CONSTITUTIONAL CONVENTIONS PAPER 5
Constitutionalconventions and the morality of the constitution
Constitutionalconventions are the un-codified agreements that are practiced basedon the informal procedures followed by state institutions. Accordingto Mills, they are the guidelines that the political and state actorsfeel obliged to follow as a matter of doing what is right. By doingthis, the political actors and institutions align to the fulfillmentof doing what is morally expected of them. This makes theconstitutional conventions act like the procedural agreements thatmake people think of them as the morality of the constitution of theUnited Kingdom.
Practice,habits and customs normally act as the regulator of conduct and theyare attributed to the constitutional conventions. Typically, they areexpected to be flexible and adapt faster to societal changes andhence are regarded as constitutional, moral backbone (Galligan &Brenton, 2015). It is however important to note that theseconstitutional conventions never enforce in the courts despite thefact that they are highly regarded in the United Kingdom’s legalsystem. Historically, this case was demonstrated in Attorney generalv. Jonathan Cape Ltd in 1976 (Swarbrick, n.d). In the case, theapplication of the constitutional conventions was taken to be part ofthe collective responsibility of political actors. Therefore, therewas no authority resting with the courts to substantively enforce theconventions, and the Crossman Diaries were not published (Swarbrick,n.d).
Inaddition, it is important to understand that constitutionalconventions still exist, but informally with the intentions ofsatisfying and correlating state’s actions despite their currentlegal standings. The specific state actions that are satisfied by theconstitutional conventions include the legislature, the executive andthe judiciary (Parpworth,2008).Constitutional conventions may include collective responsibility,Royal Asset as well as politically impartial (Barbwe, 2009). Onenotable legal fact in this case is that punishment for breach doesnot exist.
Despitethe fact legal punishment does not exist for those who breach theconstitutional conventions, there are known ways of punishing suchperpetrators in a legal manner. The most notable and most highlightedlegal punishment that can be associated with the lack of observanceof the conventions is the loss of political office (Madgwick &Woodhouse, 1995). It is important to indicate that such consequencesfor the elected leaders in a political office may not beconstitutionally enforceable, but morally expected.
Theconstitutional conventions make us see the morality of theconstitution when certain consequences befall on such individuals, asthose holding political careers. This because, the ideal choice takenby a perpetrator who runs a political office would be resignationrather than be involved in public and media frenzy that canpotentially kill the political career. On the other hand, since thecourt systems hold the laws and do not legally recognize theconstitutional conventions, the courts will most likely not detersuch political perpetrators from their political offices (Alder,2008).Therefore, there is a huge possibility that the courts would onlyoffer a reduction in punishments for such individuals.
Infurther support to this theory, legally it is recognized thatobedience cannot become more enforceable than it currently is. Thisis because the United Kingdom courts cannot truly prevent anindividual from committing such actions and therefore the presentlegal system would only force them to enforce such a punishment thatmirrors the current legal system (Hough,2002).This means that the court systems have very limited legal punishmentin the occurrences of such a breach and can only enforce legalpunishment, but to a limited extent as per the current laws. In thiscase, despite the many attempts made by the court systems, there arethose political individuals who would not feel obliged to do such(Madgwick & Woodhouse, 1995). It is worth noting that also in thesocietal context, the enactment of constitutional conventions wouldnot result in much changes.
Argumentson the Codification of the Constitutional Convention
Accordingto Galligan and Brenton (2015), clarity is one main argument that isused to support the legal enactments of these constitutionalconventions. The arcade procedures behind the conventions aretypically associated with the operations of the legislature, theexecutive and the judiciary. However, they are not ideally clear. Tomake them clear, their codification would give more insight on howthey are run. However the nature of flexibility to theseconstitutional conventions is one main reason that this argument doesnot hold ground. Constitutional conventions typically change with thesocietal changes and hence leave uncertainty (Parpworth,2008).For this reason, there is a great need of enacting theseconstitutional conventions with an additional statement that theyhold the function of solving this issue of clarity for example theroyal power of dissolution.
