Tuesday, October 24, 2006

Conventions - Public Law

UK’s constitution is partly-written (Phillip Norton) and descriptive (LJ Stephen Sedley). Constitutions is typically thought of as a body of rules regulating the way in which an institution or organization operates. In the case of a state, the constitution will determine the institutions of government, the allocation of power between those institutions, and the procedure for resolving conflicts between institutions of government. A modern constitution is expected to detail the fundamental rights and duties of its citizens. The sources of the constitution are derived from Acts of Parliament, decisions of judges (Common Law), and constitutional conventions.

According to Marshall & Moodie, conventions are rules of constitutional behavior which are considered binding by and upon those who operate the constitution but which are not enforced by the law court.

In the view of Sir Ivor Jennings, Conventions are the ‘flesh which clothes the dry bones’ of the law.

It is submitted that if conventions are codified, it would make them certain and easily identified. It would also reduce the areas of potential conflict. Examples of vague conventions are – the position of the monarch and future monarch, and the uncertainties surrounding the doctrine of ministerial responsibilities. Furthermore, in UK, the term “unconstitutional” has no definition, whereas, in USA, ‘unconstitutional’ means illegal.

With codification, it would be possible that former non-legal constitutional practices could now be legally enforced by judges. Thus conventions would not be weak anymore – ending the long debate between Austin and Mitchell.

Another merit to codification is that it would deter the government taking advantage of the flexibility of convention to suit its own political aim.

Nevertheless, there are also demerits of codification.

A legal code is politically inconvenient as it may be difficult to keep in touch with the contemporary political needs and change. The flexibility of conventions can be illustrated by the practice of ‘Agreement to Disagree’.

Under the current position, constitutional development could occur without the necessity of adhering to formal legal mechanism. Thus, codification would ‘purchase certainty at the expense of flexibility’ (De Smith).

Even in countries with codified constitution, conventional practices exist side-by-side with the codified constitution.

There would also be problem of identifying which conventions are to be codified, as there are just too many of them in practice. Thus, view had been expressed that what is more important is actually the spirit rather than the letter.

Should conventions be crystallized into law, judges would then need to interpret them and they would be shouldering matters of extreme political sensitivity. Conventions had always provided the means of bringing about constitutional change without a formal change of the law. They allow the constitution to evolve and keep up to date with changing circumstances without the need for formal enactment and enforcement.

It is suggested that a more practical solution would be the ad hoc approach, rather than a complete codification. The essence of UK’s constitution lies not in its laws, but its conventions – rules that have evolved gradually transforming the system of government without subscribing to formality. Ultimately, all constitutions are political in that they can only have practical effect if they are seen by the majority of citizens to be legitimate.

As a concluding statement, Lord Hailsham’s comment deserved consideration:

“It is the acceptance of convention, which seems to make the British a nation of cricketers, and the Americans a nation of litigants.”

1 comment:

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