Dear Yasser, (Sorry everybody this is going to be long).

This is very interesting, several points:

I think you need to study more in this area. The falsehood of your analogy lies in the limited knowledge that you have gained about the system in West through some News Paper articles. From your piece, it is quite clear that you have not read one book on the history of Canadian Politics. I recommend "Matching A Dream" as a good start.

First:

The Crown has no power to govern as the Velayateh Faghih in Iran has.

Second:

The Supreme Court is not as powerful as the Guardian Council is because of the DEMOCRATIC EDUCTATION OF THE JUDGES, as opposed to the Guardian Council's theological scholastic education and lack of any committment to democratic principles!

1) There is no one Queen of England. There is a Queen of Britain. The 1714 Union Act, passed by the Scottish and English Parliaments of the time created "the United Kingdom of Great Britain" that included Scotland, Wales, and England (the status of Ireland was not clear then and the act was amended later accordingly).

2) The Queen is the Monarch of Canada regardless and separate from the British Crown. Indeed, in 1939, King George was at war with Germany as the Monarch of Britain, but as Monarch of Canada, until the Canadian House of Commons voted to go to War against Germany. Besides the time zone differences, it took the Canadian Parliament a few more hours about the issue, and hence the Crown could be at war as the sovereign of one state with Germany but not as the sovereign of the other one. This eleven hour gap created a lot of debate about the nature of monarchy at the time amongst the constitutional scholars.

This means that if one day the British people decide to have a republic in Britain, the Queen is still the sovereign of Canada.

3) The Crown is ceremonial by "Common Law". This means that since after the reign of King George III, that the Crown withdrew from interference in the governance of the state, the Monarch cannot govern but can be the sovereign. The Crown cannot exercise any more than a moral power as it symbolizes the unity of the state and, as to the British component of it, the unity of the Common Wealth.

4) The Common Law basis of our Constitution does not allow the Prime Minister (in Australia, NZ, Canada, and all other places that have kept the system as such) to call elections earlier than three years if s/he holds a majority. S/he cannot call for elections later than five years either. Hence, the Common Law Cosntitutionalism can be also characterized as flexible rather than unpredictable. It is different from Presidential or Parliamentary Republics in which there is a set date for elections.

This has to do with one important fundamental characertistic of the Westminster systems: the Prime Minister, as the head of Government, is also a member of the Parliament, and he has been equally elected by the people to represent them in the House of Commons.

As a result, the classic separation of power does not exist in Westminster systems as it does in republican presidential or parliamentary systems.

5) Because of such differences, most of the Westminster constitutionalism is by convention not constitution.

There is no mention of the Prime Minister's office, the Cabinet, systems of vote of no confidence, and even the supreme court in the Constitution Acts of Canada (1982 or 1867).

The flexibility principle of the Common Law constitutionalism does not allow for such pre-defined measures as it sees the people's representatives as the only source of legislation and administration of the state. However, by the same constitution, the judiciary remains independent and the appointment of the judges cannot take place without consultation with judges and lawyers.

6) This brings us to the question of the appointment of the judges.

Judges of the Federal Appeal Courts and the Supreme Courts are subjected to review by the US Senate, but nominated by the President. Hence, the process is no less political. A great deal of backroom deals and politicing goes on with respect to that and if a republican president or conseravative Senate is in control (I am putting together the Blue Dog Democrats and Republicans), the result can be the appointment of several conservative judges.

Hence, the Canadian system is not worse than the US system. In Britain the Law Lords are enlisted by the respective judicial committee and the Prime Minister 'must' appoint their recommended justices.

I will come back to the question of their power in two points from here.

7) The Canadian Senate represents, one can argue, the will of a majority of Canadians through generations.

This is reflected in Prime Ministerial appointment. A majority of Canadian federal governments have been liberal. Since 1867 more than 70% of the majority governments have been formed by the Liberal Party. So there is no surprise that a majority of Senates, as a majority of Parliaments have been liberal.

One can say that if the people have elected the respective Prime Minister and hold him/her accountable, it is just reasonable to have her/his appointees for the Senate.

In democratic terms this has been the trend in the US most of the times, since the Construction era. The Congress and the Senate have mostly been dominated by one party or the other. Hence, it is fair to conclude that the same thing could have reasonably happened in Canada even if the Senators were elected. After all, even the US system is a variation of the Common Law system (better organized, democratic, and republican for sure!).

The only real problem with the system is that Senators are there forever and one has to put a limit on the period of appoinments (four years or eight years) so that it corresponds to the House of Commons elections.

8) As to notwithstanding clause, this was supposed to be a compromise to accommodate Quebec during the 1980-82 Constitutional round. Quebec always demanded more autonomy to protect its unique identity, and favour the French language, so Trudeau and Chretien (after a fight) accepted it. The notwithstanding clause has to be renewed every five years upon a vote of a provincial legislature, and if the provincial legislature decides not to do so the respective premier cannot do anything. The history of Canada has shown that the maximum life of a Provincial Government is about ten to twelve years on average. So it is clear that a new generation of electorate can always bring a new government in power that may choose to abide by the constitution.

HOWEVER:

The fundamental rights and freedoms as menitoned in the Charter cannot be subjected to notwithstanding clause and if the Supreme Court declares that thoe Homo-sxual rights to marriage constitutes a fundamental right, then I do not think the govern ment of Alberta can do anything.

