Question about the Notwithstandning Clause

[ToadBrother]

But they inherited the institutions and tradtions of democracy; these had been in place long before the countries' independence.

There really is no hard and fast rule. The best theory I've heard is that societies where tribalism is the norm are very difficult to make into full-blown democracies. You can take a country like Japan, which had been ruled for centuries under authoritarian regimes of one stripe or another, but because there was some sort of centralized authority, even if for long periods that authority was more theoretical than real, there was some capacity to reforge the institutions into a democratic form (ie. keep the Emperor as the symbol of the state, but make the previously impotent legislature the primary, or only body capable of making law).

A lot of these African countries are made up of an extraordinary array of ethnic, linguistic, religious and in some cases even racial groups. The Great Powers drew the borders for their own convenience, caring very little that they might be tossing tribes who had had long animosity towards each other together, or cutting tribes into pieces via their borders. While the armies of the Great Powers were there, some semblance of centralized government existed (though in some cases, such as the horrifying way Belgian ran its colonial holdings, the government explicitly set one group against another). Take the armies away during the incredibly rapid decolonization after WWII, and it became very obvious in many cases that the institutions that the colonial powers had put in place were paper thin. Let's not forget that most of these colonies were also very young, dating back in many cases to the latter half of the 19th century.

India's a bit different, in that what were separate states were forged together by Britain, but the colonization began earlier than it did in Africa. The Brits also expended a considerable more coin in Indian infrastructure. There was also the will of the Indian people to forge a nation out of what the British Raj had left them. Of course, that went awry to with Pakistan splitting off, and then Pakistan fragmenting itself as Bangladesh went its own way.

[jbg]

It's probably a combination of both; both a constitution and democratic traditions are obviously pointless against an individual hell-bent on conducting an armed takeover, but both should also make that insurrection extremely difficult. I mean, it really is quite a hassle to amass a personal army...

I agree.

My point is that an individual or small group would have a problem conducting an armed takeover of, say, Great Britain or Canada, despite the lack of a written constitution. Written constitutions have proven a frail reed in countries such as Nigeria or Pakistan, however.

[jbg]

There really is no hard and fast rule. The best theory I've heard is that societies where tribalism is the norm are very difficult to make into full-blown democracies.

As usual, great analysis.

Now we could get along if you laid off the personal attacks elsewhere.

[ToadBrother]

As usual, great analysis.

Now we could get along if you laid off the personal attacks elsewhere.

Oh good grief. I call your ideas crap and you act like I spit in your soup. If it makes you feel better, I'll apologize for my "strong" language. In the future I'll make it clear that it's silly claims I have a problem with...

Unless it's lictor, shady or Mr. Canada. All bets are off for them.

Edited August 25, 2010 by ToadBrother

[Jack Weber]

Oh good grief. I call your ideas crap and you act like I spit in your soup. If it makes you feel better, I'll apologize for my "strong" language. In the future I'll make it clear that it's silly claims I have a problem with...

Unless it's lictor, shady or Mr. Canada. All bets are off for them.

You've just hit the trifecta of lunacy right there!!!

[msdogfood]

Let's be precise about this. The 'notwithstanding' clause says (my emphasis added):

The point being, that the notwithstanding clause can only except a narrow range of constititional provisions -- it cannot be used to grant carte blanche powers to the government.

and Elections Can NOT BE SUSPINDID!!!!!!!!!!!.

[g_bambino]

and Elections Can NOT BE SUSPINDID!!!!!!!!!!!.

What?

[ToadBrother]

Does it really matter? If the Prime Minister tried to use the Notwithstanding Clause to become a dictator, and was succesful, the relevant problem would not be with the what the Constitution said, but with the people of Canada. The Constitution is merely a piece of paper; it is the people of this country who give it authority, and are thus responsible for what comes of it.

