Are Constitutional Conventions Necessary

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Are Constitutional Conventions Necessary

Are Constitutional Conventions Necessary To Preserve The Legal Structure Of Government? Illustrate By Example

Introduction

A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. The Constitution of a country comprises both written rules enforced by courts, and "unwritten" rules or principles necessary for constitutional government. Written rules mandate that they be followed in a particular specified situation, and on the other hand unwritten rules come into play when there is no given written rule to cover the situation at hand. Constitutional conventions are said to be rules of political practice, which are regarded as binding by those to whom they apply, but they can't be called exact laws, as they are not enforced by courts or by the Houses of Parliament. Notwithstanding the fact that ours is a detailed Constitution, the Constitution-framers left certain matters to be governed by conventions, thereby giving to the holders of constitutional offices some degree of discretion in respect of such matters. The main purpose of the Constitutional conventions is to ensure that the legal framework of the Constitution retains its flexibility to operate in tune with the prevailing constitutional values of the period. Although conventions are not legally enforceable and the sanction behind them is moral and political, yet some conventions of the constitution which set norms of behavior of those in power or which regulate the working of the various parts of the Constitution and their relations to one another, may be as important, if not of greater significance, as the written word of the Constitution itself. This is particularly true of the role of 'conventions' in a system of Parliamentary democracy having a Constitutional distribution of powers between two or more levels of Government. Often constitutional conventions are more important than written constitutional provisions. For example, the President is empowered by the Constitution to appoint the Prime Minister, but the Constitution provides no guidance as to who should be appointed as Prime Minister. Here conventions regarding the appointment of the Prime Minister play an important role in guiding the President. Following are some of the characteristics of the conventions: Conventions are rules that define non-legal rights, powers and obligations of office-holders in the three branches of Government, or the relations between governments or government organs. Conventions in most cases can be stated only in general terms, their applicability in some circumstances being clear, but in other circumstances uncertain and debatable. They are distinguishable from rules of law, though they may be equally important, or more important. They may modify the application or enforcement of rules of law. Sir Ivor Jennings suggested that in order to establish a convention three questions must be asked: What are the precedents?

Secondly, did the actors in the precedents believe that they were bound by a rule? Thirdly, whether there is a good reason for the rule?
A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless the persons concerned regard themselves to be bound by it. Conventions grow out of and are modified by practice. At any given time it may be difficult to say whether or not a practice has become a convention. Conventions do not come from a certain number of sources, their origins are amorphous and nobody has the function of deciding whether conventions exist or not. As the researcher's topic requires proving whether or not the constitutional conventions are necessary to preserve the legal structure of the government (with an example), the researcher would confine his study to the one of the most debated and controversial constitutional conventions - the appointment...
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