This chapter discusses how Canadian constitutional issues come before the courts. Its primary focus is on litigation arising under the Charter of Rights and Freedoms. Since the entrenchment of the Canadian Charter in 1982, traditional legal process doctrines, such as standing, intervention, costs, and reference opinions have seen significant expansion. Though initially cautious, Canadian courts have recognized that the ability to initiate constitutional claims is integral to the principle of legality. The mechanisms by which constitutional issues are judicially reviewed, and decisions regarding who may participate and how such litigation may be supported, are crucial determinants of substantive constitutionalism in Canada.
T. V. Somanathan
This chapter explores how India’s constitutional law has addressed the administrative and regulatory State as it has evolved outside the traditional branches of government, and how judicial review is exercised over it. It begins by providing a background on constitutional issues relating to the administrative State as it functions within the executive branch, before turning to a discussion of the major regulatory bodies that either are explicitly called ‘regulatory’ or exercise regulatory functions. It then considers the constitutional position of the administrative and regulatory State based on judicial decisions and on the Indian Constitution. It also examines the conceptual underpinnings of, and justification for, the regulatory State, along with some specific concerns arising from the regulatory State such as legal uncertainty and excessive delegation. The chapter concludes by analysing some of the issues associated with the emerging constitutional jurisprudence on the regulatory State.
Simon Halliday and Colin Scott
Administrative justice receives varying emphasis in different jurisdictions. This article explores empirical legal studies, which fall on either side of the decision making-and-review dividing line. It then seeks to link research on the impact of dispute resolution and on-going administrative practices. The article also highlights limitations in existing impact research, focusing on the tendency to examine single dispute resolution mechanisms in isolation from others. Furthermore it suggests some future directions for empirical administrative justice research. It also explores the potential of legal consciousness research for empirical administrative justice scholarship, and suggests new territories for administrative justice researchers: criminal justice processes and administrative activities of private agencies. It concludes by presenting an argument that a mapping of administrative justice institutions, both historically and cross-jurisdictionally, can reveal much about how relationships between citizens and administrative agencies may shift across time and space.
This chapter examines the administrative state in relation to modern constitutional theory. To explain the administrative state, it draws on three frameworks that are grounded in constitutional law, democratic theory, and institutional epistemology, respectively. The first framework involves the constitutionality of the administrative state, the second its democratic credentials, and the third its epistemic capacity. The chapter describes each framework before turning to a discussion of how each affects the others. It suggests that constitutionalists, democratic theorists, and epistemic technocrats engage in a never-ending shifting series of alliances. More specifically, each of these camps tends to see the claims of the other camps as side constraints to be complied with at the lowest possible cost, while seeing their own concerns as goals to be pursued to the maximum possible extent. In other words, there will always be competition among law, democracy, and knowledge in trying to control the administrative state.
This article begins with a discussion of the constitutionalization of affirmative action and its side effects. It examines the legal underpinnings of affirmative action in two relatively well-endowed developing countries and former British colonies — Malaysia and South Africa — where the disadvantaged groups that receive the benefits of affirmative action are numerical majorities from the start. It also considers the case of India, where the disadvantaged groups targeted for affirmative action initially are numerical minorities. The discussion then turns to the non-constitutionalization of affirmative action and its side effects. In countries where affirmative action has not been constitutionalized and where the beneficiaries (women excepted) are minority groups, the legal validity of a program of this kind will depend upon whether it meets a set of formal requirements. The most important of those is arguably that the outcome of the decisional process by which scarce goods are being allocated should not be exclusively determined by group membership. The soft, gender-focused, ‘discrimination-blocking’ EU affirmative action model and the (exceptional) US affirmative action regime are examined.
In the past, Canadian constitutional reform has been marked by surprising successes and resounding failures. Indeed, the failures were such that constitutional amendment itself, along with the word “Constitution”, became taboo in the eyes of a large part of the Canadian population. This chapter will commence with a brief history of constitutional reform in Canada from the Constitution Act, 1867 to the patriation of 1982, followed by an analysis of the post-patriation constitutional amendment procedures. It will then discuss the political and legal frameworks which further complicate the already strict requirements of modern constitutional amendment in Canada, and will conclude with an overview of the phenomena favouring paraconstitutional adaptation of the Constitution. Finally, it will point out that the full restoration of the word “Constitution” is of utmost importance in ensuring that constitutional reform itself does not simply become a matter of wishful thinking.