9) The question of Constitutional Umpires (judicial review and protection of the Constitution by the Supreme Court) is an AMERICAN IDEA. The first country that has done that is the United States and many in Canada objected to granting such powers to the Canadian Supreme Court, because they said it would Americanize the Canadian system. Chief amongst the opponents was and is the Canadian Philosopher (the former deputy leader of the NDP), Professor Charles Taylor!!

10) Today, in Germany there is a Constitutional Court that has been an important power to protect minority rights against the majority rights. The reason behind the existence of judicial protection of the constitutional rights is to prevent majority governments/or a majority of people from resorting to their "so-called" majority rights to take away the rights of the minorities.

For example, if the Supreme Court of Canada had the right to review the constitutionality of the actions of the Government during WWII, it is possible that the Japanese would not have been put in internment camps in Canada. The recent ruling of the Supreme Court of the United State that the Guantanamo Bay camps prisoners have the right judicial review and access to justice is another example. The rulings of the Supreme Court of the US with respect to the right of Black students to attend Public Schools of their choice is another example.

11) Hence, the Supreme Courts are and have been strong instruments to preserve minority rights against the irrational behaviour of the majroity. The European Court of Justice and European Court of Human Rights are now the final courts last resort in the Euroepan Union and abiding by their rulings is "compulsory" by the member states.

Despite all the criticism from Western Canada, according to the past four Canadian Election Polls conducted by the York and University of Toronto scholars since 1995, the Supreme Court of Canada is considered as the most legitimate institution of the state in Canada.

Good Start though! I suggest you to take political science because you show a lot of talent, which needs to be coupled with 'A LOT OF READINGs'.

Dear Yasser,(I am sorry again, but this is going to be long too),

Well, I honestly find your analogy very far-fetched.

The fact that in the Iranian system many conventions come out of nowhere in the most extra-constitutional manner, is because of the Clergies lack of respect for a "popularly snactioned consensusal approach towards the rule of law.

I am not saying that this consensus in the Common Law system was established on a democratic basis all the time and/or no blood was ever shed. Against the backdrop of the 1867 Confederation of Canada there are years of rebellion and civil disturbance in Upper and Lower Canada, not to mention the whole Louis Rielle affair after that.

The point is that Iran has never had any such understanding of a "Common Law" tradition. Iranian elites were French eductated and disgusted by Britain and anything British. Still, practice of the rule of law has to come from years of democratic struggle. Pakistan used to have a strong democratic tradition until Zia'Ul'Haq came, imposed a Shari'a amendment on the Constitution of Pakistan and expelled a generation of British educated independent judges and replaced them with his cronies. The death of an Indenpendent Pakistani Judiciary was a final shot that marked the death of the Pakistani Democracy.

What are the constitutional traditions in Iran? With the exception of Cyrus's delcaration that was for long erased from our people's memory, we have no concept of Magna Carta in Iran.

Mossadegh regime, despite all the nostalgia that some radical nationlists have for it, was no better in terms of constitutionalism either. Mossadeq dissolved a National Assembly stacked by many undemocratically elected deputies by nothing but a hoax referendum of his own in which Tudeh party activist played a great role in stuffing the ballot boxes. The provision of referendum in this regard was virtually non-existent and he came up with a very wide interpretation to do so.

The Common Law's roots established on Magna Carta and if John I had not recognized certain rights for the aristocracy, and of course the independence of the city of London as the future seat of the Houses of Parliament, even the Common Law tradition would not have existed in its shape and form today.

The Iranian clergy hold no respect for basic democratic rights. They see themselves as Divine agents. I understand that I am overgeneralizing but I have no excuses to make, the history stands my witness.

Hence, the evolution of Common Law has to do with almost 800 years of struggle for fundamental rights and freedoms and the rule of law.

Don't get me wrong, I am not an evolutionist. I do not think that we need to wait that long. Indeed, that is why I never bought the "Reformist" agenda and their appeasement projects.

The Soviet Union, if you know of its 1970 Constitution, had one of the most progressive and democratic Constitutions ever written on the face of this planet. But none of the social and democratic rights were ever realized because of a TOTALITARIAN approach towards government.

Almost everyone who has had a look at the Iranian Constitution of the Present Regime knows that the powers predicted for the Velaayateh Faghih in the Iranian constitution are against the principles of democracy.

It is just unreasonable that a leader can decide the appointment of the same people (Guardian Council) who have to supervise the elections of an assembly that can overthrow the leader (house of experts).

This is not just a Constitutional Lacunae (loophole):

This is a gross manipulation of power built into the constitution of the Islamic Regime.

Such a gross manipulation of power is virtually non-existent in Western Democratic Cosntitutions and if someone or a group of people abuse their power in this regard, they have to await the puinshing Axe of the electorate!

Look at the type of crisis of legitimacy that the US Supreme Court imposed on George W. Bush when it voted against the proper recount of the ballot in Florida. Not only did it incurr a great deal of damage to its own legitimacy but it tarnished the legitimacy of the office of the President of the United States of America (regardless of the fact that Bush still won with 500 ballots in the recount conducted by the media).

I still think that you are comparing apples and oragnes. The Canadian constitutionalism reflects a hardwon democratic tradition and it has its checks and balances built into the conventions that have arisen from it.

The Islamic Regime of Iran's constitutionalism is at best the rule of law according to a mentality similar to the cult of Hassan Sabbah.