Download Reconsidering Assumptions in Commonwealth Jurisdictions: Recognition, Employment, and Enfo and more Slides Law in PDF only on Docsity!
JUDGING CONSTITUTIONAL CONVENTIONS
† Farrah Ahmed, Melbourne Law School, University of Melbourne Richard Albert, The University of Texas School of Law Adam Perry, University of Oxford, Faculty of Law ABSTRACT The study of constitutional conventions is anchored in three assumptions that have so far remained largely unchallenged: that there is a shared “Commonwealth approach” to constitutional conventions; that Commonwealth courts will recognize and employ conventions but never enforce them; and that conventions are always distinguishable from rules of law. We overturn each of these assumptions in this Article. We argue that there is no such shared “Commonwealth approach” to the treatment of constitutional conventions, that Commonwealth courts do, in fact, enforce conventions, and that constitutional conventions have crystallized into law in a major Commonwealth jurisdiction. These insights disrupt much of what is foundational in the study of constitutional conventions. † (^) For comments on an earlier draft, we are grateful to Nick Barber, Tom Daly, Rosalind Dixon, Jeffrey Goldsworthy, Aileen Kavanagh, Jeff King, Janet McLean, Peter Oliver, Glenn Patmore, Adrienne Stone, Adam Tucker, Lulu Weis, Alison Young and other participants at the Workshop on Constitutional Boundaries held in August 2017 with the generous support of the Oxford-MLS Research Partnership. We are grateful to Melbourne Law School for hosting Richard Albert and Adam Perry as Visiting Scholars to work on-site with Farrah Ahmed toward completion of this Article. We also thank the team at the International Journal of Constitutional Law and their anonymous reviewers for constructive comments and helpful suggestions on an earlier draft.
I. INTRODUCTION
The late O. Hood Phillips isolated the essential characteristic of constitutional conventions in a simple phrase: “These are not a matter for the courts at all.”^1 Constitutional conventions are commonly described as obligatory but non-justiciable rules that are central to the functioning of government.^2 The scholarly literature takes for granted that there exists a “Commonwealth approach” to how courts understand and in turn treat conventions.^3 Adrian Vermeule, for example, observes that the Commonwealth approach—which “holds that while courts may and should recognise conventions, they may not and should not enforce them”^4 —has “achieved consensus in the United Kingdom and the Commonwealth.”^5 There is a similar consensus that conventions are always distinguishable from rules of law.^6 (^1) O. Hood. Phillips, Constitutional Conventions: A Conventional Reply , 8 J. SOC’Y PUB. TEACHERS L. 60, 64 (1964). (^2) To draw from a recent and useful restatement, a constitutional convention is “a sense of obligation which either is, or ought to be felt by the persons subject to the supposed convention, as demonstrated by precedent or agreement; the constitutional nature of the obligation; its importance in the constitutional system; and a reason to support it.” Greg Taylor, Convention by Consensus: Constitutional Conventions in Germany , 12 INT’L J. CONST. L. 303, 323 (2014). (^3) See, e.g. , A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION cxli (Liberty Fund 8th ed., 1915); EDWARD A. FREEMAN, THE GROWTH OF THE ENGLISH CONSTITUTION FROM THE EARLIEST TIMES 116 - 17 (1873); IVOR JENNINGS, THE LAW AND THE CONSTITUTION 103 (1959); GEOFFREY MARSHALL, CONSTITUTIONAL CONVENTIONS: THE RULES AND FORMS OF POLITICAL ACCOUNTABILITY 12 - 18 (1987); Eugene A. Forsey, The Courts and the Conventions of the Constitution , 33 U.N.B. L.J. 11, 12 (1984). (^4) Adrian Vermeule, Conventions in Court , 38 DUBLIN U. L.J. 283, 284 (2015). (^5) Id. (^6) See, e.g. , Colin Munro, Laws and Conventions Distinguished , 91 L. Q. REV. 218, 228 (1975) (“The validity of conventions cannot be the subject of proceedings in a court of law. Reparation for breach of such rules will not be effected by any legal sanction. … In fact, the idea of a court enforcing a mere convention is so strange that the question hardly arises.”); Léonid Sirota, Towards a Jurisprudence of Constitutional Conventions , 11 OXFORD U. COMMONWEALTH L.J. 29, 51 (2011) (“There exists, in the constitutional theory of Commonwealth jurisdictions, a long-standing distinction between
study of constitutional conventions, the unchallenged and practically axiomatic truth that Commonwealth courts do not enforce constitutional conventions is incorrect. Third, and as a result, there is reason to think that constitutional conventions in at least one Commonwealth jurisdiction have crystallized into law. Future scholarship on constitutional conventions will have to confront our evidence. We begin, in Part II, with an inquiry into the ways courts conceivably could engage with conventions. We distinguish specifically among three modes of engagement—recognition, employment and enforcement—as well as the variations within each in order to set the terms for Part III, where we review how Commonwealth courts actually do engage with conventions. We show that high court judgments in Canada, India and the United Kingdom together demonstrate all three of these modes of judicial engagement, suggesting that Commonwealth