Jonah Patel
Parliamentary sovereignty, also known as legislative supremacy, is a concept in constitutional law in some parliamentary democracies. It asserts that the legislative body is supreme and has absolute sovereignty over all other governmental institutions, including the judiciary. In a parliamentary democracy, the legislature can make and unmake any law, and no other institution has the power to nullify its laws. In a constitutional democracy, on the other hand, Parliament's powers are constrained by the Constitution, and its laws can be subject to judicial review. In Canada, prior to 1982, Parliamentary supremacy reigned, but with the adoption of the Canadian Charter of Rights and Freedoms as part of the Constitution Act, 1982, constitutional supremacy replaced parliamentary supremacy. This Act declares that the Constitution of Canada is the supreme law of Canada, and thus, if Parliament enacts a law that violates the Charter, a court can strike it down.
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What You'll Learn
The Canadian Charter of Rights and Freedoms
Parliamentary sovereignty, also known as legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It asserts that the legislative body is the supreme authority and is not constrained by other governmental institutions, including executive or judicial bodies. Prior to 1982, Canada recognised parliamentary supremacy, with the British North America Act setting the division of powers between Parliament and provincial legislatures, each of which was supreme within its jurisdiction.
However, the adoption of the Canadian Charter of Rights and Freedoms as part of the Constitution Act, 1982, marked a shift towards constitutional supremacy in Canada. This charter, enshrined in the Constitution, outlines the rights and freedoms of Canadian citizens and acts as a check on the power of Parliament. The Constitution Act, 1982, specifically Section 52(1), establishes that the Constitution of Canada is the supreme law of the land, superseding any other legislation. This means that if Parliament enacts a law that contravenes the Charter, the courts have the authority to strike down that legislation, declaring it unconstitutional and of no force or effect.
The inclusion of the Charter in the Constitution has significant implications for parliamentary supremacy. Firstly, it establishes a system of checks and balances, where the power of Parliament is balanced by the rights and freedoms outlined in the Charter. This means that while Parliament retains significant law-making power, its actions are constrained by the Constitution and are subject to judicial review. Secondly, the Charter empowers the judiciary to act as guardians of the Constitution, interpreting and enforcing the rights within it. This judicial review process allows citizens to challenge laws they believe violate their constitutional rights, providing a mechanism to hold Parliament accountable.
While the Charter significantly curbs parliamentary supremacy, it's important to note that Section 33 of the Charter, known as the notwithstanding clause, allows Parliament and provincial legislatures to override certain provisions of the Charter. This clause enables legislatures to enact laws that may violate specific Charter rights, demonstrating that Canadian legislatures retain a degree of supremacy. However, the use of this clause is controversial, and some argue that it undermines the protection of rights offered by the Charter.
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The Constitution Act, 1982
The Canadian Charter of Rights and Freedoms, as part of the Constitution Act, 1982, has had a significant impact on judicial review. The Charter explicitly guarantees rights and outlines the role of judges in enforcing them, empowering the courts to strike down unconstitutional statutes or parts of statutes that violate the Charter. This expansion of judicial power represents a shift from the principle of Parliamentary supremacy, where Parliament was supreme and no other institution could nullify its laws.
Section 35 of the Constitution Act, 1982, specifically recognises and affirms the existing aboriginal and treaty rights in Canada. These rights protect the activities, practices, and traditions integral to the distinct cultures of Indigenous peoples. Treaty rights, meanwhile, protect and enforce agreements between the Crown and Indigenous peoples, including the protection of land use for traditional practices. Subsection 35(2) extends these rights to Indian, Inuit, and Métis peoples, while subsection 35(4) guarantees equal rights for male and female persons.
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Section 52(1) of the Constitution Act
Section 52(1) provides a remedy for laws found to be inconsistent with the Charter. It states that such laws are of no force or effect from the moment they are made. However, in practice, a law is not deemed invalid until a court declares it to be inconsistent with the Constitution. The executive branch cannot enforce a law that a court has declared invalid, but only Parliament or a provincial legislature can repeal it. This section ensures that Charter rights are safeguarded through effective remedies, and that legislation complies with the Constitution.
The supremacy clause also addresses the approach to suspensions and the power to declare legislation invalid. It includes the power to suspend the effect of a declaration of invalidity, reflecting the distinction between declaring legislation unconstitutional and determining its practical and legal consequences. The expression "severance" in this context should be understood figuratively, rendering the legislative text inoperative rather than literally altering or repealing it.
Section 52(1) declarations are typically immediate and retroactive, binding lower courts to apply the declaration to pending matters. This retroactivity maximises the protection of Charter rights and upholds constitutional supremacy. However, this principle is balanced by doctrines such as res judicata and qualified immunity, which maintain stability and finality in judicial remedies.
Section 52(1) is related to Section 52(2), which defines the "Constitution of Canada" and identifies the instruments that comprise it. Jurisprudence has indicated that Section 52(2) is not exhaustive, and the Supreme Court of Canada has reserved the right to add unwritten principles to the Constitution, granting them constitutional supremacy.
