Measuring Constitutional “Laws” and “Conventions” in Same Parlance: Critiquing the Idrisur Rahman
F. Recognition and Enforcement in a Court of Law
3. Conclusion
The Appellate Division of Bangladesh Supreme Court in its Idrisur Rahman144 decision failed to draw any distinction between laws of the constitution and an established constitutional convention. The Court also failed to appreciate the distinction drawn in English jurisdiction between unconstitutional and unlawful conduct of political and constitutional actors of the state. These failures in effect both contributed and expedited the Court’s enforcement of the convention of
‘consultation’ (in the matter of appointment of Judges of the Supreme Court) against the executive organ of the government in the instant case. The Court thus simply failed to distinguish between mere recognition and actual judicial enforcement of conventions in a given case. The present paper in course of its critical
141 CR Munro, ‘Laws and conventions distinguished’ (1975) 91 LQR 224, 228 (emphasis added).
142 CR Munro, Studies in Constitutional Law (2nd edn) 74 (emphasis added).
143 Importantly, Jennings also shares the same view: “Nor is it impossible for the conventions to be converted into laws because they are conventions.” See, Jennings (n 4) 119.
144 See, supra (n 3).
comparative discussion between laws and conventions of constitution establishes these failures of the Supreme Court of Bangladesh.
The paper also shows that the English literature on which the Court heavily relied on145 for its reasoning and reaching conclusion also maintains distinction between laws of the constitution and an established convention. Jennings provides a different explanation of the issues from that of Dicey and his analysis based on general acquiescence is useful in illuminating the nature of constitutional rules and court orders as to ‘relief or remedy’ especially when the decision deals with an issue of constitutional significance. But he, too, ultimately maintains distinction between laws strictly so called and conventions, and importantly he maintains such distinction mainly on the ground of their ‘court enforceability’.146 His lordship MA Matin J, therefore, committed an error in holding that Jennings rejects Dicey’s drawing of distinction between laws and conventions on the ground of their ‘court enforceability’.147 This misunderstood view of Jennings of the learned judge contributed for the Court’s not drawing any distinction between recognition and enforcement of conventions in its jurisdiction. The Court was satisfied establishing simply the existence of the convention of ‘consultation’ for enforcing the same without entering into any further inquiry as to the attending circumstances and conditions of judicial enforcement of conventions in its jurisdiction.
However, conventions of the constitution are indeed different from its laws on the ground of their mode of creation or method of formulation. But this procedural difference alone could not make any distinction of substance between the two sets of rules on the ground of their certainty of existence and meaning, flexibility in operation and significance as rules of the governmental system. Rather, on these grounds, the paper establishes, they are different in terms of degree only but not in kind. On the contrary, the paper identifies distinction of some substance between these bodies of rules of constitution on the ground of their consequence of violation, reasons for obedience and as regards the question of their recognition and enforcement in a court of law. If distinction on these grounds is blurred, to agree with Munro, the analysis of the constitution is less complete; this is not only dangerous for the lawyer, but less than helpful to the political scientist.148 Thus, an accurate and meaningful picture of the constitution may only be obtained if distinction on these grounds is maintained.149
Unfortunately, the Appellate Division of Bangladesh Supreme Court in its leading Idrisur Rahman 150 decision on constitutional convention failed to appreciate these distinctions between laws and conventions of the constitution. This paper