courts engage with conventions in ways that have until now been undertheorized and underexplored in the scholarly literature. Building on our discussion in Parts II and III, we suggest in Part IV that India may provide the first example of the crystallization of a constitutional convention into law. II. MODES OF JUDICIAL ENGAGEMENT Judges engage with many types of rules that we can classify under two headings: legal rules, including domestic laws, foreign laws, and rules of international law; and non-legal rules, for instance lex mercatoria, rules of professional, religious, and sporting bodies, and moral rules as well. Constitutional conventions are another example of non-legal rules, and in principle judges can engage with conventions in the same ways they engage with virtually any other legal and non-legal rules. Judges might in theory praise or criticize, follow or flout, promote, adopt, endorse, or undermine a rule in either of these two categories. In this Part, we outline the three most important modes of judicial engagement with constitutional conventions.
A. Recognition Perhaps the simplest form of judicial engagement with conventions is the recognition of a convention’s existence or its scope. Recognition is a fact-finding activity; the judge engages with the convention on a factual basis. If the existence or scope of the convention is uncontroversial, recognition might take the form of judicial notice. If on the other hand the convention is controversial, then there is a disputed question of fact. The judge will consider the relevant evidence and reach a determination about whether there is a convention and what it requires. How can the judge reliably identify whether a convention exists? In Canada, India, and the United Kingdom, judges have all turned to the same three-part test, first proposed by Sir Ivor Jennings: 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?^11 According to Jennings’ test, a convention exists where there are precedents that amount to more than “mere practice,” where the relevant actors believe that they must respect and reinforce those precedents, and where there exists a principled reason that sustains the conventional practice.^12 There are two reasons why a judge would need to inquire into the existence or scope of a convention. For one, it may be that the judge has been asked simply whether there is a convention or whether the convention requires some act. If yes, then once the fact-finding process is over, the purpose of engaging with the convention is fulfilled. We will return to this possibility below when we discuss the judicial act of declaration. Alternatively, and more commonly, judges might inquire into the existence or scope of a convention because some legal issue turns on its existence or scope. The judge is interested here in a convention (^11) JENNINGS, supra note 3 , at 136; Evans v. Information Commissioner , [2012] UKUT 313, para. 75 (AAC) (UK) (“Evans”); Supreme Court Advocates-on- Record Association v. Union of India , (1993) 4 S.C.C. 441, para. 444 (India) (“Second Judges Case”); Patriation Reference , supra note 10 , at 888. (^12) JENNINGS, supra note 3 , at 134-36.
bear on the application of the legal standard. There is no sharp break between the repeated application of a common law rule in a new circumstance and the development of a new rule. As a result, a convention might influence not just what the common law requires in certain cases but what it requires in general. 3_. Conventions as grounds not to develop the common law_. We highlight one last way to employ conventions. It is of a different character from the previous two: here conventions are used to resist a legal conclusion rather than to support one. Consider a line of argument endorsed by many “political constitutionalists”: political and legal mechanisms of accountability should complement each other; there are existing and well-functioning forms of political accountability, including the conventions of individual and ministerial responsibility; therefore, judges should be slow to develop alternate forms of legal accountability. If this argument is sound—and we need not express an opinion on that question—then the existence of certain conventions would be grounds not to develop the law in a way that would have the effect of holding political actors accountable. Judges might take the availability of conventional constraints as making the development of legal constraints unnecessary.^13 C. Enforcement There has been much debate on whether conventions are, or ought to be, enforceable by courts. 14 While this debate has contributed significantly to our understanding of conventions, further progress has been hindered by imprecision when using the term “enforcement.” In this Section we clarify the meaning of enforcement with a view to seeding a more constructive conversation. We stipulate that enforcement of a duty-imposing rule occurs through an act which (i) responds to a violation or a (^13) See Oran Doyle, Constitutional Transitions, Abusive Constitutionalism and Conventional Constraint , 37 NAT’L J. CONST. L. 67 (2017). (^14) See, e.g. , Barber, supra note 7 ; Mark Elliott, Parliamentary Sovereignty and the New Constitutional Order , 22 LEG. STUD. 340 (2002); Joseph Jaconelli, Do Constitutional Conventions Bind? , 64 CAMBRIDGE L.J. 149 (2005).
