Introduction
In any constitutional system, the verge between what is allowed and what is prohibited by the Constitution is rather vague. It causes polemics over if the political decisions of the government are constitutional or not, and whether they conform or violate the Constitution. In many present-day constitutional democratic societies, courts play a crucial role in an attempt to resolve constitutional boundary disputes. It is exercised using judicial review. So in this paper, the relations between the Canadian judicial review and parliamentary supremacy are analyzed.
Canadian Parliamentary Supremacy
The point of view of the ongoing polemics is the roles that legislatures and courts play in the dialogue on human rights. This dialogue is democratic because it combines both majoritarian and representative principles which are embodied in democratic legislatures on the one hand and demonstrates respect for individual rights provided by the courts on the other hand. The claims of judicial review are reconciled with those of parliamentary supremacy.
The feature that is considered to be innovative in terms of the parliament-judiciary dialogue is the Notwithstanding Clause. The Notwithstanding Clause is a compromise that was reached in 1982 during the polemics over the new constitution. It reflects the mixed character of the Canadian political system. The written constitutional rights were introduced in 1982; it can be then denoted as an American-style system. As for the British tradition, it can be traced to parliamentary supremacy. The question is if the Charter checks on parliamentary power. Some scholars state that judicial review undermines parliamentary supremacy. It is argued that it enables the citizens to revolt against the existing government.
It is also argued that the Charter shifts power from the officials to the judiciary, and then the courts have the final word. This clause has much in common with the Canadian Bill of Rights. It claims that law “shall operate notwithstanding the Canadian Bill of Rights.” But in the Charter, the rights which could be invalidated are specified (Bilder, 23).
Unlike the British equivalent and the New Zealand one, the Canadian Charter is protected by the Constitution. On its base a provincial legislature or national Parliament may strike down a judicial finding of unconstitutionality; in such a way the supremacy of elected institutions over the courts is preserved.
Judicial review
Judicial review is usually denoted as the power of the judiciary to review the actions of bodies of the public sector if their lawfulness is doubted. It means that a court can annul the acts which it considers incompatible with the existing higher norm. In different jurisdictions, the term separation of powers is interpreted differently. There exist different legal norms. So the scope of judicial review is different in different countries.
“In Canada, there is a provision for the review of legislation by courts, and courts there, like their U.S. counterparts, may decline to apply a national or provincial statute if it violates the provisions of the Canadian Charter of Rights and Freedoms. But Canadian legislation (provincial or national) may be couched in a form that insulates it from this scrutiny-Canadian assemblies may legislate “notwithstanding” the rights in the Charter.” (Bilder, 19).
Like in many constitutional democracies, in Canada there exist two kinds of judicial review – one on administrative acts and the other on the constitutionality of legislation. Both kinds of judicial review serve the concept of the power of law. It means that not only common people but all the governments officials obey the law. If these governments’ officials do something that is prohibited by law, in this case, the courts can nullify their actions.
The first kind of judicial review addresses the acts of the executive branch of power. These days for the legislature it is impossible to analyze every administrative decision. These decisions can for example be concerned with a decision to issue a business license. So many governmental authorities are endowed with administrative powers. If an individual thinks that some governmental authority has somehow exercised its power in any unreasonable way (arbitrary or discriminatory), he/she can bring an action in a court to ask for judicial review. Then the court will review the previous administrative decision.
The other kind of judicial review does not concern the decisions of the executive branch; it is rather about the actions performed by the legislative branch. S. 24 of the Constitution Act, 1982 guarantees the individuals the right to challenge the legislation. This can be viewed as non-conforming with the Constitution. This enables Canadian courts with the power to start judicial review based on the constitutionality of legislation. This kind of judicial review, which is also called “constitutional review”, ensures that legislation does not contradict the Constitution of Canada. Two ways are possible when an act of Parliament can be considered unconstitutional. The first one is when the act is analyzed by a provincial government but the relevant subject matter is under Federal jurisdiction. The second one is when this act somehow violates the Charter of Rights and Freedoms (Gall, 78).
There are some cases when judicial review is being criticized as illegitimate. The reason is that it is considered that judicial review can block some important legislative initiatives. But when a court stops legislation on power grounds, it does not presuppose that the law itself can violate the Constitution. It just means that that very institution that has enacted the law violated the Constitution. So if the public is interested in enacting this legislation then the appropriate governmental institution is allowed to enact this act. But if a court declines legislation and it is based on Charter Grounds, in this case, the content of the law itself violates the Constitution. Then no legislature can enact this law (Waldron, 18).
The response to this criticism is that if a court nullifies legislation violating the Constitution, it enforces the document itself, but not the judicial will.
While courts can strike down legislation that is based on the courts’ reading of the Constitution, these judicial decisions are still not final. Legislatures can respond to the judicial decisions in their way if they do not agree. The constitutional grounds for legislative actions of this kind are constitutional amendments and notwithstanding clause (Section thirty-three of the Canadian Charter of Rights and Freedoms).
Conclusion
It may not always be easy for legislators to see what issues of rights are embedded in a legislative proposal brought before them; it may not always be easy for them to envisage what issues of rights might arise from its subsequent application. So it is useful to have a mechanism that allows citizens to bring these issues to everyone’s attention as they arise. The dialogue between Parliament and courts creates a firm balance between the branches of power. Still, the favor is in parliamentary supremacy. Any enactment of court prefers a meaning compatible with the Bill of Rights to any other meaning.
Works Cited
Bilder, Mary. “The Corporate Origins of Judicial Review.” Yale Law Journal 116.4 (2006).
Gall, Gerald. The Canadian legal system. Toronto carswell, 2004.
Waldron, Jeremy. “The Core of the Case against Judicial Review.” Yale Law Journal 115.6 (2006).