DOCSLIB.ORG

Parliamentary Privilege: a Relational Approach

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Parliamentary Privilege: a Relational Approach Parliamentary Privilege: A Relational Approach by Colette Mireille Langlois A thesis submitted in conformity with the requirements for the degree of Master of Laws Faculty of Law University of Toronto © Copyright by Colette Mireille Langlois 2009 Parliamentary Privilege: A Relational Approach Colette Langlois Master of Laws Faculty of Law University of Toronto 2009 Abstract Parliamentary privilege encompasses certain special rights and immunities deemed necessary to protect legislatures and members from undue interference so that they can effectively carry out their functions of inquiring, debating and legislating. The doctrine has engendered conflicts that have never been wholly resolved between courts and legislatures, and between individual rights and parliamentary privileges. The advent of modern human rights and emphasis on democratic values such as accountability and transparency has brought a new urgency to this problem. The current passive and defensive approach of Canadian legislatures is unsustainable, as is the approach taken by the SCC in recent jurisprudence. The paper argues against expanding the scope of judicial review of privilege claims as a solution, and in favour of open modernization processes led by parliamentarians, and involving public participation. Further, the paper advocates for the application of a “relational approach” versus the traditional “contest approach” to parliamentary privilege. ii Acknowledgments My sincere thanks to Tim Mercer and the Legislative Assembly of the Northwest Territories for their generous support, both financial and moral, from the time I first approached them with the idea for a thesis on this topic. I am very grateful to my faculty advisor, Professor Lorne Sossin, for his enthusiasm and invaluable guidance over the entire writing of this thesis through to the final draft. Thanks also to Derek McKee for providing very helpful comments on early drafts and outlines. Finally, a great big high five to all of my LLM colleagues who made this year so much fun. I wish you all the greatest success. iii Table of Contents !"#$%&'(&)'*+%*+,& !"#$%&'()*+($,-................................................................................................................. ///! 012'(3%435%$,($,- ..................................................................................................................../6! 5718,(93:3;$,9%)<",/%$ ..........................................................................................................:! :! ;$,9%)<",/%$ .......................................................................................................................:! 5718,(93=3>/-,%9/"1'31$)35%+8191,/6(3?(6/(&3%43@19'/1+($,19A3@9/6/'(*( ........B! =! >/-,%9/"1'3C(6('%8+($,3%43@19'/1+($,19A3@9/6/'(*( ............................................B! =.:! D9/*/$-3%43@19'/1+($,19A3@9/6/'(*(31$)3E19'A35%$4'/",-............................................ B! =.=! 07(3C19#31$)3F/*7,3G/)(-3%43@9/6/'(*(............................................................................. H! =.I! !-72A36.3J7/,( ......................................................................................................................:K! =.L! G,%"#)1'(36.3>1$-19) ..........................................................................................................:=! =.M! 07(3N'1"#-,%$/1$31$)3O/''/1$3@191)/*+-....................................................................:L! =.P! G<++19A31$)35%$"'<-/%$-................................................................................................:P! I! 5%+819/$*3!889%1"7(-3,%3@9/6/'(*(........................................................................ :P! I.:! 07(3Q$/6(9-1'3R1'<(3%43@9/6/'(*( ....................................................................................:B! I.=! @9/6/'(*(31$)3S<-,/"/12/'/,A................................................................................................:T! "#$#%! &'('!&')!*'+!',-!-.!/0++. ########################################################################################################## %1! "#$#$! !"#"$%&'(&)*+,-#',-!.&+'######################################################################################################### $%! I.I! @9/6/'(*(31$)3><+1$3?/*7,-.............................................................................................==! "#"#%! 2'0- ##################################################################################################################################################### $"! "#"#$! 3#!4#!56############################################################################################################################################### $7! I.L! O%)(9$/U1,/%$3E44%9,- ........................................................................................................=P! I.M! G<++19A31$)35%$"'<-/%$-................................................................................................=H! 5718,(93I3!6%/)/$*3135%''/-/%$3N(,&(($3?/*7,-31$)3@9/6/'(*( .............................. I:! L! ?/-#-31$)3@%--/2'(3?(-8%$-(- ................................................................................... I:! L.:! O%6/$*3N(A%$)3,7(3091)/,/%$1'3R/(&3%43@9/6/'(*(....................................................I=! L.=! EV81$)/$*3,7(3S<-,/"/12/'/,A3%43@9/6/'(*(......................................................................IL! iv L.I! G<++19A31$)35%$"'<-/%$-................................................................................................LK! 5718,(93L3!3?('1,/%$1'3!889%1"73,%3@19'/1+($,19A3@9/6/'(*(............................... LI! M! @9/6/'(*(31-3?