Law and Public Policy

D09(a) - Courts and Legislatures in Canada and Beyond

Date: Jun 4 | Time: 08:30am to 10:00am | Location:

Chair/Président/Présidente : Robert Schertzer (University of Toronto)

Discussant/Commentateur/Commentatrice : Robert Schertzer (University of Toronto)

Northern Ireland and the ‘Commonwealth model’ of constitutionalism: exceptionalism and a paradox: James Kelly (Concordia University)
Abstract: The human rights architecture contained within the Good Friday Agreement and translated into statutory law as the Northern Ireland Act 1998 is institutionally impressive. Northern Ireland may have the most sophisticated human rights architecture in comparison to Westminster systems such as Canada, Australia, New Zealand, and the other constituent parts of the United Kingdom. And, from a functional perspective, Northern Ireland’s ‘exceptionalism’ may have produced the least impressive human rights culture from a legislative vantage point within the ‘Commonwealth model’ of constitutionalism (Gardbaum). This paradox is at the heart of a post-conflict society that is unique for its combination of consociational principles of power sharing embedded within a human rights legislative culture. In this paper, I explore the Northern Ireland paradox involving human rights from an institutional and empirical perspective. This paradox is defined in the following way: a sophisticated human rights architecture that has failed to produce a modern human rights legislative agenda. This paper will explore Northern Ireland’s human rights paradox in the following manner. First, it outlines the consociational elements of the Northern Ireland Act 1998 and the political context in which the Northern Ireland Assembly operates. Second, it will outline features of the 1998 agreement tied directly to EU and Community law. Known as ‘legislative competence’ obligations, they require the Northern Ireland Executive (section 9), the Presiding Officer of the Assembly (section 10), the Attorney General (section 11), and the Secretary of State for Northern Ireland (section 14) to certify that bills introduced in the Assembly are consistent with Convention rights and Community law. Part Three provides an empirical overview of rights-based scrutiny at Stormont, focusing on the issue of statements of compatibility that are part of the Explanatory and Financial Memorandum that accompany each bill submitted to the Assembly.

Emerging Dual-State Since the Beginning?: The Strategic Decisions of the Courts of Hong Kong Before the Enactment of the National Security Law: Anson Cheuk-Hin Chung (CUNY Graduate Center), Erin Mayo-Adam (CUNY Hunter College)
Abstract: This paper attempts to show that the courts of Hong Kong have been deciding cases on a strategic basis since the handover of sovereignty in 1997. The court does so by assessing the political sensitivity of the case that they are dealing with. After facing dejudicialization from the National People’s Congress Standing Committee (NPCSC) because of their decision of Ng Ka Ling v Director of Immigration (1999), the court operated in an invisible dual-track adjudication. When a case is politically insensitive, the court is willing and able to judge without too much consideration for the government’s reaction. However, this was not the case under politically sensitive cases. Being aware of the government’s position, the court would largely rule in favor of the government in an attempt to avoid further dejudicialization from the government. This was the case before the enactment of the Hong Kong National Security Law (NSL) by China in 2020, a contradiction to existing literature beliefs. Using a few landmark cases before the NSL's enactment, the paper attempts to show the trend of avoidance and confronting the government policy by analyzing judge's opinions and decision outcomes. In light of Cora Chan’s (2022) argument that Hong Kong morphed from legal pluralism to a dual state, this paper argues instead Hong Kong has been in a situation of dual state since the failure to acquire legitimacy over the power of judicial review since the battle of the Ng Ka Ling case.

Undermining Democracy: The Role of the Notwithstanding Clause in Eroding Democratic Norms: Braedon McDonald (University of Guelph), Kate Puddister (University of Guelph)
Abstract: Since 2017, Canada has seen a surge in the use of the notwithstanding clause (section 33) with six separate uses and several occurring outside of Quebec. This paper examines whether the recent uses of the notwithstanding clause are consistent with democratic norms in Canada—the protection of minority rights, deliberation, and institutional/legislative accountability. Analyzing invocations that were passed into law, this paper examines court cases and legislative debates relating to the six recent uses of the notwithstanding clause. Cases include provincial court decisions that led to an invocation of the notwithstanding clause (reactive uses of section 33) or that relate to legislation that was passed using section 33. The court cases and legislative debates are analyzed using three criteria: the justifications and debates around its use; whether the government was proposing to defend another right or simply pushing a certain policy objective; and whether the invocation was in response to a judicial decision or a pre-emptive use of section 33. Using these criteria, this paper finds that four out of the six recent uses of the notwithstanding clause were inconsistent with democratic norms. Interestingly, the invocations that were consistent with democratic norms were consistent based on all three criteria, and the invocations that were not consistent with democratic norms were not consistent with any of the three criteria. This paper’s findings are situated within the wider debates about the legitimacy of the notwithstanding clause as a democratic tool of the Charter.