Posts in the category ‘Constitutional Law’
Madrid 1 – Barcelona 0 : Spain’s Constitutional Court stops Catalonian Nationalist Ambitions
The last few decades of European integration have challenged and re-conceptualized the traditional role of nation-states on the European continent. The end of totalitarian dictatorship coupled with the emergence of democracy spurred secessionist movements in various European countries, notably Spain, the former Yugoslavia and other East European countries where large minorities were stuck on what they saw as the wrong side of the post-Soviet state borders. Spain is a particularly interesting case because of the severe repression of Basque and Catalan nationalists during the Franco regime, but also due to the popularity of the EU, particularly in autonomous regions that see the supra-national entity as an alternative to the unpopular nation-state.
This article focuses on the Catalonian plight for greater autonomy and self-government and recent rebukes to the nationalist goal of full independence from Spain. On June 28th 2010, the Spanish Constitutional Court ruled on the Catalan Statute that had tried to define the scope of self-government in the region. The Court had deliberated for four years after a challenge by the main opposition People’s Party (PP) and several Spanish regions to a reform proposal of the Statute of Autonomy passed in 2005 by the Catalan Parliament and ratified by Catalans in a referendum in June 2006. Controversy erupted this summer when the Court invalidated fourteen articles. The Court went on to provide…
BY Daniel Turp
FILED UNDER
Constitutional Law
Public International Law
Special Contribution
Contribution spéciale: L’avis sur la déclaration d’indépendance du Kosovo et le Renvoi relatif à la sécession du Québec : le droit comme instrument au service de la liberté
Depuis la formulation par la Cour internationale de Justice (CIJ) de son avis du 22 juillet 2010 sur la Conformité au droit international de la declaration unilatérale d’indépendance relative au Kosovo, plusieurs opinions ont été exprimées sur la portée de cet avis, et notamment sur les enseignements qui peuvent en être tirés pour le Québec. L’intérêt pour le Québec des dicta de l’organe judiciaire principal des Nations Unies est notamment révélé par le fait que la Cour cite l’avis donnné par la Cour suprême du Canada dans le cadre du Renvoi relatif à la sécession du Québec. La CIJ cite le Renvoi du tribunal canadien de dernière instance pour distinguer la question qui lui est posée de celle que le gouvernement du Canada avait formulée à l’intention de la Cour suprême du Canada et joue de prudence en ne commentant pas les réponses formulées par le tribunal. Le juge Koroma fait quant à lui référence au Renvoi dans son opinion dissidente pour appuyer l’argument selon lequel la CIJ aurait dû, selon lui, affirmer que le droit international n’accorde pas expressément aux parties constituantes d’un État souverain le droit de faire sécession de l’État « parent ».
L’avis de la CIJ sur le Kosovo illustre le fait qu’une nette majorité des juges, soit 10 sur 14, ont refusé de faire dire au droit ce qu’un État, en l’occurrence la…
BY Nafay Choudhury
FILED UNDER
Comparative Law
Constitutional Law
Human Rights
Legal Pluralism
Two Worlds Apart: Canada Supports the Rights of a Niqabi Woman while France Approves Law Banning the Niqab in Public
If there existed an award for Controversial Clothing Garment of the Year, surely the niqab would grab the prize for 2010.[1] The niqab took the spotlight earlier this year when Quebec proposed legislation that would prohibit the wearing of the niqab for an individual seeking a government service. After a pause of several months, the hearing on the proposed legislation resumed on Tuesday (19 October 2010), though this issue has temporary drifted away from national interest.
However, the niqab has been garnering increasing attention elsewhere. In the past two weeks, two important decisions were released concerning the niqab. On 13 October 2010, the Ontario Court of Appeal opined that a niqab woman’s right to wear to the niqab in a sexual assault trial must be given due consideration. A week earlier in France, the Constitutional Council gave its approval on the constitutionality of legislation banning the niqab in public spaces. Admitted, the two decisions do not touch on exactly the same matter. Nonetheless by contrasting the decisions, one starts to sense a “Canadian flavor” in they way our courts address controversial issue where freedom of religion is implicated. The Court of Appeal’s strong push for reconciliation of rights, as well as its interest in affording a niqabi woman substantive (over formal) equality, provides some indication that multiculturalism is actively playing a role in the way the Canadian…
We Hold These Truths to Be Self-Evident
Today is a historic day. Beginning today, the notion of someone starting their own country will no longer be restricted to isolated kooks or wacky cartoon characters. Instead, I will be lending the idea my own considerable prestige and legitimacy by declaring my apartment to be the sovereign realm of New Worcestershire. In my realm, I’ll lift cumbersome exotic pet restrictions; download free movies and music with de jure, rather than merely de facto immunity; and in the words of another, “kill anyone who looks at me cock-eyed”. And if you don’t like it, then I’ll see you in court!
