The Notwithstanding Clause of the Canadian Charter of Rights and Freedoms. Giving legitimacy to Constitutional Court/Supreme Court decisions

Ich erkläre ehrenwörtlich, dass ich die vorliegende Arbeit selbstständig und ohne fremde Hilfe verfasst, andere als die angegebenen Quellen nicht benutzt und die den Quellen wörtlich oder inhaltlich entnommenen Stellen als solche kenntlich gemacht habe.Die Arbeit wurde bisher in gleicher oder ähnlicher Form keiner anderen inländischen oder ausländischen Prüfungsbehörde vorgelegt und auch noch nicht veröffentlicht.Die vorliegende Fassung entspricht der eingereichten elektronischen Version.Datum Unterschrift B. The 'Canadian way' as answer to legitimise judicial decisions on constitutional matters Conclusion Bibliography 1result a decision of a final court in constitutional matters is inherently lacking democratic legitimacy.On the other hand, in systems without such judicial review minority rights are usually only protected poorly.Neither system seems ideal, although many states after the Second World War decided to opt for the former after going through the atrocities of the war.Having said this, there were some states, that resisted this trend and tried a new path -an intermediate model, that appeared to reconcile rights protection with democratic legitimacy.Stephen Gardbaum compiled a theory on this phenomenon and found that essentially oldCommonwealth countries, such as Canada, New Zealand and Australia, as well as the United Kingdom itself, had diverted from the global trend.According to him, these states are following an intermediate model of constitutionalism because they implemented a unique system of preenactment political rights review linked with a weak post-enactment judicial review.As the title 2 implies, I will focus on Canada, particularly on the notwithstanding clause of the Canadian Charter of Rights and Freedoms.This provision is a unique piece of constitutional design as it enables legislatures to override a court decision on certain Charter rights, although without an obligation to use it.The question I will try to answer in the following pages is, whether or not the notwithstanding clause is a viable tool for facilitating strong rights protection of minorities, while equally curing the lacking democratic legitimacy of final judicial decisions.Therefore, I will first explain the underlying concept, namely weak-form judicial review.For this reason I will elucidate judicial review generally, before illustrating the differences between strongform and weak-form judicial review.Concluding the first chapter will be an examination of Gardbaum's theory of a "new Commonwealth model of constitutionalism".Cf Bickel, Alexander M., The Least Dangerous Branch The Supreme Court at the Bar of Politics (1986), p. 1 16-20.Cf Gardbaum, Stephen, The New Commonwealth Model of Constitutionalism Theory and Practice (2013). 2 1Chapter two is the main part of this paper that will analyse the notwithstanding clause of the Canadian Charter in detail.First, the methodology of the provision will be examined, both semantically and structually, followed by the uses of it since the enactment of the Charter in 1982.It will be shown, that it was only used scarcely since its birth and consequently explore the reasons for this dormancy or the de facto non-use of it.The chapter will finish with an assessment of possible alternatives to the notwithstanding clause and their suitability as such.Lastly, I will answer the question I posed above with my findings in the previous chapters.It will be demonstrated how the Canadian model proves most successful in uniting strong rights protection through adjudication with democratic legitimacy of decisions thereof.The notwithstanding clause plays a significant part in this, as it is this provision that enables a deliberate dialogue between the institutions, which promises to cure the illegitimacy of final judicial decisions. Chapter 1: Introduction to weak-form judicial reviewA. What is judicial review?Plainly said, judicial review is the authority bestowed on courts to review legislative and/or executive acts for consistency with superior/supreme law.One of the most prominent countries to 3 exercise judicial review is the US with its strong Supreme Court that functions as the guardian of the US Constitution.But today nearly every 'western' democracy, and increasingly Asian democracies as well as Latin American and African democracies, have a 'guardian' of their Constitution.The aspect of a 'guardian' of a constitution presupposes that a constitution needs 'guarding' from someone or something.The modern perception is that a constitution, and especially the rights entrenched in it, needs to be guarded from majoritarian partisan politics.And this 'guardian' is a court, usually the highest court of a country or a specialised constitutional court, that has the authority to review legislative and/or executive acts.4 There is, however, one flaw of judicial review.This is the question of the democratic legitimacy of it.Because judges are usually appointed and not elected, they lack a democratic foundation.This is not a problem for cases arising in criminal, civil or tort law, because in these matters the law is usually very clear and the job of judges is to apply that law.Should legislators disagree with aCf Gardbaum, The New Commonwealth Model of Constitutionalism ( 2013) p. 2; Tushnet, Mark, Weak 3 Courts, Strong Rights Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008) p. 19.Cf Gardbaum, The New Commonwealth Model of Constitutionalism (2013) p. 2-6. I. Historical development of judicial reviewThe US was per chance the first state that practiced judicial review in this strong sense.The US Supreme Court conferred this authority to itself in the famous landmark case of Marbury v.Madison in 1803.It decided, because it is the duty of the judiciary to "say what the law is", and 8 constitutional law is law as well, that it had the competence to interpret constitutional law.This laid 9 the foundation for judicial review in the US.In the rest of the world during that time, though, judicial review and generally the power of judges to overturn law was considered the worst possible scenario.Especially civil law states of old Europe feared a 'gouvernement des juges' and were heavily influenced by positive law during the 19th century.However, also common law countries such as the United Kingdom, with a long tradition of parliamentary supremacy, rejected the idea of judicial review for a very long time.In fact, the United Kingdom does still not allow a court to invalidate any law.The only possibility for courts is to declare a law incompatible with a right proclaimed in the Human Rights Act 1998 (HRA).This declaration of incompatibility though is not binding on Parliament. 10 This changed rapidly after the Second World War, when fascists rattled the faith in positive law and the legislature in general.After the horrible 'legal' atrocities committed by various fascist regimes during that time, a judicial check of the legislature did not seem so bad anymore after all.For 11 Cappelletti this change of attitude took place in three steps: First, written constitutions were established, to codify "individual and social values".Secondly, a constitution had to be somewhat rigid, so that it was relatively immune to amendment by legislatures.Lastly, the legislatures' and executives' obedience to the constitution had to be guaranteed.This happened either through ordinary judges on regular courts or through a specialised constitutional court.12 The recognition of "individual and social values" emerged in the concession of individual rights and freedoms of persons that needed protection.Before individual rights were entrenched in a bill of rights or otherwise recognised in a Constitution, it was mostly administrative law that was open to review or simple separation of power issues.As Cappelletti wrote though in his article, this 13 Marbury v. Madison, 5 U.

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