('1,/%$-7/8............................................................................................. LI! M.:! W()('-#AX-35%$"(8,3%43?/*7,-31-3?('1,/%$-7/8............................................................LI! M.=! EV1+8'(3: ...............................................................................................................................LM! M.I! EV1+8'(3= ...............................................................................................................................LP! M.L! EV1+8'(3I ...............................................................................................................................LB! M.M! EV1+8'(3L ...............................................................................................................................LT! M.P! !88'/"1,/%$3%43,7(3?('1,/%$1'3!889%1"73,%3@9/6/'(*( ...............................................LT! M.B! G<++19A31$)35%$"'<-/%$-................................................................................................M:! 5718,(93M35%$"'<-/%$........................................................................................................... M=! P! 5%$"'<-/%$........................................................................................................................ M=! N/2'/%*9187A........................................................................................................................... MM! v Chapter 1 Introduction 1 Introduction Parliamentary privilege encompasses certain special rights and immunities deemed necessary to allow legislatures to protect themselves and their members from undue interference so that they can effectively carry out their functions of inquiring, debating and legislating.1 The doctrine emerged over several hundred years of English history in response to genuine threats to the House of Commons from the Crown and the House of Lords, and continues to evolve both in Britain and in its former colonies.2 Somewhat paradoxically, privilege is at once part of the ordinary law of the land, and an exception from it.3 The extent of the jurisdiction of the courts over matters of privilege has never been entirely resolved. The general categories of parliamentary privilege include both corporate elements, and individual elements, in particular members’ freedom of speech in debates and proceedings, immunity from arrest in civil actions, exemption from jury duty, and exemption from attendance as a witness.4 Fundamentally, however, as Erskine May’s Treatise states, “it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members.”5 The broad categories of privilege enjoyed collectively by the House are the power to discipline for contempt and breach of privilege and to expel members for “disgraceful conduct”, the regulation of internal affairs, the “authority to maintain the attendance and service” of members, the right to establish inquiries, to compel witnesses and the production of documents, and to administer oaths to witnesses, and the right to publish papers with defamatory contents.6 Privilege often has the result of conferring immunity from judicial review on legislatures and 1 William McKay, ed., Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 23rd ed. (London: LexisNexis, 2004) at 75 [Erskine May 23rd]; Robert Marleau & Camille Montpetit, eds., House of Commons Procedure and Practice (Ottawa: House of Commons, 2000) at 50 [Marleau & Montpetit]. 2 Marleau & Montpetit, ibid. at 49-50. See also generally Erskine May 23rd, ibid. at 75-199 and Carl Wittke, The History of English Parliamentary Privilege (New York: Da Capo, 1970) [Wittke]. 3 Erskine May 23rd, supra note 1 at 75. 4 Marleau & Montpetit, supra note 1 at 51. 5 Erskine May 23rd, supra note 1 at 75. 6 Marleau & Montpetit, supra note 1 at 51. 1 2 their
Load more

Recommended publications
  • Democracy and the Politics of Parliamentary Immunity in Turkey
    121 Democracy and the politics NEW PERSPECTIVES ON TURKEY of parliamentary immunity in Turkey Department of Humanities and Social Sciences, Gürcan Koçan ‹stanbul Technical University Department of Philosophy, Simon Wigley Bilkent University In Turkey there is currently a widespread public desire to narrow the extent to which parliamentarians are immune from the law. That desire is largely motivated by the perception that political corruption is widespread and that parliamentary immunity only serves to obstruct the fight against it.1 As a result, a number of political parties have based their electoral platforms on the promise to limit the scope of parliamentary immunity once in office. As of yet, none have carried through their promise and this has only served to reinforce the public view that parliamentarians see their immunity as a personal privilege. Irrespective of the merits of that charge, there is a genuine concern that confronts Turkish deputies, which means that they will be less likely to limit the immunity once elected. Their concern is that current law does not adequately protect civil and political liberties and that the judiciary is not yet sufficiently evenhanded in its treatment of political cases. In effect, the fight against political corruption has been frustrated in part because of the risk to free speech that exposure to the law might entail. The almost contradictory position of the European Union well illustrates the problem. On the one hand, it is exerting pressure on the Turkish government to narrow parliamentary immunity so as to combat political corruption,2 while on the other hand it continues to raise concerns about the prosecution of non-violent expression and the partiality of the judiciary in Turkey.3 1 Ercis Kurtulufl, Country Reports on Political Corruption and Party Financing – Turkey (Transparency International, 2004); available from www.transparency.org.
