Measuring Constitutional “Laws” and “Conventions” in Same Parlance: Critiquing the Idrisur Rahman
B. Flexibility in Operation
It is commonly asserted that the laws generally are rigid and hence not amenable to easy change if required in a particular situation. On the contrary, conventions of the constitution are flexible and in this feature, as Barnett says, “lies much of their value”.47 Barnett elaborates his views in these words:
A convention may change with changing circumstances: individual ministerial responsibility is a prime example of this feature of conventions. Conventions may adapt to meet particular needs, as with collective responsibility in relation to the European Community in 1975...Conventions may be breached and placed on a statutory basis, as with the House of Lords in 1911. A legal rule has a relatively fixed and certain quality while in existence. If a legal rule is changed, either by judicial decision or by parliament, the previous rule will be superseded by the new: it will ‘go out with a bang’. The same cannot be said of conventions.
For the most part, they evolve, adapt in amoeba-like fashion to meet the constitutional needs of the time. It is for this reason that they present the student of the constitution with such a fascinating challenge. 48
SA de Smith also shares the same view when he observes in the context of codification of conventions that codification would ‘purchase certainty at the expense of flexibility.’49 I do not dispute the views of Barnett and de Smith and also others who share the same view. I only argue that, like conventions, the laws of the constitution may also be adapted to meet the changing realities of time without bringing about a formal amendment to the constitution. The task of modifying a constitution can be done through the process of a creative interpretative technique of judiciary in explaining words of its constitution. KC Wheare has also sought to justify that a constitution, in addition to formal amendment, may change through judicial interpretation.50 To establish his point, Wheare offers and elaborates, in particular, three examples from American jurisdiction: ‘due process of law’, ‘delegation’ of legislative power, and ‘commerce power’ of the Congress.
The fifth and fourteenth amendments of the US Constitution provided that no person shall be “deprived of life, liberty, or property, without due process of law.”51 The US Supreme Court refused to interpret the expression ‘due process of law’ as
47 Barnett (n 42) 42.
48 Ibid, 36 -37.
49 SA de Smith and R Brazier, Constitutional and Administrative Law (8th edn, London: Penguin 1998) Chapter 2. Regarding codification of conventions, it is worthy to quote this remark of Barnett: “it is to be doubted whether, in relation to such a dynamic organism as the constitution, it would be possible to identify, define and formalize conventions in such a manner both to provide a comprehensive code and to allow for subsequent constitutional development. It may prove to be the case that codification would stultify the growth of the constitution.” See, Barnett (n 42) 42.
50 Wheare (n 43) 100-120.
51 Emphasis added.
any law duly passed by Congress or a State Legislature. Instead, it regarded ‘due process of law’ “as a phrase which guarantees the recognition of certain rights, and it has been prepared to say, in particular cases, what these rights are and whether they have been denied or recognized.”52 In other words, the US Supreme Court did not mean by the phrase due process of law merely ‘in accordance with the law’
or ‘save as provided by law’ – an expression “which occur in many modern Constitutions and contain no necessary guarantee of good government.”53 After reviewing some cases, Wheare summarizes the meaning of ‘due process of law’ as understood in American jurisdiction: “the Supreme Court has regarded the due process clause as requiring that governmental action ‘shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as “the law of the land.”’”54
The US Constitution declares that “all legislative powers herein granted shall be vested in a Congress of the United States.”55 Can the US Congress delegate legislative power to a minister or a department or an official? One may argue that the US Constitution by implication at least forbids the delegation by Congress of its legislative power to any other body of the government. The question has been raised on a number of occasions in courts but the US Supreme Court “has deliberately adopted the view that these portions of the Constitution must be construed flexibly.”56 Referring to some relevant decisions on the point, Wheare rightly concludes that “the attitude of the Supreme Court has made possible in the United States a flexibility in the exercise of rule-making power which a strict view of the nature of legislative power and of the words of the Constitution would have prevented.”57
The US Constitution has vested upon Congress the power to regulate ‘commerce’
among the several states.58 So many issues are involved in this ‘commerce clause’
provision of the US Constitution. To mention just a few: what ‘inter-state’ and
‘intra-state’ commerce mean; when ‘inter-state’ commerce ends and ‘intra-state’
commerce begin; the meaning of ‘regulate’ and commerce ‘among several states’;
