A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most government functions are guided by constitutional convention rather than by a formal written constitution. In these states, actual distribution of power may be markedly different from those the formal constitutional documents describe. In particular, the formal constitution often confers wide discretionary powers on the head of state that, in practice, are used only on the advice of the head of government.
Some constitutional conventions operate separate from or alongside written constitutions, such as in Canada since the country was formed with the enactment of the Constitution Act, 1867. Others, notably the United Kingdom which lack a single overarching constitutional document, unwritten conventions are still of vital importance in understanding how the state functions. In most states, however, many old conventions have been replaced or superseded by laws (called codification).
Features of Conventions
- Conventions are not written rules. However, they have been observed over a long period of time to a point where they have become part of the accepted traditions for the governance of a state. They cannot be enforced in the law court.
- Conventions are not found in a written constitution or any statute book or even an Act of Parliament. The term “constitutional convention” should, therefore, not be misconstrued to mean that conventions are constitutional provisions.
- They are mainly identified with unwritten constitution and unwritten constitutions are mainly practiced under the British constitution. In other words, they are a major source or feature of the unwritten constitution.
Functions of Conventions
1. Enable efficiency
Conventions ensure the efficiency of government. For example, there is a convention in Britain that Parliament can pass a vote of no confidence in the Cabinet and the Cabinet must resign as a group. As a result, the Cabinet works hard and efficiently, so that the legislature does not pass a vote of “no confidence” on it.
2. Enable government to run smoothly
Conventions promote a smooth relationship between the government and Parliament in a Parliamentary system of government. This is so because the convention that the leader of the majority party in Parliament must become the Prime Minister, or that the Prime Minister must recruit his cabinet Ministers from the Majority party in Parliament, ensures that at all times, the Prime Minister and his Cabinet would have the support of the majority in Parliament.
3. Serves as a source for some written constitutions
Most of the conventions under the British Constitution have found their way into the written constitutions of other countries. For example, the 1969 constitution of Ghana provided that the leader of the majority party in parliament must be the Prime Minister and that he must recruit his ministers from parliament. These are conventions which the framers of the 1969 constitution borrowed from the unwritten constitution of Ghana.
4. Prevents government machinery from grinding to a halt
It is true that conventions are not legally enforceable; however, the violation of some conventions can spell a doom for the country than the violation of written constitutions. In Britain, there is convention that parliament must meet at least once a year. If this does not happen, the budget cannot be granted government departments, taxes cannot be levied, etc and therefore, government machinery could grind to a halt.
5. Can be useful under written constitution
Conventions have been found to be useful in written constitution. In the American constitution, for example, there is nothing in the constitution about the party system, though it is a written constitution. Their party system is governed by conventions.
6. Useful in day-to-day operation
Conventions are very useful in the day-to-day administration of institutions that have been established by the written constitution of a state. This is so because, though such institutions are established by a written constitution, the institutions may apply conventional rules in their day-to-day operations.