Ed,
I much enjoyed reading your piece. Twenty-odd years ago we had a
movement called Charter 88 in the UK which called for a Bill of
Rights. We don't have a written Constitution apart from a few
statutory documents scattered throughout our history, starting with
the Magna Charta of 1215 and, since 1959, formal acceptance of the
jurisdiction of the European Court of Human Rights. However, although
the findings of the ECHR have so far been accepted by the British
government, there are many grumbles about it and attempts are made
from time to time to change the underlying written Convention. In
other words we have a sort of Constitution but it has nowhere near
the authority as yours or America's because there are still cultural
differences in notions of justice between us and most of the rest of
Europe. The reason for this is that we proceeded to human rights in a
largely peaceful stepwise fashion during the 19th century whereas
almost every country of Europe had experienced violent changes
starting with the French Revolution of 1789 and largely culminating
in major revolutions almost everywhere in the notorious years around
1848. The results of most of these included written detailed
statements of newly gained human rights in much more detail than the
UK has ever done.
The European Court of Human Rights is free-standing and is not
directly linked to the European Union. However, if ever the EU breaks
up (which I think is highly likely once its smaller offspring, the
Eurozone, does) then I would guess that the UK (and some other
European countries) would restore UK case law superiority over the
decisions of the ECHR (although mainly based on the written law of
the European Convention some case law is added from time to time by
its topmost judicial layer, the Grand Chamber). I think there'll also
be a renewed campaign for a written Constitution of our own.
I've always been in favour of a written Constitution but in the last
few years I've been less enthusiastic. Modern life is changing very
fast. Constitutions (necessarily) are slow to adapt to new
circumstances and dilemmas. Case law (otherwise known as equity law
or common law) is quicker to adapt even though, in any particularly
novel circumstance, case law decisions may wobble this way and that
before settling down into a consensus which is then followed. Case
law can encompass shades of decisions which are more subtle (and
fairer) than written law.
Keith
At 22:56 24/04/2012, you wrote:
Along with the repatriation of the Canadian Constitution, the
Charter of Rights and Freedoms got a lot of attention a few days ago
because it all happened thirty years ago. I was looking through
some ancient stuff I'd written years ago and found the
following. You may or may not find it interesting.
Ed
July 1, 2003,
Canada Day! It was once "Dominion Day", which I still prefer,
perhaps for no better reason than I grew up with it. Yet "Canada
Day" may really be better. "Dominion" suggests that someone is
lording it over us, and that is no longer true.
It was still true when I was a kid in the 1930s and 1940s. Perhaps
no one was lording it over us in terms of telling us what we, as a
nation, could and couldn't do, but the mindset was there. We sang
"God Save the King" before school or movies started, our teachers
made us sing about the glories of the British navy, and we studied
British history on the assumption that Canada had no history without
Britain. It all made those of us whose parents didn't come from the
British Isles feel a little second class.
So much has changed over the past fifty years. Canadians now
willingly and openly recognize their diversity. Whether one's
forebears came from Britain, Central Europe, the Caribbean, Africa,
or Asia doesn't matter. What matters is citizenship. If you have
that, you are guaranteed equality of treatment under the law, and
you are guaranteed equality of access to services available to all
citizens. And your children no longer have to sing about the British
navy keeping the foes at bay unless they want to.
I like to think that the biggest step in recognizing and defining
what it means to be Canadian was the passage of the Canadian Charter
of Rights and Freedoms, Part 1 of the Constitution Act, 1982.
Included among our rights and freedoms as citizens are: freedom of
expression; the right to a democratic government; the right to live
and to seek employment anywhere in Canada; legal rights of persons
accused of crimes; Aboriginal peoples' rights; the right to
equality, including the equality of men and women; the right to use
either of Canada's official languages; the right of French and
English linguistic minorities to an education in their language; and
the protection of Canada's multicultural heritage. If you have ever
traveled in countries whose citizens do not have such rights and
freedoms, you'll recognize their importance.
But many countries have rights and freedoms on paper without a good
system of courts to back them up. Here Canada has been fortunate.
Its courts, based on the British system, have always been good.
Nevertheless, the existence of Constitutionally entrenched rights
and freedoms, and the need to interpret what they mean in particular
circumstances, has greatly raised our court system's profile. That
the legal system is now in a position of some parity with the
political system has caused politicians more than a little
discomfort. They feel and often publicly argue that power has
shifted away from them, thus impairing their ability to do what they
have been elected to do in a democratic society. I don't agree.
Politicians have done some rather awful things in the past, and
there's no guarantee that they wouldn't do them again in future. In
my opinion, any increase in the ability to challenge arbitrary power
is a good thing, and that is what the Charter of Rights and Freedoms
enables us to do.
_______________________________________________
Futurework mailing list
[email protected]
https://lists.uwaterloo.ca/mailman/listinfo/futurework
Keith Hudson, Saltford, England http://allisstatus.wordpress.com
_______________________________________________
Futurework mailing list
[email protected]
https://lists.uwaterloo.ca/mailman/listinfo/futurework
