Castan Centre for Human Rights Law

'Human Rights as Judicial Politics or Parliamentary Judgments'

Julie Debeljak

In Australia today, there are many instances of violations of human rights standards: the ongoing issue of mandatory detention of asylum seekers; the mandatory sentencing laws; the continued denial of self-determination for Indigenous Australians; the denial of access to fertility treatment to all women regardless of marital status or sexual preference; and the proposed development of a medium- to high-level nuclear waste dump in South Australia.

But who am I to pass this judgment? Am I the legitimate arbiter of such matters? The answer is obvious. No, unfortunately/fortunately I am not the legitimate power within society to make such rulings. But we need to re-think who should be the referee over such matters.

Currently, the only way individual Australians can complain about violation of their human rights is to the various tribunals set up under international human rights treaties. If a tribunal finds Australia in violation of its human rights obligations, Australia is entitled to, and has, ignored this. Australia has reserved the sovereign right to disagree, and continue with whatever law or practice was found wanting.1 In this scenario, the elected representatives have a monopoly on deciding the limits of human rights protections.

Let us now imagine that Australians agreed to incorporate the ICCPR into domestic law. Let us further imagine that we adopted a model that did not give the judiciary the final word on our human rights. That is, we adopt either the Canadian Charter on Human Rights and Fundamental Freedoms, or the British Human Rights Act.

In brief, the Charter guarantees the usual range of civil and political rights, with some additional language rights specific to its needs. Under section 1, the rights and freedoms guaranteed are subject to any reasonable limits prescribed by law and that can be demonstrably justified in a free and democratic society. There are various remedies available under the Charter, the judicial power to invalidate legislation being the most potent.2 The Charter also contains an override clause. Section 33 allows the Parliament to expressly enact legislation that will operate notwithstanding a provision of the Charter.

In brief, the British Human Rights Act 1998 incorporates most of the rights contained in the European Convention on Human Rights. Under section 3 of the HRA, the judiciary must interpret primary and subordinate legislation, so far as it is possible to do so, in a way which is compatible with the Convention rights. However, the judiciary is not empowered to strike down any incompatible legislation. Primary legislation found to be incompatible stands and must be enforced. All the higher courts can do, in their discretion, is make a declaration of incompatibility. The legislature then has a number of options. It may repeal or amend the incompatible legislation by the ordinary legislative process. In addition, a Minister is able to take remedial action. This allows the relevant Minister to pass subordinate legislation to deal with the incompatibility.3

This paper will consider the impact bills of rights under which the judiciary is empowered to have at least some say on the boundaries of the power of the elected representative arms of government. Having established a theory that reconciles ideals of democracy and rights protection, discussion will focus on how such bills of rights operate in practice.

RECONCILING HUMAN RIGHTS WITHIN A DEMOCRATIC FRAMEWORK

We need to establish whether we can reconcile democracy, which is often thought of as purely majoritarian rule, with human rights, which are often thought of as anti-majoritarian in a pejorative sense.

This paper will proceed on the basis that there is a philosophical defence for human rights. If for no other reason, human rights are philosophically defensible because virtually all states recognize the existence of human rights.4 It will also assume that the source of human rights is our common humanity.5 It will also accept that human rights are more than a whim, as per Lord Justice Bingham's statement:

'I cannot, however, for my part accept that [human rights] represent some transient sociological mood, some flavour of the month, the decade, or the half-century. They encapsulate legal, ethical, social and democratic principles, painfully developed over 2,000 years. The risk that they may come to be regarded as modish or passe is one that may safely be taken.6

The evolution of human rights from the Enlightenment period, to the post World War II, the more modern day examples, such as the HRA, makes it clear that human rights standards are a continuing and evolving debate.7

There is a clear link between the value of human rights protection and the value of democracy. The Preamble to the European Convention provides:

'those Fundamental Freedoms which are the foundation of justice and peace in the world ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.'

There is no explicit indication as to how an effective political democracy and human rights interact. However, there is implicit recognition that an effective political democracy and the observance of human rights are supplementary. This suggests that the two ideals can be reconciled. After all, '[D]emocracy is not a unique fundamental value but rather one that must be understood in the light of a very limited list of other such values.'8

The answer lies in the phrase "effective political democracy". On the basis of the Preamble, it is fair to assume that an effective political democracy protects and promotes human rights, and that human rights reinforce an effective political democracy. So what are the features of this effective political democracy?

