Department of Law

University of Dhaka

Course Instructor: Dr. Moha. Waheduzzaman

Associate Professor, Department of law
Second Year LLB (Hons.) University of Dhaka.
Academic Year: 2023-2024
PhD in Constitutional Law (DU)
Course Title: Constitutional Law
LLM in Comparative Law (DU) (First Class First)
Course Code: 204
LLB (Hons.) (DU) (First Class First)
Gold Medalist.

Part III: Law and Convention of the Constitution

Lecture 04
Topic: Law and Convention of the Constitution.
Date: 13/11/2024

1. Two Sets of Constitutional Rules

In the study of constitutional law, it is now firmly established that two sets of rules should be
remembered to fully apprehend the constitution of a country. Those rules are commonly
referred to as the ‘laws of the constitution’ and ‘conventions of the constitution’. In countries,
where there are written constitutions, the laws of the constitution are usually contained in that
written document and their violation also entails legal consequences. On the other hand, the
conventions of the constitution usually grow up around and upon the principles of the written
constitution of a country. Regarding the growth of conventions in the constitutional system of
a country, Hood Phillips observes: “With passage of time, in working a constitution and
running the state affairs, many precedents occur and practices develop. When such precedents
and practices are found to have been consistently followed, they are treated as constitutional
conventions.” They, therefore, are the “rules of political practice” and regarded commonly as
the ‘non-legal’ rules of a constitution. These conventions or ‘unwritten rules’ are found in
almost all established constitutions and also soon developed even in the newest ones.

2. The Meaning of Constitutional Conventions

What are conventions of the constitution? There is a fairly lengthy literature on the subject
but the author found the classic exposition of Ivor Jennings most appropriate and convenient
as the starting point for the discussion. Regarding the inevitable nature of conventions in the
system of government, Jennings wrote:

But men being what they are, they tend to follow rules of their own devising;
they develop habits in government as elsewhere...Indeed, people begin to think
that the practices ought to be followed. It was always so done in the past, they
say; why should it not be done so now? Thus within the framework of the law
there is room for the development of rules of practice, rules which may be

Page 1 of 5
 followed as consistently as the rules of law, and which determine the
procedure which the men concerned with government must follow.

Thus, the constitutional authorities “who take decisions create precedents which others tend
to follow, and when they have been followed long enough they acquire the sanctity and the
respectability of age.” Such precedents of political and constitutional actors may or may not
be followed in subsequent cases but a series of precedents all pointing in the same direction
surely evidences for a particular body of rules existing in the constitutional system. After
being so established, these rules carry the idea that “they not only are followed but they have
to be followed” in future similar cases. This precisely is the idea of this body of ‘non-legal’
rules of the constitution. They have been given various names by authors of different ages of
some recognized merit. To quote Ivor Jennings again:

These rules Mill referred to as “the unwritten maxims of the constitution.”

Twenty years later Dicey called them “the conventions of the constitution”
while Anson referred to them as “the custom of the constitution.”

Jennings found all of the above expressions to be problematic since, in his view, none of the
phrases exactly expresses what is actually meant by this body of rules of the constitution. The
expression ‘unwritten maxims’ of Mill is problematic since the judge made common law of
England are also as ‘unwritten’ “as those outside the law.” Similarly, the term ‘convention’
coined by Dicey is also problematic since it always “implies some form of agreement,
whether expressed or implied”, while the expression ‘custom’ employed by Anson “assumes
first that the law enforced in the courts need not be custom, and secondly that an extra-legal
rule cannot be created by express agreement.” Despite these difficulties, Jennings preferred
to employ the term ‘convention’ in his book The Law and the Constitution and the present
author has also used the same expression for this body of rules of the constitution in this
study since the phrase of Dicey has acquired general acceptance or “has now been
sanctioned” by many years of common use by judges of divergent jurisdictions as well as the
authors of constitutional law.

