scholarly journals Watertight Compartments: Getting Back to the Constitutional Division of Powers

2017 ◽  
Author(s):  
Asher Honickman
Keyword(s):  
Supreme Court ◽  
Modern Trend ◽  
Privy Council ◽  
Mutual Exclusivity ◽  
Stare Decisis ◽  
Division Of Powers ◽  
The Supreme Court ◽  
Degree Of Overlap

This article offers a fresh examination of the constitutional division of powers. The author argues that sections 91 and 92 of the Constitution Act, 1867 establish exclusive jurisdictional spheres — what the Privy Council once termed “watertight compartments.” This mutual exclusivity is emphasized and reinforced throughout these sections and leaves very little room for legitimate overlap. While some degree of overlap is permissible under this scheme — particularly incidental effects, genuine double aspects, and limited ancillary powers — overlap must be constrained in a principled fashion to comply with the exclusivity principle. The modern trend toward flexibility and freer overlap is contrary to the constitutional text. The author argues that while some deviation from the text is inevitable due to the presumption of constitutionality and stare decisis, the Supreme Court should return to a more exclusivist footing in accordance with the text.

scholarly journals L'étanchéité de l'A.A.N.B. est-elle menacée?

2005 ◽  
Vol 18 (2-3) ◽  
pp. 383-396
Author(s):  
Jean-Charles Bonenfant
Keyword(s):  
North America ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
German Federal Republic ◽  
Privy Council ◽  
Stare Decisis ◽  
British North America ◽  
The Supreme Court ◽  
Distribution Of Powers ◽  
Canada Limited

In his opinion in John A. MacDonald, Railquip Enterprises Ltd and Vapor Canada Limited, Chief Justice Laskin commented that in the future it might be necessary to reconsider the 1937 Labour Conventions Decision which established the « watertight compartments » doctrine applicable to the implementation of treaties concluded by Canada. According to this doctrine as it was set forth by the Privy Council, the fact that Canada can enter into treaties with other countries does not mean that the Federal Parliament of Canada can legislate contrary to the distribution of powers provided for by sections 91 and 92 of the British North America Act. In his article, Professor Bonenfant recalls the criticism which the Privy Council evoked, particularly that which appeared in the June, 1937, issue of The Canadian Bar Review. If the Supreme Court of Canada wishes to revise the decision of the Privy Council, it will not be hampered by the rule of stare decisis. But, Professor Bonenfant writes, whatever the judicial solution may be, it would probably be better to follow the example of other countries, particularly the example provided by article 32 of the Constitution of the German Federal Republic, and seek a political solution. In this domain as in others, if federalism has failed in Canada, he writes that it is perhaps because the interpretation of Canada's Constitution has been left to the intellectual virtuosity of the members of the Privy Council and of the Supreme Court.

6. The Doctrine of Judicial Precedent

2019 ◽  
pp. 160-195
Author(s):  
James Holland ◽  
Julian Webb
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Stare Decisis ◽  
Legal Principles ◽  
Legal Problems ◽  
The Supreme Court ◽  
Pure Case ◽  
The Impact ◽  
Court Of Appeal

This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.

3 The Supreme Court and the Irish Free State

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Supreme Court ◽  
The State ◽  
Free State ◽  
Privy Council ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Irish Free State ◽  
The Right ◽  
The Way

This chapter considers the performance of the Irish Supreme Court during the life of the Irish Free State (1922–37). It charts the way in which the right to appeal from the Supreme Court to the Privy Council was abolished (comparing the position in other Dominions) and shows that, despite the rhetoric of Irish politicians at the time, the judges were keen to uphold the British approach to the doctrine of parliamentary sovereignty. The chapter then describes some of the emergency legislation enacted in the Free State to combat republican violence and examines how it was viewed by the Supreme Court, most notably in the very deferential (albeit split) decision in The State (Ryan) v Lennon. The chapter sums up the Court’s performance during the existence of the Irish Free State as disappointing and uninspiring.

Part IV Federalism, A Federalism in Canada, Ch.19 Key Doctrines in Canadian Legal Federalism

2017 ◽  
Author(s):  
Brouillet Eugénie ◽  
Ryder Bruce
Keyword(s):  
Supreme Court ◽  
Operative Approach ◽  
High Stakes ◽  
Asymmetric Effects ◽  
Constitutional Order ◽  
The Supreme Court ◽  
High Degree ◽  
Legal Federalism ◽  
Law Making ◽  
Degree Of Overlap

The division of legislative powers in the Constitution Act, 1867 is the most important textual expression of the federal principle that is at the heart of the Canadian constitutional order. The judiciary has the responsibility of interpreting these provisions and thus of determining the boundaries of the law-making powers of Canadian legislative bodies. In performing this high-stakes task, the courts have developed a rich jurisprudence that draws on text, history, structure, and principle. In recent decades, the Supreme Court has articulated a “modern” or “co-operative” approach that interprets both federal and provincial legislative powers generously, and tolerates a high degree of overlap and interplay between them. Despite this commitment to maximizing the democratic space available to all Canadian legislatures within their respective areas of jurisdiction, some doctrines developed by the courts have had asymmetric effects that favour the federal Parliament.

