The Principle of Parliamentary Supremacy within the Canadian Constitutional System - Essay Example

Canadian Politics: The Principle of Parliamentary Supremacy Within the Canadian Constitutional System The Constitution of Canada is the supreme lawin Canada, and it is an amalgam of codified acts and uncodified traditions and conventions. The Constitution of Canada is what truly outlines Canada’s system of government as a whole, as well as the civil rights of all Canadian citizens. There is a lengthy and complex history behind the constitutional system of Canada, and in fact, the colony of Canada received its first full constitution in the Constitutional Act of 1791, of which was what established much of the actual composition of the government in general. Of course, with the introduction of the Canada Act and the accompanying Charter, much of the constitutional law in Canada has changed, as the Charter has shifted the focus of the Constitution to individual and collective rights of the inhabitants of Canada. There are many issues within and in relation to this system which are of great importance and significance. The principle of parliamentary supremacy within the Canadian constitutional system, for instance, is one of these matters, and is in fact considered as being one of the most major and relevant of all. The aim of this paper is to discuss the actual principle of parliamentary supremacy within the Canadian constitutional system, the basic history of the constitutional system itself, as well as any and all other key and related issues. By doing this, we will be able to gain a much more informed and knowledgeable understanding in regards to this subject matter overall. This is what will be dissertated in the following. A country’s constitution is what defines the powers and the limits of powers that can be exercised by the different levels and branches of government, and although there is actually no single constitution in Canadian law, the Constitution Act – a part of the Canada Act of 1982 – finally ‘patriated’ or brought home from Great Britain that of Canada’s constitution as created by the BNA Act. “The Constitution Act declares the Constitution of Canada to be the supreme law of Canada and includes some 30 acts and orders that are part of it. It reaffirms Canada’s dual legal system by stating provinces have exclusive jurisdiction over property and civil rights. It also includes Aboriginal rights, those related to the historical occupancy and use of the land by Aboriginal peoples, treaty rights, agreements between the Crown and particular groups of Aboriginal people” (Department of Justice Canada, 2007). The Canadian Constitution sets out the basic and most definable principles of democratic government in the country when it explains the powers of the three different branches of government, which are: the executive, the legislative and the judicial. “The executive power in Canada is vested in the Queen…The legislative branch is in Parliament, which consists of the House of Commons, the Senate and the Monarch or her representative, the Governor General…and…The role of the judiciary is to interpret and apply the law and the Constitution, and to give impartial judgments in all cases, whether they involve public law, such as a criminal case, or private (civil) law, such as a dispute over a contract” (Department of Justice Canada, 2007). Parliamentary Supremacy is a principle which is used largely within the Canadian constitutional system, and it is one of great importance and significance not only in regards to Canada, but in fact the entire world. Basically Parliamentary Supremacy is considered as being “Parliament’s right to make whatever laws it chooses. It is derived (according to Dicey, originator of the concept) from the popular election of MPs. It may be questioned therefore, whether Europe should usurp it” (Grant, 2000). Furthermore, the principle itself has its origins in the Bill of Rights, and the modern view on the subject of Parliamentary Supremacy has quite largely been shaped by the writings of author John Austin, who considered that “Parliament was the supreme rule-giver, with no legal limitations on its authority” (Grant, 2000). The actual origins of the principle of parliamentary supremacy are rather controversial, as some claim that it was in England where it first originated, in the early 16th century, when the Parliament asserted the supremacy of statute over the church, while others argue that it instead originated in the 17th and 18th centuries when Parliament asserted the right to name and dispose of a monarch. The actual doctrine of Parliamentary Supremacy can in fact be generally summarized in three points, which are as follows: “Parliament can make law concerning anything; no Parliament can bind its successor (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament); and no body except the Parliament can change or reverse a law passed by Parliament” (Wikipedia, 2007). One of the most central and major components of Canada’s government all in all is that of its Parliamentary system, and it is this system which truly frames the overall relationship between Canadian citizens and their political leaders, as well as the way in which the laws are passed, and the organization and the authority of key government positions and institutions. The Parliament of Canada is Canada’s legislative branch, and according to Section 17 of the Constitution Act, 1867, Parliament consists of three components: the Sovereign, the Senate, and the House of Commons. The lower house, which is the House of Commons, is the most dominant branch of the Canadian Parliament overall and the upper house, which is the Senate, rarely opposes the will of the other Chamber. In regards to the composition of the Parliament of Canada, the Queen of Canada (presently Queen Elizabeth II) is one of the three component’s of Parliament. “The monarch’s functions are customarily delegated to the Governor General (presently Michaelle Jean), who is appointed by the Monarch on the advice of the Canadian Prime Minister. Governors General serve at the Queen’s pleasure, but