I begin with two difficulties associated with defining "democracy". Multitudes of theories attempt to define democracy. The competing models ranging from pure majoritarian-statistical-market based democracy, to procedural democracy, to substantive democracy. The differences between each model centre on whether or not the rights of the individuals and the minority temper the will of the majority; if so, who is to interpret and enforce the rights, andwhether the rights are intended to protect procedural or substantive notions of democracy.9

Such diversity of views suggests that there is no 'transparent view of the essential meaning of democracy...'10 Each meaning of democracy is borne of a particular context or a particular historical struggle. Thus, our inquiry should be limited to whether a judicially enforceable instrument for the protection of fundamental rights can be considered part of a true democracy, or at least, not antithetical to democracy.11

Another difficulty associated with defining democracy is that we lose sight of its purpose. Democracy is not an as an end in itself.12 It is a yardstick for criticism and a catalyst for change. It is an ideal we aspire to, not simply a way of legitimising the institutions and procedures which have served existing democracies to date.13 Society must take a provisional approach to grand narratives, such as democracy, to conceive them "as ongoing accomplishments. They are never finished, but have to be constructed, deconstructed and reconstructed in ever-changing circumstances."'14

Susan Marks insists that democracy be about self-rule and political equality. Self-rule and political equality are best achieved by the principle of democratic inclusion. Democratic inclusion is not about episodic elections or securing certain institutional arrangements.15 It is concerned with 'relationships and processes, an open-ended and continually recontextualized agenda of enhancing control by citizens of decision-making which affects them and overcoming disparities in the distribution of citizenship rights and opportunities.'16

If the aim is to pursue a more inclusionary political community, 'securing respect for all categories of human rights must assume priority...'17 'Rights exist to ensure the realisation of conditions that are necessary for true deliberative democracy.'18 If another aim is enhancing control by citizens of decisions that affect them, then democratic inclusion requires the 'state authority ... to justify itself to the citizenry on a continuing basis.'19 Constitutional rights ensure justification to the citizenry that political power has been exercised in a rational and reasonable manner.20

The principle of democratic inclusion thus embraces two ideas. The first is the need for continual dialogue, debate and discussion about the role, the limits and the institutions of democracy within society. Underpinning this debate is the protection of human rights. The second is the recognition that our democratic theory is incomplete. The deliberative theory of democracy embraces both ideas. It defines democracy as a process of developing preferences through dialogue which, in the absence of unanimity, will be interrupted by a majority decision.

First, the dialogue element. The deliberative theory of democracy is concerned with open, uncoerced deliberation, aimed at reaching rational consensus concerning the common good or public interest.21 It recognises the capacity for impersonal reflection and the ability of each individual to engage in reasoned deliberations. A genuine opportunity to participate in the dialogue is imperative and real alternatives must be presented.

Guaranteeing fundamental rights ensures this.22 Tom Campbell argues that the exemplary model of democracy includes a pre-enacted instrument protecting human rights and fundamental freedoms to be used by the courts to review legislation.23 Any conflicts between rights and legislation found should be referred back to the legislature. Thus, a three way dialogue is established: between the electorate, the elected arms of government and the unelected arm of government, with the elected arm having the final word.

Secondly, the finality point. In a deliberative democracy, the majority decision is provisional; it is the practical compromise citizens live with until a final agreement can be reached. This is especially important in a plural society where diversity, disagreement and uncertainty abound. People will disagree about the common settlement of an issue, but they will agree that there should be a common settlement, rather than each group trying to implement its own view. Free and vigorous debate under fair procedures, that allow all to participate equally, is a necessary precursor to the enactment of law. Waldron argues that disagreement is the normal background to law formation: 'noise and conflict are the sign of a healthy polity.'24 The principle of democratic inclusion embraces noise. Democracy is a means to an end. It is an ongoing process, that promotes critical analysis of our provisional consensus about the best form of governance, and works towards enhancing our self-rule and political equality.

This idea of provisional truces is the essence of Cass Sunstein's interpretation theory of 'incompletely theorised agreements'25 It is particularly suited to pluralist societies. The theory provides that if there is dissensus on a large-scale issue, people may converge on particular outcomes and low-level principles without having to agree on the general principle. This allows for a common settlement of the disagreement, which promotes stability, mutual respect and reciprocity. By reaching an incompletely theorised agreement, the deepest and most defining beliefs and commitments of some people are not rejected by or subordinated to another's. Moreover, by not once and finally committing society to overarching general principles, morals and values can evolve and respond to changing circumstances. Finally, society can move ahead on the basis of the provisional settlement.26

Sunstein considers incompletely theorised agreements to be a theory of just institutions, and in particular a of the theory of deliberative democracy. Only just institutions can legitimately exert power and just institutions must be founded on democratic considerations. However, deliberative democracy insists that some interests are immune from democratic intrusions, as does the principle of democratic inclusion. This is why we have Constitutions, which establish our democracy, its just institutions and the limits of our just institutions.

