Constitutional Conventions. Should Conventions Be Made Into Laws - Essay Example

?An informal procedural agreement that is followed by the of a is known as constitutional convention. The countries and s of the world whose political system is derived from the British Constitutional Law follow the constitutional conventions for the functions of the government. These are the nations which follow the Westminster system of government, common in the Commonwealth Nations. The constitutional conventions often distribute the powers between the head of the state and the head of the government making the head of the state a ceremonial post. For example in the Indian subcontinent (Present India, Pakistan, Sri Lanka and Bangladesh) the constitution is based on the Govt. of India Act 1935 which was formulated by the British legislators, the additions to the act are made in the form of constitutional conventions and the affairs of government in these states are being run by these constitutional conventions. There are other constitutional conventions which operate alongside written constitutions. In Britain there are many constitutional conventions which have been made into laws. Still there is a marked difference between Laws and Constitutional Conventions. According to Dicey [1883] laws are the set of rules which are enforced by the courts while constitutional conventions are those set of rules which are not actually enforced by the courts and are merely are the habits and practices of people in certain offices of the state. According to Hood Phillips “constitutional conventions are rules of practices which are regarded as binding by those to whom they apply but which are not laws because they are not enforced by the courts and parliament”. L.B. Curzon has regarded the constitutional conventions as understandings which are results of long practices which are adopted in the absence of formal rules while Freeman classifies constitutional conventions as a code of political maxims which are universally acknowledged and universally practiced and according to Peter Hogg constitutional conventions are non-legal rules. The basic purpose behind the constitutional conventions is to bring about change without the formal channel of legislation. This is actually done by keeping the constitution in touch and at the same time accommodating the growth of the ideas which occurs by the passage of time through the activities of government. The traditions and practices which are followed by certain governmental procedurals over large periods of time are considered as informal rules and are made constitutional conventions. According to one perception the English constitution drifted from the monarchical system to parliamentary system by way of constitutional convention. The ultimate object of most of the conventions is that the affairs of public interest should be conducted in accordance with the wishes of the majority of the electorates. The origin of constitutional conventions also takes place when certain authorities try to exercise power which is actually not prohibited by law but a certain opposition is aroused against that exercise of power and the opposition is of such an extent that the same action cannot be taken in future and the opposition marks an end to that practice. In such a scenario the certain practices which are not actually forbidden by law becomes forbidden under the constitutional conventions. Constitutional conventions automatically assume the role of constitutional amendments as the legislators and the government starts following them. But the constitutional conventions are not enforced by the courts of law because sometimes these are in conflict with the legal rules and the courts are bound to enforce the legal rules and not the constitutional conventions. On an occasion the British Supreme court has ruled out the possibility of the constitutional conventions to be enforced as laws no matter how well-established and universally accepted they may be because there are instances when there is clash between the constitutional convention and a present law. The only way these can be enforced legally is after they have been enacted by the parliament or legislature as constitutional amendment after codifying the convention. Some conventions evolve or change over time however conventions are rarely ever broken. Since the constitutional conventions are not legal bindings and no legal action can be taken against someone who breaches a convention but such a person is often very heavily criticized and there is general sentiment of disgrace and disrespect against that very person. Thus constitutional conventions are set of rules which are followed as traditions and due to universal understanding on certain things by the legislators and politicians and these conventions ultimately acquire the force of customs which cannot be removed. Constitutional conventions are unwritten constitution which can be more precisely described as unwritten understandings and customs which surround the rules of constitutional behavior, although these conventions are not supported by law but still these are considered as bindings. Constitutional conventions must be judged by their ability to fulfill their proclaimed function. According to Dicey conventions secure the ultimate supremacy of the electorate as the true political sovereign of the state and are rules for determining the mode in which the discretionary powers of the crown ought to be exercised. The discretionary power of the crown, arising out of the royal prerogative, statue and common law are exercised on behalf of the electorate due to convention. If we discuss the case of Britain, all the crown powers are now being exercised by ministers and cabinet members. Constitutional conventions provide a genuine control of the exercise of such discretionary powers. Constitutional Conventions are rules of political practice which are regarded as binding by those whom they apply. Since ministers are accountable to Parliament