This chapter examines the relevant provisions of the Indian Constitution with respect to freedom of assembly and freedom of association. It begins with a historical background on the restrictions to the freedom to assemble peaceably in colonial India, as well as restrictions under the Criminal Procedure Code covering public meetings and the right of government employees to participate in demonstrations. It then considers the power of the State to curtail the freedom to assemble, the constitutionality of Section 144 of the Criminal Procedure Code, the right to strike, and what constitutes unlawful association. It also discusses the jurisprudence of the Indian Supreme Court with regard to the freedom of association.
Ulrich K. Preuß
Associative rights cover those constitutional guarantees which deal with the joint actions of individuals. The promise of associative rights to individuals is the most effective means of their empowerment in the polity. At the same time, this guarantee gives rise to a decentralized power structure in society which has a major bearing on the modes of how collective decisions are made in the polity. Three constitutional rights are pertinent in this respect, ranging in the order of increasing empowerment and, consequently, structural effects on the polity: the right to petition for the redress of grievances, the right to the freedom of assembly, and the right to the freedom of association. This article presents a comparative overview of associative rights and considers only those constitutions which effectively shape the character of the polity, where, in other words, collective actions of citizens are an inherent element of an entrenched sphere of socio-political autonomy.
This chapter examines the legal status and consequences of the asymmetrically federal provisions included in the Indian Constitution. In particular, it considers constitutional amendments relating to autonomy arrangements in India’s North-eastern region, along with the ‘special status’ of Jammu and Kashmir. After providing an overview of the significance of asymmetric federalism in India, the article discusses the administration of tribal areas under the Fifth and Sixth Schedules. It also explores provisions aimed at mitigating intra-State inequalities in the States of Gujarat, Andhra Pradesh, Maharashtra, and Karnataka; the Indian Supreme Court’s rulings on the asymmetric features of the Constitution; and the role of the courts in upholding asymmetrical provisions and protecting the rights of territorially concentrated minorities in the context of democratic politics.
This chapter offers an account of Australia's engagement with the international legal order, through different aspects of the relationship: designing international institutions, litigating in the World Court, and implementing international standards. These are only fragments of the full picture, but they illustrate both Australia's embrace of and distancing from the international legal order. Australia's relationship with the international legal order overall is marked by a deep strand of ambivalence. It has played both the part of a good international citizen as well as that of an international exceptionalist. In some fields, Australia has engaged creatively in international institution-building, even if with a wary eye to protect certain Australian interests. In other areas, particularly human rights, the relationship is distinctly uneasy, with Australia appearing to believe that international standards should regulate others and that it is somehow above scrutiny.
This chapter considers both the foundations for, and the content of, the High Court's authority in Australia. It focuses principally on the current authority of the High Court, but with reference to some aspects of its history. The chapter first explains the Court's constitutional status as Australia's apex court, performing the role of both constitutional court and ultimate appellate court for both federal and State matters. It next outlines the institutional features of the Court that underpin its authority, in particular its composition and independence. The chapter then examines the Court's authority to enforce constitutional limits through judicial review of legislative action. Lastly, the chapter considers the Court's authority to review executive action and the constitutional foundation for that role.
This chapter examines the concept of autonomy in American constitutional law as it applies to the freedom of individuals and some private associations to make certain important choices without undue intervention from the government. It first traces the origins of the understanding of autonomy as personal freedom before turning to the autonomy principle found in Supreme Court decisions applying the Constitution’s First and Fourteenth Amendments, with occasional references in the jurisprudence of the Second, Fourth, Fifth, and Sixth Amendments. It then analyzes the tension between personal autonomy to waive constitutional protections (e.g., the Fifth Amendment right against self-incrimination) and the government’s legitimate role in encouraging autonomous actions. It also considers autonomy in relation to what the Court has called the “personal” realm, which involves matters of privacy, family life, sexual relations, reproduction, education, self-defense within the criminal justice system, religious belief and practice, and freedom of thought and speech.
This article explores the connections between bioethics and basic rights partly by analyzing the basic legal norms of bioethics, and partly by comparing thematic cases from the jurisdictions of the European Court of Human Rights and the US Supreme Court, as well as some cases from other jurisdictions. It focuses on two major lines of thought in contemporary bioethics: the first is concerned with the boundaries of life (e.g., issues of embryo research, assisted reproduction, and end of life decisions) and the second is related to the contemporary exploration of the frontiers of the human body (issues such as the use of human tissues and human DNA for research and other purposes).
