WEEKLY COMMENTARY
"Just
Between Us"
August 18,
2003
The
constitution belongs neither to Parliament nor to the courts - it
belongs to the people
According to an
Ipsos-Reid poll released August 11, 71% of Canadians believe that
only elected people should "make laws," and 77% think that
judges should be allowed to change them.
Hold on. To
overturn an old law is to make a new law. To enunciate a new legal
right is to initiate and define new legislation. Which, of course, is
what judges do quite regularly now in Canada under the Charter of Rights.
So how can we want
the authorities we elect, and those we don't elect, both to be in
ultimate control of legislation?
Is it because we
trust authoritarian government, and want as many authorities as
possible writing and rewriting our laws, and bossing everyone around?
I doubt it. I
think it's the opposite. We don't trust either Parliament or the courts.
We want our
law-making to be democratic, but we so detest the party system in our
legislatures we don't trust politicians to do the right thing.
At the same time
we notice that our Charter-changing judges are just politicians
themselves nowadays. The only difference is that we don't pick them,
the Prime Minister does. But they are politicians nonetheless,
because they do what politicians do: they legislate and they campaign.
For example, when
Chief Justice Beverley McLachlin (aka Queen Bee) isn't busy
legislating voting rights for incarcerated criminals, or new
expression rights for pedophile pornographers, she is on the campaign
trail. It takes her stumping around to the Canadian Club in Toronto
for a speech, and an off-the-record chat with the editorial board of
the Montreal Gazette.
Judges never used
to carry on like this, but they do now.
In fact, the point
of her latest political campaign is to demand that Parliament not
democratize the appointment of judges. Except that HER political
circuit doesn't include voters, only the elites upon whom she depends
for status and support. So she can be selective. Canadian Club, yes.
Prominent editorial boards, okay. Carstairs Ag Society, no.
Canadians see
their new system of government for what it is. In a May Ipsos-Reid
poll, 66% said they think the Supreme Court is driven by politics.
The pollster commented that people are unhappy about the ideology of
judges and the way they are chosen.
But if neither
parliamentarians nor judges can be trusted with ultimate legislative
and constitutional authority, who can?
In Canada we have
gone from the old British system of Parliamentary supremacy to the
American system of judicial supremacy, and we no longer want either
one. Too many of our parliamentarians have become boot-licking
partisan flunkies, and too many judges despise the values of the citizenry.
There is, however,
a third system. Public supremacy. This is the Swiss system, and it
works where multilingual, diverse groups of people (like Canadians)
have learned to tolerate almost anything that doesn't actually hurt them.
In Switzerland the
courts may not strike down or even review any federal law. But if
50,000 Swiss citizens sign a constitutional petition, that law goes
to a referendum. Then the voters decide.
Swiss
constitutional authority lives in the cantons, conversations and
consciences of the Swiss people. And it is the most tolerant, most
diverse, most democratic and most prosperous nation in Europe. Some
would say on earth.
We Canadians
should emulate their example. It suits us.
- Link Byfield
Link Byfield is
chairman of the Edmonton-based Citizens Centre for Freedom and Democracy.
"Just
Between Us" is a feature service of the Citizens Centre for
Freedom and Democracy. The purpose of the Citizens Centre is to
improve the quality of life for all Canadians by promoting policies
that foster individual initiative and personal responsibility.