145 See, supra (n 31).
146 See, supra notes 138 and 139 and the accompanying texts.
147 See, supra (n 34).
148 See, Munro (n 141) and the accompanying text.
149 Ibid.
150 See, supra (n 3).
identifies the reason for failure in Court’s measuring “conventions” in the same parlance with “laws” of Constitution as opposed to measuring them with
“customary rules” of its system. Regarding the nature of operation of conventions in Bangladesh constitutional system, his lordship MA Matin J held: “Convention when recognized and acted upon is as good as Constitutional law and the provisions of the constitution and is binding like any other principles of law.”151 This view of the learned judge regarding the operation of conventions of its Constitution resembles more with a Historical approach towards the status of
‘custom or usage’ of a legal system.152
Article 152 of the Bangladesh Constitution means by “law” “any Act, ordinance, order, rule, regulation, bye-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh”. It is not clear from this text whether the expression ‘having the force of law’ qualifies only ‘custom or usage’ or all the forms of law included in the definition. However, if one reads the Bengali text of the definition, it becomes clear that the said expression qualifies only ‘custom or usage’ and not all the forms of law included in it. And proviso to Article 153 of the Constitution makes it clear that “in the event of conflict between the Bengali and the English text, the Bengali text shall prevail.” Thus, all the forms of law except ‘custom or usage’ are per se law under the definition of “law”
contained in Article 152 of the Bangladesh Constitution. On the contrary, ‘custom or usage’ is not law per se under its definition. It is law only when incorporated in statutes or embodied in judicial decisions in appropriate cases. The Bangladesh Constitution, therefore, reflects the approach of Positivist school of jurisprudence towards the status of ‘customary rules’ existing in its system.153 This approach of Bangladesh Constitution commensurate in large measure with the approach of modern day courts for the Superior Courts of any jurisdiction, at modern times, take recourse to ‘customary rules’ only in the absence of any guidance from statues. And any such ‘customary rule’ becomes part of law only when that forms the basis of judgment of the Superior Court satisfying the attending conditions and circumstances of its recognition and enforcement under the respective case.
The term ‘convention’ has not been expressly included in the definition of the term
“law” under Article 152 of the Bangladesh Constitution. In such absence, constitutional conventions could at best be measured in the same parlance with
‘custom or usage’ mentioned in the said Article of the Constitution. But the Idrisur Rahman 154 Court gave conventions somewhat a per se law status in its
151 Ibid, 106 at para. 250.
152 To state in very brief, the tenets of historical school of jurisprudence hold that custom is law per se i.e. law independent of any declaration or recognition by the state.
153 Positivist approach, contrary to the view of historical jurisprudence, holds that custom is not law per se i.e. not part of the law of the land unless it has received the judicial recognition or it has been embodied in some statute.
154 See, supra (n 3)
constitutional system. His lordship MA Matin J while holding the above quoted view155 reflecting on the status of conventions in Bangladesh jurisdiction neither referred to the definition clause of Article 152 in its analysis nor provided any justification for adopting somewhat a Historical approach towards the operation of conventions in its jurisdiction. Contrary to the view of the learned judge, however, the Constitution of Bangladesh manifestly prefers the Positivist approach towards the status of ‘custom or usage’ existing in its system. As opposed to mere recognition applying the Jennings test, judicial enforcement of conventions in Bangladesh involves the proper appreciation and resolution of the above identified interrelated themes and inquires within the framework of its Constitution. But the Idrisur Rahman 156 Court in its judgment completely omitted their analysis equating “conventions” with “laws” of its Constitution which simply necessitated for undertaking a research venture reflecting again on the distinction between “laws” and “conventions” of the constitution.157
To conclude, the present paper through a critical comparative discussion between laws and conventions in effect reflects on the nature and status of these bodies of rules of constitution which any person responsible for constitutional interpretation or interested in constitutional law should have enough mastery to fully comprehend or appreciate its constitution. Having said the aforesaid observations on the exact nature and relationship of laws and conventions in general, I conclude by emphasizing one final point relating especially to the aspects of ‘significance’
and ‘court enforceability’ of these bodies of rules of constitution. We have seen that conventions may be no less ‘significant’ than laws of constitution as rules of governmental system of a country. This fact of conventions must not be too stressed by one to hold the view that they, therefore, should be enforced in a court of law like laws of constitution.158 At the same time, when one holds conventions are not ‘court enforceable’, he should not imply by this fact alone that conventions are then less ‘significant’ than laws of constitution as rules of governmental system of a country.
155 See, supra text accompanying note 151.
156 Op. cit.
157 However, a detail examination of the attending circumstances and conditions of judicial enforcement of conventions, as I suggest, fell beyond the limited scope of the present paper. Again, the Idrisur Rahman Court found the reasons for existence of the convention of ‘consultation’ in its system in the independence of judiciary, rule of law and supremacy of the constitution (see, supra note 10).
The primary object of the paper was also not to examine the judicial enforceability of the convention of ‘consultation’ in light of these findings of the Court. To reiterate again, the paper only sought to draw the demarcating line between “laws” and “conventions” in the wake of Idrisur Rahman’s misleading approach in enforcing a convention in its jurisdiction. See also, supra notes 10 and 22 in this regard.
158 A Superior Court may certainly weigh the ‘significance’ of conventions as rules of governmental system of its country. But from analysis and arguments made in the paper, it should be clear that
‘significance’ alone does not determine the enforceability status of a convention within the framework of any constitution.