POSC 1000Introduction to Politics

Formal Institutions, Constitutions and the “Rule of Law”

Russell Alan Williams

Formal Institutions, Constitutions & the “Rule of Law” (Nov 18)

Required Reading: Mintz, Chapter 12 & 13.

Outline:1. Introduction2. The Canadian Constitution3. Canadian Charter of Rights and Freedoms4. Assessing the Constitution5. Formal Institutions6. Unitary Systems7. Federal Systems

November 18th 2011 8:00pm Starting at The Rob Roy

Price: $10.00 – Includes admission and T-shirt

Permission Slips Available at Political Science Department Office

Pub Crawl Drink Specials and Games

1) Introduction:“Constitution”: Fundamental rules/principles by which a state is governed

Determines:• Authority to make laws• Procedure for selecting governments• Rights and freedoms of citizens

“Constitutional Government”: When governments always act in accordance with rules

Some do not . . . .“Rule of Law”

“Constitutions” both written and unwritten

Britain (Unwritten) <---> US/France (Written)

“Constitutional Conventions”: Fundamental principles that are followed even though there is no legal document

May not be legally enforceable• E.g. Role of the prime minister

and cabinet– “regional ministers”

Parliamentary vs. Constitutional supremacy

“Parliamentary Supremacy”: British principle that Parliament is always supreme – can change constitution by majority vote

Written constitutions normally make constitution supreme

• Can only be altered through unique proceduresE.g. U.S. “Flag Burning” Amendment– Requires 2/3 vote in congress and ¾ of

states to ratify – very difficult

Bottom line: Canada’s constitution a mix of various principles

2) The Canadian Constitution:“Constitution Act (1867)”:

Act of British Parliament – The BNA Act = Codified

United Upper and Lower Canada, Nova Scotia and New BrunswickEstablished all major principles governing Canada today

• Other colonies had to accede to these rules after joining

“Constitutional Amendments”: Formal changes to the constitution – many instances in Canada until recently . . .

Statute of Westminster (1931) – Canada becomes sovereign“Letters of Patent” (1949) Canada’s supreme court replaces British JCPC as supreme legal body

• Both “made in Britain” (!)

“Constitution Act (1982)”: Act which “patriated” the Constitution

Brought Constitution fully under Canadian control

Controversy: Seemed to require the consent of the provinces and a new amendment system

Politically difficult – no existing amendment formula

• Quebec alone in not agreeing to new constitution– Quebec lost “veto”???

• Supreme Court said 9 of 10 provinces was enough to ratify new constitution

– Quebec?

“Constitution Act (1982)”

Consists of:

Same general provisions as 1867• E.g. separation of powers between provinces

and federal government

Inclusion of new codified rules• Elections Act• Supreme Court Act• New “Charter of Rights and Freedoms”

Amendment: Mixed principles

a) Unwritten conventions = Can be changed through majority votes in HOC

• E.g. Paul Martin Non-confidences vote (2005)

b) Provisions relating to operations of parliament = Majority votes in HOC and Senate

• E.g. Changes to electoral system/apportionment

c) General constitutional principles????• E.g. Division of powers = Requires general amending

formula

• In theory: Parliamentary majority + 2/3 of provinces

(with ½ pop)

• In practice – post 1996: Same rules, but now each region has a veto

(Quebec, Ontario, Parries, Atlantic Provinces, BC)

Amendment in practice – Attempts to “fix” the constitution

“Meech Lake Accord (1987)”: Attempt to bring Quebec into constitution

Quebec a “distinct society” and gets additional powers• Constitutional veto (Same for all provinces)• 3 of 9 supreme court justices

Not ratified – Clyde Wells (NL) . . . .

“Charlottetown Accord (1992)”: Second try at reformSimilar to Meech lake but also:

• “Triple E” Senate• Recognition of Aboriginal Self Government• Social Charter/Canada Clause

Defeated in Referendum

Referendum:

Implications: -> Current amending formula a compromise-> Increased role for courts = Clarity Act (1998)

Province Yes No Voter Turnout

Newfoundland 63.2 36.8 53.3

Nova Scotia 48.8 51.2 67.8

Prince Edward Island 73.9 26.1 70.5

New Brunswick 61.8 38.2 72.2

Quebec 43.3 56.7 82.8

Ontario 50.1 49.9 71.9

Manitoba 38.4 61.6 70.6

Saskatchewan 44.7 55.3 68.7

Alberta 39.8 60.2 72.6

British Columbia 31.7 68.3 76.7

Northwest Territories 61.3 38.7 70.4

Yukon 43.7 56.3 70.0

Federal Totals 45.7 54.3 71.8

3)Canadian Charter of Rights & Freedoms:

Outside of Britain and “dominions”, most constitutions specify rights of citizens

Constitution Act (1982) gave Canada an “American-style” bill of rights

=“Charter of Rights and Freedoms”Provisions superior to ordinary legislationCourts can “strike down” laws that violate Charter• Federal and Provincial Governments

Provisions:Fundamental Rights (Sec 2)Democratic Rights (Sec 3 to 5)Mobility and basic legal rights (Sec 6-14)Equality Rights (Sec 15)Language Rights (Sec 16-23)

Omissions?No “positive rights”

• E.g. Right to education, employment etc.– Charter is very liberal

No private property rights

Limits on the Charter:

“Reasonable Limits Clause”: Gov’t can place some limits on Charter rights provided they can be justified in a free and democratic society.