Well, first of all, the notwithstanding clause doesn't really deliver any government leader the power to become a dictator. But there are other safety valves. If a PM were to attempt such a thing, the Queen or Her Vice-regal, to dismiss the Prime Minister, or at the very least to refuse Royal Assent (it actually happened in the 1930s to the Social Credit Party in Alberta that the Lieutenant Governor delayed Assent to some pretty noxious anti-press bills). If we were to imagine a PM attempting some sort of outright military coupe, well, again, the Queen is in fact the commander of our armed forces (they don't swear an oath to the Prime Minister or to Parliament, they swear an oath to the Queen and Her heirs). While in technical terms the armed forces, indeed police forces as well, serve at the bidding of Cabinet, the actual authority comes from the Monarch, and if she were to order the armed forces to stand down, the chain of command does not include the PM.

It actually happened in Spain after Franco's death and Juan Carlos I became King that a small group of generals attempted a coupe. Juan Carlos is of course, as King of Spain, also commander and chief of the armed forces, and had the constitutional power to order any troops to stand down and to dismiss anyone who was part of the coupe.

Of course, none of this means very much here. Canada is a nation governed by the rule of law.

[William Ashley]

This thread is inane to think that someone need to perform things legally to overthrow rule.

And when has a person actually ruled independantly in Canada? The system is rank with partisanship, it is political collatoral.

It is not beyond the capacity of any individual to commit acts against the public? No person is obligated to perform acts that violate their conscience. Even officers have the right to refuse orders contrary to humane decency or human rights. They may have to face the consequences - whatever they may be (perhaps suffering the same fate or worse of the act they refused to commit).

The whole problem with what you are putting out here is purporting a soulless police state - that already exists, would only be perpetuated by a soulless corrupt leader.

We ought to get to the heart of this - no wrongdoing would occur if it wern't supported as acceptable within the militant powers of the state that already exist.

The problem is most laws concern infleunce by a class of persons, rather than being perpetuated to create equality and freedom of soceity, while protecting the rights of individuals - instead of creating the rights for classess of individuals, that underscores the premise of governance for public benefit. We ought not create benefits solely for classess of individuals - that is the fundamental of the charter on insuring the rights of freedoms of ALL CANADIANS, not just segments of the population.

It ain't a nice world, and what is the difference in one or one of many of the same mind?

Words need to be determined?

Where is the challenge?

The attorney General is the top man for matters of law in the power to suspend judicial process.

This perpetuates the suspension of lawful process - thus the whole inaity part.

The PM can appoint himself all cabinet positions and be a one man show. Save parliament - which he can request suspended. But new laws could only be drafted by orders in council - after they appointed themself governor general.. but THE QUEEN would have to ok it.

In the event of a suspension of parlimanet and the loss of the monarch... order of presidence would place the PM on top of the food chain.. but why the hell would the population support the notion of a dictator if they didn't want one?

The people have the power to form government ... at any time.. states have the right to recognize one another. That is natural law. Law you can't suspend, but what exists when the dogma is removed.

Note though that the Queen is titular head of the Canadian forces and courts of Canada - and the topman on parliament - needed to make everything legal.(in most cases there are some loopholes)

the end though is that also the Canadian forces commander is "seperate" in command structure (de facto) but Canadian defence is also quasi soverign due to treaty - and the status of Canadian defence (as in part being a multistate organization with elements embedded globally under differeing command structures and jurisdictions)

likewise the courts are headed by the supreme court - de jure sitting/representing for the Queen.

while the court chairs the judicial council (representing the courts of canada more or less)

although powers over the courts are quasi vires in that they exist in multiple jurisdictions.

The provinces are seperate entitities from the federal government - at law, but there are integrated powers, power sharing and supersitions of power.

As complex as it all seems, it is status quo. Take a run at it if you have something worth it.

Survival and control is not force of numbers alone.

Edited August 26, 2010 by William Ashley

[charter.rights]

And when has a person actually ruled independantly in Canada?

The Family Compact. While it is said to have been disbanded by about 1841, in actuality it lasted far longer and had far more influence on government than ever realized.

[g_bambino]

In the event of a suspension of parlimanet and the loss of the monarch... order of presidence would place the PM on top of the food chain..

No, it wouldn't.

[Smallc]

No, it wouldn't.

It wouldn't take him much reading to find out that a new monarch would immediately ascend the throne.

[Jack Weber]

It wouldn't take him much reading to find out that a new monarch would immediately ascend the throne.

I don't understand...

Are you saying that if we did away with the British Monarchy that somehow a new Canadian King/Queen would magically appear??