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Section 33 of the Charter
Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly referred to as the "notwithstanding clause", allowing Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. This means that a simple majority vote in any of Canada's 14 jurisdictions can suspend the core rights of the Charter. However, the rights to be overridden must be a "fundamental right", such as freedom of expression, religion, and association, or a "legal right" such as rights to liberty and freedom from search and seizures.
The notwithstanding clause prevents a court from declaring that legislation covered by a Section 33 declaration is of no force or effect, despite any inconsistency in the legislation with the rights or freedoms under the listed Charter sections. A Section 33 declaration is valid for five years, after which it ceases to have any effect unless it is re-enacted.
The concept of the notwithstanding clause was not created with the Charter. It is similar to the Canadian Bill of Rights (1960), which states that "an Act of the Parliament" may declare that a law "shall operate notwithstanding the Canadian Bill of Rights". The Saskatchewan Human Rights Code (1979), the Quebec Charter of Human Rights and Freedoms (1977), and the Alberta Bill of Rights (1972) also contain similar devices.
The clause was first invoked in 1982 by Quebec, which passed an omnibus enactment that repealed all pre-Charter legislation and re-enacted it with the addition of the standard clause. After the Charter came into force in 1982, the Parti Québécois government in Quebec inserted wording pursuant to Section 33 into every law passed by the National Assembly of Quebec. This practice stopped in 1985 when the newly elected Quebec Liberals discontinued it. The Quebec Liberals did successfully invoke the notwithstanding clause to apply to a number of pieces of legislation pertaining to education and pensions between 1986 and 1992.
Some commentators argue that since Section 33 of the Charter allows Parliament and the provincial legislatures to override certain provisions of the Charter, Canadian legislatures are still partially supreme.
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Constitutional supremacy
In a constitutional democracy, Parliament is not all-powerful. Its powers are limited by the Constitution. In most constitutional democracies, citizens can take legal action if they believe a law violates the Constitution. The courts have the power to review the constitutionality of legislation and strike down any laws that violate the Constitution. This is known as judicial review.
Prior to 1982, Canada operated under parliamentary supremacy, also known as legislative supremacy. This meant that Parliament had absolute sovereignty and was not constrained by any written law or precedent. The British North America Act set the division of powers between Parliament and the provincial legislatures, and each legislature was supreme within its jurisdiction. However, this changed in 1982 with the adoption of the Canadian Charter of Rights and Freedoms as part of the Constitution Act, 1982.
Section 52(1) of the Constitution Act, 1982, also known as the supremacy clause, states that the "Constitution of Canada is the supreme law of Canada". This means that constitutional supremacy replaced parliamentary supremacy in Canada. As a result, if Parliament or any provincial legislature enacts a law that violates the Charter, the courts have the power to strike down that legislation. This shift from parliamentary supremacy to constitutional supremacy ensures that the rights and freedoms outlined in the Canadian Charter are upheld and protected.
However, some commentators argue that the notwithstanding clause (Section 33) of the Charter allows Parliament and provincial legislatures to override certain provisions of the Charter, indicating that Canadian legislatures still retain partial supremacy. Nonetheless, constitutional supremacy establishes a system of checks and balances, holding Parliament accountable to the Constitution and ensuring that the rights of citizens are protected.
While the concept of parliamentary sovereignty or supremacy is present in some constitutional democracies, it is constrained by the constitutions of those countries. For example, in Australia, parliamentary sovereignty is limited by the federal Constitution and, to some extent, by state Constitutions. Similarly, in Belgium, the relationship between the judiciary and Parliament has evolved, with parliamentary assemblies becoming accountable not just to the electors but also to the courts. These examples demonstrate how constitutional frameworks can influence and limit parliamentary power.
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Frequently asked questions
Parliamentary supremacy, also called legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies.
The Canadian Charter of Rights and Freedoms, which was adopted as part of the Constitution Act in 1982, replaced parliamentary supremacy with constitutional supremacy in Canada. This means that the Constitution is now the supreme law of Canada, and courts have the power to strike down any legislation that violates a section of the Charter.
If a citizen believes that a law violates a provision in the Canadian Constitution, they can file an action in a court of law. The courts have the power of judicial review and can strike down laws that are found to be unconstitutional.
Supporters of parliamentary supremacy argue that it ensures the legislative body has the flexibility to change or repeal any previous legislation and is not constrained by written law or precedent. In a parliamentary democracy, citizens can mobilize and push for political change if they disagree with a law, but they cannot challenge it through the judiciary.
While the Canadian Charter of Rights and Freedoms established constitutional supremacy, some commentators argue that the notwithstanding clause (Section 33) allows Parliament and provincial legislatures to override certain provisions of the Charter, maintaining a degree of parliamentary supremacy. Additionally, there are procedural limitations and the need for a supermajority to amend the Constitution.
