CONSTITUTIONAL CONVENTIONS

Introduction
• Hood Philips defines Conventions as rules of political
practice which are regarded as binding by those to whom
they apply but which are not laws as they are not
enforced by the courts.
• Dicey explains that Conventions are a body not of laws
but of constitutional or political ethics, not enforced by
the courts. • Prof. Shad defines Conventions as: -forms of
political behaviour regarded as obligatory -constitutional
morality of the day -non-legal rules of the Constitution
• No constitution can provide everything & is
supplemented over time by informal usages,
understanding & practices. • The greater the degree of
constitutional rigidity, the greater the need for the
benefit of informal adaptation that conventions bring.
Role of Conventions in UK
• Sir Ivor Jennings in the Law and the
Constitution, 1971 regarded Conventions as a
source of constitutional law.
• In the UK, conventions give to the British
Constitution some of its most important
constitutional principles including the Crown
acts on the advice of the Prime Minister, that the
PM is from the House of Commons where he is
the leader of the majority party, & that the
cabinet collectively responsible to Parliament.
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• Sir Ivor Jennings further explained that
conventions ‘are the flesh which clothe the dry
bone of the law’.
• Example: in the UK when statutes confer
discretionary power on the Monarch, the
implicit understanding is that the Monarch
shall, in accordance with her conventional duty,
act on the advice of Ministers.
• Many laws pre-suppose the existence of
conventions.
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• Conventions enable informal changes to take place
thereby allowing constitutional growth.
• A conventions can give rise to laws in the sense that
if the convention is violated with impunity,
legislation to convert the convention into a statutory
rule is often enacted.
• Example: In 1993, royal immunities in Malaysia
where some members of royalty ignored their
conventional duty to act with dignity & restraint that
lead to the amendment of Article 181 to provide a
Special Court to try the Sultans for civil & criminal
wrongs.
Position in Malaysia
• Most constitutional conventions of the
Westminster Parliament apply in Malaysia but a
number of political practices have evolved which
reflect local realities.
• Article 40 (1) : “YDPA shall act in accordance
with the advise of the Cabinet/ a Minister acting
under the general authority of the Cabinet” has
come to mean that the PM, to the exclusion of
his colleagues, has an exclusive rights of
audience with the King despite Article 40 (2)(b).
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• Post of Deputy PM the existence of
parliamentary & cabinet committees the
conventional allocation of time to the opposition
during question hour in Parliament.
• Separate categories of ‘Malay’ & the ‘natives of
Sabah & Sarawak’ have been merged under the
new concept of ‘Bumiputra’ & ‘Bahasa Melayu
described as ‘Bahasa Malaysia’.
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• Cabinet meets once a week every Wednesday Extra-legal
advisory bodies such as the National Economic Action
Council (NEAC) are appointed now & then to perform
some of the functions of Ministers.
• Cabinet Ministers are chosen in such a way that all the
states of the federation are represented in the Cabinet.
• Passing of Bills is based partly on the FC (Articles 66, 68,
38 (4), 159 & 161E) & partly on the internal rules
(Standing Orders) & conventions of the Houses. The
various ‘readings’ in each House are based on the
Standing Order of each House. The Leader of Opposition
is given a separate office & staff.