would-be violation of the rule; and (ii) prevents the rule from being violated or violated with impunity. Enforcing a rule means ensuring it is honored, if not through obedience then at least by holding the violator to account.^15 Judicial enforcement is simply enforcement by judges. We suspect that a common (and commonly overlooked) form of judicial enforcement is through informal criticism. Conventions are social rules, meaning that they emerge from a pattern of compliance with the rule coupled with acceptance in a social group that compliance is appropriate.^16 Social rules are typically enforced through criticism of breaches of the rule. Conventions, too, can be enforced through criticism, and it can be judges who do the criticizing. For example, it is a convention in many jurisdictions that judges do not participate in party politics. If a judge gives a party political speech, and his or her colleagues reproach the judge, then they “enforce” the convention against the judge. Our focus in this Article is different. We are interested in the jurisprudence of conventions, and as such our interest is in a more formal judicial enforcement, by which we mean enforcement by judges through their judgments and findings. The distinction between formal and informal judicial enforcement should not be confused with the distinction between legal and non-legal enforcement. Legal enforcement is enforcement which is an exercise of legal authority (for example, the imposition of a legal duty to pay a fine), or enforcement which is legally required or specially permitted by law (for example, the seizure of property for a failure to pay a fine). Although most formal enforcement is legal enforcement, there are exceptions, as we will explain. Our interest, then, is all manner of formal enforcement, whether legal or non-legal. Four types of formal judicial enforcement are especially important. (^15) We can of course distinguish the coercive force of law from its directive force. See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 313 - 14 (2d ed. 2011). (^16) For this account of social rules, see H.L.A. HART, THE CONCEPT OF LAW 8 - 10, 55-57, 254-256 (3d ed. 2012). For the view that constitutional conventions are social rules, see JEREMY WALDRON, THE LAW (1990); Joseph Jaconelli, The Nature of Constitutional Conventions , 19 LEG. STUD. 24 (1999).
turn to types of enforcement that are often not recognized as such. 3. Declaration. A rule may be enforced simply by drawing a person’s attention, and if necessary the attention of the community, to her violation or would-be violation. Once a light is shone on her conduct in this way, the person may take it upon herself to either correct her behavior or to make amends. This is a mild response compared to other forms of enforcement. What nonetheless makes this a kind of enforcement is that the person has not been allowed to violate the rule without consequence. If it seems strange to define declaration as a kind of enforcement, consider two examples from England and Wales. First, a standard administrative law remedy is a declaration that an administrative act is unlawful.^19 The declaration does not invalidate the act, nor does it lead to damages or the like, nor even does it impose any ongoing obligation. Even so, declarations are often sought by complainants, and are considered “one of the most important remedies in review proceedings.” 20 The reason is that the government almost invariably responds to a declaration by taking steps to avoid or correct for the illegality. Declarations enforce administrative law standards because the government is committed to acting lawfully, and because the government treats the court as an authority regarding its legal obligations.^21 They are a form of (^19) Senior Courts Act 1981, s. 31(2). (^20) MARK ELLIOTT & JASON VARUHAS, ADMINISTRATIVE LAW 455 ( 5 th ed. 2017). (^21) Given that the government regards it as obligatory to comply with declarations of illegality, and that it regularly does so, it is plausible that there is a constitutional convention requiring compliance. The analogy would be with the emerging convention that Parliament will respond to declarations of incompatibility under the Human Rights Act 1998_. See, e.g._ , AILEEN KAVANAGH, CONSTITUTIONAL REVIEW UNDER THE UK HUMAN RIGHTS ACT 1998 (2009), 289; Jeff King, Parliament’s Role following Declarations of Incompatibility , in PARLIAMENT AND HUMAN RIGHTS 171 (Murray Hunt et al. eds., 2015); Adrian Vermeule, The Atrophy of Constitutional Powers , 3 OXFORD J. LEG. STUD. 421, 442 (2012); see also British Coal Corp. v The King [1935] AC 500, 511 (recognizing a constitutional convention that the King in
