1982 Canadian Charter of Rights and Freedoms - Assignment Example

Question one: What is the ‘notwithstanding clause’ and should it be removed from the 1982 Canadian Charter ofRights and Freedoms? The notwithstanding clause existing in section thirty three of the Canadian charter of human rights has been criticized and caused a lot of controversy. It is worth noting that this clause exists only in the Canadian constitution and not in any other in the world. This clause is so uniquely Canadian and its meaning and application as well as the frequency of its use have been the key points of concern. The Canadian charter is a document that the people respect because it elaborates the rights and freedoms that an individual is entitled to (Leuprecht 369). The charter is a constituent of the supreme law. Section two of the charter tackles fundamental freedoms while section seven to fourteen tackles the legal rights of an individual. Section 15 elaborates the equality rights. Before the notwithstanding clause came into place, the judiciary had the authority to make court rulings based on interpretations and understanding of the sections. However, some members in the legislature felt that this would grant the judicial system the authority to analyze critically what they did in parliament. The legislators have the core responsibility of coming up with laws that govern the people. They raised a concern that the judicial system would exercise unnecessary power on them when the laws they made did not respect all the sections in the charter. It was at that critical point that the notwithstanding clause came in. The clause gives the legislators the room to override some of the sections of the charter (Leuprecht 370). The notwithstanding clause allows the legislators to make laws that contradict section two, and seven to fifteen. This means that legislators can violate the rights and freedoms of the citizens as long as they declare that the law is subject to revision in five years. However, the notwithstanding clause applies to section two and seven through fifteen of the charter. The clause has given rise to much controversy because some people suggest that people will not enjoy their rights and freedoms (Leuprecht 379). However, it is worth noting that the clause has been applied only once by the Quebec province when the legislator chose to override their right to expression and their right to equality. The clause applies on rare occasions but there is fear among some people that even those rare cases may bring about devastating effects to the people. The clause also allows the legislators to revise the charter of rights and freedoms. However, the decision to do so depends on stringent conditions of a majority of seven out of the ten province legislators to support the idea. Some Canadian citizens view the clause as a way of the legislators to accord themselves power to override their rights. In addition, some of them feel that the clause should no longer exist. Legislators argue in their defense and claim that its presence in the charter does not mean they will abuse it. There is a possibility of abuse as many critics argue. There is no guarantee that legislators will not use the clause to their advantage. Another section of the charter allows the Canadian citizens to fight for their rights. The charter needs revision and the notwithstanding clause removed. The Canadian people should enjoy their absolute rights without limitations. The clause reduces the people’s democracy because the government overrides their rights and freedoms. The clause does not reflect the view of the international community concerning absolute rights. The charter is subject to change. Since its institution, legislators have changed it twice. The conditions that make any change possible are difficult to attain unless a great majority of legislators want to change it. In addition, the legislators in support of any change in the charter should represent half of the total population. However, a government that realizes the importance of democracy should pay the price of getting it. The override clause creates a barrier for some of the citizens to enjoy their absolute rights. The clause presents a contradiction of the constitution in the constitution. Whether the clause stays or not depends on the decision of the Canadian people. What is ‘coalition government’ and is it on balance preferable to a ‘minority government’ if no single party commands a majority of seats in the legislature? A coalition government is by two parties through a long-term agreement (Cheibub 6). A coalition result when no party manages to get a clear majority in an election. The two parties may choose to compromise on principles and form a mandate that will help them form a government together. It may also result from a natural crisis after an election. Both parties come together to form a majority government. These parties have to be ready to cooperate and compromise for an effective government to exist. The parties must consult broadly with each other concerning interests and find a way to merge the interests for a common goal. A coalition government exercises a lot of scrutiny on policies. This type of government is sensitive to proportionality because the two parties must treat each other as equals. A coalition government is likely to ensure that the people receive broader representation. The fact that two parties are coming together to form the government, presents a broader range of representation. Since the two parties forming the government have different policies, a compromise may be of positive effect to the citizens. The two parties can help each other weigh out the issues that should be a priority in the government (Cheibub 61). This is possible because the legislators from both parties can reason and debate diversely without one party having to exercise a control in the government. A coalition government only suffers if conflict arises between the two parties. Sometimes, the parties do not reach point of compromise. Such a case breaks the coalition. For a coalition to work, the two parties must be able to put the interests of the nation their own. For them to reach a compromise, the two parties must give in. A coalition government always must realize that holding onto the mandate is essential for it to survive the test of time. On the other hand, a