safety apparatus so that never again a political crisis may gather centred on the unreliability and suspected lack of integrity of individuals in constitutional posts such as the ones of the Chief Election Commissioner, Election Commissioners, judges of the High Court and Supreme Court, Chairmen and members of the Public Service Commission, Chairman and members of the Anti-Corruption Commission, etc.
The political turmoil during the last couple of years that peaked last year and seemed about to pull the country to the lowest depths of destructive instability, was the outcome of an unchecked process by successive governments to make the civil administration, the judiciary, the election conducting mechanisms, the recruitment process of the civil services, etc., all the handmaidens of the political governments or stooges to do their bidding. Thus, the Awami League and the BNP governments but specially the BNP governments because they had a longer inning in power since the decade of the nineties, sought to have a stranglehold over vital state institutions by appointing largely their supporters in them. All considerations of efficiency, competence, professional and educational qualifications, integrity of character, impartiality and all the other attributes expected from persons to be appointed to such high constitutional posts, were most flippantly tossed aside. The main consideration for appointment was abject submission to the political design of the ruling party. The immediate past ruling party headed by the BNP-Jaamat alliance, crossed all decent limits in this matter.
Thus, it became inevitable that the outcry that no fair elections could be held in the country with vital state institutions under the control of crass ruling party loyalists, become louder and louder and when it came to a flash-point in such protests the declared election schedule had to be scuttled and a change of government took place to do many things to give a fresh new start to the nation. The stated mission objectives of the new government were righting the wrongs and ensuring that never again a crisis can descend on the nation based on the above type of manipulated activities besmirching the reputation of the high constitutional posts. Thus, it is no surprise that the establishment of the NCC is now acquiring a pace. All sensible quarters in the country would be one in supporting and hoping that this body would come into existence at the fastest. It must be set up and made fully operational well before the expiry of the tenure of this caretaker government because, otherwise, the political and elected governments to follow may not be so motivated in its establishment leaving the country once again vulnerable to political uncertainty and instability.
The people were helpless witnesses to what happened from not having a body like the NCC. The Public Service Commission (PSC), the recruitment organization for the civil services, was allegedly staffed by individuals at all important levels to ensure that young persons with background as student activists of the ruling party were mainly recruited for the civil services. Nothing like the academic attainments, merit and integrity of the job aspirants mattered but only their unabashed loyalty to the party in power. Questions papers for recruitment exams of the civil services were also leaked out to their favourites by a PSC manned by unscrupulous persons. Not only what political roles such civil servants would play on appointment, their fitment to be able to do their jobs reasonably well became doubtful because of their background.
Not a handful but dozens of judges to the highest court of the land, the High Court, were appointed and in these appointments the alleged sole criterion seemed to be loyalty to a political party and little else. Thus, it was feared that the country's highest court had at its helm individuals who could be hardly trusted to do their jobs as they ought to. The Supreme Court Bar Association (SCBA) launched a programme of boycotting the courts of these judges on these grounds.
The Chief Election Commissioner, Election Commissioners and others under them were similarly accused foe being appointed on political consideration to pave the way for the electoral triumph of the ruling party.
The above resume should serve as a clear reminder of why it has become so necessary to set up a body like the NCC to avoid similar pitfalls in the future from not having one . The only concerns now are for its proper composition so that it can serve its purpose well as a completely impartial and very competent body to fill above any objection constitutional positions in various organizations. The proposal is for the NCC to have seven members drawn mainly from the country's higher Judiciary. The Chief Justice is proposed to be its Chairman. But having the greater number of its members from among the Judiciary could compromise its intended neutrality when members of the higher Judiciary themselves in some cases remain accused as political appointees or for inefficiency or immorality. It would only seem logical to create proper checks and balances in the NCC to ensure its functioning in the intended manner. To this end, it should at least have four members from different professions with very high reputation for efficiency and integrity of character. The proposed NCC ordinance has provision for the President of the Supreme Court Bar Association to be one of the members of the NCC. But only a lone member from outside the Judiciary will not create checks and balances in that body. At least two other members from the civil society or other professions having unassailable high reputation would surely merit an inclusion in the NCC to ensure that it would accomplish properly its objectives impartially and truly efficiently.
The NCC when it comes into existence ought not to restrict its activities to only recommending appointments to constitutional posts, it should be empowered also to carry out a scrutiny of all such previous appointments made. The cases of appointments which would appear deficient or improper to it, specially in the higher Judiciary, such appointees should be removed from their posts following due constitutional processes. Only if this is done, the full benefits from the establishment of the NCC would be realised.