legal enforcement because they are exercises of the legal authority to settle questions about whether the government has satisfied its legal obligations. Conventions can likewise be enforced by judges through declarations. Suppose there is a general legal duty to comply with conventions. If a constitutional actor breaks a convention, then (provided any conditions regarding standing, justiciability, and the like were satisfied) a complainant could obtain a declaration of illegality. The declaration would be a form of legal enforcement, because it would be an exercise of legal authority. Conventions can also be enforced through declarations as a form of non - legal enforcement. The scenario we have in mind parallels the legal case: the would-be convention-violator is committed to complying with her conventional obligations, and the person or body making the declaration is regarded as an authority on what the convention requires. The authority need not be a court. In the United Kingdom, for example, the Ministerial Code contains most of the important conventions applicable to ministers.^22 The arbiter of what the Code requires is the Prime Minister, and her decisions are treated by ministers as conclusive. When the Prime Minister declares that some act would contravene the Code, other actors treat the matter as settled, and act accordingly. In this way, the Prime Minister enforces the Code. But of course, a court could also be treated as an authority on conventions. In such a case, a court’s declaration that an act is not convention-compliant would be a form of non- legal enforcement. Yet it would be a formal type of judicial enforcement.
- Nullification. Declaring that someone’s conduct would violate a rule may lead her not to violate it at all. If that occurs, it will be because she chose not to violate the rule, just as, for example, Council, an executive body, will comply with the decisions of the Judicial Committee of the House of Lords, a judicial body). (^22) CABINET OFFICE, MINISTERIAL CODE (December 2016), available at : https://www.gov.uk/government/uploads/system/uploads/attachment_da ta/file/579752/ministerial_code_december_2016.pdf (last visited Mar. 8 , 2018 ).
We demonstrate that courts in all three jurisdictions engage with conventions, but in incrementally more ways: British courts employ conventions and recognize them for that purpose; Canadian courts go further and also declare, and thus judicially enforce, conventions; and Indian courts go furthest by legally enforcing conventions through nullification, specifically by voiding acts they determine are contrary to conventions. A. United Kingdom British judges are willing to employ conventions in legal reasoning, and to recognize conventions to that end. For example, the House of Lords has infamously deferred to the Home Secretary’s judgment as to whether a person should be detained due to their “hostile associations.”^24 One reason for the court’s deference was the Home Secretary’s responsibility to Parliament—responsibility conferred on the Home Secretary as a result of a constitutional convention. Similarly, the Court of Appeal for England and Wales has set out what is now known as the “Carltona doctrine,” holding that the act of a departmental official is considered the act of the minister of that department.^25 The justification for this rule is, in part, the convention that the minister is responsible to Parliament for the official’s acts. In these cases, conventions are supporting reasons for both particular legal decisions and the creation of general doctrines. Usually, when a would-be convention is legally relevant, its existence is not in doubt. But when there is disagreement about whether a convention exists, British judges have been willing to reach a finding on the point. In Evans v. Information Commissioner ,^26 the issue was whether letters between Prince Charles government ministers, in which Prince Charles advocated for certain policy positions, had to be disclosed under the Freedom of Information Act 2000. That issue turned on (^24) Liversidge v Anderson , [1942] AC 206 (HL). Our claim is not that the case would be decided the same way today, but that recognition and employment of conventions by courts in the United Kingdom is nothing new. (^25) Carltona v Commissioner for Public Works , [1943] 2 All ER 560 (CA). (^26) Evans , supra note 11.