minority government if formed by one party which does not manage to win a clear majority but takes on leadership of the government. A minority government lacks control over the government and for it must use wise strategies to survive. A minority government faces a great deal of opposition and may lack the capacity to make any policies for lack of support (Cheibub 16). Minority governments are usually not stable. Minority governments only last a short time and face a hard time in policy making. This is because the there must be a lot of negotiation with the opposition parties. The negation does not depend on a formal basis because the parties lack a mandate of compromise. Therefore, a minority government suffers inconsistency and drags pin its activities. In some cases, minority governments prove completely inefficient. Canada ha s had markedly a high number of minority governments. However, coalition governments are not minority governments. The two represent two distinct forms of governing systems. Two parties who work on a compromise of principles, interests, and a written mandate form a coalition government. On the other hand, one party that rules even without a clear majority forms a minority government. A coalition government negotiates formally on all decisions while there are no formal grounds of negotiation in a minority government. A coalition government presents a stable form of governance and if both parties work with dedication, it can be very effective. Compare and contrast the main characteristics of Parliamentary and Presidential systems of government. Which system do you think is more democratic and why? A parliamentary government is a government whereby the legislature makes all the policy and runs the government. The head of government is usually the prime minister who oversees all the activities of the legislature. The parliament makes laws, policies and dictates the government spending. The legislature elects the prime minister who then elects the other ministers. The prime minister rise to power through an indirect election by the legislators, and not voted in by electorates. In addition, the prime minister is subject to scrutiny and a vote of no confidence if does perform efficiently. In some countries, the parliamentary government has two different chambers and this is the bicameral system. In some countries, there is only house. The legislative and executive units are dependent on each other in parliamentary system. The prime minister who heads the executive unit and the cabinet under him must ensure that they win unfailing support from the legislators (Malcolmson and Myers 7). Lack of constant support and approval from the legislature makes the government fall. In a parliamentary government, the president performs only the roles of the head of state. In this case, the president usually has ceremonial powers. Election of the president is the role of designated body. In most cases, the leader of the majority party assumes the post of the prime minister. On the other hand, in a presidential government, the legislation and executive are distinct units. The president heads the executive and can implement policies without dependence on the legislature. The president enters power through a presidential election. He is the boss to the executive, the highest order of the state and rules until expiration of a constitutionally determined parliament. The power of the legislature cannot get the president off his post (Cheibub 34). The president has the power to make ministerial appointments. The ministers are part of the legislature. The president oversees the activities of the ministers. In this form of governance, fragmentation does not exist. The government is rather solid. The legislature performs the sole role of making laws. A parliamentary government presents a higher degree of democracy (Malcolmson and Myers 50). There is fragmentation of power between the legislature and the executive unit. There is a broader representation in power. The legislature does not tolerate inefficiency in the prime minister. The prime minister is under constant check. Underperformance leads the prime minister being vote out. Contrary to this, in presidential government, the president is not subject to scrutiny by the legislature. The president can make decisions without earning majority support from the legislators. The president can rise to a dictatorial position because he is not subject to performance check. The executive activities must receive direction from the president. The solidity of a presidential government reduces its democracy. The president has all the powers to run government affairs and make appointments. The house has no authority to contradict the president’s decisions. Some countries have instituted provision of a vote of no confidence when the president proves to abuse power. For example, the unite states president is subject a vote of no confidence from the legislature. However, both systems exist in different countries according to preference. Each country has a constitution that delegates powers in the government. The parliamentary and presidential have different organizations in different countries. Different countries elect the prime ministers differently. In conclusion, the notwithstanding clause in the Canadian constitution has brought a lot of controversy. Some citizens argue that it limits their democracy. On a different note, coalition governments and minority governments differ distinctly. Coalition governments have their basis on compromise between two parties that lack a clear majority. Minority governments result from one party which rules despite lack of clear majority. Finally, Parliamentary and presidential governments have different power checks and organization. In presidential systems, the president is the chief in both legislation and execution. On the other hand, in a parliamentary system, presidential powers are only ceremonial. Work Cited Cheibub, Jose. Presidentialism, Parliamentarism, and democracy. Cambridge: Cambridge University Press, 2007. Print. Leuprecht, Christian. Essential Readings in Canadian Constitutional Politics. Toronto: University of Toronto Press, 2011. Print. Malcolmson, Patrick and Myers, Richard. The Canadian Regime: An Introduction to Parliamentary Government in Canada. Toronto: University of Toronto Press, 2009. Print. Read More