Showing posts with label Judicial Activism. Show all posts
Showing posts with label Judicial Activism. Show all posts

Tuesday, January 17, 2023

Conservatives Are Dismantling Western Democracies

It's been a bit of a whirlwind lately, but there are some very disturbing patterns emerging in the politics of western democracy these days. At the top of the list, is what appears to be a steady effort on the part of conservative politicians to dismantle western democracies, and in particular the concept of individual rights.  

This is happening on numerous levels, and because each country is slightly different, the specific attacks are distinct.  The pattern, however, is what matters. In general, the attacks are either aimed at the judiciary, or at the rights of individuals, with a general approach of fomenting what will become constitutional crises. 

Although not the first occurrence of this, the UK government's decision to exercise rarely used powers to deny royal assent to the Scottish Parliament's recently passed Gender Recognition Reform Act.  My first thought on this was "that's an odd move - exercising those powers in the UK is going to provoke a constitutional crisis.  Then I thought about it a bit further, and a few months ago, when Alberta's newly minted Premier Danielle  Smith was musing about an "Alberta Sovereignty Act", the topic of whether the Federal Government could exercise an equally obscure power called "Refusal".  

In both cases, the exercise of the power in question would trigger a political and constitutional crisis in both countries. Such a crisis would call into question both the division of powers, the role of the Federal level of government to intervene in the affairs of a lower level of government, and in fact with the judiciary had any power at all to mediate such a dispute. Such a crisis could in fact be serious enough to break the political consensus that had led to the constitutions of the respective nations being formed as they are. 

Let's consider for a moment that the objective in both cases is not in fact to assert novel powers, nor to overrule the legislation of an errant lower level of government, but rather it is to provoke the crisis that would allow the conservatives to dismantle the much more liberal constitutions - especially the civil rights aspects of those documents - which conservatives have for some time seen as an obstacle to their legislative agendas. 

Looking a little further, in Israel, a recently elected hard right government under Benjamin Netanyahu has promised to massively overhaul the role of the state's court system.  Conservatives have long argued that courts had become "activist" - usually in the context of the fact that much of their legislative agenda runs at odds with the concepts of individual rights. Here in Canada, Harper feuded with the SCC over matters like mandatory minimum sentencing, and lost on fundamental matters associated with the court's interpretation of the Charter. 

In the United States, the politicization of the courts by the GOP took hold under GWB, and during the Obama years, the GOP refused to allow any of Obama's nominees to the Supreme Court of the United States (SCOTUS) to be affirmed. This set the stage for a series of GOP candidates to be appointed under Trump, and then for the now-conservative aligned court to reverse course on abortion.  

Both of these moves are designed to ultimately place the courts firmly under the yoke of political masters, and to roll back much of the legislative and case law decisions that conservatives don't like.

Then in both Canada and the US, we are seeing provinces and states teeing up legislation designed to create conflict with their respective Federal governments. This isn't merely a case of "the usual grievances", as demonstrated in both Alberta and Saskatchewan, the provinces are attempted to assert unique powers to ignore Federal laws - not a good thing.  Ontario's conservative government has threatened to use the S33 "Notwithstanding" clause multiple times on matters where it seems capricious and unnecessary to do so. 

In both Canada and the US following their 2020 and 2021 elections respectively, extreme elements fostered by increasingly radical conservative politicians attempted to overturn the results of elections - in both cases by launching attacks on the seat of government itself, claiming in one form or another that the government was unjustly elected, or that it was acting against the people. This is no coincidence - the specifics of talking points differ, but the tactics of both were strikingly similar, with the Canadian Convoy occupation clearly drawing from the organizing and funding efforts around the US Capitol riots of 2021, and the Convoy shifting towards almost a siege model, instead of direct attack - clearly based on "lessons learned".  Mysteriously in both cases, the public backing of these events by conservative politicians is both prominent and not actively discussed in the news. 

How does this all tie together, you might ask? The same way it always does of late. Conservatives have been increasingly organizing with each other internationally through organizations like the IDU. I do not think it is a coincidence that there are direct and indirect connections to the IDU where these various activities are taking place.

Any one of these could be viewed as nothing more than a spat between levels of government, it comes at a time when political divisions are running high, and the far right has become increasingly emboldened. However, it seems increasingly unlikely when conservative politicians around the world are expressing suspiciously similar sentiments, and are making disturbingly parallel moves to address long standing conservative grievances. 

Sunday, July 20, 2014

Harper Tries To Foment A Crisis

Harper has taken a surprising number of losing cases to the Supreme Court of Canada.  Most, if not all, were obviously places where the government's position is one that is in direct contradiction with the Constitution of Canada.  Even a relative neophyte in Constitutional law in Canada can spot that, whether it is Harper's desire to "reform" the Senate or the government's daft position on prostitution.  

Now we have the CPC caucus starting to trot out the "undemocratic" talking points.
Dan Albas, the MP for Okanagan-Coquihalla, says that while he respects the courts he also believes an increasing number of groups are using litigation to advance policies the government will not put forward. 
"Often the Plan B is to do an end-run around our democratic process and turn to the courts where it seems some judges are quite happy to engage. This can result in decisions contrary to what have been decided in our democratic process," Albas told CBC Radio's The House.
Let's see ... the government is unwilling to engage with the issues that various groups are raising (presumably on ideological grounds, given the pattern of the Harper Government), so they take it to the courts.

First of all, that means that these groups are raising issues which are not just minor problems, but in fact have a legal basis where the current policy or laws are in fact inconsistent with the fundamental principles of Canada's legal system and laws.

Second, if the government is unwilling to engage on these issues, they leave the public with little other option but to force the matter by pursuing justice in the courts.
"Basically what you're having is a judge can overturn and then cost the taxpayer a lot of money without any accountability or representation on their behalf," Albas said. 
... 
The British Columbia MP said it's important to ask whether there is the right balance between the executive branch and the judicial branch to make sure every Canadian is well-represented. 
"If citizens through the democratic process are unable to make policy decisions because of unelected judges and well-financed interest groups, I submit we collectively lose," Albas said.
Well, we already know that Harper views the Constitution of this country as an impediment to his goals.  It stands to reason that he is also going to see the judiciary and any other branch of government that would dare challenge his wisdom as a bad thing too.

The Conservatives are basically taking the stance that as the governing party, they have a right to decide what issues they are going to address and when.  This is true ... to a point.  However, the courts can declare a given law or policy as illegal / unconstitutional on a variety of grounds when a case is put before them.

This is not "undemocratic" in the least.  In fact it is one of the cornerstones of a healthy democracy.  There are checks and balances in place which curb the power of the "democratic majority" (which I will point out in the last election was effectively just over 20% of the eligible voters) to run amok.

The point of an independent judiciary whose sole job it is to study and interpret the law of Canada is to ensure that the legislative and executive branches of our government cannot arbitrarily abuse the rights of citizens.  Make no mistake about it, what Harper proposed doing with the Senate abused your rights every bit as much as some of his laws.  By attempting to undermine the amending formula, he was effectively trying to set a precedent that the executive branch could propose and enact radical changes to the foundation of this country's laws without engaging with the provinces - thereby negating your democratic voice at not one level of government but two levels of government.

The judiciary in Canada isn't being "undemocratic" at all.  It is the Harper Government which is being undemocratic, and attempting to impose the tyranny of their followers on all Canadians without being held accountable.

Dear Skeptic Mag: Kindly Fuck Right Off

 So, over at Skeptic, we find an article criticizing "experts" (read academics, researchers, etc) for being "too political...