whether disclosure would serve the “public interest.” Disclosure would not serve the public interest, the court said, if it would undermine a constitutional convention. The “education convention” entitles Prince Charles to educate himself in the workings of government. Does that convention extend to advocating for policies? The court thought it needed to answer this question to resolve the overall issue. To do so, the court applied the Jennings test and concluded that the convention does not give Prince Charles a right to advocate for his personal views, ultimately ordering the letters disclosed.^27 In Evans the court was willing to determine whether there is a convention for the purpose of answering a legal question. But would a court determine whether there is a convention to answer a political question? This question arose in 2016 when Britain voted to leave the European Union. To leave the EU, Britain would have to give notice of its intention to do so under Article 50 of the Treaty on the European Union. It was clear that notice would be given by the government. What was unclear was whether the government required Parliament’s approval under statute to give notice. In Miller , the Supreme Court held that it did: statutory authority was necessary to start the Article 50 process.^28 That conclusion settled the main issue in Miller , but it also made relevant a second issue, which is our concern here. To explain the nature of the issue, we need to say something about devolution in Britain. In the 1990s, there was increasing pressure from Northern Ireland, Wales, and especially Scotland for greater powers. Britain responded in a series of a statutes which devolved power to these regions. However, given Britain’s commitment to parliamentary sovereignty, the Parliament at Westminster would necessarily retain the power to legislate in any way, including to change the devolution arrangements themselves. And so there arose a convention, according to which Westminster would not legislate to change the devolution arrangements without the consent of the relevant (^27) For an older example of the employment of a convention in a common law context, see Attorney General v. Jonathan Cape Ltd , [1975] 3 All ER 484. (^28) Miller , supra note 8.
not politics, and its proper role is to uphold the legal rules of the constitution. Given British judges’ refusal to declare constitutional conventions to settle political controversies, it should come as no surprise that they are unwilling to legally enforce conventions. A 1963 case illustrates the point particularly well.^35 Akintola was the Premier of Western Nigeria. A majority of members of the House of Assembly wrote to the Governor of the state, saying they no longer supported Akintola. The Governor dismissed Akintola, who responded by seeking a declaration that the Governor had acted unlawfully. Akintola argued that the members of the House of Assembly had not voted against him, and that dismissal based on a mere letter was contrary to convention. The case was eventually heard by the Privy Council, which rejected Akintola’s argument. Although there “may be formidable arguments in favour of the Governor confining his … [consideration] to the recorded voting in the House,” it was not open to a court to create a “legal duty to observe” a requirement that he do so.^36 In Akintola , the issue was enforcement of a convention through a declaration against a member of the executive. In Madzimbamuto v. Ladner-Burke & George ,^37 the question was whether a convention could be the basis for nullifying an Act of Parliament. The Imperial Parliament had legislated for Rhodesia, absent Rhodesia’s consent, contrary to convention. The Privy Council rejected the suggestion that a convention could limit Parliament’s powers. Certain acts of Parliament might breach a convention, the Court said, but that “does not mean that it is beyond the power of Parliament to do such things.”^38 The Court then added: “If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.”^39 Conventions, then, are not legally enforceable in the UK, against either the executive or Parliament. (^35) Adegbenro v. Akintola , [1963] AC 614 (PC). (^36) Id. at 230. (^37) Madzimbamuto v. Ladner-Burke & George , [1968] 3 All ER 561 (PC). (^38) Id. at 573. (^39) Id.
B. Canada As in Britain, courts in Canada employ conventions as aids to resolving legal disputes, and acknowledge the existence of conventions for that purpose.^40 Peter Hogg notes that when Canadian courts rely on conventions for this purpose, it is usually to interpret a statute or a codified part of the constitution.^41 For example, the Supreme Court of Canada relied on the convention of political neutrality in the public service to evaluate the constitutionality of a statute that purported to regulate whether and how provincial civil servants and Crown employees engage in certain forms of federal political activity.^42 Canadian courts have also engaged with conventions in ways that British courts have not. Specifically, the Supreme Court of Canada declared the existence of a convention in what was the most important constitutional controversy in modern Canadian political history. The Patriation Reference reached the Court in the midst of negotiations on whether and how to bring the Constitution home. 43 The impetus behind patriation was to negotiate a procedure or set of procedures to finally grant Canada the power to formally amend its own constitution without the involvement of the Parliament of United Kingdom, which since 1867 had been the only body authorized, with few exceptions, 44 to amend Canada’s Constitution. 45 When negotiations again broke down in 1981 after decades of failed efforts at reaching a federal-provincial agreement on (^40) For an argument that Canadian courts have misused constitutional conventions in the resolution of constitutional questions, see Peter C. Oliver Constitutional Conventions in the Canadian Courts , UK CONST. L. ASS’N BLOG, Nov. 4, 2011, at: https://ukconstitutionallaw.org/2011/11/04/peter-c- oliver-constitutional-conventions-in-the-canadian-courts (last visited Mar. 8, 2018 ). (^41) PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA 1 - 23 (5th ed. 2007). (^42) Ontario (Attorney General) v. OPSEU , [1987] 2 S.C.R. 2. (^43) See Patriation Reference , supra note 10. (^44) See Richard Albert, Amending Constitutional Amendment Rules , 13 INT’L J. CONST. L. 655, 673 (2015) (^45) Peter W. Hogg, Formal Amendment of the Constitution of Canada , 55 L. & CONTEMP. PROB. 253, 253 (1992).