Inaddition, the simple characteristic of flexibility is identified asan individual ministerial responsibility. This responsibility hasoverly changed over the period with the main intentions of reflectingand accommodating societal changes (Barbwe, 2009). This is aninformal function which has led the continued use of constitutionalconventions. This is an advantageous and an important aspect ofconstitutional conventions that is applauded by the system becauseunlike the laws that are normally rigid despite the societal changesor otherwise (Turpin & Tomkins, 2001).Constitutional conventions are able to swiftly change an uncountablenumber of times in a year. In this regard, old constitutionalconventions that do not reflect the societal changes are abandonedand new ones are introduced to fill the gap.
Inaddition, indeterminacy has been attributed to constitutionalconventions which are yet another advantageous aspect. They are knownto solve the unknown factor that exists in societal norms and views.This is unlike common laws or general laws that are usually rigid andhence the importance of constitutional conventions (Ryan, 2007). Theyare able to be changed easily and in a timely manner unlike a traitthat makes them to be more effective than the common laws or generallaws. This significant trait was observed during 1976 the time whencollective responsibility was merely re-enacted and lifted by theLabor government (Carroll,2011).Public policy was the main issue that prompted these identificationsas it made it to more effective in that was in line and accommodateto the changes that were taking place at the time.
Atthe current legal system in British, there is strong evidence offusion between constitutional conventions and laws. This indicates amajor legal problem in case these constitutional laws are convertedinto laws. This is primarily for the reasons that there are manyconstitutional conventions which are seen clashing directly withlaws. However, it is very typical knowledge that it is the queen whois responsible for the appointment of ministers to the cabinet in theUnited Kingdom (Turpin& Tomkins, 2001).On the other hand, the conventional constitution clearly clashes withthis theory indicating that the appointment of cabinet ministers isone primary duty of the prime minister.
Therefore,it is worth noting that such clashes would lead to the development inthe manner of lack of correspondence that exists between these twobodies. In addition, a further problem would be created between thecourts in the United Kingdom further developing legal problems in thegovernment and political systems. Additionally, if the constitutionalconventions are converted into laws, this would propel the concernedbodies to critically examine both existing laws and theseconstitutional conventions. After this process, these bodies would beforced to revise the existing laws (Parpworth,2008).It is important to note that during this process of revision, theconcerned bodies would be more likely than not be propelled to fuseboth constitutional conventions and laws.
Hence,the process of fusion of these two sources would present clear rulesand objectives, especially to those individuals who are obliged tothe general public especially in the political scene. It is veryevident that this idea seems legally sound as well as legallypromising to the legal specter. The main problem lies with thedecision making processes and in particular in determining factorsthat mainly contribute to final laws (Carroll,2011).The main factors for consideration in this case lie in the ones thathave the capacity to contribute to the development of final laws.This legal problem could mean or indicate a slight deviation from thetraditional conventions (Alder,2008).In this regard, it is possible to indicate that constitutionalconventions typically conflict with many established rules and thelongevity in some constitutional conventions is quite astonishing.
Therefore,there is at a certain period, the legislature saw a need of codifyingthese constitutional conventions before the process of enactmentcould take place. In the political scene, lack of adherence to theconventions is mostly done by the political leaders. They do thisdespite holding some legal power, as they are democratically electedby the people, which give them the power (Blick, 2012). All thisindicates that the process of converting or enacting constitutionalconventions into laws would certainly create difficult andproblematic situations in all parties concerned (Ryan, 2007).
Atthe same time, codifying the UK constitutional conventions would meanthat the current system is flawed. As the adage goes, do not fix itif it is not broken. The current system works just fine hence thereis no need to try to change it. A written constitution may befunctional in other democracies, but not necessarily in the UK owingto the differences in culture, socioeconomic standards, and politicaltemperature (Hough,2002).
Writtenconstitutions have always been a result of a revolution, acatastrophe or internal rule after a long period of colonialism. TheUK is unique in that it has never encountered any of the above eventsthat warrant a regime change. It would therefore be inappropriate tochange a system that has served the people for as long as they canremember.
Awritten constitution gives more power to the judiciary, rather thanthe legislature, which is a representation of the people’s voice.In written constitutions, parliament suggests laws that are thenassented to by the president or the Prime Minister (Hough,2002).However, if a citizen feels that the law is discriminatory, he can goto the supreme asking it to pronounce the law unconstitutional. Ifthe judiciary finds the piece of legislation to be unconstitutional,then it can suspend.
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