constitutional conventions - Legislative Council Secretariat IN26\/01-02 INFORMATION NOTE Some Basic Information on Constitutional Conventions 1 Nature

constitutional conventions - Legislative Council...

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Legislative Council Secretariat IN26/01-02 Research and Library Services Division page 1 INFORMATION NOTE Some Basic Information on Constitutional Conventions 1. Nature of Constitutional Conventions 1.1 Conventions as a source of constitutional rules have been widely acknowledged. Regardless of whether a country possesses an unwritten 1 or a written constitution, constitutional conventions usually play an important role in regulating constitutional relationships among different branches of government. 1.2 A common definition of constitutional conventions is: " By convention is meant a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution ." 2 2. Difference between Law and Constitutional Conventions 2.1 Law and constitutional conventions are closely related. Constitutional conventions presuppose the existence of a legal framework, and do not exist in a legal vacuum. For example, in the UK, the constitutional conventions of forming a Cabinet presuppose the laws relating to the Queen's royal prerogative, the office and powers of Ministers, and the composition of Parliament. 3 2.2 A difference between law and constitutional conventions is that laws are enforceable by the courts, but constitutional conventions are not enforced by the courts. If there is a conflict between constitutional conventions and law, the courts must enforce the law. In some countries, such as the United Kingdom (UK) and Canada, the courts acknowledge the existence of constitutional conventions as aids to judicial interpretation. 4 Academics consider that such acknowledgement may at times appear to be similar to enforcement. 5 1 The United Kingdom is a typical example of a country which has an unwritten constitution. For detailed discussion on constitutional conventions in the United Kingdom, please refer to Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability , Oxford: Oxford University Press, 1984 and O. Hood Phillips and Jackson, Constitutional and Administrative Law , 8th ed., London: Sweet & Maxwell, 2001, Chapter 7. 2 Kenneth Wheare, Modern Constitutions , 1951, p.179, quoted in Marshall, Constitutional Conventions , p. 7. 3 For a detailed discussion on these legal matters, please refer to Chau Pak-kwan and Cheung Wai- lam, Process of Appointment of Senior Members of Government in Selected Countries , HK: Legislative Council Secretariat, 2002, Part 2.
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