"Emboldened" Judicial Exuberance & The Notwithstanding Clause
I support the use of EVERY written section of the 1867-1982(-85) Constitution Acts because EVERY provision is written and EVERY provision is/was included for a reason.
No one questioned the 'legality' when Myron Baloney asked the Governor General to ask the Queen if they agreed that he should use s. 26 from the BNA Act to add Senators to pass his administration's GST Bill through the Senate - there was some political fallout, but no one could question the PM's entitlement to use the provision in a situation that the constitutional 'drafters' had (IMHO, obviously) already envisioned.
The notwithstanding clause was included in the 1982 revisions as an integral part of the Charter of Rights and Freedoms.
My reading informs me that some Premiers at the conference thought that without it, their legislatures would become subservient to the courts of Law.
They thought that some of the Fundamental Freedoms in section 2 & some of the Legal & Equality Rights in sections 7 through 15 might get "developed" or "expanded" or "interpreted" by an "emboldened" Court and they wanted a way to retain ultimate decision-making within the Legislatures/ Parliaments/ Assemblies.
The reluctant Premiers had read the "other" condition (s.1) included in the Charter and thought ahead to the moment when an existing law (to expand or restrict controls over some Canadian activity) would be struck down by the provisions of section 1 and the Premiers wanted a way to over-rule or veto that Court decision (an elected double-check on the appointed Court).
Thus the "notwithstanding clause" was the compromise solution - an elected Assembly/ Legislature/ Parliament were empowered to make laws in direct contradiction/ defiance of the Charter's sections 2 & 7-15, but the 'defying' law had to have a five year sunset clause - it would automatically expire unless renewed by a new vote.
So, if a majority of the members of a Canadian Assembly/ Legislature/ Parliament decides that the notwithstanding clause's provisions are appropriate to countermand a decision/ interpretation of the Courts, we should not cast aspersions upon those elected representatives, but look at these "2 over-riding conditions" embedded in the laws outlining our Constitutional Rights.
We should also stand in appreciation of the prescience of the "reluctant Premiers", who foresaw the potential for 'extremely rational' exuberance within the Courts ( legal power corrupts lawmakers too) and inserted a double-check on the (hubris & and private agendas of the) human beings that would occupy the powerful positions in these Courts
No one questioned the 'legality' when Myron Baloney asked the Governor General to ask the Queen if they agreed that he should use s. 26 from the BNA Act to add Senators to pass his administration's GST Bill through the Senate - there was some political fallout, but no one could question the PM's entitlement to use the provision in a situation that the constitutional 'drafters' had (IMHO, obviously) already envisioned.
The notwithstanding clause was included in the 1982 revisions as an integral part of the Charter of Rights and Freedoms.
My reading informs me that some Premiers at the conference thought that without it, their legislatures would become subservient to the courts of Law.
They thought that some of the Fundamental Freedoms in section 2 & some of the Legal & Equality Rights in sections 7 through 15 might get "developed" or "expanded" or "interpreted" by an "emboldened" Court and they wanted a way to retain ultimate decision-making within the Legislatures/ Parliaments/ Assemblies.
The reluctant Premiers had read the "other" condition (s.1) included in the Charter and thought ahead to the moment when an existing law (to expand or restrict controls over some Canadian activity) would be struck down by the provisions of section 1 and the Premiers wanted a way to over-rule or veto that Court decision (an elected double-check on the appointed Court).
Thus the "notwithstanding clause" was the compromise solution - an elected Assembly/ Legislature/ Parliament were empowered to make laws in direct contradiction/ defiance of the Charter's sections 2 & 7-15, but the 'defying' law had to have a five year sunset clause - it would automatically expire unless renewed by a new vote.
So, if a majority of the members of a Canadian Assembly/ Legislature/ Parliament decides that the notwithstanding clause's provisions are appropriate to countermand a decision/ interpretation of the Courts, we should not cast aspersions upon those elected representatives, but look at these "2 over-riding conditions" embedded in the laws outlining our Constitutional Rights.
We should also stand in appreciation of the prescience of the "reluctant Premiers", who foresaw the potential for 'extremely rational' exuberance within the Courts ( legal power corrupts lawmakers too) and inserted a double-check on the (hubris & and private agendas of the) human beings that would occupy the powerful positions in these Courts
posted by Walk a Kb or Two in my cassins | 7:30 am
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