normally for a term of approximately five years. Though the Queen and Governor General have vast powers in theory, they rarely exercise them in practice. Rather, both perform ceremonial duties, most usually exercising political powers only on the advice of the Prime Minister and Cabinet” (Brooks, 2006). The Canadian Parliament remains as being a ‘paradoxical’ actor because the Canadian constitutional mythology of ‘parliamentary supremacy’ seems truly belied by that of the ongoing disappointments of a much lesser ability to exert control or to effect policy change, and this is especially so in regards to more traditionally executive-dominated areas. It is a known fact that Canadian governments, or at least those that have been involved with the usual state of affairs, continue to exercise an at least relatively free hand when it comes to deciding how they see fit and as well to ignore parliamentary advice whenever they choose to. Most governments from time to time will tend to find it useful to seek parliamentary support for their international policy positions. “But on its own, parliamentary participation and advocacy in relation to international issues and objectives may ultimately count for little in determining state actions and budget allocations, notwithstanding substantial evidence of public support for a more engaged internationalism combined with serial episodes of enthusiasm for ‘democratizing’ reforms. Parliamentary and public inputs have generally not had much impact on the organizational means and other instruments of foreign policy implementation” (Grant, 2000). Furthermore, Canada’s parliament in particular has often times been overlooked as being a foreign policy actor, and this is largely because, while its frailties are frequently noted, there is still the fact that its actual work has typically and basically failed to receive much substantive media, or academic, attention. It is now considered, as occurrences have taken place in this regards over time, that not only should we be more careful as to what it is that we wish for, but as well “some also decry what they see as a tendency to substitute increasingly wishful projections of Canadian ideals for genuine debates around the real choices facing policymakers in advancing Canadian interests abroad” (Grant, 2000). This truly goes to show the actual and overall importance of the Parliamentary Supremacy ideal in Canada, as well as how it has been one of the most positive aspects and components within the Canadian constitutional system overall. However one might ask how it is that the theory of democratic accountability through a parliamentary system of government can so easily be discounted when it really comes down to that of the serious business of the state’s official formulation of foreign policy. There are, of course, many faults that lie within the term Parliamentary Supremacy, and for all of these faults, “foreign affairs had entered into parliamentary discussions to a greater and more organized extent than was the case during the supposedly ‘golden age’ of Pearsonian diplomacy. Even so, the verdict of some on this period remains dismissive” (Brooks, 2006). There are many possible effects of this principle which are posed by federalism and the Charter of Rights for instance, and in particular regards to the Charter of Rights, there are many connections which need to be discussed here, and for one, Supremacy of Parliament was actually one of the most main and major characteristics of the British constitution applicable to Canada, and nothing was beyond its capacity to legislate on, as Parliament was legally deemed to have sovereign and uncontrollable authority in regards to the making, amending, and repealing of laws. The Canadian Charter of Rights is a bill of rights which is “entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter guarantees certain political and civil rights of people in Canada from the policies and actions of all levels of government. It is designed to unify Canadians around a set of principles that embody those rights” (Wikipedia, 2007). One of the most notable effects of all of the adoption of the Charter was to greatly expand the overall scope of judicial review, as the Charter is much more explicit and detailed in regards to the respect which it guarantees to the rights and the role of judges in enforcing them than was the Bill of Rights, which preceded it. “The courts, when confronted with violations of Charter rights, have struck down constitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism. However, the Charter granted new powers to the courts to reinforce remedies that are more creative and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada’s mother country the United Kingdom, was based upon nothing else but – Parliamentary Supremacy. Looking back on it all, one can quite easily see that there are many pluses that were often not sustained or were rather offset by certain factors which diminished its impact over the long term, and for example, “the first phase of the review in the summer of 1985 – on whether Canada should embrace Reagan’s Strategic Defense Initiative (SDI, the original ‘Star Wars’), and on whether Canada should enter into bilateral free-trade negotiations with the U.S. (following on the affirmative recommendation of the Macdonald Commission within the Trudeau government had created) – did attract high media/public interest and engagement. Unfortunately that then fell off for the subsequent general review as the most important issues on which government decisions were pending had already been pronounced upon” (Grant, 2000). Responsible government in Canada, under which the executive must have the support of the legislature on major policy matters, appears to have been flushed. The House of Commons, soon to be followed by the Senate, has passed a bill requiring that Canada meet its obligations under the Kyoto Protocol. Unless the government, i.e. the prime minister, advises the Governor General not to sign the bill she will do so and it will become law (there is a digression here--see after the break). It needs to