Uncertain sovereignty: Ceylon as a Dominion 1948–1972

2019 ◽  
Vol 17 (4) ◽  
pp. 1258-1282
Author(s):  
Rehan Abeyratne
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Fundamental Rights ◽  
Judicial Power ◽  
Privy Council ◽  
Minority Communities ◽  
Cautious Approach ◽  
Legislative Power ◽  
The Supreme Court ◽  
The Subject

Abstract This article, a contribution to a symposium on dominion constitutionalism, looks at sovereignty in Ceylon’s Dominion period (1948–1972). While the Ceylon Constitution has been the subject of in-depth historical and sociopolitical study, it has received less attention from legal scholars. This article hopes to fill that gap. It analyzes Ceylon Supreme Court and Privy Council judgments from this era on both rights-based and structural questions of constitutional law. In each area, sovereignty-related concerns influenced the judicial approach and case outcomes. On fundamental rights, both the Supreme Court and the Privy Council adopted a cautious approach, declining to invalidate legislation that had discriminatory effects on minority communities. This reluctance to entrench fundamental rights resulted, at least in part, from judges’ undue deference to the Ceylon Parliament, which was wrongly looked upon like its all-powerful British progenitor. On constitutional structure, the Ceylon Supreme Court deferred to Parliament even when legislation encroached into the judicial realm. The Privy Council, though, was not so passive. It upheld a separate, inviolable judicial power that Parliament could not legislate away. But by asserting itself as a check on legislative power, the Council—as a foreign judicial body intervening in Ceylonese affairs—stoked concerns that Ceylon was less than fully sovereign, which ultimately ended Dominion status.

Federalism and Unanimity: The Supreme Court and Constitutional Amendment

1983 ◽  
Vol 16 (4) ◽  
pp. 757-770
Author(s):  
Samuel V. LaSelva
Keyword(s):  
Supreme Court ◽  
Constitutional Amendment ◽  
Unilateral Action ◽  
Division Of Powers ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Subject ◽  
Political Compromise

AbstractThe Supreme Court's decisions on constitutional amendment made possible and then sanctioned a political compromise which conflicts with the logic of the only provision of the BNA Act dealing with amendments to the division of powers. The implications of section 94 have been overlooked partly because judges are ill-disposed to arguments based upon the structure of the BNA Act, and partly because of Frank Scott's misleading essay on the subject. Scott's centralist interpretation of section 94 is untenable, largely because that section does not restrict provincial sovereignty or federalism but gives constitutional recognition to them. Section 94 also implies a formal amending procedure of unanimity: neither unilateral action by the federal Parliament nor substantial provincial consent has any application to the division of powers. Since the centralist interpretation of the Canadian constitution cannot be reconciled with a significant provision of the BNA Act, a conception of Canadian federalism is required which gives greater recognition to the constitutional autonomy of the provinces.

Narratives of the Constitutional Covenant

Daedalus ◽  
2012 ◽  
Vol 141 (1) ◽  
pp. 43-51
Author(s):  
Peter Brooks
Keyword(s):  
Supreme Court ◽  
Planned Parenthood ◽  
Stare Decisis ◽  
The Past ◽  
The Supreme Court ◽  
American Society ◽  
Narrative Rhetoric

The constitutional narrative plays perhaps a surprisingly important role in American society. It claims to unfold present judgment from past precedent, according to the doctrine of stare decisis, given an eloquent exposition by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, where the Constitution is referred to as a “covenant” among generations. Analysis of this and other covenantal narratives spun by the Court suggests that despite the emphasis on precedent they may work according to the retrospective logic of narrative itself, in which elements become functional in terms of what follows them. Plots work from end to beginning, reinterpreting the past in terms of the present. The Supreme Court opinion, when subjected to an analysis sensitive to its narrative rhetoric, suggests something akin to the structure of prophecy and fulfillment in its composition of the covenantal narrative.

Role of the supreme court in determining questions of fact in criminal cases

1998 ◽  
Vol 42 (2) ◽  
pp. 235-236
Keyword(s):  
Supreme Court ◽  
Privy Council ◽  
Criminal Cases ◽  
The Supreme Court

Sabapathee had been convicted by a magistrates’ court of drugs-related offences based largely on the uncorroborated evidence of an accomplice. The magistrates treated the accomplice's evidence with caution but nevertheless convicted Sabapathee on that evidence. An appeal against conviction was upheld by the Supreme Court on the ground that the magistrates had misdirected themselves in the manner in which they had dealt with the accomplice's evidence. The Director of Public Prosecutions appealed to the Privy Council.

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