UTP » Chapter 13

Chapter 13: The Rule of Law in Practice: The Justice System

Chapter Summary Self-Study Questions Something to Consider Key Terms Case Studies Resources

CHAPTER SUMMARY

A persistent theme of this text has been the development of a society in which, rightly or wrongly, the impartial rule of law has replaced the rule of persons. This chapter presents a series of discussions on related topics, beginning with the nature of law, where it is located, and the presentation of a small Act. The process by which public law (that which affects everyone) is made has become relatively standardized, involving stages—presentation, debate, amendment, and decision—that make up the legislative process.

By contrast, direct democracy offers opportunities for ordinary citizens to partake in law making, to reject a law, or to recall their legislator. The fine points of the various instruments of direct democracy and the frequency with which they are employed in various regimes (and at various levels of the state) are examined.

The application of law to individual cases (private law) is divided into two traditions: the common-law tradition of the Anglo-American countries and the civil-law practices that are predominate in the rest of the world. This distinction is also reflected in the treatment of administrative law (the authority that is delegated to public servants by legislation): appeals from bureaucratic decisions are made to administrative tribunals in common-law regimes, to specialized courts in civil-law regimes.

This chapter also looks at the various ways that courts are structured in democratic regimes, with a distinction between courts of first instance, which may or may not be specialized, and courts of appeal. The political role of the courts is enhanced in those regimes in which citizens may challenge the constitutionality of policy decisions, and nowhere is this more true than in regimes that present a constitutional statement of citizens’ rights. Judicial review of policy is now possible in most regimes, but the scope of the decisions available to the courts varies according to the mandate given to the courts by the constitution.

SELF-STUDY QUESTIONS

Multiple Choice

(Answer key below)

1. Which of the following are rights that are said to be entrenched?

a. Especially old rights
b. Rights based on considerable precedent
c. Rights defined by the written constitution
d. None of the above

2. A substantive legal principle deals with which of the following?

a. How the law is made
b. What the law concerns
c. Who makes the law
d. None of the above

3. Which of the following is a common criticism of referendums?

a. They allow for too much compromise and nuance in debate
b. They can foster a tyranny of the minority
c. They depend on a level of public information that might not exist
d. All of the above

4. Which of the following terms applies to the final stage of a piece of legislation?

a. Law
b. Bill
c. Act
d. None of the above

5. Which of the following is a common supplemental activity for the legislature?

a. Expenditure approval
b. Holding the executive accountable
c. Both
d. Neither

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Short Answer

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SOMETHING TO CONSIDER

1. How does one explain the contrast between the evidence of falling crime rates (in almost all categories), on the one hand, and the popularity of calls by elected officials for more “tough on crime” policies, on the other hand?

2. How is our everyday understanding of the principle of the “rule of law” affected by popular accounts of crimes, as presented in news, dramas, and documentaries?

3. What is the necessary truth contained in the metaphor that “justice is blind”?

KEY TERMS

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CASE STUDIES

PRIVATE MEMBERS’ LEGISLATION
In parliamentary regimes, where the government introduces its legislative proposals (bills) to the legislative chamber in more or less what is expected to be their final form, the legislative role of the private member (not in cabinet), whichever side of the House he or she may sit on, government or opposition, is minimized. This is reinforced by rules reserving bills that involve the dedicated expenditure of public funds to the government, a limited time on the parliamentary calendar for considering non-government bills, and the control of the government over when (or if) the final stage of any bill is brought before the legislative chamber for a determining vote. The number of bills that are introduced by private members and that go on to become law is always a very small proportion of the total legislation generated by a parliament. Of the parliaments in those the countries that follow the Westminster tradition of parliamentary government, the UK Parliament seems the most likely to give passage to private members’ legislation, and Australia’s Parliament the least likely.

By contrast, in the legislatures of the United States, every bill is introduced by a “private” member—there are no government members. Each bill must attract a coalition of support from other members in order to proceed at all and to have any chance of ultimately succeeding. One tactic is to invite other members to be co-sponsors of the bill; obviously the more influential the co-sponsors, the better chance the bill has of passing.

BALANCING PARLIAMENT AND THE COURTS
Canada’s experience of judicial review has taken a number of twists and turns. Following Confederation, the court of final instance for constitutional matters was the Judicial Committee of the Privy Council (JCPC), a panel of senior British judges (Law Lords). The cases it considered were with respect to interpretation of the division of powers between the national and provincial governments as set out in the British North America Act, 1867 (Canada’s original written constitution). In other words, the JCPC (and eventually the Supreme Court of Canada) was limited in the scope of its judicial review to the jurisdictional competence of each level of government, that is, to the following question: “Is the subject matter of this provincial (or federal) legislation something that falls within the jurisdictions assigned by the constitution to the provincial (or federal) governments?” Anything unconstitutional under the division of powers is unconstitutional for that level of government, but could, conceivably, be enacted by the other level of government, within its jurisdiction. It was only with the passage of the Constitution Act, 1982, which included the Canadian Charter of Rights and Freedoms (the Charter), that full judicial review became possible under the Canadian constitution, subject to two provisions not commonly contained in constitutional codes of rights.