be known by all that as a country, Canada is in the presence of an absurdity under the Westminster system. Parliament (legally the House, the Senate and the Governor General) will have approved a bill that the executive (the Cabinet or, more accurate in current circumstances, the prime minister) will refuse to implement. In other words the executive government will have chosen not to be responsible to the legislature. That will be the de facto end of our constitution, based in this case on the convention of precedent. As I see things the government had no choice but to consider this vote as one of no confidence. It has now lost the confidence of the House on an important issue of policy, without which it has no constitutional ground for remaining in office. Prime Minister Harper should immediately ask the Governor General to dissolve Parliament and call an election. This is not a simple matter of partisan politics; it is a matter of the fundaments of our political reality. So basically, if the prime minister does not act as suggested above he is a renegade in power. Our constitution will have been irrevocably changed. Parliament, as with the Cabinet, will become little but a focus group. There are many different recent developments which have taken place with the issue of Parliamentary Supremacy within Canada, and one of the first things that should be known in this regards is that of how Parliamentary Supremacy is able to prevent judicial review of primary legislation passed by Parliament. However, in the late 20th and 21st centuries, the actual and overall idea of Parliamentary Supremacy underwent an incredible erosion in practice in four directions in particular, which are: “First, the devolution of power to regional assemblies in Scotland (Scottish Parliament), Wales (Welsh Assembly) and Northern Ireland (Northern Ireland Assembly)…Secondly, the institutions of the European Union, in particular the European Court of Justice (ECJ) which asserts the power to exercise judicial review over UK law. In this situation, an adverse finding by the ECJ that a UK law is inconsistent with the EC Treaties automatically annuals the law, since the European Communities Act 1972 ‘ECA’ provides that European Community law is supreme in the United Kingdom…Thirdly, the European Convention on Human Rights and the incorporation by the Human Rights Act 1998 of the European Convention a finding of a breach of Convention rights by the ECHR does not automatically annul the law: in practice, the Government is bound to implement the ECHR’s decisions…Finally, the increasing use of referendums. In reality, a referendum means that the decision whether to pass law is made by the electorate, not Parliament. In the final analysis, Parliament could still reverse a decision made by referendum, but this seems unlikely to ever happen” (Lefroy, 2006). As we have seen from the information and statistics that have been shown here, there is factual proof which can be used to back these opinions, particularly in regards to the sovereignty of Parliamentary Supremacy in Canada. After all, in its constitutional application in Canada, the actual concept of sovereignty is addressed, first, to the specific relations between the different institutions of government, and, in Canadian constitutional law today, the concept of sovereignty instead presents two very distinct and different problems. The first problem is one which relates to that of the actual federal character of the Canadian constitution, as well as the division, and, for these purposes in particular, of constitutional law making competence between the central, federal, and regional government. Then, the second problem is in regards to how there is a continued legal applicability and relevance of the ‘received’ English notion of the sovereignty of Parliament “in an era when, with the enactment of the Canadian Charter of Rights and Freedoms in 1982, the constitutional charter now entrenches certain fundamental, ‘higher law’, principles that are supposed to limit all law-makers” (Lefroy, 2006). From this review we can conclude many things, several which are of particular importance, namely the fact that Parliamentary Supremacy is a principle within the Canadian constitutional system which is absolutely essential and significant, and that the results that are caused from this principle are positive and beneficiary to the constitutional system overall. As well we have been able to see that there are many different effects on this principle that have been posed by different factors, such as federalism, the inclusion of the Charter of Rights, and the inclusion of the Notwithstanding Clause in the Charter of Rights document. The term Parliamentary Supremacy is one of great complexity and it is one which is also quite widespread, however it is certainly becoming much more of an acknowledged issue in Canada, as well as in the rest of the world for that matter. Parliamentary Supremacy is made different in each separate location, and in regards to Canada, as we have seen there are many unique and outstanding differences that lie within the matter. The principle of Parliamentary Supremacy is one which is truly complex and dynamic, and, as has been thoroughly addressed and discussed here, one of great efficiency and effectiveness overall. It is truly one of the most major and significant principles of all within the Canadian constitutional system, and the differences that have been made in regards to it are elaborate and incredible. Works Cited Brooks, Stephen. Canadian Democracy: An Introduction. Toronto: Oxford University Press, 2006. Department of Justice Canada. The Canadian Constitution. 2007. 5 April 2007 http://www.justice.gc.ca/en/dept/pub/just/05.html Grant, George. Lament for a Nation: The Defeat of Canadian Nationalism. Montreal: McGill-Queens University Press, 2000. Lefroy, A. H. F. Canada’s Federal System Being Treatise on Canadian Constitutional Law Under the British North America Act. New York: Lawbook Exchange. Wikipedia. Parliamentary Sovereignty. 2007. 5 April 2007 http://en.wikipedia.org/wiki/Parliamentary_sovereignty Read More