52 Op. cit., 118.
53 Ibid.
54 Ibid, 119.
55 See, Section 1 of Article I of the US Constitution.
56 Op. cit., 115.
57 Ibid. Wheare mentions, inter alia, the instance of the years of 1941-45, when “the United States was at war and a vast rule-making power was exercised by the President and by administrative agencies under the authority of Acts of Congress. The Supreme Court upheld them all when cases came before it.” Ibid, 114-15. On the point of delegation of legislative power, the first Chief Justice of the Australian High Court shares the same view as that of the US Supreme Court when he said his oft-quoted statement in 1909 that “it is too late in the day to contend that such a delegation, if it is a delegation, is objectionable in any sense.” Griffith CJ in Baxter v Ah Way 8 CLR 626, 632-33.
58 See, clause 3 of Section 1 of Article I of the US Constitution.
the idea of a ‘stream’ or ‘flow’ of commerce; the effect of ‘inter-state’ commerce on
‘intra-state’ commerce and the vice versa; ‘direct’ or ‘indirect’ effect of commerce etc. To resolve these issues, the US did not have to make any formal amendment to the constitution since its Supreme Court, through a creative interpretative exercise, well adapted the old words to meet the new demands of the day. Wheare, after reviewing some important decisions, beautifully sums up the role of US Supreme Court in the context of its interpretation of the ‘commerce clause’
provision:
As we follow the decisions of the Supreme Court on this matter, it does not seem to be an exaggeration to say that it has adapted the commerce power of Congress to all the demands of the economic, commercial, industrial, and transport revolutions of the past one hundred and fifty years...So extensive has the commerce power proved to be that it has been unnecessary in the United States to contemplate an amendment of the Constitution to adjust the powers of Congress in economic affairs to the needs of the United States today. It is indeed remarkable that powers granted over one hundred and fifty years ago to an agricultural country with a few million people should be adapted to the needs of a great industrial power with thirty times that population.59
In view of the abovementioned observation, Wheare concludes that the US Constitution “has been adapted to the new society is the work of the Supreme Court.”60 And it is in the context of this kind of role of a court that Wheare held this important view: “It is interesting to find that these changes in conditions often obtain recognition in the decisions of judges who find themselves called upon to decide whether an old formula in a Constitution can be made to embrace new and unforeseen circumstances.” 61
The foregoing analysis should leave no doubt in one’s mind that, like conventions, the laws of the constitution may on occasions be well adapted to the new conditions of life through a creative interpretative exercise of the judiciary. But how far the Apex Court of a country may go in such a creative interpretative venture?
Wheare, in the specific context of ‘commerce clause’ provision of US jurisdiction makes an important observation: “the Supreme Court could make this adaptation because the words of the Constitution were adaptable.”62 Wheare sought to justify his claim with reference to an example from Canadian Constitution.63 I agree with this specific view of Wheare bearing in some measure on the limitation of a court’s power of creative judicial interpretation.
59 Op. cit., 108-09 (emphasis added).
60 Ibid, 109.
61 Ibid, 106 (emphasis added).
62 Ibid, 109.
63 Wheare cites an example from Canadian Constitution and argues that “the Canadian Constitution was not easily adaptable, even had the judges been ready to adapt.” Ibid, 110.
Judicial process, therefore, may not be appropriate in all cases to bring about a change in the meaning of a constitution. In such cases, where words are not susceptible for adaptability by judicial means, a direct legislative intervention is required to make a formal amendment to the constitution. If laws of the constitution are, however, regarded rigid on this count alone, it may equally be true to say that some conventions are also rigid since it may indeed be difficult to change them in practice. Importantly, Jennings also shares the same view when he says: “Indeed, it is better that the rule should be law and not convention, for a law may be changed by legislation and a convention is rather difficult to change abruptly.”64 Thus, on this view, the term rigid may be applicable for both laws and conventions of the constitution with the only distinction being that in the former it is rigid in law whereas in the latter it is rigid in practice.
In view of the above mentioned analysis, I could not but hold that conventions are not different in kind (may be different in terms of degree only) from laws of the constitution on the ground of their flexibility in operation due to the differences of their method of formulation or mode of creation. But are laws more important than conventions as rules of the governmental system? Although this question also has some bearing on the procedural differences between laws and conventions in terms of their mode of creation, I seek to analyze the issue under another separate heading, although very briefly, as provided below.