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Notwithstanding Should Stand

"The abolition of the notwithstanding clause would deprive Canadians of our rightful place as the supreme arbiters over the state," writes Akaash Maharaj.


Akaash Maharaj
12 January 2006


Toronto - Though there was no clear overall winner in the two leaders' debates this week, there was unquestionably a single moment of high drama: Paul Martin's Monday-night pledge to probibit the federal government from invoking section 33 of the Charter of Rights and freedoms -- the "notwithstanding clause" -- which gives Parliament the power to temporarily override the Supreme Court under extraordinary circumstances.

As a Liberal, I recognize that the opinion polls are currently grim for my party, and that the spectre of a Conservative majority stalks the land. In this context, Mr. Martin's Constitutional proposal represents a serious investment of political capital by his advisors to turn the tide of the election. However, each of us has a duty to be a patriot before he is a partisan, and to look to the judgement of history rather than the verdict of the nightly news.

Viewed through the lens of history, the proposal to abolish the notwithstanding clause is misguided.

Any changes to the basic law of a nation are far too important to be formulated amidst the haste and fury of an election campaign. This proposal, conceived in the dread of defeat and born in rhetorical pugilism, exemplifies why.

The notwithstanding clause may be in bad odour nationally, but in my view, it is the ultimate keeper of democracy in our political system.

Canadians are immeasurably better off because the courts can shield the rights of Canadians from an over-mighty state. The courts are our guarantors that the fundamental rights and freedoms democratically enshrined in the Charter cannot be cast aside amidst the thoughtless passions that periodically convulse parliamentary debate.

For minorities especially, history is littered with groups that were too unpopular or too powerless to rebuff the tyranny of the majority, and were crushed in the absence of an effective and independent judiciary.

However, while the role of the Supreme Court Justices in upholding the rule of law and enforcing the national social contract is sacrosanct, this does not make them infallible.

Just as the collective wisdom of 308 MPs may sometimes fail us, the judgement of nine Supreme Court Justices may also sometimes falter.

When the two bodies conflict, each has a legal and ethical obligation to reflect prudently and to take every reasonable step to come to an accommodation satisfying all legitimate concerns. In the final analysis, however, Parliament possesses that which the Supreme Court does not: a democratic mandate and direct accountability to the people.

The notwithstanding clause does not empower the legislature to nullify rulings of the Supreme Court; it only permits the legislature to suspend application of a ruling for five years, the maximum life of a peacetime Parliament, allowing the Canadian people to pronounce final judgement at an election.

The abolition of the notwithstanding clause would, therefore, represent not only an abdication of Parliamentary responsibility, but also of popular sovereignty. It would deprive Canadians of our rightful place as the supreme arbiters over the state.

The greatest guarantor of liberty in a democracy is an engaged and sceptical populace standing between its leaders and the levers of power. To repeal the notwithstanding clause and thus place final authority over public policy in the hands of any institution over which the public holds no sway would be an illiberal and regressive step in our nation's history.

As a Liberal, I believe passionately that the wisdom of society lies in the many, and not the few. I have great respect for the good intentions of the Supreme Court Justices and MPs of all political persuasions, but I have greater respect for the judgement of my fellow citizens.

Mr. Martin's move is buoyed by the fact that the notwithstanding clause has recently been mischaracterized as a narrow tool aimed at arbitrarily depriving individuals of fundamental rights -- thwarting same-gender marriage, for example -- which explains why the clause has become unpopular.

It is easy to trade upon so widespread a misapprehension, and difficult to argue against it. However, all of us involved in the political process must stand prepared to do what is right, not in spite of the difficulty, but precisely because of the difficulty, because it is only through the exercise of political courage that we prove ourselves worthy of our country's name.

The notwithstanding clause should stand, for the good of Canada, for the good of Canadians, and for the good of liberalism.

Akaash Maharaj is the former National Policy Chair of the Liberal Party of Canada, and one of the authors of the 2000 Liberal Party Red Book. His web site is www.Maharaj.org.

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