Constitutions are in fact incompletely theorised standards. They tend to contain high-level abstractions, because people can agree at the abstract level about how to live, but cannot agree about its specification.27 Moreover, when interpreting Constitutions, there is a general presumption against judicial high-level theorising and a presumption in favour of judges reaching low-level, incompletely theorised agreements when adjudicating disputes.28 This ensures concrete outcomes to disputes in the short term, promotes stability in the midst of pluralism,29 and allows for the civic evolution of shared values and morals.

This does not mean that judgments may not involve abstractions or moral or legal foundations, but it does mean that society's commitments are not finally defined within the courtroom. However, judges may need to engage in a certain level of theoretical decision making when the democratic process breaks down or is less reliable. Specifically, this occurs when majority interests are liable to threaten minority interests. In this context, judges should adopt a presumption in favour of democratic outcomes. Judges will not finally bind society to specific high-level commitments. Rather, judicial opinion on constitutional matters will be one voice amongst many in the dialogue, but their voice will be especially mindful of the need for self-rule tempered by political equality.

In the paper, I continue to analyse whether modern Bills of Rights incorporate the principle of democratic inclusion as their "effective political democracy". I conclude they do. The potential for dissensus and the need for evolution are recognised within modern bills of rights, both explicitly and implicitly.

Explicit examples include: the provision of constitutional amendment; and the fact that most rights are not absolute, many rights being internally qualified, and subject to external limits, such as what is necessary or justifiable in a free and democratic society. Also, most bills of rights allow for parliamentary reaction after judicial review. This includes section 33 of the Charter and the HRA (the judges can only make a declaration of incompatibility, coupled with the provision for remedial measures).30

Implicit examples include constitutional ambiguity. Things that cannot be known and agreed upon in any verifiable manner are 'left undefined and allowed to remain "sufficiently obscure to allow them to retain an approximate appearance of internal coherence and clarity, while at the same time accommodating several potentially conflicting and quite unresolved points of issue."'31 In the words of Tushnet, 'the language of rights is so open and indeterminate that opposing parties can use the same language to express their positions.'32 Tushnet considers this to be a downfall, as 'rights talk can provide only momentary advantages in ongoing political struggles.'33 However, the principle of democratic inclusion views this as a strength, democracy being defined by its ongoing political struggles.

Hence, if we accept that the principle of democratic inclusion provides an "effective political democracy", we have a theory that reconciles the basics of democracy and human rights. Deliberative democracy and the notion of incompletely theorised standards best implement the principle of democratic inclusion.

I then go onto consider the debate over whether: democracy is concerned with process only, which has little influence or quality control over the outcomes of the process, or whether there are substantive components to democracy without respect of which the outcomes of the process are considered illegitimate.34 The principle of democratic inclusion is the latter. Citizens need better control over the decisions that affect them (ie. a qualitative aspect to self-rule) and greater parity in the distribution of rights and opportunities (ie. substantive political equality).

Many commentators argue that substantive notions of democracy wrongfully insist that democracy be about producing "rights answers".35 That is, the notions wrongfully focus on the outcomes of democratic procedures, rather than on the procedures alone. This concern is misplaced however. The principle of democratic inclusion does not focus on "right answers". In fact, it recognises that democracy, particularly in a pluralist society, may be incapable of producing a single right answer. At best, we should settle for provisional truces that enable us to get on with life, leaving the portals of change open for debate and change. Methods of protecting rights that allow both judicial and legislative definition, ensure that any provisional truce reached by either arm of government is open to debate and change in the future.

The most you can say about the endgame of a substantive democratic theory is that better answers will be produced.36 In the elected arms of government, rights-based debate 'will generate a better, and more principled, answer to complex and contested issues than a policy process where rights-based assessment are absent...'37 'It is more difficult to justify the reasons for pursuing policies that require limiting protected rights than it is to pursue competing interest.'38 In the unelected arm of government, the judiciary is not producing, nor promoting, the "right answer". Rather, the judiciary precludes provisional truces that were not reached in adherence with the goals of self-rule and political equality. It is not about the merits of a legislative scheme or a policy choice, but about the quality of the dialogue that produced it.39

Having established a theory that reconciles democracy and rights protection, we need to consider just how the principle of democratic inclusion works in practice. Can judicial review under the Canadian Charter be considered part of the ongoing debate to develop democracy, with the view to achieving and improving self-rule and political equality.