on behalf of the people then it is true to say that the lack of legal control of constitutional conventions provide a role for the Parliament as the controller of the executive. Some constitutional conventions are far more important than most of the statutory and common law rules, if we connect it to the British system of government. Some of the constitutional conventions on ministerial responsibility have ultimately proved to be effective as demonstrated by the resignations of Peter Mandelson and Estelle Moris in the Blair’s government. So we can easily find examples from recent history where constitutional conventions have played very useful role in accountability of ministers and creating a sense of responsibility among them. Constitutional conventions make the legal constitution work; they keep in touch with the growth of ideas. Laws are present but there are certain aspects of governmental rule and in execution of affairs of state which are not very clearly defined by the laws. Laws provide an outline to follow which acts as general instructions in case of governmental affairs while constitutional conventions can be considered as detailed plan to run the affairs of the state and this plan has been carved out by experience and universal agreement of politicians and legislators. Conventions exist to control the discretionary and arbitrary powers of the crown however this is probably too narrow since some conventions do not relate to the powers of crown while the fundamental laws do adhere to the powers of crown. Constitutional conventions are normally based on agreements while other are based on the usage. It can be stated that every significant act within the political circle can assume the form of a constitutional convention. The exact dates of origin of constitutional conventions is very difficult to find out because they evolve from various traditions which are based on incidents and gradually takes a final form. Nothing can be said about the evolution period of a constitutional convention. It took 70 years for the establishment of the convention that the Queen must act upon the advice of her ministers. There are other traditions which became conventions very early like the sitting of prime minister in the commons etc. Constitutional conventions are generally traditions and habits but there is a marked difference between a convention and a habit or tradition. As stated earlier, the person who breaches a convention is deemed as disrespectful by the people, there is a reason behind this practice. Conventions are not made on their own, conventions take time to evolve and in addition to this conventions are mutually agreed upon by politicians, leaders and legislators of high prestige and honor. Therefore conventions are not mere habits but there are actual reasons behind following a constitutional convention which are beyond the tradition and efficaciousness of the incident. Conventions are not a product of legislative or judicial process; these are in fact rules of political practice and largely derived from customs and formal enactment which are recognized as binding among those persons who constitute a community or state. Conventions are followed by people because they want to follow them while laws are followed because people are bound to follow them. If the electorate is sovereign, then the content of the law is challengeable by the electorate who could support a party proposing the changes in law. People obey the law because there is a contract between the governor and the governed. In this contract the general people submit to the central authority in exchange to security. The conventions of the constitution develop consensually between those subject to them. The laws and conventions develop through consensus; those subject to them must abide by them. People obey the conventions more eagerly then they obey laws, but at the end of the day laws do not give you an option while conventions do. It can be said that a law is obeyed because there is a sanction against those that do not obey the law however there is also a social and moral binding associated with it. Society usually isolates the law breaker from itself while this behavior is stronger in case of a convention because conventions are more of moral nature than constitutional. Conventions are also obeyed because a breach of the rules would ultimately lead to a breach of the law. The breach of conventions results in conflicts and there is no legal remedy to such a situation since conventions are not enforced by rule of law. So the validity of the conventions cannot be the subject of proceedings in a court of law. Reparation for breach of such rules will not be affected by any legal sanction. Conventions are constitutional rules which are not laws in the strict sense however these are obeyed because a breach of the rules ultimately leads to the breach of law. So as most of the constitutional conventions have become very important and the new ones will become important at the end of the day therefore the conventions should be made into laws because the breach of constitutional conventions lead to the breach of laws. Moreover when conventions are not followed this often leads to conflicts and since constitutional conventions are not enforced by courts there is no proper legal remedy of such conflicts, such situations can be avoided by giving the conventions the status of laws. And since the constitutional conventions are universally accepted and established and there is a general consensus on them therefore there is no difficulty or hurdle to make them into laws and these should be made into laws. Reference List Phillips O. H., (1962) Constitutional and Administrative Law, Sweet and Maxwell Marshall G. (1984) Constitutional Conventions: the rules and forms of political accountability, Oxford University Press Dicey A. V. (2000) Introduction to the Study of the Law of the Constitution, Elibron Barnett H. (2002) ) Constitutional and Administrative Law, Routledge Read More