POSC 1000
Introduction 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.
2.
3.
4.
5.
6.
7.
Introduction
The Canadian Constitution
Canadian Charter of Rights and Freedoms
Assessing the Constitution
Formal Institutions
Unitary Systems
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 procedures
E.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 Brunswick
Established 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 reform
Similar to Meech lake but also:
• “Triple E” Senate
• Recognition of Aboriginal Self Government
• Social Charter/Canada Clause
Defeated in Referendum
Referendum:
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
Implications: -> Current amending formula a compromise
-> Increased role for courts = Clarity Act (1998)
3)Canadian Charter of Rights & Freedoms:
Outside of Britain and “dominions”, most
constitutions specify rights of citizens
Constitution Act (1982) gave Canada an “Americanstyle” bill of rights
=“Charter of Rights and Freedoms”
Provisions superior to ordinary legislation
Courts 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 vote
5 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 Charter
Exclusivity is not reasonable
1988:
Quebec uses Notwithstanding Clause
Embarrassing! “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 licenses
Alberta 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 marriage
However, 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 codified
More 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
government
Local/regional governments very weak
Examples?
Iceland, New Zealand, Netherlands, Japan
Britain?
Benefits?
Uniform national policies
• Local authorities do what they are told
Efficiency
Mobility
“Unitary Systems”
Drawbacks:
Poor at keeping unhappy regions/groups satisfied
E.g. Britain – Northern Ireland, Wales and Scotland
=“Devolution”: 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 Germany
Local/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 services
Mobility problems
Uneven policies . . . Some provinces have more
$$$$$$$ than others . . . .
Finacial challenges of Canadian federalism:
Federal Gov’t has most of the money
Provinces have most of the spending responsibilities
Federal Gov’t “transfers” money to provinces
1.
2.
General CHST transfers to support programs
“Equalization Payments”: Additional transfers to
provinces that lack tax base to afford equivalent
programs to better off provinces
• Principle of Constitution Act (1982)
• Transfers to “have not” provinces
Finacial challenges of Canadian federalism:
Example – Newfoundland
NL Gov’t Revenue comes from:
•
Provincial taxes
+CHST
+Equalization
+Oil Revenue (Atlantic Accord)
=$$$$$$$
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.