[William Ashley]

bambino - given the event of the PM being cabinet and governor general... and the monarch being dead whilst parliament and the courts were suspended - it very well would place the PM at the top of the food chain (in Canada). It would take a member of the Royal Family to enter Canada - while the Cabinet would have the power to refuse entry due to domestic law in Canada - speaking legally - that would be inane regardless. So rather than being in the habit of opposing my statements on rhetorical rather than intelligent reasons, why not actually state the situation instead of just stating nonsense. (the monarch by 'de jure notion' / titular heading command segments of the Canadian forces and have supremecy - but this is nonsense regardless - it happens in the world but Canadians oft not think about living in a state such as that as it is a little far fetched to think that Canadians would "knowingly" support those notions. The PM however would be in control of the honours system of the military as governor general. This is inane though. As the rank and structure and ceremonial commands may not be fully viewed as authorative in the modern professional world. It is a nonsense situation. It is in effect not a domestic issue unless the world made it that. The US for instance might not like a split decision - although the would be monarch likely would by convention be expected to respect the wishes of Canadian cabinet (but the monarch could apoint a new PM and governor general)

the oath however is to the monarch "and successors" succession must be affirmed in canada by parliament - however within government it would be de jure by right of accension (but this is a legal question that in canada is not necisarily related - with the courts and parliament suspended, there would be no change of state only executive functions and the formation of a "new state" not based on the stasis of the previous state. - law itself would be created by orders in council (executive orders) and implemented by martial force - not civil right

('auctoritas' (authority), potestas vs imperium

The question of british subjects remains (whoever they may be) and organizational oaths... advisors counsellors etc... all who may have their oaths by default passed to heirs - that would be a "royal adminsitration or organization" wilst a closer form of dictorialism would be in existence at the level of state - that is the would be monarch would have fealty and allegance, bu not sovereign exercise within Canada (although they would still potentially have soveriegn authority - by right of god or convention) this in the UK is all mashed up though due to the EU and a whole bunch of other things... long story short - it is status quo make a run if you think you can get somewhere with it.

It wouldn't take him much reading to find out that a new monarch would immediately ascend the throne.

With parliament suspended, they wouldn't, ever. The vice regal (the PM in this case) would have to summon parliament.

This is an utter nonsense sitaution though, but the question is a little nonsense anyway (the Queen is a de jure dictator already - Canadians are de facto crooks - the two combined means status quo and sentimental supports by the police state in executive exercise. There are issues of breach law every single day of the year. The law doesn't create stability it creates structured grounds for stabilization of a shattered house of glass.)

Edited August 26, 2010 by William Ashley

[Smallc]

I don't understand...

Are you saying that if we did away with the British Monarchy that somehow a new Canadian King/Queen would magically appear??

Well, if that's what he meant, there would no longer be an order or precedence (which doesn't mean what he thinks)...or anything else....

[Jack Weber]

Well, if that's what he meant, there would no longer be an order or precedence (which doesn't mean what he thinks)...or anything else....

Just so we're clear..

If the British Monarchy was done away with tomorrow,Myron Thompson or Charles Adler would not become the next Canadian King because there would be no reason for any monarchy in this theoretical situation?

[jbg]

Unless it's lictor, shady or Mr. Canada. All bets are off for them.

Kanadysha?

[ToadBrother]

bambino - given the event of the PM being cabinet and governor general... and the monarch being dead whilst parliament and the courts were suspended - it very well would place the PM at the top of the food chain (in Canada).

Nope. 'Fraid not. One of the key principles of our Monarchy, predating most other constitutional conventions, is that we are never without a Monarch. That is what is meant by "The King is dead. Long live the King" and its variants depending upon the gender of either party. Underlying it is the principle that upon the death of the monarch, immediately his or her heir becomes monarch. The situation you put forward simply could not happen. When Elizabeth I dies, Charles will immediately becomes Charles III. The coronation is formality, an impressive one, but unnecessary. Edward VIII was King from the moment George V died up until his abdication, at which point his brother immediately became King.

