Notwithstanding Clause, Essay Example

Introduction

Why the charter of notwithstanding clause represented an important concession to the provinces in 1981.

1. To prevent the supremacy of the judiciary over legislature, that blocks and undermines the policy autonomy of the provinces.
2. To stop the judiciary from being the final word, which may lead to failure of democratic governance; this clause would help the provinces to challenge the court on matters of fundamental freedom and rights.

Why Is It in Disuse?

1. The clause is not essentially used always, because the tract records of the judges show that they have done a consistent job, in the proper implementation of the charter.
2. The politicians resort less to the clause, as they have a prefixed notion that the government which uses the clause will gather negative vote bank. However, this has no empirical justification.
3. Often referred as “paper tiger”, the clause has a theoretical power which is not practiced.

Concern for Its Disuse?

However disuse leads to loss of national interests like the RJR-MacDonald Case, where the legislature wanted to ban tobacco advertisement and put health warnings on the packaging, as it posed health hazards to Canadian public at large. The Supreme Court judges found it as an impeachment on the freedom of tobacco manufacturers and nullified the decision of legislature. Here the clause could have been used, but instead of using notwithstanding clause, legislation made new policies and focused banning lifestyle ads.

Should It Be Rehabilitated?

Rehabilitation would mean respect to the wisdom of the constitution. So that parliamentary supremacy and judicial supremacy work in resonance and none should have an upper edge over other. It now depends on the next generation of Canadian politicians to follow the naïve Martin or Mulroney; or be as wise and diplomatic like Blakeney and Lion.

Reference

David Johansen, Philip Rosen, Law and Government Division, Revised 16 October 2000, Last retrieved on October 31, 2009. from http://www.parl.gc.ca/information/library/prbpubs/bp194-e.htm

The Canadian Encyclopedia, 2nd edition, Hurtig Publishers, Edmonton Canada, 1988.

Gérard V. La Forest, “The Canadian Charter of Rights and Freedoms: An Overview,” Canadian Bar Review, Vol. 61, 1983

Peter Hogg, “A Comparison of the Bill of Rights and the Charter,” in Walter Tarnopolsky and Gérald-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary, Carswell, Toronto, 1982.

Notes

1. Jane Q. Doe, “Title of an Article,” Title of a Magazine, 12 Aug. 1999, 23.
2. John R. Doe, “Title of an Article,” Title of a Scholarly Journal 18 (1987): 115.
3. Firstname Lastname, Title of a Sample Book (City: Publisher, year), 267.
4. Martin Maner, Women and Eighteenth-Century Literature [online], 14 Apr. 1999 [cited 9 Aug. 1999]; available from World Wide Web: <http://www.wright.edu/~martin.maner/18cwom99.html> [one screen].