The International Court of Justice (ICJ) that is. In July, the ICJ gave an advisory opinion to the UN General Assembly, reaching the sweeping conclusion that “international law contains no applicable prohibition of declarations of independence.” The subject of this opinion wasn’t a prominent nation like New Worcestershire, but an obscure place called Kosovo. Kosovo declared independence from Serbia on February 17, 2008, and the validity of this declaration has been hotly disputed ever since.
At Serbia’s prompting, the UN General Assembly, in October 2008, passed a resolution referring to the ICJ the straightforward question: “is the [Kosovan declaration] in accordance with international law?” The ICJ considered the question in two parts; whether the declaration was in violation of general international law, and whether it was in…
What’s wrong with banning the niqab?
Let’s start with the obvious: it violates the religious freedom of Muslim women who choose to wear the niqab for reasons of faith. Even those who would defend a ban, such as noted constitutional lawyer Julius Grey, acknowledge that this would violate religious freedoms – however, freedom of religion in Canada is never absolute, and the question is whether or not the government would be able to adequately justify such an infringement.
It is widely speculated that Bill 94 – proposed legislation that would bar the niqab from being worn in government offices, hospitals, and schools in Quebec – will face fierce legal challenges despite the overwhelming public support it receives in Quebec and the rest of Canada. There are three principle avenues by which one might pursue a legal challenge to this legislation.
The first is to sue the government in Quebec Superior Court, invoking the Canadian Charter of Rights and Freedoms. The Canadian Charter stipulates that everyone is fundamentally entitled to freedom of conscience and religion, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (as determined using the two steps outlined in the Oakes Test).
The second avenue is to bring a complaint to the Quebec Human Rights Commission alleging discrimination on the basis of the Quebec Charter of Human Rights and Freedoms. The Quebec…
Does the Charter Follow the Flag? the Afghan Detainee Transfers Example
In 2007, Amnesty International Canada and the BC Civil Liberties Association brought an application for judicial review of the transfer of individuals detained by the Canadian Forces deployed in Afghanistan. This action arose from allegations that the Canadian Forces were not taking adequate precautions to ensure that individuals, whom the Canadian Forces captured in Afghanistan and transferred to the Afghan forces, were not being tortured. To support their application, the plaintiffs sought a declaration that sections 7, 10 and 12 of the Canadian Charter of Rights and Freedoms (the Charter) applied to individuals detained by Canadian Forces in Afghanistan. Both the Federal Court and the Federal Court of Appeal held that the Charter did not apply to the actions of Canadian Forces in Afghanistan.
Having previously argued that the Supreme Court of Canada (SCC) should narrow its ruling in Hape, I was disappointed to learn that it turned down an opportunity to hear this case. In my last entry, I argued that when establishing whether the Charter applies overseas, the foreign state’s consent should only be the determinative factor where Canadian authorities or agents would be enforcing the Charter in that state. With all due respect to Mactavish J.’s efforts to navigate Hape’s legal labyrinth, the Federal Court’s decision in Amnesty International reveals the confusion resulting from Hape. This confusion stems from LeBel J.’s assertion that the…
Canada Actively Less-than-Active on Aboriginal Rights in the International Scene
September 13, 2007, was a day like any other, full of political brouhahas from the various corners of the world: then-President Bush addressed the nation on the way forward in Iraq; North Ireland introduced a cattle ear tags numbering system;[1] and Canada voted against the adoption of the Declaration on the Rights of Indigenous Peoples.