3. The Elements of a Constitutional Convention

3.1 Precedent

3.2 Normativity

3.2.1 The Main Characteristic of a Convention

3.2.2 Distinguishing Conventions from other Non-Legal Concepts of Constitution

a. Habits

b. Understandings

c. Practices

3.3 Reason

Page 2 of 5
4. Examples of Conventions of the Bangladesh Constitution

The conventions are also not uncommon to the written constitutional law of Bangladesh. To
mention, for example, a few conventions of the Bangladesh Constitution, Article 73 of the
Constitution mandates the President to address the Parliament at the commencement of the
first session of Parliament after general election and at the first session of every year.
However, there is nothing in the Constitution as to who is to write the address and whether it
is the choice of the President as regards the contents of the address. But it has become a
conventional rule that the President’s address will be written by his ministers outlining the
policy of the government.

Again, Article 95(1) of the Constitution provides that the Judges of the Supreme Court of
Bangladesh shall be appointed by the President. Purport of Article 95(1) does not prevent one
for appointment as a Judge directly to the Supreme Court of Bangladesh. But it is on record
that since the establishment of the Supreme Court, no one has ever been appointed as a Judge
to the High Court Division or the Appellate Division of the Supreme Court directly under
Article 95(1) of the Constitution. On the contrary, a practice has developed for recruitment of
Judges in the Supreme Court by appointment as Additional Judges first in the High Court
Division for two years under Article 98 of the Constitution. This conventional rule has
established Article 98 of the Constitution as the gateway for entry as a Judge to the Supreme
Court of Bangladesh.

Similarly, Article 95(2) of the Constitution prescribes some qualifications for being appointed
as a Judge of the Supreme Court of Bangladesh. It is, however, interesting to note that no
such qualifications are prescribed for appointment as an Additional Judge under Article 98 of
the Constitution. But conventionally the President appoints only such persons as Additional
Judges of the Supreme Court who satisfy the same minimum qualifications as are laid down
in Article 95(2) of the Constitution.

5. Should “Laws” and “Conventions” be Measured in the Same Parlance?

5.1 Certainty of Existence and Meaning

5.2 Flexibility in Operation

5.3 Significance as Rules of the Governmental System

5.4 Reasons for Obedience

5.5 Recognition and Enforcement in a Court of Law

6. The Misleading Approach of the Bangladesh Supreme Court Towards Conventions

in Idrisur Rahman

The Appellate Division of Bangladesh Supreme Court in Idrisur Rahman enforced against
executive the convention of ‘consultation’ in a Judge appointment context. Applying the
recognition criteria of Jennings, the Court found ‘consultation’ as an established convention
in its system and enforced the same against the executive organ of the government. In
reaching this conclusion, the Court relied upon this particular view or approach on laws and
conventions of the constitution. First, the Court held that Jennings, unlike Dicey, did not

Page 3 of 5
draw any distinction between laws and conventions on the basis of their ‘court
enforceability’. Second, the Court measured “conventions” in the same parlance with “laws”
of its Constitution. I could not agree with either of the view or approach of the Supreme
Court. I am of the view that Jennings also maintained distinction between laws and
conventions of the constitution and that too on the ground of their ‘court enforceability’. I am
also of the view that “conventions” from the point of view of their judicial enforcement
should be measured in the same parlance with “customary rules” of its system as opposed to
“laws” of its Constitution. Due to the misleading approach, the Court in effect failed to
appreciate the distinction between recognition and enforcement of conventions in its
jurisdiction. As a consequence, the Court omitted in its judgment the analysis of some
essential inquires relating to judicial enforcement of conventions within the framework of its
Constitution. The misunderstood view of the Bangladesh Supreme Court on “laws” and
“conventions” of constitution necessitates for reflecting again on their distinction.

Regarding the nature of operation of conventions in Bangladesh constitutional system, his

lordship MA Matin J held: “Convention when recognized and acted upon is as good as
Constitutional law and the provisions of the constitution and is binding like any other
principles of law.” This view of the learned judge regarding the operation of conventions of
its Constitution resembles more with a Historical approach towards the status of ‘custom or
usage’ of a legal system.