The first section of the Charter notes that the rights it contains are subject to reasonable limits, providing that these are made by law and are justifiable in a free and democratic society. If it seems odd to begin a rights code by describing how these rights may be limited, this simply reflects awareness of the reality that all rights, no matter how categorically defined, become subject in practice to some limitation. My freedom of speech does not extend to libel; my freedom of religion will extend much further to beliefs than to actions or practices. The “reasonable limits clause” ensures that the limitations put on Canadians’ rights will be subject to three qualifications: they must be legislated, serve a justifiable purpose (i.e., consistent with freedom and democracy), and be reasonable (which the Supreme Court has defined in terms of proportionality). The Supreme Court has also established that the onus is on the government to demonstrate that the limitations on a right satisfy Section 1, not on the individual challenging the state’s action to prove that the limitations do not satisfy those conditions.

A further concession to parliamentary supremacy is contained in Section 33 of the Charter, known as the “notwithstanding clause.” This section is an example of a legislative override: it permits Canada or any of the provinces to invoke this clause when passing legislation and, by doing so, to make the legislation ineligible for judicial review with respect to specific portions of the Charter. Any Act that passed with the notwithstanding clause is valid for only five years (the maximum length of a parliament) and must then be re-enacted. In this way, a government using the notwithstanding clause to pass an Act will be required to win re-election before it is in a position to renew the Act.

DIRECT DEMOCRACY IN BRITISH COLUMBIA
The only direct-democracy legislation in Canada is British Columbia’s Recall and Initiative Act, which was enacted in 1996. The initiative portion of the Act provides that any registered elector may apply to the electoral authorities for a petition to be issued to support the introduction of a bill (legislative proposal) on a subject that falls within the jurisdiction of the province. Once issued, the petition must collect the signatures of 10 per cent of the registered voters in each of the provincial electoral districts within 90 days. If the petition succeeds in meeting this threshold, it and the draft bill it supports are forwarded to a Committee of the Legislature, which either recommends to the government that the bill be introduced or refers the draft bill to the Chief Electoral Officer for a referendum vote. If, in that referendum, the draft bill receives the support of a majority of the total vote, plus a majority in two-thirds of the province’s electoral districts, the government must introduce the bill at the earliest practicable opportunity.

In April 2010, a petition was issued on a proposal to eliminate a value-added tax (VAT) known as the harmonized sales tax (HST)—“harmonized” because it blended a provincial VAT rate and a federal VAT rate under a common set of rules—and restore the previous sales tax regime consisting of a British Columbia sales tax and a federal goods and services tax. To succeed, the petition needed to attract more than 299,611 signatures. In August 2010, election officials announced that the petition and draft bill, having received 557,383 signatures, would be referred to the Legislature’s Select Standing Committee on Legislative Initiatives. This was the seventh petition to be issued under the Recall and Initiative Act, and the first to receive the required level of support.

In September 2010, the Committee referred the draft bill back to Elections BC for a referendum vote. Under the Recall and Initiative Act, the vote would have been scheduled for September 2011. In the spring of 2011, under pressure to advance the timetable for the vote, the government introduced legislation to hold the vote on the HST question under the terms of the Referendum Act. Under this Act, a simple majority of the votes cast the same way is binding on the government initiating the referendum. The referendum was held as a postal ballot between June and August 2011: the result was that 54.7 per cent voted to extinguish the HST and restore the previously existing sales tax arrangements.

Under the recall provisions of the Recall and Initiative Act, eighteen months after an election, a citizen may apply for a petition to recall their sitting Member of the provincial legislature. To succeed, the petition must obtain the signatures of 40 per cent of the voters registered to vote in the last election and still resident in the electoral district. If the petition succeeds, the Member ceases to hold the seat and a by-election is called within 90 days. (While it is more common for a successful recall petition to lead to a vote on whether or not the Member should lose his or her seat, to be followed in the case of an affirmative vote with a by-election, the threshold of support for a successful petition under the BC process requires a higher level of support than would typically be generated in a by-election.)

As of September 2012, there had been 24 attempts to recall a Member in British Columbia, none of them successful. In 18 cases, the petition was not submitted to Elections BC; in four instances, the required number of signatures was not met; one petition was withdrawn; and in the final case, the Member that the petition sought to recall resigned while the petition was being verified. Arguably, this may be the one time the recall process had its intended effect.

See Elections BC, Referenda / Recall / Initiative, at
www.elections.bc.ca/index.php/referenda-recall-initiative.

RESOURCES

Chapter References

Apple, James G., and Robert P. Deyling. A Primer on the Civil-Law System. Federal Judicial Center. (April 1995) 68 pp. Electronic Copy

Hague, Rod, Martin Harrop, and Shaun Breslin. Comparative Government and Politics. 3rd ed. London: Macmillan, 1992.

Landes, Ronald. The Canadian Polity. 4th ed. Scarborough, ON: Prentice Hall, 1995.

Mezy, M. Comparative Legislatures. Durham, NC: Duke University Press, 1979.

Rawls, John. A Theory of Justice. Cambridge, MA: Harvard University Press, 1971. Electronic copy of excerpts

Russell, Peter, R. Knopff, and F.L. Morton. Federalism and the Charter: Leading Constitutional Decisions. Ottawa: Carleton University Press, 1989.

Online Resources

Listen to 2000 Massey Lectures “The Rights Revolution” by Michael Ignatieff

Listen to 1993 Massey Lectures “Democracy on Trial” by Jean Bethke Elshtain