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.
The Crown has no power to govern as the Velayateh Faghih in Iran has.
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
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
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
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
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.
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
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.
["Well, I read it;" you might say, "now let's close
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'.