By Klaus
Rohrich
I am a great believer in
the democratic process, but a recent news items gave me cause to wonder why
anyone should bother voting. I am referring to a speech made recently by Madame
Justice Beverly McLachlin, Chief Justice of the Supreme Court of Canada.
Speaking to law students at Victoria University in Wellington, New Zealand, Ms
McLachlin said that judges should feel "emboldened" to trump the
written constitution, when protecting fundamental rights that may not be
enshrined in a formal document.
The significance of this is
that the good judge has served notice on the parliament of Canada that no
matter what laws they enact; the ultimate lawmaker in Canada will be the Court.
Ms. McLachlin believes that a written constitution, such as our own Charter of
Rights and Freedoms, can become obsolete with the changing of societal norms.
As such, she believes that it is the judiciary’s responsibility to ensure that
"norms that are essential to a nation’s history, identity, values and
legal system" continue to be upheld, written legislation notwithstanding.
While her speech is by no
means the opening salvo of a battle that is taking shape between Canada’s
legislative and judicial branches, it clearly states that judges trump parliament
in ensuring "individuals rights" and supporting societal evolution.
While I am sure that Madam Justice McLachlin, who was recently appointed to her
post by Prime Minister Paul Martin, is totally benign in her wish to ensure
that the judiciary protect future rights of individuals whose predilections may
not be covered by our current version of the Charter of Rights, she does open a
can of worms that in my opinion could wreak potential havoc with human rights,
all in the name of human rights.
The dangerous part of her
desire to protect people’s ability to enjoy freedoms that may not necessarily
be enshrined in a current written form is that history has shown that quite
often nations and societies undergo massive political changes of far reaching
consequences. A judicial precedent that ensures this type of change is legal
truly scares the hell out of me.
Having read William
Shirer’s excellent book, The Rise and Fall of the Third Reich, I am
acutely aware how easily the judiciary can become a tool of repression. Hitler
utilized legions of lawyers and judges to complete the Nazi Party’s assumption
of total power over the German people. It doesn’t take a stretch of the
imagination to visualize how a fluid judiciary not bound to follow written law,
can make such a disastrous societal change possible.
Society is best served when
everyone is equal under the law and the law is clearly laid out in black and
white. While Parliament has been complicit in declaring certain citizens of
Canada, such as native aboriginals, to have more rights than others, those
voting have nevertheless been chosen by the people. Supreme Court judges are
chosen by the prime minister, which given the wrong prime minister, can be a
scary thought. This trend, if allowed to continue will further add to the
so-called "democratic deficit" and will only serve to erode the
rights of the majority in favor of minorities.
While minority rights need
to be protected, they are best protected by written laws enacted by the
people’s representatives and not judges appointed by one man. To allow judges
to interpret laws according to their own predilections and not written laws
amounts to a judicial coup d’ etat. And judicial juntas are likely no more
benign than military juntas and pose an equal threat to a nation’s freedom.
If this is indeed the way
the future is shaping up, then there really is no point in voting.
Klaus Rohrich is columnist with Canada Free Press. He can be
reached at: letters@canadafreepress.com.
http://www.canadafreepress.com/2005/klaus120605.htm