“Constitutional law creates obligations in the same way as private law, but its reactions as to persons possessed of political power are extra legal : revolutions, active and passive resistance the pressure of public opinion. The sanction is derived from the threat of these consequences.”—Vinogradoff, Outlines of Historical Jurisprudence.
On account of the indisputable fact that in the span of six years a number of constitutional conventions have been broken in this country, it may serve some purpose to examine the scope and importance of conventions in a constitutional framework.
A constitutional structure comprises both legal rules and non-legal rules. The rules of strict law are those which are recognised and applied by a court of law in the determination of disputes. Non-legal rules are neither recognised nor enforced by a court of law. However, if at any time a court recognizes and applies a non-legal rule, then that particular rule becomes a part of the body of law, strictly so called.
It is abundantly clear to a constitutional lawyer that in a constitutional structure it is essential to have a perpetual interaction between legal and non-legal rules. Without this imperative amalgam a constitution cannot function successfully. Legal rules give the constitution a coercive sanction; the non-legal rules give it the required modicum of flexibility which is so necessary to its organic life. On this issue K.C. Wheare is unusually dogmatic:
“In the British constitutional development, it is not the isolation of law from convention, but the association of law with convention within the constitutional structure which is the essential characteristic.”
Although this reference is to the so called “unwritten constitution” of Britain, in essence it is not restricted to the unique constitutional structure of Britain. With a slight variation in emphasis, it is true of all democratic constitutions. For instance, in the written constitutions of France, Sweden and the United States there is an inter-relationship of rules of strict law and non-legal rules. Convention governs the exercise in France of the legal powers explicitly conferred upon the President in the constitution of 1875. Convention has established in Sweden a system of cabinet government. In the United States the most striking case of constitutional change through the operation of convention is found in the exercise of the powers of the presidential electors.
It is, therefore, manifestly clear that an interaction and fusion of legal and non-legal rules is characteristic of all constitutional structures. But it is a matter of conjecture whether equal emphasis is placed on both the legal and non-legal rules, and whether one set of rules is more important than the others. The answer to this question is dependent upon the attitude and social behavior of each community. The Anglo-Saxon race in general and the British in particular, place as much emphasis on the one as the other, and there are several incidents in the constitutional history of Britain which seem to make non-legal rules the central theme of their constitution.
This is well illustrated by the Parliamentary records of the famous Statute of Westminster, 1931. When the Bill was presented in Parliament some members objected to the proposal not because of the terms it contained, but because it threatened to reduce conventions of the constitution to rules of strict law. Lord Buckmaster, an ex-Chancellor, said:
“It is not that its actual terms offend any of the relationships existing between ourselves and our Dominions. It is that it is, as I believe, for the first time, an attempt made to put into the form of an Act of Parliament rules which bind the various component parts of the Empire, and that I regard as a grave mistake. The thing which has made this country grow is that it never has had a written constitution of any sort or kind, and the consequence has been that it has been possible to adapt, from time to time, the various relationships and authorities between every component part of this State without any serious mistake or disaster.”
This is a misleading statement as regards written and unwritten constitutions, but it nevertheless indicates in no uncertain language Lord Buckmaster’s caution and reluctance to transform non-legal rules into legal ones. Again, at the Imperial Conference in 1921, the majority of the delegates from the Dominions agreed with Mr. W.M. Hughes, the Australian Prime Minister, that there was no need “to set down in black and white the relations between Britain and the Dominions.”
In the British Constitution, the role of convention is an exceedingly crucial one, and it is inconceivable to think of the constitution only in terms of pure law. The political and social repercussions would be of the most serious nature if an important convention were to be violated. Convention is the source of so many vital features of the British Constitution, that even if one of the non-legal rules were to be alienated, the constitution would fall utterly to the ground. The following are some of the more important conventions:
a. Most of the King’s prerogative powers are entrusted to Ministers.
b. The cabinet is responsible to Parliament as a body for the general conduct of affairs.
c. The King acts upon the advice of his Ministers.
d. The King is bound to invite the leader of the party which commands a majority in
Commons to form the Government.
e. The King is bound to dissolve Parliament on the advice of the Prime Minister.
f. The King must appoint as his other Ministers such persons as the Prime Minister advises him to appoint, although in law the King can appoint and dismiss his Ministers at his pleasure.
g. The King must assent to every Bill passed by the Houses of Parliament.
h. Parliament must be summoned to meet at least once each year.
All these rules are non-legal and cannot be enforced in a court of law, but in spite of this, it is unthinkable for any Monarch of Britain, or for any Prime Minister, to violate any of these hallowed rules. But it is quite reasonable to ask why conventions are followed and obeyed with such respect and regularity when they are not legally enforceable. What is the sanction by which obedience to the conventions of the constitution is ensured?
According to Dicey the paramount motives are:
a. The desire to carry on the tradition of Constitutional Government;
b. The wish to keep the intricate machinery of the ship of state in working order; and
c. The anxiety to retain the confidence of the public, and with it office and power.
“These influences secure that the conventions of Cabinet Government which are based on binding precedents and convenient usage, are observed by successive generations of Ministers.” Dicey championed the cause of conventions with egregious force and feeling, determined to establish that conventions were “intended to secure the ultimate supremacy of the electorate as the true political sovereign of the State.”
A convention is so inextricably inter-linked with rules of law strictly so called that the ultimate ramification of breaking a convention will inevitably be a breach of a rule of positive law itself. Furthermore, in an enlightened and a politically conscious social order a violation of a constitutional convention will produce mass resentment which in turn may lead to a conflagration. In view of these considerations, the chances are that a mature people, possessing a sense of responsibility will prefer to follow the path of tradition and precedent.
However, it is not possible for all people to view all problems in identical terms, and to have the same social and political values, especially if the history and culture of the communities are diametrically opposed to each other. Each community evolves for itself a pattern of government peculiar to its intrinsic needs, in consonance with the values and mores of its people. But for this to happen it is presupposed that the community is free to evolve its own social pattern, unhampered by extrinsic influences.
One of the anomalies and evils of imperialism is that the subjugated people are prevented from developing according to their innate needs and social values. Foreign standards are superimposed upon them. In the course of time some of the customs of the foreigners become a part of the colonial people, but some never fit into the social fibre of the enslaved community.
Unfortunately, not appreciating that the people of this subcontinent do not regard non-legal rules with the same reverence, the British gave and left us with a constitutional structure in many ways similar to their own. The consequences of this constitutional anomaly have been alarming on more than one occasion. The prorogation of the Sindh Assembly is the most recent example of breaking an important convention with impunity.
If we believe, or can be made to believe, that a convention is a vital feature of a constitutional structure, to be respected and honoured, then we should retain the existing conventions notwithstanding the events of the past six years, for the utility of these elastic rules is immeasurably great; but if we consider them to be semantic blanks, existing entirely on the sufferance of expediency, then it is far better to transform all the important conventions into rules of positive law. This indeed is a poignant choice but under the circumstances, if our political and social values do not encourage us to defend our conventions, it is better to give them the coercive and binding sanction of positive law rather than retain them in our constitution as deadweights.