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4. The Emergence of Constitutional Conventions
- Hong Kong University Press, HKU
- Chapter
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The Emergence of Constitutional Conventions 109 The origin of the concept of conventions can be traced back to British scholars who wrote on the relationships between law and politics. A. V. Dicey referred to conventions as customs, practices, maxims, or precepts that embraced a group of constitutional or political ethics.2 Sir Ivor Jennings distinguished conventions from non-obligatory usages or practices.3 To Jennings, conventions are supported by constitutional reason or principle, but usages are not. He treats conventions as a homogeneous group of rules, whereas John Mackintosh in The British Cabinet identified different orders of constitutional conventions.4 Mackintosh remarked that some conventions are fundamental, meaning that breaking them would overturn the basic principles of the constitution. Some conventions are less important because they can be altered without changing the nature of the constitution.5 Mere usages without obligatory force are not of much interest to constitutional lawyers. According to Hilaire Barnett, The idea of obligation is of prime importance here, for if a person is under an obligation which is recognized by observers of the constitution and that person fails to act in accordance with the obligation, then that failure will give rise to legitimate criticism which will invariably be phrased in terms of “constitutionality.” To reiterate, the obligation imposes a standard of conduct which is expected to be followed. The obligation is “normative”: by that is meant that the rule is “prescriptive” — that it dictates the appropriate form of action in a particular situation.6 Peter Hogg also emphasizes that “a convention is a rule which is regarded as obligatory by the officials to whom it applies, [whereas] a usage is not a rule, but merely a governmental practice which is ordinarily followed.”7 Hogg maintains that a usage may develop into a convention. 4 The Emergence of Constitutional Conventions 1 110 The Dynamics of Beijing–Hong Kong Relations If a practice is invariably followed over a long period of time, it may come to be generally regarded as obligatory and thereby cease to be merely a usage. The resulting convention may be called a custom. This process of evolution from usage to convention (or custom) is the way in which most conventions have been established. It should be noticed, however, that very little turns on the question whether a practice is as unenforceable as a usage. The most that can be said is that there is a stronger moral obligation to follow a convention than a usage, and that departure from convention may be criticized more severely than departure from usage.8 While Hogg distinguishes conventions from usages in terms of the degree of public criticisms, Barnett distinguishes conventions from laws, practices, understandings, and habits by using the criteria of (1) the regularity of conduct, (2) reflectiveness, (3) the degree of obligation imposed, and (4) the sanction following the breach (see Table 4.1). He views the “absolute” degree of obligation as the hallmark of conventions. Moreover, any breach of conventions leads to the charge of unconstitutional conduct, whereas any violation of laws constitutes an unlawful conduct. Table 4.1 Distinguishing Conventions from Laws, Practices, Understandings, and Habits Habits Understandings Practices Conventions Laws Regularity of Yes Not Yes Yes Yes Conduct necessarily Reflectiveness No Yes Yes Yes Yes Degree of obligation None Weak Strong Absolute Absolute imposed Sanction attending None Justification Justification Charge of Unlawful breach required required unconstitutional conduct conduct Source: Hilaire Barnett, Constitutional and Administrative Law (London: Cavendish, 1995), p. 33. As a matter of fact, Hogg and Barnett have developed Jennings’s criteria of conventions. Jennings believed that mere practice was by no means a convention. He raised three defining characteristics of conventions in the following way: [34.201.16.34] Project MUSE (2024-03-29 02:41 GMT) The Emergence of Constitutional Conventions 111 We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a 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 it is perfectly certain that the persons concerned regarded them as bound by it.9 This chapter will adopt Jennings’s criteria of conventions to analyze the development of constitutional conventions in the HKSAR. In Britain, conventions could hardly develop except over time. Cabinet ministers, who are accountable to the parliament through...