    [Show full text]
  • Parliamentary Immunity
    Parliamentary Immunity A Comprehensive Study of the Systems of Parliamentary Immunity of the United Kingdom, France, and the Netherlands in a European Context Parliamentary Immunity A Comprehensive Study of the Systems of Parliamentary Immunity of the United Kingdom, France, and the Netherlands in a European Context DISSERTATION to obtain the degree of Doctor at the Maastricht University, on the authority of the Rector Magnificus, Prof. dr. L.L.G. Soete in accordance with the decision of the Board of Deans, to be defended in public on Thursday 26 September 2013, at 16.00 hours by Sascha Hardt Supervisor: Prof. mr. L.F.M. Verhey (Leiden University, formerly Maastricht University) Co-Supervisor: Dr. Ph. Kiiver Assessment Committee: Prof. dr. J.Th.J. van den Berg Prof. dr. M. Claes (Chair) Prof. dr. C. Guérin-Bargues (Université d’Orléans) Prof. mr. A.W. Heringa Prof. D. Oliver, MA, PhD, LLD Barrister, FBA (Univeristy College London) Cover photograph © Andreas Altenburger - Dreamstime.com Layout by Marina Jodogne. A commercial edition of this PhD-thesis will be published by Intersentia in the Ius Commune Europaeum Series, No. 119 under ISBN 978-1-78068-191-7. Für Danielle ACKNOWLEDGEMENTS As I have been told, the idea that I could write a doctoral dissertation first occurred to Philipp Kiiver when he was supervising my bachelor thesis in 2007. At that time, I may well have dreamed of a PhD position, but I was far from having any actual plans, let alone actively pursuing them. Yet, not a year later, Luc Verhey and Philipp Kiiver asked me whether I was interested to join the newly founded Montesquieu Institute Maastricht as a PhD researcher.
    [Show full text]
  • The Functioning of Democratic Institutions in Turkey
    http://assembly.coe.int Doc. 15272 21 April 2021 The functioning of democratic institutions in Turkey Report1 Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) Co-rapporteurs: Mr Thomas HAMMARBERG, Sweden, Socialists, Democrats and Greens Group, and Mr John HOWELL, United Kingdom, European Conservatives Group and Democratic Alliance Summary The Monitoring Committee is deeply concerned about recent developments in Turkey which have further undermined democracy, the rule of law and human rights. Procedures seeking to lift the parliamentary immunity of a third of the parliamentarians (overwhelmingly from opposition parties), the attempt to close the Peoples' Democratic Party (HDP) and the continued crackdown on its members put political pluralism and the functioning of democratic institutions at risk. The presidential decision of 20 March 2021 to withdraw from the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No.210, the Istanbul Convention) to combat violence against women and domestic violence is a regrettable step backwards, made without any parliamentary debate, which raises the question of the modalities of denunciation of conventions in democratic societies. The committee also urges the immediate release of Selahattin Demirtaş and Osman Kavala following the final judgments of the European Court of Human Rights. In order to reverse these worrying trends, the Turkish authorities should seize the opportunity of implementing the Human Rights Action Plan and revising the legislation on elections and political parties to take meaningful steps, put an end to the judicial harassment of opposition and dissenting voices, improve freedom of expression and media and restore the independence of the judiciary, in co-operation with the Council of Europe 1.