“Notwithstanding Clause”: Gov’ts can override Charter-based court rulings “notwithstanding” the Charter.

Requires majority vote5 Year limit – must be renewed regularly

Impact of the Charter:

“Judicial Activism”:

Positive: Courts active in invalidating laws which violate the Constitution

Or,

Negative: Courts making new laws(!)• Interpretation of Constitution/Charter “evolving”• Courts replace politics in defining rights

= The “Court Party”

-Charter has increased activism

Example – Abortion legalized:

1969: Section 287 Criminal Code - Criminal offence to “procure a miscarriage”Only allowed if Doctor says it is medically necessary

1982: Charter, Section 7: "Everyone has the right to life, liberty and security of the person

and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

Court Decision: "Forcing a woman by threat of criminal sanction to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and this a violation of her security of the person."

Section 287 “struck down”

Parliament failed to implement Notwithstanding Clause and failed to write a new law

Abortion effectively legalized . . . .

Why? Too divisive?

Struggle moved outside of political process (E.g. Abortion clinics)

Example – Language Rights:

Quebec’s “Bill 101”: Requires all public signs had to be exclusively in French

1988: Supreme Court rules that law violates CharterExclusivity is not reasonable

1988: Quebec uses Notwithstanding ClauseEmbarrassing! “Language Police”

1993: Quebec changes law rather then passing Notwithstanding Clause

Example – Marriage:

Pre 2003: Existing law limited marriage to heterosexual couples

Though marital benefits sometimes available . . . .Federal marriage law, but provincial marriage licenses (?)

2003: ON/BC/PQ courts say heterosexual limitation violates Charter

Equality Rights (Sec 15)

Parliament introduces motion affirming traditional marriage ". . . the union of one man and one woman to the exclusion of all others."

• Defeated 137-132

Liberal Gov. drafts new law supporting same sex marriage• Refers it to Supreme Court - asks court to say the law

is necessary

Example – Marriage:Meanwhile . . . . Provinces are confused . . . .

Many begin to issue marriage licensesAlberta threatens Notwithstanding Clause

• Suggests national referendum

Example – Marriage:

2005: Federal “Civil Marriage Act”Recognizes Same Sex Marriage

Implications:Majority of public did not support same sex marriageHowever, public also does not support violation of the Charter

Result:Politicians hide from issue?

Judicial activism resolves issue?

4) Assessing the Constitution:Canadian Constitution has become:

More clearly codifiedMore politically important – significant judicalization of politics• E.g. Charter Cases

Basic Questions - Constitutional amendment and rules for succession

Impact on “Parliamentary Supremacy”?

However, constitutions still mixed – many unwritten (and unenforceable?) conventions

5) Formal Institutions:Governing system:

Different basic political structures

All states have central and local/regional governments

• But . . . Powers of local/regional governments vary

• Determined by constitutions

Question: How do different governments relate with one another?

Is the central government “supreme”Are there power struggles?

6) Unitary Systems:“Unitary Systems”: When authority rests with

central governmentLocal/regional governments very weak

Examples?Iceland, New Zealand, Netherlands, JapanBritain?

Benefits?Uniform national policies

• Local authorities do what they are toldEfficiencyMobility

“Unitary Systems”

Drawbacks:

Poor at keeping unhappy regions/groups satisfiedE.g. Britain – Northern Ireland, Wales and

Scotland

=“DevolutionDevolution”: When central government grants law making/administrative power to regional governments• Response to violent nationalism and

secessionism

• Devolution becoming more common

7) Federal Systems:

“Federal Systems”: Authority is divided between two levels of government

Sovereignty divided

Examples: U.S., Canada, Australia and GermanyLocal/regional governments have own constitutionally-defined powers

• “States”, “Provinces”, “Lander”Powers cannot be changed without their consent

= “Division of Powers” in Canada

Types of federalism:

“Classical Federalism”: Levels of government do not infringe on each others rights

“Cooperative Federalism”: Levels of Government are jointly involved in administering many programs

• E.g. Canadian Health Care

Responds to constitutions being out of date but hard to amend . . . .

“Asymmetrical Federalism”: Version in which states/provinces do not all have same powers

Some have more jurisdiction then others • E.g. Meech Lake Accord. . .

Benefits?Regional accommodation!

Problems?Inefficiency – duplication of servicesMobility problemsUneven policies . . . Some provinces have more $$$$$$$ than others . . . .

Finacial challenges of Canadian federalism:Federal Gov’t has most of the moneyProvinces have most of the spending responsibilities

Federal Gov’t “transfers” money to provinces1. General CHST transfers to support programs2. “Equalization Payments”: Additional transfers

to provinces that lack tax base to afford equivalent programs to better off provinces• Principle of Constitution Act (1982)• Transfers to “have not” provinces

Finacial challenges of Canadian federalism:

Example – NewfoundlandNL Gov’t Revenue comes from:• Provincial taxes

+CHST+Equalization+Oil Revenue (Atlantic Accord)=$$$$$$$

NL briefly had more revenue per person than any province in Canada

• However . . . New program 2007(!)

NL PE NS NB QC MB SK BC TOTAL

2006-07 632 291 1,386 1,451 5,539 1,709 13 260 11,281

2007-08 477 294 1,308 1,477 7,160 1,826 226 0 12,768

2008-09 197 310 1,294 1,492 7,622 2,003 0 0 12,918

For next time:Unit Ten: Parliamentary and

Presidential Systems

Required Reading: Mintz, Chapters 14 & 15.