In my paper, I refer to various studies, which highlight the constructive role the Charter has made in Canadian democracy.

Hogg and Bushell recently prepared a study on situations of dialogue between the legislature and the judiciary.40 Dialogue is defined as situations where there is a legislative sequel after a judicial decision to strike down a law. Between 1982 and 1997, of the 65 cases that struck down legislation for an unjustified breach of the Charter, 52 (that is, 80 per cent) have legislative sequels. The legislature amended the offending law in 44 of the 65 cases (68 per cent). In most cases the requisite change was minor and did not forfeit the objective of the legislation. Moreover, the language contained in the legislative responses highlights the legislature's consideration of and interaction with the courts. Of the 13 cases without legislative sequels, two have been the subject of proposed legislation, and three were decided only within the last two years.41 These statistics indicate that the Charter may prompt a dialogue between the courts and the legislature, 'but it rarely raises an absolute barrier to the wishes of the democratic institutions.'42 In their words:

'Judicial review is not "a veto over the politics of the nation," but rather the beginning of a dialogue as to how best to reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole.'43

Hogg and Bushell identify four features of the Charter that facilitate this dialogue,44 only two of which I have time to discuss.45 They are the section 1 limitation; and the section 33 override.

Analysis of the reason for legislative failure under section 1 highlights its contribution to the principle of democratic inclusion. Under the section 1 justification, the legislature must first establish that a limit is reasonable, in the sense the object of the limitation sufficiently outweighs the Charter protection.46 97 per cent of all legislation that violates Charter rights are held to be sufficiently important by the Supreme Court.47

Next, the legislation must pass a proportionality test, which determines whether a limitation is demonstrably justifiable in a free and democratic society. The first step, the rational objective test, addresses whether the measure used to achieve the objective is rational, fair and not arbitrary. 86 per cent of the impugned legislation possessed a rational connection.48 It is at the second step, the minimum impairment test, which most of the section 1 Charter justifications fail. Of the 50 (out of 86) infringements of Charter rights that have failed the section 1 test, 86 per cent failed the minimum impairment test.49 Finally, the third step of test, which requires proportionality between the effects of the limitation and the sufficiently important objectives. The third test was satisfied each time the minimum impairment test was satisfied, and was not met or not even considered when the minimum impairment test was not met.50

Thus, the legislator is left with options. If the court identifies a less restrictive alternative method, the legislature can enact that or a similarly less restrictive alternative. If the suggested alternative is not practicable, the legislature can devise another alternative that is workable. Seldom is a law struck down because of its legislative objective or policy. This signifies a constructive debate between the two arms of government, ensuring that legislative objectives are achieved at a minimum cost to fundamental rights and freedoms. It also demonstrates that the Supreme Court is unwilling to engage in high-level theorising about the objectives and commitments which define society. And finally, by relying heavily on the minimum impairment test for invalidity, the court does not finally or permanently preclude the legislative objective. The Supreme Court is unwilling to make decisions that will permanently removed issues from the arena of democratic debate.

Section 33 also facilitates the requisite dialogue and promotes the principle of democratic inclusion. The possibility of the legislature overriding a judicial interpretation of the Charter keeps the debate about fundamental beliefs and commitments alive. However, before acting under section 33, the legislature will have to assess various factors: the importance of its objective; the rational and reasoned judicial decision on its own merits; and the public mood. Only then will the legislature be in a position to decide whether the judges misunderstood a core value.

If a legislative decision to utilise the section 33 power turns out to be political suicide, then so be it. The people have been presented with two versions of their provisional defining commitments and have freely chosen one version. Self-rule has been enhanced, in the sense that individuals can express their informed dis/approval at the next election. The conditions required for political equality will have been fully debated, in the sense that the relevant Charter guarantee will have been considered by the elected and unelected arms of government and the citizenry. The entire episode will be one of the ongoing steps toward democratic inclusion.