    [Show full text]
  • The Parliament
    The Parliament is composed of 3 distinct elements,the Queen1 the Senate and the House of Representatives.2 These 3 elements together characterise the nation as being a constitutional monarchy, a parliamentary democracy and a federation. The Constitution vests in the Parliament the legislative power of the Common- wealth. The legislature is bicameral, which is the term commoniy used to indicate a Par- liament of 2 Houses. Although the Queen is nominally a constituent part of the Parliament the Consti- tution immediately provides that she appoint a Governor-General to be her representa- tive in the Commonwealth.3 The Queen's role is little more than titular as the legislative and executive powers and functions of the Head of State are vested in the Governor- General by virtue of the Constitution4, and by Letters Patent constituting the Office of Governor-General.5 However, while in Australia, the Sovereign has performed duties of the Governor-General in person6, and in the event of the Queen being present to open Parliament, references to the Governor-General in the relevant standing orders7 are to the extent necessary read as references to the Queen.s The Royal Style and Titles Act provides that the Queen shall be known in Australia and its Territories as: Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.* There have been 19 Governors-General of Australia10 since the establishment of the Commonwealth, 6 of whom (including the last 4) have been Australian born. The Letters Patent, of 29 October 1900, constituting the office of Governor- General, 'constitute, order, and declare that there shall be a Governor-General and Commander-in-Chief in and over' the Commonwealth.
    [Show full text]
  • Manifesto 52 Former MEP Immunity of Carles
    March 5, 2021 On February 23, the Committee on Legal Affairs of the European Parliament voted in favour (15 votes in favour including the votes of the Spanish parties PP, PSOE, Ciudadanos and the far- right VOX; 8 against and 2 abstentions), of a report that recommends to the Plenary to lift the immunity of our colleagues MEPs Carles Puigdemont, Toni Comín and Clara Ponsatí. The vote on this report will take place in the next plenary session, taking place next week.. The undersigned, former Members of the European Parliament, call on the Members of the European Parliament who are to take part in this vote, to vote against this proposal and therefore in favour of protecting the immunity of their colleagues Mr. Puigdemont, Mr. Comín and Ms. Ponsatí. First, because the court that requests the waiver of their immunity, the Spanish Supreme Court, is not the competent authority to make the request, as it was argued before the JURI Committee, and neither is it an impartial court, as recently established by the Belgian justice, since the Brussels Court of Appeals found that Lluís Puig, former Minister of the Catalan Government in exile, could not be impartially judged by this Spanish Court. Second, there is evidence that these three Members of the European Parliament are suffering political persecution. This political persecution is based on evidence, such as the judicial obstacles to prevent them from running in the European elections, the presence of up to five Spanish MEPs on the JURI Committee and their public statements on the report before, during, and after the vote; the inclusion of wrong charges in the report of Clara Ponsatí; or the leaking of the report before the vote to a far-right newspaper in Spain.
    [Show full text]
  • SUBMISSION to the HOUSE of COMMONS STANDING COMMITTEE on PROC Thursday, April 23, 2020
    131.194 SUBMISSION TO THE HOUSE OF COMMONS STANDING COMMITTEE ON PROC Thursday, April 23, 2020 Gregory Tardi, DJur. Executive Director, Institute of Parliamentary and Political Law Executive Editor, Journal of Parliamentary and Political Law MANDATE FOR THE PROC STUDY The House of Commons of Canada’s Standing Committee on Procedure and House Affairs would like to invite you to appear before the Committee in view of its study of Parliamentary Duties and the COVID-19 Pandemic. The House of Commons has instructed the committee to study ways in which members can fulfill their parliamentary duties while the House stands adjourned on account of public health concerns caused by the COVID-19 pandemic, including the temporary modification of certain procedures, sittings in alternate locations and technological solutions including a virtual Parliament Le Comité permanent de la procédure et des affaires de la Chambre des communes du Canada souhaite vous inviter à comparaître dans le cadre de son étude sur les fonctions parlementaires et la pandémie de la COVID-19. La Chambre des communes a donné instruction au comité d’entreprendre une étude sur la façon dont les députés peuvent exercer leurs fonctions parlementaires alors que la Chambre est ajournée pour des raisons de santé publique reliées à la pandémie de la COVID-19, y compris des modifications temporaires à certaines procédures, des séances en différents lieux et des solutions technologiques, dont l’idée d’un parlement virtuel. The following text was prepared by its author alone. No member of the Government of Canada or of the House of Commons of Canada was consulted.
