1982 Constitutional Law

from Wikipedia, the free encyclopedia

The Constitution Act of 1982 ( English Constitution Act, 1982 , French Loi constitutionelle de 1982 ) is part of the Constitution of Canada . It also complies with Appendix B of the British Canada Act 1982 . The law, which came into force on April 17, 1982, was passed as part of the "patriation" process of the constitution. This means that constitutional amendments no longer have to be approved by the British Parliament . At the same time, the British North America Act of 1867 was renamed the Constitutional Act of 1867 and several points were amended.

Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is the declaration of fundamental rights and comprises Articles 1 to 34 of the Constitutional Act. The charter is designed to protect certain political and civil rights of people in Canada from acts and laws of federal and provincial governments. The predecessor of the charter was the Canadian Bill of Rights of 1960, which was only a federal statute and not a constitutional document. Its scope was limited, easily modified, and not applicable to provincial laws. The relative ineffectiveness of Canada's Bill of Rights prompted Prime Minister Pierre Trudeau's government to draft a new declaration of fundamental rights. In particular, the principles formulated in the Universal Declaration of Human Rights should be laid down.

Native American Rights

Article 35 of the Constitutional Act "recognizes and affirms" the existing rights (particularly contractual rights) of Native Canadians . They protect the activities, customs and traditions that are an integral part of the distinct aboriginal culture. Contract rights protect and enforce agreements between the crown and the peoples. Article 35 also provides protection for the land assigned to practice the traditional way of life. These rights apply to persons belonging to the First Nations , Inuit and Métis . Another article of the Constitutional Law that deals with Native American rights is Article 25 of the Charter.

equal opportunity

Article 36 sets out the values ​​of equality of opportunity for the residents of Canada, the economic development to achieve them and the provision of public services. Subsection 2 goes further and recognizes the “principle” that the federal government should secure compensation payments ( Canadian financial compensation ).

The constitutional lawyer Peter Hogg expressed skepticism in 1982 as to whether the courts could interpret and enforce this constitutional provision at all, since it has a "political and moral, but no legal" character. Other legal scholars believe that Article 36 is too vague. Since the courts could hardly apply this article, the 1992 Charlottetown Accord was to be amended to make it enforceable. The constitutional reform did not materialize.

Constitutional amendments

Article 52 (3) of the Constitutional Law states that constitutional changes can only be made in accordance with the rules set out in the Constitution itself. The intent of this article was to secure the primacy of the constitution and to deprive the constitution of amending the constitution through ordinary legislation. The rules for amending the Canadian Constitution are relatively complex. They are set out in Part V of the Constitutional Law.

There are five different ways to change the constitution, each tailored to a specific type of change:

  1. The General Formula (the “7/50” Procedure) - Section 38: The change must be approved by the House of Commons , the Senate and at least two-thirds of the provincial parliaments (which represent at least 50% of the total population of the country). This affects all changes that are not mentioned in Sections 41, 43, 44 or 45. The formula must be used in all six situations specified in Section 42.
  2. Unanimous Action - Section 41: The change must be approved by the House of Commons, the Senate, and all provincial parliaments. (The section in question deals with the office of queen, governor-general and lieutenant governors of the provinces, the minimum representation of the provinces in the lower house, the official languages ​​of English and French and the composition of the Supreme Court.)
  3. “Some, but not all, provinces” (or “bilateral” approach) - Section 43: The change must be approved by the House of Commons, the Senate and the parliaments of those provinces affected by it. (The section in question concerns border changes between provinces and the use of English and French in the provinces.)
  4. Federal Parliament only (or “unilateral federal approach”) - Section 44: The change only needs to be approved by the House of Commons and the Senate. (The section in question deals with constitutional changes affecting the federal government, the Senate and the House of Commons.)
  5. Provincial Parliaments only (or “Unilateral Provincial Action”) - Section 45: The change only needs to be approved by the provincial parliaments. (The section in question is about amendments to the provincial constitutions.)

Numerous other provisions in Part V regulate things such as compensation or the suspension of when and how a province does not have to apply a constitutional amendment, and the time limits for drafting a constitutional amendment.

Precedence clause

Under Article 52 of the Constitutional Law, the Canadian Constitution is “Canada's highest law,” and any law that is inconsistent with it has no legal force. This gives Canadian courts the power to invalidate laws. Although these laws are published, they cannot be applied. Before this precedence clause was introduced, the British North America Act was Canada's most senior law. He relied on Section 4 of the Colonial Laws Validity Act 1865 , a British law that stipulated that no law of a colony in violation of an imperial statute was in force. Since the British North America Act was an imperial statute, any incompatible Canadian law had no legal force. There was no explicit provision that gave the courts the power to determine whether a Canadian law violated the British North America Act. Until 1982, this right of the courts was part of unwritten constitutional law.

Definition of the constitution

Article 52 (2) of the Constitutional Law defines the "Constitution of Canada". According to this article, it consists of:

(a) the Canada Act of 1982 , which contains the 1982 Constitutional Act in Appendix B;
(b) 30 laws and instructions annexed to the Constitutional Act of 1982 (specifically, the Constitutional Act of 1867);
(c) any changes made to any of the aforementioned documents.

In addition to numerous Imperial statutes, Article 52 (2) contains eight Canadian statutes, three of which created new provinces and five of which are amendments to the Constitutional Act of 1867.

General

Article 56 states that the English and French versions of the Constitution are on an equal footing. Article 57 extends this statement to the 1982 constitutional law itself. This is similar to Article 18 of the Canadian Charter of Rights and Freedoms, which states that the English and French versions of the Charter have the same status.

Article 59 limits the application of Article 23 of the Charter (teaching the minority language) in the province of Québec. This article will not be fully applicable until the Québec Provincial Government ratifies it. Article 60 regulates the designation of the constitutional laws.

Web links

Wikisource: Proclamation of the Constitutional Law of 1982  - Sources and full texts

Individual evidence

  1. ↑ Article 20 of the BNAA was replaced by Article 5 of the Constitutional Law of 1982, Article 51 was amended, Articles 91 (1) and 91 (2) were repealed, Article 92A was added and Article 94A was changed.
  2. ^ Peter Hogg: Canada Act 1982 Annotated. The Carswell Company Limited, Toronto 1982.
  3. ^ Rhonda Lauret Parkinson: Source , Mapleleafweb, University of Lethbridge .