Unfortunately, there is a catch. Most legislatures regard the political consequences of legislative override too severe to justify. The use of section 33 has gained a reluctant acceptance in Quebec. It has used it 5 times, but only once was it used to directly overturn a judicial decision.51 It has also been used once by the Saskatchewan legislature.52

This need not be the fate of the "elegant compromise". The essence of the principle of democratic inclusion is that no single arm of government should have exclusive power to interpret the limits of constitutional rights. Rights protecting instruments enhance self-rule and political equality by distributing power between the various arms of government. Sections 1 and 33 particularly ensure a distribution of this power. The guarantees in the Charter act as a check on the legislature, whilst section 1 gives the legislature a chance to justify its rights limiting choices. Section 33 acts as a brake on the excessive or unreasonable exercise of power of the judiciary (section 33).

In conclusion, section 33 should not be viewed as a last minute compromise to ensure the Charter was adopted. It should be viewed as an elegant method of reconciling democracy and human rights. Canadians must understand that section 33 is designed to ensure a dialogue as opposed to a judicial monologue.

I also include extensive studies that have been undertaken by Morton, Russell, Withey, Riddell, and Kelly. They collate statistics relating to Charter cases from 1982 to 1997. They consider such factors as: claimant success, the object of litigation (ie. Legislative versus executive; legislation versus regulation versus action), exercises of judicial discretion. The statistics do not support the anti-democratic critique of rights protection.

The reduced claimant success rate indicates 'the Court's growing attempt to accord democratic actors enough deference to ensure that the Charter does not overwhelm ... the effective functioning of parliamentary democracy.'53 The move away from a focus on the validity of statutes and regulations, toward the conduct of public officials, improves the democratic legitimacy of judicial review, in that the Supreme Court has reduced its tendency to review the policy choices of the legislatures. There has also been an increasing reluctance to support challenges to statutes, that is, to reject section 1 justifications.

Explanations for this are manifold. First, a decline in judicial activism is partly responsible.54 Also responsible is, bureaucratic activism, in the sense of administrators assessing the risk of public policy. Kelly concludes that the 'Court moved away from being an active participant in substantive policy [thus reducing] the anti-democratic critique of judicial review, and increased the legitimacy of the Court's role under the Charter.'55

Review of the British HRA will be brief: primarily because it is too early to being drawing conclusions about the effect of the HRA,56 and because I am running out of time. Suffice to say, all arguments that apply under the Charter apply equally, if not more strongly, to the HRA.

Two main factors of the HRA ensure the balance between democracy and human rights required under the principle of democratic inclusion. Firstly, the interpretative obligation to interpret legislation in a manner, so far as is possible, compatible with Convention rights, does not allow the judges to pervert the words and intent of the legislature, allowing deliberative democracy space to move. And yet, the interpretative obligation will foster a substantive and evolving notion of Convention rights, which will promote political equality and better self-rule. The substantive and living tree notion of rights is based on the European Court of Human Rights jurisprudence.

Secondly, the methodology of judicial declarations of incompatibility, rather than invalidity, allows deliberative democracy to continue, and ensures that no one arm of government once and finally decides the defining commitments of society.

In conclusion, we need a notion of democracy that has some substantive content; that says something about the boundaries of power of the majority. The notion of democratic inclusion strives for a sort of self-rule that embraces substantive political equality. This debate is all the better when supported by an institutional dialogue between the elected and unelected arms of government. There is great scope within democracy to respect the value of all human beings and to listen to the voice of all human beings. It is only when all voices are heard, and given equal respect, that society can begin to grapple with our defining commitments and human rights.

