Enforcing constitutional conventions

Abstract

In an earlier article, we disproved the three claims central to the dominant view in the study of constitutional conventions: 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 sharply distinguishable from rules of law. We drew from Canada, India, and the United Kingdom to demonstrate that Commonwealth courts have recognized, employed, and indeed also enforced conventions. In this article, we turn from the descriptive to the normative, arguing, again in contrast with the dominant view, that Commonwealth courts sometimes should enforce conventions. We argue that courts should act as executors of the will and judgment of constitutional actors, and limit themselves to enforcing only power-shifting conventions: conventions which transfer power from those who have legal power to those who can legitimately wield it. In playing this role, judges uphold the legitimate allocation of power—legitimate, not according to judges but according to constitutional actors themselves.

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

“…Ahmed, Albert and Perry's proposition does not heed the architectural problem presented by the enforcement of conventions. They assert, for example, that courts could appropriately invalidate an attempted use of the federal powers of reservation and disallowance on the basis of the convention of disuse (Ahmed et al, 2019b(Ahmed et al, : 1163, but this would plainly conflict with the amendment requirements in Part V. Indeed, it would dramatically shift an even greater degree of amendment authority to the courts, who would be empowered to determine if and when conventions somehow crystallize into law-something the authors themselves note the Indian Court did, even though it "offered no clear reasons for concluding that it ought to enforce them. It assumed, rather than justified, its role as constitutional guardian" (1155).…”

“…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). For example, they assert that courts could enforce the convention that the monarch must follow ministerial guidance.…”