1.6 Non-Legal Rules: Convention and Custom

(a) Conventions — non-legal rules of constitutional behaviour, enforced by politics, not courts. Dicey: conventions ensure the legal machinery works as the electorate expects; their breach is a political, not a legal, wrong. Nepali examples: The President acts on the advice and recommendation of the Council of Ministers — Article 66(2) now writes this into the text, but the practice predates and surrounds it; consultative practice in high appointments; the all-party-consensus tradition on major constitutional questions; the caretaker convention — a government that has lost confidence carries on routine business only until the next government is formed. How to tell law from convention (exam favourite): the test is enforcement — a court will apply a legal rule; a convention's sanction is public opinion, Parliament or resignation. Custom: long-standing practice hardening into law — parliamentary practice, ceremonial usage, and the customary institutions the constitution itself recognises (the guthi tradition's echoes). Custom differs from convention in origin (long usage vs. understood expectation) but both are non-legal until a text or a court absorbs them.