    [Show full text]
  • Part 2 Chapter 3 Such Privileges As Were Imported by the A…
    Chapter 3 Such privileges as were imported by the adoption of the Bill of Rights 3.1 Statutory recognition of the freedom of speech for members of the Parliament of New South Wales The most fundamental parliamentary privilege is the privilege of freedom of speech. In Australia, there is no restriction on what may be said by elected representatives speaking in Parliament. Freedom of political speech is considered essential in order to ensure that the Parliament can carry out its role of scrutinising the operation of the government of the day, and inquiring into matters of public concern. The statutory recognition of this privilege is founded in the Bill of Rights 1688 . Article 9 provides: The freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament. Apart from the absolute protection afforded to statements made in Parliament, other privileges which flow from the Bill of Rights include: the right to exclude strangers or visitors; the right to control publication of debates and proceedings; and the protection of witnesses etc. before the Parliament and its committees. 1 Article 9 is in force in New South Wales by operation of the Imperial Acts Application Act 1969.2 Members are protected under this Act from prosecution for anything said during debate in the House or its committees. Despite this, in 1980 Justice McLelland expressed doubts about the applicability of Article 9 to the New South Wales Parliament in Namoi Shire Council v Attorney General. He stated that “art 9 of the Bill of Rights does not purport to apply to any legislature other than the Parliament at Westminster” and therefore, the supposed application of the article, does not extend to the Legislature of New South Wales.
    [Show full text]
  • Challenging the Validity of an Act of Parliament: the Effect of Enrolment and Parliamentary Privilege." Osgoode Hall Law Journal 14.2 (1976) : 345-405
    Osgoode Hall Law Journal Article 5 Volume 14, Number 2 (October 1976) Challenging the Validity of an Act of Parliament: The ffecE t of Enrolment and Parliamentary Privilege Katherine Swinton Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Swinton, Katherine. "Challenging the Validity of an Act of Parliament: The Effect of Enrolment and Parliamentary Privilege." Osgoode Hall Law Journal 14.2 (1976) : 345-405. http://digitalcommons.osgoode.yorku.ca/ohlj/vol14/iss2/5 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. CHALLENGING THE VALIDITY OF AN ACT OF PARLIAMENT: THE EFFECT OF ENROLMENT AND PARLIAMENTARY PRIVILEGE By KATHERINE SWINTON* A. INTRODUCTION Parliamentary sovereignty has proved a topic of fascination to scholars of constitutional law for many years, as the volume of literature on the subject well demonstrates. Admittedly, the interest has been greater in Commonwealth countries other than Canada. In this country, students of constitutional law have focussed their attention on the division of powers between federal and provincial governments, since federalism has presented problems requiring immediate solution. Yet even here, the question of parliamentary sovereignty has been given consideration, and it is increasingly attracting discussion as interest increases in the patriation of the constitution and statutory protection for individual and minority rights. Within a study of parliamentary sovereignty, reference is normally made to the enrolled bill principle or rule. This precept, regarded by some as an aspect of sovereignty and by others simply as a rule of evidence, states that the parliamentary roll is conclusive - an Act passed by Parliament and en- rolled must be accepted as valid on its face and cannot be challenged in the courts on grounds of procedural irregularity.
    [Show full text]
  • Parliamentary Privilege? Kinship in Canada's Parliament
    Feature Parliamentary Privilege? Kinship in Canada’s Parliament In the Canadian parliamentary context, there are numerous contemporary and historical examples of dynastic politicians, but there has been curiously little academic study of this phenomenon. Many questions pertaining to kinship in parliaments remain unanswered. What is the rate of kinship in the Canadian parliament? What has been the rate of change in political kinship over time and can this change be explained? What advantages may dynastic politicians possess and what constraints do they face? This article measures the prevalence of kinship within the lower house in Canada’s federal parliament and presents data on kinship since Canada’s first parliament. After looking at economic and electoral data, it argues that change to make the electoral system more open and socially inclusive offers an explanation for the observable drop in rates of kinship over time. Finally, the paper will conclude with suggested courses for future research. Matthew Godwin Rates of Kinship since Canada’s First Parliament A further 35 Members of Parliament have had kin in parliament through marriage. Winona Grace The below analysis begins in 1867, when Canada MacInnis was married to CCF MP Angus MacInnis, was granted Dominion status from Great Britain, up who served concurrently with her father. A number to the 2011 federal election, and provides data points of female MPs in the early 20th century were related in Figure 1 of ‘Kinship by Seat Total’; which is to say, to other members through marriage, such as the the percentage of MPs who have had relatives serve Independent Conservative MP Martha Louise Black.