* Julie Debeljak (B.Ec/LLB(Hons), LLM (Class I) (Cantab)) is an Associate Director of the Castan Centre for Human Rights Law at Monash University. She is currently studying her Ph.D. on aspects of judicial independence, separation of powers, and the protection of rights. She is supported by grants from the Australian Research Council and the Judicial Conference of Australia
1 This has happened on numerous occasions: Toonen v Australia, Human Rights Committee Decision 488/1992 (the privacy rights of consenting adult homosexuals); A v Australia, Human Rights Committee Decision 560/93 (mandatory detention of asylum seekers being arbitrary detention); Elmi v Australia, Committee Against Torture Decision 120/98 (where expulsion of an asylum seeker would violate the obligation not to expel where there are substantial grounds for believing that the asylum seeker would be in danger of being subject to torture); Winata v Australia, Human Rights Committee Decision 930/2000 (the deportation of the parents of a 13 year old Australian citizen amounts to an arbitrary interference with family life).
2 The judiciary can also severe offending provisions, read down offending provisions or read in appropriate provisions
3 In some circumstances, the remedial action will not take effect until approval by Parliament; but in other circumstances, the remedial action will take effect immediately.
4 Jack Donnelly, International Human Rights, 2nd Edition, Westview Press, Oxford 1998; Norberto Bobbio, The Age of Rights, Polity Press, Cambridge, UK 1996 (Translated by Allan Cameron).
5 Human rights are human constructs designed to promote and preserve the conditions required for human dignity
6 Lord Bingham, "The European Convention on Human Rights: Time to Incorporate", in The Business of Judging: Selected Essays and Speeches (Oxford University Press, Oxford, 2000), p131; also in Richard Gordon QC and Richard Wilmot-Smith QC (eds.), Human Rights in the United Kingdom, Oxford University Press, Oxford, 1996, p1.
7 Francesca Klug, Values for a Godless Age: The Story of the United Kingdom's New Bill of Rights, Penguin Books, 2000; Francesca Klug, Keir Starmer and Stuart Weir, The Three Pillars of Liberty: The Democratic Audit of the United Kingdom, Routledge, London 1996: '... as the continuing interpretation of the European Convention has shown, human rights evolve as society evolves - in the same way as the common law itself adapts over time.'
8 Mac Darrow and Philip Alston, 'Bills of Rights in Comparative Perspective', in Promoting Human Rights through Bills of Rights; Comparative Perspectives (Philip Alston ed.) Oxford University Press, Oxford 1999. See also: The Hon Justice R D Nicholson, 'Judicial Independence and Accountability: Can they Co-exist?' (1993) 67 Australian Law Journal 404, quoting Cappelletti '"Thus constitutional justice, far from being inherently antidemocratic and anti-majoritarian, emerges as a pivotal instrument for shielding the democratic and majoritarian principles from the risk of corruption. Our democratic ideal... is not one in which majoritarian will is omnipotent"; Davis, Chaskalson and de Waal, "Democracy and Constitutionalism: The Role of Constitutional Interpretation", in van Wyk, Dugard, de Villiers and Davis (eds.) Rights and Constitutionalism: The New South African Legal Order, Claredon Press, Oxford, 1995, p1: '[W]hen "we the people" have formulated a constitutional choice, it binds the more limited authority of the government - the courts have a custodial function of preserving the decisions of "we the people" against the potential undermining thereof by the government. Thus, majoritarianism has no exclusive claim on democracy - there are certain characteristics of democratic enterprise that even the majority cannot deny.'
9 This can often be reflected in whether the protected rights are considered procedural or substantive in nature.
10 As per Koskenniemi, in Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology, (Oxford University Press, Oxford, 2000), p49. See also Campbell, "Judging in a Democracy", The Australian Judicial Conference, Sydney, November 1997, http://www.law.monash.edu.au/JCA/campbell.html
11 Marks, op cit (fn 10).
12 If it were considered an end in itself, Marks argues that this would be a disappointingly low-demanding view of democracy. Current democratic theory accepts high levels of citizen passivity. It utilises the existing liberal institutions without addressing the limitations of those institutions. In particular, she queries whether our institutions can function without civil and political rights, and what role of separation of powers should play? Further, democratic theory is yet to address the enormous amounts of unaccountable power being exercised over the lives of citizens of the modern State. These shortfalls in current standards of democracy manifest in the contemporary melancholy about democracy and its ability to ensure self-rule and political participation. See Marks, op cit (fn 10), pp146-151 especially.
13 See generally Marks, op cit (fn 10); Hiebert, op cit (fn Error! Bookmark not defined.).
14 Marks, op cit (fn 10) p149 (emphasis in the original).
15 This view is supported by a report of the Secretary General of the United Nations: 'Elections themselves do not constitute democracy. They are not an end but a step, albeit an imp and often essential one, on the path towards the democratisation of societies and the realisation of the right to take part in the govt of one's own country... demo implies far more than the mere act of periodically casting a vote, but covers the entire process of participation by citizens in the pol life of their country.' See Report of the Secretary-General of the United Nations, 1991, A/46/609.
