Lost re: this supreme court question

smythejay

Hi there, I'm a first year Poli Sci student and I was told to consider the following question. It seems pretty basic and I get the idea, but I was wondering if I could have some help putting it into perspective.

Basically I need to analyze those who argue that an unelected body (judges) should not be able to tell an elected body (legislature) what the law should be. In the analysis it says I should consider advantages and disadvantages of having the Supreme court (of Canada in this case) as the final lawmaker in our society. It also mentions I should use examples like abortion, capital punishment, and civil rights laws.

So yes, it's pretty much an essay, so any help with making this a bit clearer would be greatly appreciated!

gilroyb

It's a fairly broad question, is there any particular angle you plan to take and could start the discussion from there. I did an essay a few years back on issues involved in "government by judges", but think it is a different focus to your essay.

One issue is that the Canadian Supreme court does not have the final say, I think on issues such as you have outlined it can make a decision, but if its against the 'greater good', then the policy will prevail.

Also, a technical point, the Courts are never the final lawmaker, the best the can hope for is to be the last political actor to interpret a law. As shown by the recent Mr. A case, the legislature can always just draft a new law for the future. Issues here are evident in the X case in Ireland (abortion), in which the legislature has attempted to roll back on abortion rights but has been unable to get a referendum passed. There is a large literature based on the 'principal-agent' interaction and how the agent (the court) will follow its own agenda if it's hard for the principal (legislature) to enforce its will.

One other argument in favour of the courts is that they get the right policy implemented, even though the policy would be too politically unpopular for the elected government to bring in. Possible examples of this in Ireland would be the ECHR decision which led to Homosexuality being legalised in Ireland, and many of the ECJ decisions 'forcing' the member state governments to implement environmental standards etc.

As I said, it's a broad area, so feel free to narrow it down a bit.

EDIT: just to add, re-read your post, the court should never really be able to tell the legislature what the law should be, they can only make findings on what the law is. It's a technical point, but important one.

Lplated

This is a separation of powers question - sep of powers is an idea common to consitutional democracy, essentially there is a balancing tripartide of powers between Government, legislature and Judiciary.

The balance is necessary so that any one power does not go beyond the powers conferred on it under the Constitution. Thus, for example, one can judicially review the decision of a state body on the basis said decision was unconstitutional. A court would review the matter and decide. Thus there is a balance between the decision making body in the eg (the state body) and the judiciary.

Theoretically separation of powers has three components. In Ireland we really only have two because to all intents and practical purposes the Government controls the legislature (the Dail). In that case, the role of the judiciary becomes all the more crucial as it is the only balance available.

Look at this from basic principles. We, the people, agree that the State in which we live be governed in accordance with principles enshrined in our Constitution. In 'return' for giving over to others the powers to make decisions affecting our lives (e.g. the power to tax us, to imprison us etc..) we included in the basic ruling document, the Constitution, a balancing mechanism to ensure that our rights, as consitutionally enshrined and decided by us, would be protected.

Not sure why the SC of Canada is relevant to your essay, I don't know a lot about their legal system other than it is a federation, that is a grouping of individual states. Some powers are retained by the states individually and some are handed over to the federation in the form of the federal government. There are State Courts to decide State matters and a federal court system to decide federal matters. When there is a dispute on jurisdiction (i.e. I say my case is a state one not a federal one) it is the Federal system which is the ultimate arbiter.

sh_o

Take a look at the concept of Judicial activism - this may help (or confuse) you ;-)
The judiciary in some countries are more 'active' in their policy decisions than in others. Also some would argue that the Irish Supreme Court has been or is more "active" depending on the make up of the court at the time.

Take a look at the following article which is a good introduction:
http://en.wikipedia.org/wiki/Judicial_activism

focusing

In relation to the suggestion that "an unelected body (judges) should not be able to tell an elected body (legislature) what the law should be", in the Irish case the people lay down the ground rules in the Constitution. The Supreme Court just decides if the Oireachtas is in breech of the Constitution.

So, it's fairer to say that they tell us what the law "cannot" be, rather than what it "should" be, by reference to the people's Constitution.

If you need to find caselaw from Canada search www.canlii.org

Our man in Havana

Another thing, the judicary are very powerful in Ireland as evidenced by the Curtain J situation. It is nigh on impossible to remove a judge or curb the power of the courts. In theory the parliament should be able to remove judges am I right in that thinking?

Thirdfox

Parliament can remove judges if they are deemed unsuited for working any longer (pretty much the same procedure as removing the president from office as far as I know).

But to give parliament the right to remove judges willy-nilly could be potentially dangerous as liberal/conservative judges can be removed as seen fit by the current government - the courts will turn into an extension of the government (as seem in America where the judiciary is so politicised).

A book that deals solely with the idea of separation of powers is "Separation of Powers in Ireland" by David Gwynn Morgan. It's an interesting read (I found he was highly critical of the current Irish system).