Constitutionalism & The Rule of Law PDF

CONSTITUTIONALISM & The RULE OF LAW  CONSTITUTIONALISM 1. WHAT IS A CONSTITUTION? 2. TYPES OF CONSTITUTIONS Written Unwritten Hybrid 3. THE RULE OF LAW  WHAT IS A CONSTITUTION? ‘a set of fundamental rules and prin...

CONSTITUTIONALISM & The RULE OF LAW  CONSTITUTIONALISM 1. WHAT IS A CONSTITUTION? 2. TYPES OF CONSTITUTIONS Written Unwritten Hybrid 3. THE RULE OF LAW  WHAT IS A CONSTITUTION? ‘a set of fundamental rules and principles by which a state is organized’ 1. Establish the powers of the branches of government; legislative, executive & judicial 2. Allocate powers to levels of governments; federal, provincial, local 3. Enumerate rights 4. Establish an amendment procedure for the constitution 5. Includes constitutional customs & conventions (e.g. party with majority legislative support is entrusted to form government)  TYPES OF CONSTITUTIONS 1. Unwritten 2. Written 3. Hybrid  TYPES OF CONSTITUTIONS Unwritten - e.g. Great Britain, New Zealand Uncodified Not in a code or single document (legislation, common law, customs) British constitution ‒ Magna Carta 1215 ‒ Bill of Rights 1688 ‒ Act of Settlement 1701 – royal succession, judicial independence ‒ Parliament Act 1911 – restrictions on powers of the House of Lords ‒…  TYPES OF CONSTITUTIONS Written - e.g. United States Specifies ‒ Powers of the legislative, executive and judiciary ‒ Powers of the states and the federal government ‒ Bill of Rights (1791): the first 10 amendments] ‒ Amendments require a 2/3 majority in both houses of Congress + 3/4 of the states (only 27 times – 17 excluding the original Bill of Rights)  TYPES OF CONSTITUTIONS Written - e.g. United States (cont’d) Constitutional changes have occurred primarily through judicial interpretation. ‒ Marbury v Madison (1803) - power to rule on the constitutionality of legislation ‒ Plessey v Ferguson (1896) ‒ Brown v Board of Education (1954)  TYPES OF CONSTITUTIONS Hybrid = Written + Unwritten ( e.g. Canada) Written Components ‒ Constitution Act 1867 (BNA Act) Specifies powers of provinces, the legislative, executive and judicial branches Manitoba, Alberta, Saskatchewan Acts, the BC Terms of Union ‒ Statute of Westminster 1931  TYPES OF CONSTITUTIONS Hybrid = Written + Unwritten ( e.g. Canada) (cont’d) ‒ Constitution Act 1982 Lists statutes and orders in council that have constitutional status Charter of Rights and Freedoms (CCRF) Amendment formula Aboriginal rights, natural resources  TYPES OF CONSTITUTIONS Hybrid = Written + Unwritten ( e.g. Canada) (cont’d) Unwritten Components ‒ Uncodified ‒ Judicial Decisions ‒ Constitutional customs and conventions CA 1867 preamble “a Constitution similar in principle to that of the United Kingdom” Appointment of PM & Cabinet (not mentioned in CA 1867), need to maintain the support or ‘confidence’ of the House of Commons etc.  THE RULE OF LAW Effective limitation of the powers of government Included in ‘the rule of law’ - the rule of law, not people Maintenance of law and order Equality under the law – no one is above the law ‒ Magna Carta  THE RULE OF LAW No punishment without law ‒ No punishment except for breach of established law ‒ No secret or retroactive laws Limited discretion/no arbitrariness ‒ Remedy available if arbitrariness occurs Recognized procedures ‒ For making and applying laws  THE RULE OF LAW Challenges to failures of the Rule of Law Suffragists, BLM, Gandhi, Mandela, MLK Jr… Protests ‒ Demonstrations, marches, sit-ins ‒ Boycotts ‒ Strikes Civil Disobedience ‒ Disobeying particular laws while submitting to the authority of law - legal consequences/penalties ‒ Effective vs systems founded on principles of constitutionalism ‒ Limited effectiveness in autocratic systems (e.g. Hong Kong) Cases remedying violations of Rule of Law THE RULE OF LAW Roncarelli v Duplessis (1959) ‒ Religious discrimination vs JWs Wrongful convictions ‒ Donald Marshall (1983) ‒ David Milgaard (1992) ‒ Guy-Paul Morin (1995) Government recognition of failures to respect the rule of law ‒ Indigenous Peoples in Canada ‒ Japanese Canadians