Understanding the Constitutional Council: In Bangladesh and elsewhere

With the Constitutional Reform Commission proposing a Constitutional Council for Bangladesh, we take a look at what it means and how such a council has fared in other countries. 

What is the proposed reform

Under the proposed reform, the National Constitutional Council (NCC) will play a pivotal role in ensuring transparency, accountability, and balance among various state institutions.

What role has been specified?

The NCC will advise the president on the appointment of individuals to various key positions, including: 

• chief election commissioner and other election commissioners 
• the attorney general and additional attorney generals 
• chairman and other commissioners of the Public Service Commission
• chairman and other commissioners of the Anti-Corruption Commission
• chairman and other commissioners of the National Human Rights Commission
• chief local government commissioner and other commissioners
• chiefs of the defined forces, and any other positions as may be prescribed by law

How will it be formed

The NCC will be a national institution composed of representatives from three branches of the government, according to the commission's recommendations submitted to the chief adviser.

Its members will include

• the president 
• the prime minister 
• the leader of the opposition 
• speakers of the lower and upper houses 
• the chief justice
• deputy speakers of the lower and upper houses nominated by the opposition party 
• one member nominated by a majority vote of all members of both houses of the legislature, excluding the prime minister, the leader of the opposition, and their respective party members

Other factors

In the case of a coalition government, the last member of the council will be elected by members of the coalition parties, other than the party of the prime minister, the recommendation report has said.

If the legislature is dissolved, the existing NCC members will continue to serve until the new chief adviser of the interim government takes the oath.

In the absence of a legislature, the members of the NCC will be the president, the chief adviser, the chief justice and two members of the Advisory Council nominated by the chief adviser.

How council will choose chief adviser of interim govt

The council will also select the chief adviser to the interim government according to the reform proposal. Here's how:

• A citizen, other than the members of the NCC, will be appointed as chief adviser with the agreement of at least 7 out of the 9 members of the NCC.
• If a decision cannot be reached under clause 4.1, a person will be appointed as chief adviser from among retired chief justices and retired judges of the Appellate Division, based on the agreement of at least 6 out of the 9 NCC members.
• If a decision cannot be reached under clause 4.2, the president will assume the role of chief adviser with the unanimous decision of all NCC members.
• If unanimity under clause 4.3 cannot be achieved, the most recently retired chief justice will be appointed as the chief adviser.
• If the most recently retired chief justice is unavailable or unwilling to serve as chief adviser, the immediately preceding retired chief justice will be considered. This process will continue sequentially, moving to the next-most-recently retired chief justice if necessary.
• If no retired chief justice is available or willing to serve as chief adviser, the most recently retired judge of the Appellate Division will be appointed.
• If the most recently retired Appellate Division judge is unavailable or unwilling to serve, the immediately preceding retired Appellate Division judge will be considered as chief adviser. This process will continue, offering the position to successively earlier retired Appellate Division judges until a suitable candidate is found.

But what about Constituional Councils in other countries? What roles do they play?

France

Primary Function: The primary function of the Constituional Council in France deals with judicial review of laws and electoral oversight.

Key Responsibilities

• It reviews the constitutionality of laws before promulgation (upon request by officials or courts)
• It oversees disputes related to national elections and referendums

Composition:

• 9 members: Appointed by the President, Speaker of the National Assembly, and Speaker of the Senate (3 each)
• Former Presidents of France are also lifetime members

Unique Aspect: Acts as a quasi-judicial body rather than an advisory or appointment-focused council.

Nepal

Primary Function: Recommending appointments to key constitutional bodies.

Key Responsibilities:

• Suggests appointments to positions like the Chief Election Commissioner, CIAA members, and Public Service Commission members
• Advises on the functioning of constitutional bodies

Composition:

Chaired by the Prime Minister.

Includes:

• The Chief Justice
• The Speaker of the House of Representatives
• The Chairperson of the National Assembly
• The Leader of the Opposition
• The Deputy Speaker of the House of Representatives.

Unique Aspect: Focuses on ensuring inclusivity and political balance in appointments rather than legal or judicial matters.

Sri Lanka

Primary Function: Appointing members to independent commissions and ensuring institutional independence.

Key Responsibilities:

• Approves or recommends appointments to the Supreme Court, Election Commission, Public Service Commission, and other independent bodies
• Ensures transparency in the appointment process

Composition:

Following an amendment, it has been replaced by a Parliamentary Council, significantly reducing its powers.

Unique Aspect: Its focus on appointments makes it similar to Nepal's council, but its recent changes have reduced its independence.

There are some other countries which follow the French style of the council such as Morocco, Algeria, Vietnam and others.