16 Marks, op cit (fn 10), p116.
17 Ibid. See also Hiebert, op cit (fn Error! Bookmark not defined.): 'But public debate is not the only goal of a democratic polity. Policy choices should respect fundamental rights, those contained explicitly in the Charter and others related to its core values.'
18 Loughlin, op cit (fn Error! Bookmark not defined.).
19 Marks, op cit (fn 10), p59.
20 As per David Beatty, "Human Rights and the Rules of Law" in David Beatty (ed.), Human Rights and Judicial Review: A Comparative Perspective, Martinus Nijhoff, Dordrecht, 1994: 'Thinking about constitutional review in terms of courts evaluating the justifications Governments give for the laws they adopt would make bills of rights and the powers of the courts co-extensive with the mandate of Governments and legislative assemblies. Whatever the substance of a Government's law, the expectation would be that it would be subject to judicial review. Any law that burdened or withheld a benefit from an individual or group must meet the standards of justice which the principles of rationality and proportionality imply.' As per Hiebert, op cit (fn Error! Bookmark not defined.): 'The Courts contribution is not to scrutinize the merits of the particular legislative scheme but to evaluate the quality of how the legislative decisions was made and to ensure that core rights have not been unduly compromised.'
21 Campbell, op cit (fn 10).
22 It improves the quality of dialogue and participation in the dialogue [It improves the quality of dialogue and participation in the dialogue [It improves the quality of dialogue and participation in the dialogue As per Bobbio, Id: 'The liberal state and the democratic state are doubly interdependent: if liberalism provides those liberties necessary for the proper exercise of democratic power, democracy guarantees the existence and persistence of fundamental liberties... The historical proof of this interdependence is provided by the fact that when both liberal and democratic states fall they fall together.'
23 Campbell insists that the conditions for free and open debate should be determined by the parliament, with the courts upholding these. Judges may be given the task of protecting fundamental rights, but they should not be given the additional task of defining fundamental rights. The definition of rights should be the product of consensus. See Campbell, op cit (fn 10)
24 Jeremy Waldron, "Legislation by Assembly", in Tom Campbell and Jeffrey Goldsworthy, Judicial Power, Democracy, and Legal Positivism, Dartmouth, Aldershot, 1999.
25 Sunstein, op cit (fn Error! Bookmark not defined.). There are different categories of incompletely theorised agreements: we may agree on the general principle and thus need not reach agreement on the outcome of a particular case; we may disagree on the general theory and particular application, but find agreement on mid-level principles; or we may agree only on low-level principles and their application to particular cases.
26 In the words of Bobbio: 'Political life proceeds through a series of conflicts which are never definitely resolved, and whose temporary resolution comes about through provisional agreements, truces, and those more durable peace treaties called constitutions.'Bobbio, op cit (fn Error! Bookmark not defined.).
27 For instance, we can agree to live by the rule of law, but we cannot agree what this means. In the context of rights, most people would agree that cruel, unusual and inhumane treatment is inappropriate, but will disagree upon what constitutes cruel, unusual and inhumane treatment.
28 Sunstein gives many reasons for settling on incompletely theorised agreements: judges may not be able to think of a good theory, or agree upon a theory; to pursue unnecessary contestations about divulges a lack of respect for the deepest and most defining commitments of others; it avoids the democratic pedigree of the judiciary debate; and the judiciary cannot achieve the large-scale of reform that may be needed in certain circumstances.
29 In the sense that a judgment that is not reliant on a general theory does not undermine one's deepest ideals and commitments in favour of another's.
30 Including the Canadian Charter and the British Human Rights Act.
31 Mac Darrow and Alston, op cit (fn 8), p497.
32 Mark Tushnet, "An Essay on Rights", (1984) 62:8 Texas Law Review, 1363.
33 Ibid.
34 There are many reasons to favour a substantive view of democracy over purely procedural (or electoral) democracy. Substantive notions of democracy are more able to meet the demands of internationally recognised human rights obligations than are procedural notions. Procedural democracy has no greater commitment to human rights guarantees than majority allows. Procedural notions can easily degenerate into non-democratic, or even anti-democratic, formalism. The core values of democracy can be subordinated to majority pressure. See generally Jack Donnelly, "Human Rights, Democracy, and Development" 21 (1999) Human Rights Quarterly 608-632. Moreover, procedural mechanisms designed to protect democracy are themselves based on substantive values and their application involves the evaluation of substantive questions of political morality. A theory that acknowledges the questions of substantive polity morality and acknowledges that judges make substantive political choices when interpreting fundamental rights instruments is to be preferred. See Patrick Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada, Carswell, Toronto, 1987.
