[ql06] PUBLIC:Do we want judges with more muscle? No
- From: Sheldon Erentzen <sheldon.erentzen@xxxxxxxxxxxx>
- To: QL'06 newslist <ql06@xxxxxxxxxxxxx>
- Date: Thu, 13 Nov 2003 16:34:26 -0500
Do we want judges with more muscle?
NO: Democracy is at risk if unelected elites in robes have too much say,
argues ALLAN HUTCHINSON
Thursday, Nov. 13, 2003
Globe and Mail
Democracy is in trouble. The twin foundations of democracy -- popular
participation and political accountability -- are going the way of the
polar ice caps; what now passes for "democratic dialogue" is an elite
conversation between the judicial and executive branches of government
with the contribution of ordinary Canadians conspicuously lacking.
A recent decision of the Supreme Court of Canada evidences our poverty
of democratic engagement. The issue was whether a trial judge could not
only order the Nova Scotia government to meet its obligations by
building French-language schools, but also retain supervisory powers
over implementation. In a tightly split decision, the court said that
judges could take such an interventionist role in limited circumstances.
The majority took the basic line that the recognition of a right was
useless without a judicial commitment to enforce that right. The
minority warned that it was not the task of judges to do politicians' work.
While observers debate whether or not the judiciary had trespassed on
forbidden political ground, a more troubling dynamic underlies the
litigated issue. Democratic choice should not just be between rule by a
judicial or governmental elite, but by a political process that responds
to broader democratic concerns. While the judiciary has some defined
function in Canadian politics, it must be limited and partial. Being
neither elected by, nor representative of Canadians, judges can hardly
claim democratic legitimacy. Their contributions must be restricted to
discrete resolution of disputes. Extensive policymaking seems outside
their democratic ambit.
On the other hand, while the executive can lay claim to greater
democratic legitimacy, too often, political leaders seem to dance to
their own tune. If opinion polls show considerable support for the
Supreme Court, it's less an accolade for judges and more a slap in the
face for politicians. Judges can only do a second-best job at making up
the democratic deficit.
However, to conceive that this Supreme Court decision resurrects the
dilemma of whether courts can or should invade the political domain
misses the point. Courts cannot exercise their powers and
responsibilities without reference to contested values and principles of
governance. The neglected issue is not the politicization of the
judiciary, but the democratic failure of the executive and legislative
branches in fulfilling their constitutional responsibilities and mandate.
To increase popular participation and political accountability will
require more than the kind of tinkering our future prime minister Paul
Martin has in mind. It must be bottom-up, so that people lead
politicians rather than follow them. Secondly, any changes --
proportional representation, recall legislation, accountability audits,
referendums, etc. -- must themselves be a product of the very democratic
process that is to be enhanced.
Redirecting our undemocratic trends won't happen through increased
interventions by judges in the micromanagement of governmental policies.
Judicial supervision is a short-term crutch that actually harms a
limping polity in the medium- and long-term. The replacement of one
elite rule (executive) by another (judicial) can only be considered
positive under the most warped sense of democracy. Whatever else it
means, democracy demands more power to the people; aristocratic rule is
no less palatable because judges and political leaders are the new
dukes, and no more acceptable when such elites wrap themselves in the
trappings of democracy.
Allan C. Hutchinson teaches law at Osgoode Hall.
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