Mark D. Walters
This chapter examines the influence of the British legal tradition within Canadian constitutional law. The foundational text of Canada’s constitution, the British North America Act, 1867, was adopted when Canada was still a UK colony, and so it is hardly surprising that this influence would prove to be important—even after Canada emerged as an independent state. Still, the assertion in the preamble to the 1867 Act, that Canada’s constitution is ‘similar in Principle to that of the United Kingdom’, must be approached cautiously. The leading British constitutional scholar A.V. Dicey went so far as to describe this assertion as a piece of ‘official mendacity’. The analysis in Section 2 of this chapter focuses upon institutional structure and design. Here, it will be seen that Dicey was wrong. The analysis in Section 3 of the chapter is on the interpretive ethic or what Dicey called the ‘spirit’ of the constitution.
This chapter examines the influence of elements of Canada’s constitutional model abroad, in three areas: (1) the Canadian Charter of Rights and Freedoms as an innovative way to institutionalize the relationship among legislatures, executives, and courts with respect to the enforcement of a constitutional bill of rights, as justified by “dialogue theory”, that contrasts starkly with its leading alternatives, the American and German systems of judicial supremacy; (2) Canada’s plurinational federalism as a strategy to accommodate minority nationalism and dampen the demand for secession and independence within the context of a single state, by divorcing the equation of state and nation; and (3) the complex interplay between a constitutional bill of rights and minority nation-building, as reflected in the constitutional politics surrounding the recognition of Quebec’s distinctiveness, and the role of the Supreme Court of Canada in adjudicating constitutional conflicts over official language policy arising out of Quebec.
How might one explain Canadian constitutional practices that have produced outcomes that are, within limits, heterogeneous and pluralistic? The chapter inquires into this question by tapping into constitutional culture, referring to dominant understandings of the fundamental norms that guide relations between citizens and states and between institutions of the state. Contemporary constitutional culture, it is argued, is partly the product of choices made in the past by Imperial and early Canadian authorities. Taking a genealogical approach to Canadian constitutional culture, the chapter examines three episodes in Canada’s constitutional past that help to frame discussions about the constitutional present. Each illustrates the difficulty of governing those who are different; of aspiring to homogeneity while necessitating some heterogeneity in practice. They are representative samples of the waves of accommodation and assimilation that have been recurring features in Canada’s constitutional story and illustrative of the basic elements that make up Canadian constitutional culture.
Carving Out Typologies and Accounting for Differences Across Systems: Towards a Methodology of Transnational Constitutionalism
This article outlines and assesses the role of ‘typologies’ in comparative constitutional thought. It discusses the transnational context of comparative constitutionalism, constitutionalism in world society, the form and substance of constitutionalism, and the law's troubled relation to society.
This chapter analyses the pervasive impact of the Charter on the Canadian criminal justice system. Active judicial interpretation of Charter rights has put in place distinctive constitutional standards of substantive law, including those of fault, and struck down oppressive laws for arbitrariness and overbreadth. Also examined are new standards for police powers to stop, search, detain and interrogate, fair trial rights such as the duty of full Crown disclosure, and for assessing mandatory minimum sentences. This chapter describes and welcomes a robust exclusionary discretion for evidence obtained in violation of the Charter. It is suggested that the Canadian Charter standards are no panacea and are sometimes too weak but that they have often provided a welcome balance to the expedient lure of law-and-order politics.
This chapter argues that interpretative remedies have qualified the supremacy clause in section 52(1) of the Constitution Act, 1982 and should only be used when courts can avoid making choices best left to the legislature. It also suggests that suspended declarations of invalidity facilitate dialogue between courts and legislatures but should, as in the recent assisted dying case, be administered so that litigants not suffer irreparable harm during the suspension. Rights may be better enforced and developed in the criminal than the civil trial context because stronger remedies such as exclusion of evidence are available whereas most awards of Charter damages have been modest. Canadian courts prefer declarations or individual remedies such as damages or habeas corpus over the use of injunctions and the retention of jurisdiction. This has impoverished Charter rights relating to conditions of confinement, illustrating how remedies affect and even shape rights.