Judging constitutional conventions

Abstract

The study of constitutional conventions is anchored in three assumptions that have so far remained largely unchallenged: that there is a shared “Commonwealth approach” to constitutional conventions; that Commonwealth courts will recognize and employ conventions but never enforce them; and that conventions are always distinguishable from rules of law. After setting out a new taxonomy of modes of judicial engagement with constitutional conventions, we overturn each of these assumptions. We draw on recent case law from Canada, India, and the United Kingdom to show that there is no shared “Commonwealth approach” to the treatment of constitutional conventions. We show that some Commonwealth courts do, in fact, enforce conventions. Finally, we show that at least some constitutional conventions have crystallized into law. These insights disrupt much of what is foundational in the study of constitutional conventions.

Idiotic or Columbo’s Wife? Constitutional Conventions in the Czech Republic

“…25 Finally, there are also substantial differences seen in the enforcement of constitutional conventions. 26 although Dicey 27 understood non-legal enforcement as a definitional criterion of constitutional conventions, the present understanding has changed significantly. First, courts might recognise only the conventions' existence or scope.…”

The prime minister's constitution: Cabinet rulebooks in Westminster democracies

“…The courtroom is another crucial interpretive forum, and the pressures, constraints and goals here are different from those of the newsroom. There has been some recognition (and even enforcement in some cases) of conventions by courts in Westminster democracies (Ahmed et al, 2019), but the rulebooks appear to have played no decisive role in these decisions. Indeed, to identify conventions the courts have relied on Ivor Jennings' three‐part test rather than the cabinet rulebook.…”

The Place of Constitutional Conventions in the Constitutional Architecture, and in the Courts

“…As noted above, courts in the United Kingdom and in Canada have taken notice of conventions in the course of interpreting law, most commonly to recognize them as crucial background material to contextualize governmental functioning. In India, the Supreme Court has gone even further and has “read in” conventions to rule that the chief justice enjoys “primacy” in judicial appointments such that their consent is required, despite constitutional text that only requires consultation by the executive (Ahmed et al, 2019a: 800). Farrah Ahmed, Richard Albert and Adam Perry argue that courts might legitimately treat conventions as justiciable when dealing with “power-shifting” conventions—those rules that “transfer power from those who have legal power to those who can legitimately wield it” (2019b: 1155).…”

“…As Dodek writes, political morality changes and evolves, and litigation is not something that can keep up, making justiciability “destined to freeze conventions at a certain point of time” (2011: 132). Even those open to the prospects of justiciability recognize that conventions should, in many instances, be “used to resist a legal conclusion rather than to support one” in order to ensure political accountability remains robust rather than overcome by the introduction of unnecessary legal constraints (Ahmed et al, 2019a: 791).…”