Constitutional Limitations: A Historical Perspective

The concept of constitutional limitations has been explored in various contexts, including criminal law, civil rights, and labour relations. For instance, statutes of limitations, which set time limits on bringing legal action, have been part of legal systems since Classical Athens. In modern times, countries like Indonesia, the Philippines, and Australia have grappled with constitutional limitations in criminal law and industrial relations, respectively. The distinction between a constitutional amendment and a limitation of a constitutional right is crucial, as the former requires a formal change to the constitution, while the latter restricts the ability to exercise a right without altering its fundamental boundaries. This distinction has been central to debates surrounding the denial or limitation of rights, as seen in the Canadian Supreme Court case examining Quebec's language education policies.

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The difference between a constitutional amendment and a limitation

A constitutional amendment refers to a change or addition to a country's constitution, which is the foundational legal document outlining the principles and structure of the government. On the other hand, a constitutional limitation refers to a restriction or constraint placed on the powers of a government as outlined in the constitution. While amendments typically involve adding new provisions or altering existing ones, limitations focus on restricting the scope of governmental powers to protect individual rights and maintain a balance of power.

Amendments to a constitution are often proposed by a country's legislative body, such as Congress in the United States, or by a specially convened constitutional convention. The process can vary across jurisdictions, with some countries requiring a simple majority vote for amendments, while others demand a supermajority, like a two-thirds majority in both the House of Representatives and the Senate in the US. Amendments can cover a wide range of topics, from extending the term lengths of government officials to enacting international treaties as constitutional law, such as the European Convention of Human Rights.

The frequency of constitutional amendments also varies between countries. For example, Alabama's former constitution was amended 977 times between 1901 and its replacement in 2022, while Australia has only passed eight amendments out of 44 proposed. Amendments must follow specific procedures, often requiring multiple readings and votes over an extended period. In contrast, limitations are often implemented to prevent the government from overreaching or infringing on the rights guaranteed to its citizens.

While amendments add to or modify the existing constitution, limitations are designed to restrict and prevent certain actions by the government. Limitations can be explicit, such as a clause prohibiting the government from establishing an official religion, or they can be implicit, derived from interpretations of existing constitutional provisions. Both amendments and limitations play a crucial role in shaping the relationship between the government and its citizens, ensuring that the constitution remains a living document capable of adapting to societal changes while preserving fundamental rights and freedoms.

The Canadian Supreme Court's ruling on complete denial

The Supreme Court of Canada is the highest court in the Canadian judicial system. It is one of the most frequently cited courts in the world. The Supreme Court holds the ultimate power of judicial review over Canadian federal and provincial laws' constitutional validity.

In the case of Ms. Yatar, the Supreme Court allowed her appeal and granted her a judicial review. Ms. Yatar's insurer had stopped making her income replacement payments in January 2011 as she did not provide a completed disability certificate. Her benefits were reinstated in February but were denied again in September. Ms. Yatar contested this denial before a Tribunal, mandated to resolve disputes about an insured person's entitlement to benefits. The Tribunal dismissed her application as it was filed too late. Her request for the Tribunal to reconsider was also dismissed. Ms. Yatar then appealed to the Divisional Court, a branch of the Ontario Superior Court, which was also dismissed. She then appealed to the Ontario Court of Appeal, which was dismissed again. Finally, she appealed to the Supreme Court, which allowed her appeal. Justice Rowe held that a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal.

In another case, the Supreme Court decided that an act violated the fundamental freedoms of religion protected by the Charter. The act forced everyone in Canada to follow the rules of Christianity, limiting the freedom of religion of those with different beliefs.

In a significant victory for participatory democracy, the Supreme Court also struck down the 50-candidate rule, which interfered with the democratic rights of smaller political parties and negatively impacted the ability of some citizens to influence policy and vote for their preferred candidate.