35 A. Hutchinson and P. Monahan, "Democracy and the Rule of Law", in A. Hutchinson and P. Monahan (eds.) The Rule of Law: Ideal or Ideology, Carswell, Toronto, 1987: 'A commitment to democracy does not mean that constraints on popular decision making must always and everywhere be condemned... But there is a distinction between constitutional safeguards which constrain democratic activity in the name of democracy [ie. Rights to vote, non-discrimination] and those which constrain democratic activity in the name of "right answers". The latter type of constraints seek to substitute the judgments of philosophy for those of the people simply because the popular judgments are regarded as tainted.'
36 See also Neuborne, op cit (fn Error! Bookmark not defined.). He argues that rights are a product of democratic governmental institutions. The institutional view of the origins of rights generates less tension with democracy. Rights are the real-life consequences of the interplay of our institutions and have no independent existence from our institutions. When protecting rights, judges do not enforce some tangible phenomenon with substantive meaning. Rather, they apply error-deflection rules, which assure that decisions made by the legislature have constitutional authority and factual justification. The permissive error-deflection standard is the reasonable decision-maker: could a reasonable decision-maker have believed this choice was correct in terms of constitutional authority and factual justification? Thus, rights are the result of error-deflection rules imposed by the judiciary on the legislature. Error-deflection may not be totally democratic: who chooses the values in favour of which error should be deflected; who chooses the precise degree of deflection? If the answer is the judiciary, democratic illegitimacy arise. Yet, there is a democratic difference between telling the parliament that they cannot do something, rather than requiring parliament to be sure of their premises before acting. Placing burdens of justification on the parliament does protect significant values, without wholly depriving our democratic institutions the power to act.
37 Hiebert, op cit (fn Error! Bookmark not defined.) (my emphasis).
38 Hiebert, Id.
39 'The Court's contribution is not to scrutinize the merits of the particular legislative scheme but to evaluate the quality of how that legislative decision was made and to ensure that the core rights have not been unduly compromised' as per Hiebert, Id.
40 Bushell, op cit (fn Error! Bookmark not defined.)
41 Bushell, Id, p97.
42 Bushell, Id, p81.
43 Bushell, Id, p105. Note the response: Christopher P Manfredi and James B Kelly, 'Six Degrees of Dialogue: A response to Hogg and Bushell" [1999] 37 Osgoode Hall LJ 513. Hogg and Bushell adequately respond to the criticisms of Manfredi and Kelly in Peter W Hogg and Allison A Thornton (Bushell), 'Reply to "six Degrees of Dialogue"' [1999] 37 Osgoode Hall LJ 529.
44 They also identify some factors that constrain the democratic process, but conclude that despite the constraints, the final decision is democratic. Some constraints are, for example, that before the Charter an issue may have gone untouched by the legislature for fear of electoral backlash. However under the Charter, a court decision will force the legislature to act. In addition, the court decision may heavily influence the precise terms of the new legislation. Also, the legislature may have to account more for Charter values than it prefers to. See Bushell, op cit (fn Error! Bookmark not defined.), p80.
45 The fourth feature of the Charter is the dialogue that is encouraged under the section 15 equality rights. Usually laws that violate equality rights are underinclusive, such that the group suffering the disadvantage has been excluded from the receipt of some benefit or protection. Legislatures typically respond by extending the benefit or protection of the law to the excluded group. Occasionally the legislature decides to reduce the benefit or protection available to all groups, both those previously included and excluded. This latter response is equally valid, as the Charter equality rights accommodate 'different legislative choices... such that democratically elected bodies are still ultimately responsible for setting their own budgetary priorities, albeit in a way that does not discriminate against disadvantaged groups': Bushell, Id, p91.
46 That is, does the objective relate to concerns that are pressing and substantial in a free and democratic society?
47 Leon E. Trakman et al, op cit (fn Error! Bookmark not defined.), p95.
48 Leon E. Trakman et al, Id, p98.
49 Leon E. Trakman et al, Id, p100. Moreover, all legislation that passed the minimum impairment test passed the section 1 test
50 Leon E. Trakman, Id, p103. Trakman considers this unsatisfactory, because findings that the objectives are pressing and substantial and that the law is the least restrictive means to achieve the objectives do not prove that the benefits of the law outweigh its detriment.
51 It was in response the language rights case of Ford v Quebec (Attorney-General) [1988] SCR 712.
52 Please note, it was suggested from the floor of the conference, by Janet Hiebert (a Canadian Political Scientist at Queens), that the notwithstanding clause had actually be exercise approximately 10 times.
53 Kelly, op cit (fn Error! Bookmark not defined.).
54 Id, p664.
55 Id, p685.
56 It only came into force on 2 October 2000.