The same principle applies to the Government as well. We are never without a Prime Minister. Even in defeat, either by vote of no confidence or by election defeat, the incumbent Prime Minister remains in that position until Her Majesty or Her Majesty's Vice-regal representative asks someone else to be PM.

It is a key facet of our constitutional system that there always be continuity, that there never be a moment where we are bereft of a head of state or a head of government.

[ToadBrother]

Kanadysha?

I was kind of assuming it was Lictor, now feeling freed of the shackles of even the slightest social convention and happily embracing his Nazi leanings.

[ToadBrother]

Just so we're clear..

If the British Monarchy was done away with tomorrow,Myron Thompson or Charles Adler would not become the next Canadian King because there would be no reason for any monarchy in this theoretical situation?

Well, technically, it would all depend on what was altered. If we dispensed with the Act of Succession and the Statute of Westminster, we could name someone as our Monarch, and thus retain the other trappings of the Crown. But you're quite right, if we managed to get through the significant constitutional changes involving repudiation of these constitutional documents, I would see no point to retain a monarchy of any kind.

[g_bambino]

bambino - given the event of the PM being cabinet and governor general... and the monarch being dead whilst parliament and the courts were suspended - it very well would place the PM at the top of the food chain (in Canada).

No, the monarch is never dead; the second that one passes his or her successor immediately becomes monarch. As the governor general is appointed by the monarch and not the prime minister, and the judges of the courts are appointed by the governor general and not the prime minister, and both the monarch and governor general are required to follow the constitution, not the prime minister, the courts would never be suspended. Parliament, on the other hand, is regularly suspended - recesses, prorogations, dissolutions; so that event means nothing in terms of the prime minister becoming the "top of the food chain," as you put it.

uccession must be affirmed in canada by parliament

Please point to where this requirement is spelled out. Otherwise it's nonsense.

The question of british subjects remains

Not in Canada.

[g_bambino]

I would see no point to retain a monarchy of any kind.

As Margaret Thatcher once said: "Those who imagine that a politician would make a better figurehead than a hereditary monarch might perhaps make the acquaintance of more politicians."

[jbg]

Kanadysha?

I was kind of assuming it was Lictor, now feeling freed of the shackles of even the slightest social convention and happily embracing his Nazi leanings.

I thought that was his real name.

[ToadBrother]

No, the monarch is never dead; the second that one passes his or her successor immediately becomes monarch. As the governor general is appointed by the monarch and not the prime minister, and the judges of the courts are appointed by the governor general and not the prime minister, and both the monarch and governor general are required to follow the constitution, not the prime minister, the courts would never be suspended. Parliament, on the other hand, is regularly suspended - recesses, prorogations, dissolutions; so that event means nothing in terms of the prime minister becoming the "top of the food chain," as you put it.

As I pointed out, as well, the armed forces in Canada hold their allegiance to the Monarch. If a PM tried anything shady, they do not command the loyalty of the troops, only the Queen does. The Queen, of course, acts on the advice of the PM, but she is a protection against blatantly unconstitutional acts. The PM does not have the power to command the troops alone, without the Monarch's approval, the PM is impotent.

[Bonam]

As I pointed out, as well, the armed forces in Canada hold their allegiance to the Monarch. If a PM tried anything shady, they do not command the loyalty of the troops, only the Queen does. The Queen, of course, acts on the advice of the PM, but she is a protection against blatantly unconstitutional acts. The PM does not have the power to command the troops alone, without the Monarch's approval, the PM is impotent.

Umm that may be the theory, but the reality is quite different and would really depend on the situation. If the Monarch ordered the Canadian forces to undertake an action that was not ordered/approved by the Canadian parliament and/or prime minister, do you really think the armed forces would follow the Monarch's order? Probably not, unless the prime minister was trying to seize dictatorial powers or something and the only way to preserve democracy was a military coup that then promptly returned power to a new civilian government. Frankly these are all extremely far fetched scenarios that are incredibly unlikely to play out in Canada, but if they did, ultimately, the decision would rest in the hands of individuals generals and other officers in the military: they tend to have the loyalty of the men under their command and would be able to get many of them to follow their orders, whether those happened to be the orders of the Monarch, the prime minister, or, in a sufficiently chaotic situation, the general's own idea.

Edited August 26, 2010 by Bonam