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August 14, 2004

Isn't our constitution just a scapegoat?
Yaser Kerachian  [info|posts]

flag.jpg The recent federal election in Canada which happened two months ago was a great opportunity to familiarize myself with the inside politics of a country other than my home country, Iran. The campaign run by the different parties, various issues which were raised during the election and the way the whole Canadian government is running, were all different interesting topics for me to learn. Though the election was fair and free, I noticed several flaws in the system which I would like to mention in below.

1) The first surprise appeared to me when I was watching TV showing Paul Martin, the Canadian prime minister, calling for an early election. He told the reporters about the permission he has been given by the governor general after their meeting. Everything looked to be very well accepted by everyone: in order to call an election in Canada, the Queen of England should be first informed. Not to mention that in principle, every single law passed in Canada has to be approved by the Queen.

2) Despite a few hundred years of history of Canada as a nation, it is less than 25 years since this country has had an independent constitution. Knowing of many countries still without any constitution, I am not surprized that Canada did not have it for a long time. However, I was under the impression that now every law has to agree with the current constitution. So I was shocked to become aware of a law called notwithstanding clause which permits the federal or provincial government to approve or reject any law in the contrary to the constitution if they wish. For instance, assume that the supreme court of Canada says that restricting the definition of marriage to heterosexual relationships, is unconstitutional. The premier of the conservative dominated province of Alberta has already threatened to use the notwithstanding clause and reject the order of the supreme court of Canada.

3) Unlike the US, senators in Canada are not elected by people but are appointed by prime ministers. In principle, the senate has a crucial power that allows it to reject any law passed by the parliment. The way the senate is appointed is also interesting. Prime minister can only appoint a senator when there is one available seat meaning that one senator retires, quits, or passes away. Thus, one prime minister may be very lucky to appoint many senators in contrary to another, who may never get a chance. Now, think of a senate mostly appointed by a prime minister becoming a big source of trouble for the next government at the time power switches from one party to the other. Not only senetors, but the judges of the supreme court are also appointed in a similar way as the senators. A "lucky" prime minister can get a chance to appoint several judges who share similar views with him so that he would never have to confront them.

To be honest, what has made my mind busy is not these problems themselves. I could see any country to have similar problems. What is amazing is how everything goes very smoothly and democraticly in Canada. There is not any noticable abuse of power though the laws may permit such a thing. In my opinion, some of the Canadian laws are even worse than some Iranian laws in some regards. No one can say that Queen of England has less power than Velayat-Faghih [supreme leadership] in Iran. The unelected senate can be an obstacle to a democracy just as much as the Guardian Council is currently in Iran. The judges of the supereme court of Canada can abuse their power just as much as some judges in Iran do. However there is something that makes the Queen to never abuse her power and Iranian leader to do despite their similar power. It would also be interesting to study the number of times senate of Canada has rejected a law passed by the parliment in comparison with the Gaurdian Council. Though the two constitutions seems to have some similarities, they function very differently. Doesn't this tell us that the problems of our home country comes from somewhere other than our constitution?

Comments
eswin at August 14, 2004 12:41 PM [permalink]:
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 ["Toooo long!" editors say, "Here: click to read the whole thing!"]
eswin at August 14, 2004 12:59 PM [permalink]:

under point seven I made a mistake where I say "if people elect the Prime Minister", I meant "the Prime Minister's Party as the Majority party".

One more point, some of the problems that are viewd as constitutional arise from the fact that we do not have proportional repsrentation in Canada! This brings a whole new debate though!

Neda at August 14, 2004 01:04 PM [permalink]:

I find the picture associated with this article, quite controversial. What is the purpose of mixing official symbols of the two countries' flags?
To me, the picture is suggestive of rather inappropriate interpratations, which are not relevant to the article: the article concludes how similar some governmental bodies could be assumed in Canada and Iran, but how different they have actually functioned and been influential; but, the picture implies some ideas of colonization between Canada and Iran (historically or prospectively?!) Compare that with the current flag of Australia and its similarities with the UK's.

eswin at August 14, 2004 02:02 PM [permalink]:

Dear Neda:

The picture is simply irrelevant, especially with the Maple Leaf surrounded by a line of Allah-Akbar indents!

Although, I should remind you that some people saw the present Iranian flag as representing a different type of colonialism,...it is a long debate in its own right.

Neda at August 14, 2004 03:16 PM [permalink]:

I think the picture is not only irrelevant but also offensive (in its own way).
Eswin: your point about the current flag is interesting for another debate perhaps. I shall avoid moving the comments to that direction though, not to add to the current irrelevancy!

eswin at August 14, 2004 03:46 PM [permalink]:

I agree with you Neda.

Let us imagine how a Canadian flag may look like with Green on the right and red on the left and an Allah sign in the middle! (I do not want to offend anybody but I still do not know that sign in the Middle of the Iranian flag that looks like a crab stands for what exactly).