Article 152 of the Bangladesh Constitution means by “law” “any Act, ordinance, order, rule,
regulation, bye-law, notification or other legal instrument, and any custom or usage, having
the force of law in Bangladesh”. It is not clear from this text whether the expression ‘having
the force of law’ qualifies only ‘custom or usage’ or all the forms of law included in the
definition. However, if one reads the Bengali text of the definition, it becomes clear that the
said expression qualifies only ‘custom or usage’ and not all the forms of law included in it.
And proviso to Article 153 of the Constitution makes it clear that “in the event of conflict
between the Bengali and the English text, the Bengali text shall prevail.” Thus, all the forms
of law except ‘custom or usage’ are per se law under the definition of “law” contained in
Article 152 of the Bangladesh Constitution. On the contrary, ‘custom or usage’ is not law per
se under its definition. It is law only when incorporated in statutes or embodied in judicial
decisions in appropriate cases. The Bangladesh Constitution, therefore, reflects the approach
of Positivist school of jurisprudence towards the status of ‘customary rules’ existing in its
system. This approach of Bangladesh Constitution commensurate in large measure with the
approach of modern day courts for the Superior Courts of any jurisdiction, at modern times,
take recourse to ‘customary rules’ only in the absence of any guidance from statues. And any
such ‘customary rule’ becomes part of law only when that forms the basis of judgment of the
Superior Court satisfying the attending conditions and circumstances of its recognition and
enforcement under the respective case.

The term ‘convention’ has not been expressly included in the definition of the term “law”
under Article 152 of the Bangladesh Constitution. In such absence, constitutional conventions
could at best be measured in the same parlance with ‘custom or usage’ mentioned in the said
Article of the Constitution. But the Idrisur Rahman Court gave conventions somewhat a per
se law status in its constitutional system. His lordship MA Matin J while holding the above
quoted view reflecting on the status of conventions in Bangladesh jurisdiction neither referred
to the definition clause of Article 152 in its analysis nor provided any justification for
adopting somewhat a Historical approach towards the operation of conventions in its
jurisdiction. Contrary to the view of the learned judge, however, the Constitution of

Page 4 of 5
Bangladesh manifestly prefers the Positivist approach towards the status of ‘custom or usage’
existing in its system. As opposed to mere recognition applying the Jennings test, judicial
enforcement of conventions in Bangladesh involves the proper appreciation and resolution of
the above identified interrelated themes and inquires within the framework of its
Constitution. But the Idrisur Rahman Court in its judgment completely omitted their analysis
equating “conventions” with “laws” of its Constitution which simply necessitated for
undertaking a research venture reflecting again on the distinction between “laws” and
“conventions” of the constitution.

Materials:

1. AV Dicey.
2. Ivor Jennings.
3. KC Wheare.
4. Hilaire Barnett.

5. Moha. Waheduzzaman, ‘Judicial Recognition of Constitutional Recognitions: The

Elements Revisited’ (2020) 31 Dhaka University Law Journal 121-42.
6. Moha. Waheduzzaman, ‘Measuring Constitutional “Laws” and “Conventions” in Same
Parlance: Critiquing the Idrisur Rahman’ (2020) 8 Jahangirnagar University Journal of Law
47-77.

7. Farrah Ahmed, Richard Albert, & Adam Perry, ‘Judging Constitutional Conventions’
(2019) 17 (3) International Journal of Constitutional Law 787.
8. Farrah Ahmed, Richard Albert, & Adam Perry, ‘Enforcing Constitutional Conventions’
(2019) 17 (4) International Journal of Constitutional Law 1146.

9. State v Chief Editor, Manabjamin (2005) 57 DLR (HCD) 359.

10. Idrisur Rahman v Bangladesh (2009) 61 DLR (HCD) 523.
11. Bangladesh v Idrisur Rahman (2010) 15 BLC (AD) 49.

Page 5 of 5