NCC is a bad idea. But there is a better option.

The reform process is entering its last overs, and there is a stalemate over the National Constitutional Council (NCC). Even the revised NCC as proposed by the Consensus Commission is greatly problematic. Fortunately, there is a better solution.

The version of the NCC the commission is trying to impose on our nation does not provide any safeguards for non-partisan appointments to positions such as the Election Commission. Instead, it creates a mechanism for influencing the judiciary and making all appointments according to the wishes of the majority party. Since this system will be codified in the constitution, it will be difficult to amend it even if its weaknesses become clear in the future -- unless there is another popular uprising, which may or may not happen within the next 20 years.

There are three reasons why the commission’s proposed revised NCC needs structural changes.

The proposal to include a judicial representative to ensure neutral appointments -- this would politicize the judiciary

All political parties, including the BNP, and the Citizens Coalition have expressed opposition to judicial involvement in neutral appointments. The Citizens Coalition Co-Convenor Irene Khan clearly stated in a meeting with the commission that if a judicial representative is included, those seeking appointments as heads of various institutions would try to please the judiciary, or the judiciary itself may exert influence. This is a dangerous idea.

In the two decades of democracy after 1991, including the Chief Justice as the head of the caretaker government had led to political control over the judiciary. As a result, there is now a clear political and social consensus against involving the judiciary in executive functions.

During previous discussions, most political parties expressed opinions on this issue, leading the commission to propose removing the Chief Justice and President from the NCC and instead including their representatives.

Needless to say, the President or the President’s representative, and the Chief Justice or the Chief Justice’s representative -- are essentially the same thing. This solves the wrong problem.

It is unclear why the commission insists on including a judicial representative in the NCC against this social and political consensus.

The revised NCC proposal makes appointments heavily dependent on the President

According to the Consensus Commission proposal, for every appointment, the NCC is supposed to nominate two names, and the President will appoint one of them.

If the Commission assumes the President will be non-partisan because they will be elected by an electoral college, this is problematic—because there is still no political consensus on the structure of that electoral college.

It is far more likely that the President will be from the majority party. Therefore, by assuming a not-yet-determined issue as settled and embedding it into the NCC design, the Commission is introducing unnecessary uncertainty.

There is no voting threshold—the government can make appointments unilaterally.

According to the Commission’s proposal, among the seven NCC members, the Prime Minister, the Speaker of the Lower House, and the President’s representative will represent the ruling party. The other four will be the Upper House Speaker, the Leader of the Opposition, the Minority Opposition Party, and the Chief Justice’s representative.

If the government can influence the judiciary, then it can appoint heads of institutions like the Anti-Corruption Commission or Election Commission unilaterally, ignoring opposition views. This would increase the temptation to influence the judiciary.

The opposition party would also have similar incentives—to influence the Chief Justice and push their own appointments. So the judiciary would again be subjected to pressure. This is a terrible idea.

A better alternative

The Citizens Coalition had proposed a simpler model, which was initially part of the Consensus Commission agenda but was later dropped. We proposed an all-party parliamentary committee with 11 members: 6 from the ruling party and 5 from the opposition. But we included a voting threshold -- any appointment would require the agreement of at least 8 members. This means the ruling party would need to convince at least two opposition members, ensuring bipartisan participation in every appointment.

The current NCC framework seems based on the idea of inclusive appointments through consensus. But for the above reasons, the NCC framework is flawed. Non-partisan appointments do not require participation from all branches of the state. Rather, what is needed is a process in the legislature that prevents the executive from appointing any unsuitable candidate without opposition support and a public hearing.

We proposed that while the government may nominate a candidate in accordance with the relevant legislation, that candidate must go through a public hearing, where their integrity, competence, and past actions are revealed to the nation. Only then should a vote be held in an all-party parliamentary committee -- where no appointment can be finalized without opposition agreement.

The President should have no role here. The President is a ceremonial position and must appoint whoever is nominated by the executive and confirmed by the APCC.

The BNP did not agree to the NCC, possibly for partisan reasons. Maybe they do not agree with the NCC’s composition. Maybe they believe that through the current NCC format, the electoral college-elected President is being legitimized -- which would later force BNP to accept that system, which they reject. Maybe they actually want the Election Commission under their control.

Whatever BNP’s motivations may be, the NCC is clearly problematic for very principled reasons. The Citizens Coalition has proposed an alternative. Our proposal was originally on the commission’s agenda but has now been excluded. The question then becomes -- if the BNP refuses to accept the NCC, would they accept the alternative? BNP has committed to non-partisan appointments in its 31-points. Their historical track record -- including compromise over the parliamentary system, caretaker government, and the 2008 election --suggests that regardless of the BNP's internal desires, they cannot and will not go against social and political consensus.

Final word

Considering the above, it is vital that the Consensus Commission reinstates the Citizens Coalition’s all-party parliamentary committee proposal on the agenda and to exclude, as much as possible, the President and judiciary representatives from the NCC.

The Commission morally owes this to the social and political consensus.

 Zia Hassan is a member of the Citizens Coalition.