required to do so by convention? On the first question, a 7- 2 majority held that the Government of Canada could freely proceed unilaterally as a matter of law since there was no legal requirement requiring the federal government to secure provincial consent.^53 On the second, a 6-3 majority held that the Government of Canada was bound by a constitutional convention requiring that the federal government proceed with patriation only with “a substantial degree of provincial consent.” 54 The Court recognized the existence of this convention of substantial provincial consent using the Jennings test described above.^55 Yet in the Patriation Reference , the Supreme Court stopped short of what it considered to be enforcing a convention. The Court believed that it could not enforce conventions because “they are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules.”^56 The Court specified that “unlike common law rules, conventions are not judge-made rules. They are not based on judicial precedents but on precedents established by the institutions of government themselves. Nor are they in the nature of statutory commands which it is the function and duty of the courts to obey and enforce.”^57 And so, concluded the Court, “to enforce them would mean to administer some formal sanction when they are breached. But the legal system from which they are distinct does not contemplate formal sanctions for their breach.” 58 When confronted with a conflict between a convention and a legal rule in a constitutional or statutory text, therefore, the Supreme Court of Canada has preferred to give effect to the legal rule consistent with its recognition of the primacy of the text.^59 The Court’s declaration followed from a threatened violation of the convention. The declaration prevented the convention (^53) Patriation Reference , supra note 10 , at 807. (^54) Id. at 904-05. (^55) See supra text accompanying notes 11- 12. (^56) Patriation Reference , supra note 10 , at 880-81. (^57) Id. at 880. (^58) Id. (^59) British Columbia v. Imperial Tobacco Canada Ltd. , [2005] 2 S.C.R. 473 at para. 67.
from being violated with impunity, given the political pressure the declaration placed on political actors, who ultimately tailored their conduct to the convention.^60 The analysis of enforcement we offered in Part II of this Article suggests that the Court’s declaration in the Patriation Reference amounted to enforcement. C. India Like courts in the United Kingdom and Canada, the Supreme Court of India has employed constitutional conventions, and recognized them for that purpose. For example, the Court has employed conventions to understand the meaning of the text of the Constitution.^61 But the Court has gone much further still. In the famous Second Judges Case , the Supreme Court of India considered the process for transferring and appointing judges to the Supreme Court and High Court. The Constitution of India requires the executive to “consult” with the Chief Justice of India on judicial appointments. The issue was whether the Chief Justice would have “primacy” in these matters, such that her consent would be essential for appointments. To resolve this issue, the Supreme Court thought it should fill “gaps” in the constitution by “reading in” conventions.^62 This language of “reading in” conventions may suggest that the Court is talking about employing conventions for the interpretation of legal provisions.^63 We explained earlier that conventions are often central to the interpretation of codified Constitutions. Understanding the implied meaning of the Constitution will often require judges to understand the conventions which the constitutional drafters took for granted. Among Commonwealth (^60) Adam M. Dodek, Courting Constitutional Danger: Constitutional Conventions and the Legacy of the Patriation Reference , 54 SUP. CT. L. REV. (2d) 117, 129 - 30 (2011). (^61) A.G. NOORANI, CONSTITUTIONAL QUESTIONS AND CITIZENS’ RIGHTS at s. I, Pt. 6 (2006). (^62) Second Judges Case , supra note 11 , at para. 456. To be clear, the conventions in question are not interpretive conventions such as the presumption against retrospectivity. (^63) See infra Subsection II.B.1.