An Iranian Student (AIS) at August 14, 2004 10:25 PM [permalink]:

Well I think the sign in the flag of the Islamic Republic of Iran (that we all know what it's supposed to be) looks more like a black-widow spider than a crab. I like crabs, they are good and respectable animals.

Yaser Kerachian at August 15, 2004 09:01 AM [permalink]:

Dear Eswin,

Thank you so much for your very informative comment (or post). I will listen to you and go and read some books:). Just to clarify more, what I meant in my post was that in any constitution, there are a lot of rooms for the officials to abuse their power. However this abuse of power doesn't happen in Canada for many reaons such as what you mentioned as "common law". Is common law written somewhere? Could somebody get arrested for not obeying the common law? No. The questions is why in Canada everyone knows that s/he should obey it but in Iran no one cares. Or maybe we can ask why in Iran "Common law" doesn't form as other democratic countries? Or you talk about "lack of any committment to democratic principles" of the Gaurdian Council. Is this lack of committment related to the constitution? Why Senators have the commitment and Gaurdian council don't?

You have said:"the Supreme Courts are and have been strong instruments to preserve minority rights against the irrational behaviour of the majroity." Historically, your point is absolutely right. Now my question is why the Supreme court of Iran is the opposite? What makes the two supreme court to function very differently? Is that in the constitution?

Yaser Kerachian at August 15, 2004 09:05 AM [permalink]:

Dear Neda,

I can't see why such a picture can be offensive?! Offensive to who and why? You may think it is irrelevant but it is not offensive. I chose the picture as a symbole of saying canading and Iranian systems are similar. But it seems that the picture doesn't have this massage.

eswin at August 15, 2004 03:11 PM [permalink]:
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 e ["Toooo long!" editors say, "Here: click to read the whole thing!"]
Jim at August 15, 2004 09:23 PM [permalink]:

You should better put your nose off the others' businiess and return the money you got from Iranian goverment to work as a spy in Canada like your friend Hossein Derakhshan (Hoder).

Pouria at August 15, 2004 09:27 PM [permalink]:

1) I agree with AIS. Crabs are not only good and respectable, but also quite delicious, especially snow crabs.
2) In answer to Yaser's question. I think the flag is offensive to Canadians.I for one am insulted ;)

yahya at August 15, 2004 11:04 PM [permalink]:

I don't know much about Canadian system of government, but I agree with Yaser's general point that constitution is not the sole source of problem in Iran. For example, in Iran, Guardian Coucil constantly seeks more power far beyond what it is really allowed in the constitution. They reject bills of parliments on the amount of spending by claiming some sort of contradiction with constitution/islam. While you can see that the US supreme court repeatedly rejects intervention in many of the cases because it understands that over extending its power will damage its own credibility in the long run.

Yaser at August 16, 2004 12:13 AM [permalink]:

This website has editors. They can take out the picture if they think it is offensive. I don't.

In general, it is also good not to be offended by such unimportant things. Otherwise you would have to spend most of your life fighting with them for nothing.

Yaser at August 16, 2004 12:15 AM [permalink]:

BTW, I found the comments about the comparison of the symbol of Allah to crab very offensive. How about deleting those comments?

JFTDMaster at August 16, 2004 02:45 AM [permalink]:

re: article

In Britain and in Canada, many things are not "written" down in the constitution but there are many rules that are based on tradition and precedence. Constituion by itself is a piece of paper, but there are often important things that it symbolizes.

Whats important is not simply the constitution, but the legitimacy and the rule of law that often comes with it. What is important is a justice that is "blind" and neutral, and that a small group self-interested group doesn't take charge of it. Then the rule of law will be seen as "fair" and legitimate.

don't really have time to comment on the comments

An Iranian Student (AIS) at August 16, 2004 07:15 AM [permalink]:

Yaser,

deleting other comments? Very interesting. Why precisley is that? Some how this allah guy off limits even on the net? oh is it the "religious sensitivity of the people TM" that is at play here?

Open your eyes buddy and look at the country you are living in. It is a predominantly Christian society, but see how there is absolute freedom in dealing with Chrsitian religous symbols.
You wanna know why Iran is not like Canada? Maybe its because even 'open-minded' people form Iran are still unfortunately mostly the likes of you.

As to the similarity take a look and judge for yourself:
Pics and Pics

hmmm...but maybe you have a point. Balck widow spiders are poisenous but they hardly could be held responsible for the death of millions during 14 centuries. My aoplogies to the spider community.

Ali at August 17, 2004 08:49 PM [permalink]:

I am not familiar with the details of constrictions of either Iran or Canada but there are clearly some means that give supreme leader of Iran unchallengeable power in ruling the country while this power is for sure challengeable in democratic countries. As an easy example (for myself ;))if the people of US keep on voting for Democratic party, there shouldn't be any conservative judge in the supreme court of US or they will be in minority after a predictable time.
I don't think all the heads of the state in any country should be elected with direct polls. It is at least not economical and also causes revolutionary types of changes which are not beneficial in long term. However, there shouldn't be a closed circle of power that prevents any future changes as we see in Iran.

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