Thursday, May 01, 2014

The Term Is "Checks and Balances"

Apparently in the Harper Government™, there is a growing frustration with the Supreme Court in the wake of a series of rulings that the politicians think of as defeats.
But, privately, MPs on the government side of the House are bitter. “It’s clear that Canadians don’t make laws through their governments any more. Instead, they watch while unelected courts override important community standards,” said one MP, speaking about the court’s decision to strike down Canada’s prostitution law. “[Canadians] are powerless to act through their government and left to live by court edict that doesn’t have any public support.” 
There were suggestions that the government accepted amendments to its Fair Elections Act before a hostile court threw out much of the legislation on the eve of the next election. 
The left will celebrate this as a triumph — what they couldn’t achieve politically, they have achieved through decades of court appointees,” said one MP, ignoring the fact that the majority of the current court was appointed by Stephen Harper. [Emphasis Added]
Apparently despite being in power for the best part of a decade, the CPC under Harper has failed to understand that our constitution contains a series of checks and balances in it to keep any one branch of the government from running too far amok.

I find it a truly sad statement that the CPC is so lacking in fundamental understandings of something as basic as our Constitution, and in particular the amending formula for it.  A significant portion of the legislation that the Harper Government™ has failed when challenged before the Supreme Court under the provisions of the Charter of Rights in particular.

The Harper Government™narrative is that the Supreme Court has ruled that "none of its reforms are possible".  This is incorrect.  The court ruling quite specifically states in each case what aspect of the Amending Formula applies.  Not that the changes cannot be made, but rather that the changes cannot be made without the approval of the provinces.

These are a key part of the notion of checks-and-balances.  Just because a politician has been elected does not make their particular legislation inherently correct.  There is a framework that they must work with.  The claim of overriding legitimacy on the part of the Harper Government™ simply because they were elected is a false narrative.  The legislative branch of government has the power to influence the appointments to bodies like the Supreme Court and the Senate.  But the legislative branch cannot dictate to those bodies how they should conduct their business.

In response, those appointed bodies have limited powers.  The Supreme Court interprets law, and may declare a given part of legislation invalid when held in consideration with other laws in the land, but cannot create legislation itself.  Similarly, the Senate has limited powers to create legislation, usually bounded by whether the legislation involves government spending.  These are all aspects of our governmental system which stay the hand of overreach on the part of any one branch of government.

It is unfortunate, but the current government seems uniquely impaired in its understanding of this reality.

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