Constitutional conventions are rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the Courts or by the House of Parliament.

Constitutional conventions are rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the Courts or by the House of Parliament.

  1. Introduction:

Constitutional convention is the most significant type of non-legal constitutional rules. In easy words this constitutional convention means that in every organization, whether social club, trade union or political parties, which has define the powers, rights and duties of the organization’s members.

  1. 2. Constitutional conventions:

The term was first used by British legal scholar A. V. Dicey in his 1883 book, Introduction to the Study of the Law of the Constitution. Dicey wrote that in Britain, the actions of political actors and institutions are governed by two parallel and complementary sets of rules:

“          The one set of rules are in the strictest sense “laws”, since they are rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims know as the common law) are enforced by the courts….

The other set of rules consist of conventions, understandings, habits, or practices that—though they may regulate the conduct of the several members of the sovereign power, the Ministry, or other officials—are not really laws, since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the “conventions of the constitution”, or constitutional morality.”1

Marshall and Moodie offer an alternative definition:

“. . . Rules of constitutional behavior which are to be binding by and upon those who operate the constitution but which are not enforced by the law courts . . . nor by the presiding officers in the House of Parliament.” 2

1 see, http://en.wikipedia.org/wiki/Constitutional_convention_%28political_custom%2

2 see, Constitutional & Administrative 7th edi page: 36, last row.

  1. I. Some example:
  • In Bangladesh’s prospective winning political party’s chairman will be the Prime Minister of the country.
  • If a woman wears very short dress which is odd looking in the society then the society can criticize her for her behavior but cannot punish her for that.
  • Parliament must summon to meet at least once a year.
  1. II. The binding nature of conventions

The concept of a ‘rule’ is the central idea of understanding our topic. Rule means a statement saying the conduct which required in a given situation and which impose an obligation on those who are regulated by the rules.  For example if a person is under an obligation which is recognized by observers of the constitution , and that person fails to act in accordance with the obligation , then that failure will give rise to legitimate criticism.

  1. III. Conventions distinguished from habits:

Conceptually if we say then convention is different from habits or practice. These concepts do not tell us what must happen but it tells us what does happen. For example, let’s say Mr. korim from Bangladesh eats fish in one meal every day just like all the Bengali but if one day he eats Burger then his behavior cannot be criticized because a mere habit impose no obligation. Thus it is differentiated from habits.

  1. IV. Conventions distinguished from practices:

A practice means normal or usual action in a certain situation. It is different from Conventions in a way that the idea of the right way of reacting in a situation.

  1. V. Conventions distinguished from laws:

Conventions are different from laws in a many ways. We can find a history of a legal rule but for conventions are far less certain in their origins.

  1. VI. The source of conventions:

A conventional rule will be there when if in a given situation the traditional practice of the rules has been consciously adopted and operated by those who operate the constitution. If one fails to act as convention then he/she will be faced legitimate criticism.

Sir Ivor Jennings said that there must be three question if we want to find out that a convention exist or not. First, are there any precedents for the convention? Then, what more than is required? And finally, he argues that practice or precedent none of them is sufficient. 3

  1. VII. The effects of breaking constitutional conventions:

The consequences for breaking a conventional rule are both a simple and complex issue. For example, if a person breaches a rule of law then two things must be recognized in that case. Number one, it leads to the enforcement of the rule by the court if a law is broken. Number two, the law will be enforceable if that law in that operating time is not changed by the Parliament or by the judges. But for conventional rules it is very different. It is a non legal rule so there is no question of a breach of convention can be enforced by the courts. The courts can only recognize them but it do not have any power no enforce the rules. But it is also to be said that the breach of a conventional rule may lead to a breach of law.

For example, a political party must have a Chairperson it is a law. Same in Bangladesh both of the main political party have a chairperson each though they are not selected or elected by their quality rather than their blood relation with the father of the nation or with the reader of the independences. In this case it is totally a violation of constitutional convention. Because the Parliament or court cannot do anything about it because it is law to have a Chairperson in a political party and he/she must be selected or elected. The political parties are doing it but they are internally selecting or electing those people with whom they are finding blood relation with the great leaders of Bangladesh. In another case if each political party must have at least one General Secretary, but if a party keeps more than one then it will be a violation of the tradition

3 see, Constitutional & Administrative 7th edi page: 40, last row

of the rules that they used to follow in other words it is breaching constitutional convention. So we can say that this rule is more of a political rule rather than legal.

Two examples are given if there is a breach in the conventional rules.

  • Collective Ministerial Responsibility

In 1932, the Cabinet members were able to disagree both in parliament and in public. But when dissident member resigned then the Prime Minister decided to lift the collective responsibility in order to be safe from the debates, which is a breach of convention.

  • The House of Lords 1908-10

After getting threat from the King the Parliament introduced a bill 1911 saying that House of Lords cannot have same power to approve or reject a legislative proposal, which is also a break of conventional rules.

These examples indicate that conventional rules can be adjusted according the situation.

  1. VIII. The differing Importance of individual conventions

Not all the conventional rules are equally same. For example, suppose Mr. Jodu is a minister in Bangladesh. After joining as a minister he failed to full fill his do given commitments to the people, so as a result he should resign, which would be usual. But if he does not resign then there is no law to make him do that. So we can say that this is the most uncertain among all the conventional rules.

“In terms of consequences, this convention is the most uncertain of all conventional rules.” 4

4 see, Constitutional & Administrative 7th edi page: 43, last row.

  1. IX. Evaluation and change

Conventions may change with the circumstance of the situation and on the characteristics of the rules. Individual ministerial responsibility is a good example of that.

  1. X. The courts and the conventions

The conventional rules are non-legal rules and they totally different from legal rules. The do not have jurisdiction to enforce the conventional rules. That means that conventional rules are not ‘Court enforceable’ though the court will recognize the conventions. The Attorney General v Jonathan Cape Ltd (1976) discussed a case of late Richard Crossman, a former cabinet minister, who decided to publish the written form of cabinet discussions which, was stopped by court saying that cabinet meeting are confidential and the documents represent confidentially. So the court used the conventional rules to give a decision in this situation.

  1. 3. 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F00520065006600320039003600320038003900370033003100000000 Constitutional conventions: 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F00520065006600320039003600320038003900370033003100000000 Conclusion:

It is an uncodified and informal procedural agreement. So after studying all the resources we can understand what constitutional conventional rules are and why this rule cannot be enforced by courts or by the Parliament to whom the law is applied.

Bibliography

  • Constitutional & Administrative 7th edition by Hilaire Barnett
  • Public Law 2007 by H. A. Barnett, M. Diamantides
  • Introduction to the Study of the Law of the Constitution by A. V. Dicey
  • CIMA

Disclaimer:

The information contains in this web-site is prepared for educational purpose. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. Researchers all over the world have the access to upload their writes up in this site. In consideration of the people’s participation in the Web Page, the individual, group, organization, business, spectator, or other, does hereby release and forever discharge the Lawyers & Jurists, and its officers, board, and employees, jointly and severally from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating their work in the Web Page. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.  The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site.