The Supreme Court's decisions are the ultimate application of Canadian law, and its rulings on the Canadian Constitution are completely binding on the legislative branch.

The Quebec Protestant School Boards case

The Quebec Association of Protestant School Boards, along with the Protestant School Board of Greater Montreal and Lakeshore School Board, sought clarification on their obligation to admit English-speaking students who fulfilled the requirements under Sections 23(1)b) and 23(2) of the Canadian Charter, regardless of their compliance with La Charte de la langue française. The case highlighted the tension between the rights guaranteed in the Canadian Charter of Rights and Freedoms and the language provisions outlined in La Charte de la langue française, commonly known as the "Quebec clause".

The Canadian Supreme Court's ruling in this case had important implications for the interpretation of constitutional limitations. The Court held that the proposed change, enacted through a statute, went beyond a mere limitation of a constitutional right and instead constituted a complete denial of that right. This distinction is crucial because a limitation of a constitutional right can be constitutional as long as it is proportional and does not alter the right's fundamental nature. In contrast, a complete denial of a constitutional right requires a formal amendment to the constitution.

The Court's decision emphasised that the change proposed by the Quebec statute could not be justified as a simple limitation and, therefore, violated the procedures outlined in the Charter for amending constitutional rights. This ruling reinforced the significance of distinguishing between the limitation and amendment of constitutional rights, ensuring that any significant denial of rights is subject to the appropriate constitutional amendment process.

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Redundancy pay and processes

In the context of constitutional limitations, redundancy pay processes can be examined through the lens of amendment and limitation. An amendment to a constitutional right would require a formal change to the constitution, whereas a limitation of the right can occur without altering the constitution itself. For example, a constitutional amendment might restrict the application of a right from "any person" to only "citizens". On the other hand, a limitation would narrow the ability to exercise the right without changing its fundamental boundaries. These limitations are constitutional if they meet the requirements of the limitation clause, typically involving proportionality.

In terms of redundancy pay, employees are generally entitled to statutory redundancy pay if they have worked for their current employer for a certain period, often two years or more. The amount of pay is based on their length of service and average weekly earnings. There may be caps on the maximum statutory redundancy pay, and it is usually tax-free up to a certain amount. Employees should be informed of the date and method of payment, which is typically made on their final pay date or upon termination.

It is important to note that there are exceptions to eligibility for statutory redundancy pay. For instance, certain occupations, such as former registered dock workers, members of the armed forces, or domestic servants, may not qualify. Additionally, if an employee rejects a suitable alternative job offer, they may forfeit their right to redundancy pay.

To claim statutory redundancy pay, employees usually need to notify their employer within a specified timeframe, often within four weeks of their last non-working day. Employers may have the option to top up the statutory minimum amount, known as enhanced or contractual redundancy pay. In the case of small businesses, which are typically defined as having fewer than 15 employees, redundancy pay provisions may differ.

The statute of limitations in Indonesia

A statute of limitations is a legal principle that defines the timeframe within which legal action must be initiated following an alleged offence. The timeframe varies depending on the nature of the dispute and the specific laws of the jurisdiction.

In Indonesia, the statute of limitations for criminal offences is outlined in Article 78 of the Criminal Code (KUHP). According to this article, the authority to prosecute criminals expires after a certain period, depending on the severity of the crime:

• One year for all offences involving printing
• Six years for crimes punishable by a fine, detention, or imprisonment of up to three years
• Twelve years for crimes punishable by imprisonment of more than three years
• Eighteen years for crimes punishable by death or life imprisonment

The statute of limitations has also been criticised for potentially violating the constitutional rights of victims and their families to recognition, guarantee, protection, fair legal certainty, and equal treatment before the law. In the aforementioned case, the Petitioner requested that Article 78 paragraph (1) point 4 be declared unconstitutional and not legally binding unless interpreted as "in more than eighteen years and/or 36 years for all crimes upon which capital punishment or life imprisonment is imposed."

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