    [Show full text]
  • Parliamentary Immunity
    Parliamentary Immunity Background Paper prepared by the Inter-Parliamentary Union UNDP Initiative on Parliaments, Crisis Prevention and Recovery In association with the Inter-Parliamentary Union September 2006 The views expressed in this public ation are those of the author(s) and do not necessarily represent those of the United Nations, including UNDP, or their Member States Table of contents Page Introduction.................................................................................. 1 1. The purpose of immunity for members of parliament .. 2 2. What kind of parliamentary immunity? 2.1. Two major systems of immunity ............................... 2 2.2 Historical background............................................... 3 3. Legal basis for parliamentary immunity .......................... 4 4. The scope of freedom of speech (parliamentary non- accountability) .............................................................................................. 4 4.1. Who is protected? .............................................................. 5 4.2 When does the protection begin and end?.................. 5 4.3 Does the protection apply everywhere? ....................... 5 4.4. "Exercise of the parliamentary mandate": What does it mean? (a) Activities undertaken in the context of parliamentary proceedings 6 (b) Repeating outside parliament words spoken in parliament 6 (c) Activities and statements made as part of constituency and general political work ............................................... 6 (d) Reproduction of parliamentary
    [Show full text]
  • Parliamentary Privilege
    Patterns of change – parliamentary privilege How do the privilege provisions applying to Australia’s national parliament compare internationally? Has the curtailment of traditional provisions weakened the Parliament’s position? Bernard Wright Deputy Clerk, House of Representatives December 2007 PATTERNS OF CHANGE – PARLIAMENTARY PRIVILEGE 2 1. Summary 1.1 The law of parliamentary privilege applying to Australia’s national parliament has undergone significant change, as has the way matters of privilege and contempt are dealt with. This paper examines the law in Australia in comparison to the provisions in other parliaments. It does so by summarising three key provisions and commenting on the law of privilege in the wider legal context. It refers to two models for the privileges and immunities which apply in contemporary parliaments, and notes the way key provisions are dealt with in each model. The paper refers to adaptations in this area of law in other parliaments and to assessments that have been made of the needs of modern legislatures. It suggests that, paradoxically, the processes that involved significant reductions in traditional provisions applying to Australia’s national parliament have strengthened the parliament. The paper ends by speculating about some of the issues that may arise in this area in the future1. 1 I am most grateful to Professor Geoff Lindell, who read through a draft of this paper and made very helpful suggestions for improvement - BW PATTERNS OF CHANGE – PARLIAMENTARY PRIVILEGE 3 2. Privilege in the national Parliament – three key features Freedom of speech 2.1 Members of the national Parliament enjoy the privilege of freedom of speech2.
    [Show full text]
  • Constructive Unamendability in Canada and the United States Richard Albert Boston College Law School, [email protected]
    Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers January 2014 Constructive Unamendability in Canada and the United States Richard Albert Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Comparative and Foreign Law Commons, and the Constitutional Law Commons Recommended Citation Richard Albert. "Constructive Unamendability in Canada and the United States." Supreme Court Law Review (2014). This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. Constructive Unamendability in Canada and the United States Richard Albert* I. INTRODUCTION The Canadian and United States Constitutions are unique among the constitutions of the world. Partly written and partly unwritten,1 the Constitution of Canada traces its beginnings to a British colonial statute.2 Still today, the patriated Constitution of Canada remains a creation of the Parliament of the United Kingdom.3 The first principle of Canadian government is therefore the continuing though nonetheless largely ceremonial ubiquity of the Crown.4 The Constitution of Canada is also something of a structural hybrid: it authorizes judicial review yet entrenches a limited mechanism for the legislative branch to effectively overrule the Supreme Court.5 The United States Constitution is exceptional in its own right. For Alexis de Tocqueville, the Constitution was “the most perfect federal constitution that ever existed”.6 It is a rare “example of constitutional * Assistant Professor, Boston College Law School; Yale University (J.D., B.A.); Oxford University (B.C.L.); Harvard University (LL.M.).
    [Show full text]