The Declaration put before the United Nations that day was the result of a process that started in 1985 with the UN Working Group on Indigenous People, given the broadly defined mandate to “give attention to the evolution of international standards concerning indigenous rights”. The general contents of the Declaration include “both individual and collective rights, cultural rights and identity, rights to education, health, employment, language, and others”. The final vote at United Nations General Assembly that day tallied 143 countries voting in favour of the Declaration, 11 abstentions, and 4 against (Canada, United States, New Zealand, and Australia). While Canada has made various strides in recognizing the rights of its aboriginal peoples, its vote on September 13 provides an example how an overly conservative and protectionist mindset can lead us a step backwards in recognizing the historical wrong-doings to a significant part of Canada’s population.
The Canadian Government provided two broad reasons for voting against the Declaration. The first reason was procedural. During the drafting stage of the Declaration, Canada…
SCC Unconvincing in Khadr Decision
The much anticipated arrival of the Supreme Court of Canada’s (“SCC”) decision on the repatriation of Toronto-born Omar Khadr came on Friday. Familiar to most Canadians by now, Khadr was arrested when he was 15 years old and was charged with murder, conspiracy and support of terrorism. Now 23 years old, he has been imprisoned at Gunatanamo Bay, Cuba ever since. He applied to the Federal Court for an order that he must be repatriated which was successful and subsequently upheld on appeal.
Overturning the Federal Court of Appeal’s decision, the SCC refused to order the Canadian government to bring Khadr back, submitting that it was not the correct remedy under s. 24(1) of the Canadian Charter as it would infringe on the government’s common law Royal Prerogative over foreign relations. This decision came despite the SCC recognizing that the Canadian officials who interrogated Mr. Khadr in 2003-2004:
participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice[i]
The remedy granted was that of “declaratory relief” – declaring that Khadr had had his rights violated and leaving it to the government to decide what to do with this “new”…
BY Nafay Choudhury
FILED UNDER
Constitutional Law
Human Rights
Public International Law
Omar Khadr – When Two Wrongs Don’t Make a Right…?
On Friday, January 29, 2010, the Supreme Court of Canada released its much-anticipated decision concerning the repatriation of Omar Khadr. In Canada (Prime Minister) v. Khadr, 2010, (“Khadr 2010”), the Court upheld the finding of the Federal Court of Appeal that the government of Canada violated Khadr’s Section 7 rights to life, liberty and security protected under the Canadian Charter of Rights and Freedoms (“Charter”). However, on the issue of remedy, the Supreme Court ruled that the government could not be obliged to ask the United States to repatriate Khadr. And so Khadr’s long quest for justice remains an uphill battle after Friday’s decision, leaving it to the government to decide how react (if at all) to its breach of Khadr’s Charter rights and whether it will take any steps to seek his repatriation.
The Khadr ordeal presents some of the difficulties faced at the interface of domestic law, international law and international affairs. First, the decision reignites the question of whether the Charter has extraterritorial application to Canadian officials abroad – in this case, those who conducted interviews in Guantanamo. Second (and what I find to be the more troubling matter), the decision raises the question of how Canada should respond to Charter violations that it commits abroad. The meekness of remedy issued in Friday’s decision hugely frustrates attempts to see Canada’s international human rights obligations crystallize…
Does the Charter Follow the Flag?
Photo by Sgt. Gerry Pilote
Lurking behind the Afghan detainee transfer scandal is the issue of whether the Canadian Charter of Rights and Freedoms (the Charter) applies to government action that occurs outside of Canada. The Charter itself provides no definitive answer because it does not contain an express territorial limitation. Section 32(1)(a) of the Charter only stipulates that it applies to “the Parliament and government of Canada in respect of all matters within the authority of Parliament …”. Writing for the majority of the Supreme Court of Canada (SCC) in R. v. Hape, LeBel J. held that the extraterritorial application of the Charter is impossible without the consent of the foreign state (para. 85).[1] While I support the ruling in Hape, I believe that given the chance, the SCC should explicitly narrow this conclusion to situations where Canadian authorities or agents would be enforcing the Charter in a foreign state. Beyond a situation that demands extraterritorial enforcement, an interest analysis should replace consent as the determinative factor in the assessment of whether the Charter applies outside of Canada.
The primary limitation on the reach of the Charter is Canada’s obligation to respect the sovereignty of other states (Hape, para. 59). Sovereignty is perhaps best thought of as the supreme power of each state to exercise jurisdiction on its territory and over…
