The Constitution And The Courts PDF

THE CONSTITUTION AND THE COURTS #1  Constitution Defined The body of fundamental laws, rules, and practices that defines the basic structure of government, allocates power among governmental institutions, and regulates the relation...

THE CONSTITUTION AND THE COURTS #1  Constitution Defined The body of fundamental laws, rules, and practices that defines the basic structure of government, allocates power among governmental institutions, and regulates the relationship between citizens and the state. Living Document 2  Constitutional Government Liberal democracy is based on the perspective that there should be limits on the power and scope of government, that government should abide by the rule of law, and that the rights of the people should be protected from arbitrary actions by government. In other words, liberal democracy is characterized not only by government elected by the people, but also by constitutional government. #3  Constitutional Government A constitutional government is one wherein the constitution effectively limits the power of the political elite. Thus in a constitutional polity the constitution organizes, but also restraints. 4  Functions of Constitutions To define the structure of major institutions of government To divide powers and duties among the various institutions of government To regulate relations between the citizen and the state To serve as a political symbol To specify a procedure for amending the constitution 5  Origins of Constitutions Revolution Decolonization Aftermath of war Secession 6  Rule of Law The laws governing a society must emanate from a known body according to set procedures. The law applies to everyone, including government officials. It must be possible for an individual to discover what the law is. The law will be enforced by proper courts. 7  Constitutions Written Constitutions: - specific set of documents. (US, Germany, Canada) Unwritten Constitution: - rules based on tradition and conventions. (Great Britain) 8  Constitutional Elements 1. Preamble – Is a political manifesto, setting out the goals and priorities of the government. 2. An organizational chart – Delineates whether the political institutions are to be federal or unitary, presidential or parliamentary in nature. 3. An amending clause – For future revision of the constitution. It specifies who is involved, the nature and kinds of amendments allowed, and the procedures to be utilized. 9  Constitutional Elements (Contd) 4. A bill of rights – Based on the assumption that individuals need extra protection from their own government, as well as actions of their fellow citizens. 10  Mechanisms of Constitutional Change Usages and conventions Judicial review Secession 11  Constitutional Conventions Is a binding rule relating to the exercise of government power that arises through political practice or agreement, but is not a formal law. Crucial parts of many constitutions are ruled by convention. 12  Examples of Conventions 1. The office of Prime Minister, and even the whole cabinet, in Canada are largely unknown in law; they are created and governed by convention. 2. The rule that the cabinet must always have the support of a majority in Parliament is a convention. 3. Who the Governor General appoints as Prime Minister after an election is determined by convention. 13  Main principles of the Canadian Constitution Democracy Federalism Parliamentary (responsible government) Constitutional monarchy Rule of law Judicial review 14  The Canadian Constitution The Canadian constitution can be considered a combination of a variety of elements.  The Constitution Act, 1867 is the core, written element of the constitution.  The Constitution Act, 1982, is an amendment to the Constitution Act, 1867.  Various other legislative statutes and orders-in- council are part of the formal constitution.  As well, constitutional conventions (or customs) that establish important principles that determine the functioning of the system of governing. #5  Basic Provisions of the Canadian Charter of Rights and Freedoms Basic provisions of the Canadian Charter of Rights and Freedoms include the following:  Fundamental freedoms  Democratic rights  Mobility rights  Legal rights  Equality rights  Language rights  Unlike the American Bill of Rights, provisions relating to affirmative action and group rights are included (e.g. multiculturalism) #16 Limits to Rights and Freedoms Rights and freedoms are not absolute. Although certain limitations to freedoms are necessary to avoid harm, the question of how far governments should go in limiting freedoms to protect people from potential harm is often controversial. Constitutional rights and freedoms have been challenged in recent years in many countries by concerns about terrorism. #17  Limits to Rights and Freedoms in the Canadian Charter The reasonable limits clause (Section 1) of the Canadian Charter of Rights and Freedoms explicitly allows for laws to place reasonable limits on rights and freedoms, provided that the limits can be “demonstrably justified in a free and democratic society”. Section 33 of the Charter allows Parliament or a provincial legislature to override some rights by using the notwithstanding clause (only effective for five years, although it can be re- enacted). #9  Amending the Constitution Constitutional amendments are needed from time to time because of changing circumstances and the changing values of a country’s citizens. However, to try to ensure that a government does not change the constitution to gain excessive powers or to take away protected rights, most countries require a higher level of support to change their written constitution than is needed to change an ordinary law. #19 Amending Canada’s Constitution The procedures adopted in 1982 for amending the Constitution Act are complex. The different views on the nature of Canada held by many English-speaking Canadians, French-speaking Quebecers, and Aboriginals have made major changes to Canada’s formal constitution very contentious. With a high level of agreement needed for constitutional changes, it is not surprising that major changes have been difficult to achieve. #20 Amending Formulas Amending Formulas Rigid Flexible 21  Judicial Review In some countries (including Japan, Australia, Italy, and India), the courts have the authority to strike down legislation or governmental actions that violate the constitution. While the power of judicial review was not explicitly stated in the American constitution, or the Constitution Act, 1867, courts in both countries have assumed this role. Even in countries where judicial review exists, the extent of judicial activism varies. #22 The Independence of the Judiciary To ensure that the rule of law is upheld, the judicial system should be independent of government and other influences. Where a court system is not free from political interference, governments and their agents can intimidate the population, and the principle that all persons should be treated fairly and equally by the law is likely to be undermined. #23  Court Systems Court systems are generally hierarchical in nature, with appeals from lower courts heard in higher courts. Canada can be described as having a basically unified court system in that the same court system is used for cases involving most laws under federal or provincial jurisdiction. The United States has a dual or parallel court system in which the vast majority of cases are tried in state courts. In most instances, Federal courts deal with federal law. #24  Legal Systems Common law consists of court judgments that have accumulated over many centuries (used in England and most of the former British colonies). Codified law involves the adoption of a comprehensive system of principles that judges use to determine the outcome of a particular case (used in most countries in continental Europe and Latin America and in Quebec). Sharia law, based on the Quran, the teachings and practices of Mohammed, and Islamic jurisprudence, is used to varying extents in many Muslim countries. #25