Lisa Adamson has
an interesting article on the twenty-fifth anniversary of the Canadian Charter of Freedoms
and the speeches Steve Harper and Rob Nicholson made on the issue. Adamson writes that Harper and Nicholson are opposed to constitutional rights due to the conservative belief in the supremacy of the legislative. This is an incorrect reading, especially in a parliamentary system which collapses the executive and legislative into the one body in the lower house. She should have written that conservatism believes in executive supremacy.
From the article:
The Conservative government retains its continued allegiance to pre-Charter legislative supremacy. This is the reason why they praise the Bill of Rights, although it effected negligible change in public policy and no change in institutional function. Indeed, that is why they praise it.Apparently Canada had a statutory bill of rights, like New Zealand does, prior to entrenching rights in the constitution with the Charter. The purpose of a constitutional Bill of Rights is twofold: one, to create areas of pure liberty that the executive and legislative cannot intrude into. The judicial becomes the body which determines if the executive and legislative have intruded or not. Two, it gives a direct legal means for the people, who are sovereign, to sue the government for its intrusion on their liberties. In both cases this acts as a constitutional break on the government and parties. John Howard uses a similar argument to Harper in an Australia Day speech :
Some Australians have argued in recent times that the balance has moved too far. They want to shift it in the other direction, principally through a Bill of Rights. I believe this would be a big mistake for our democracy. A Bill of Rights would not materially increase the freedoms of Australian citizens. It will not make us more united, indeed I believe it would lessen our ability to manage and to resolve conflict in a free society. It would also take us further away from the type of civic culture we need to meet the challenges of today and tomorrow. No matter how skilfully crafted, a Bill of Rights always embodies the potential for misinterpretation, unintended consequences or accidental exclusion. History is replete with examples of where grand charters and lyric phrases have failed to protect the basic rights and freedoms of a nation's citizens.This is another statement that is arguing, not for legislative supremacy, but for executive supremacy. Howard is arguing that the only way freedoms can be protected is through vigorous executive government which decides what freedoms can be practically maintained within the confines of political order. A Bill of Rights would increase the freedoms of Australians as it would explicitly limit executive and legislative action. It would create a sphere of liberty that government cannot intrude in to, and if they do, those that have been intruded upon can sue the government directly through the judicial arm of government. The only way social order in Howard's speech makes sense is if it is phrased in the meaning of executive allowed order. This is where conservatism and liberalism come adrift. In Harper 's and Howard's parliamentary world, order, civilisation and freedom are fragile things that can only be maintained if the executive is the dominant political body. Under liberalism, government is the frail and corrupt body that is permanently politically inferior to the individual and the capability of individuals in maximum liberty to maximise order through spontaneous self-organisation. Conservatism sees the state as the dominant political entity, while Liberalism sees the individual as the dominant political entity. The competition in philosophies is not left and right anymore - it is between liberalism and conservatism. With nearly all of the old left, and much of the old right both being in the liberalist bucket. The left-right is now an artificial and meaningless political differentiation.
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