Comparative Constitutional Law

Constitutional Roundtable with Professor Eleonora Bottini

 

Please join us on Thursday March 23, 2023 at 12:30pm for an Asper Centre Constitutional Roundtable with Professor Eleonora Bottini on her forthcoming paper titled “Modernizing Constitutions: A comparative analysis of justifications for constitutional reforms.”

The David Asper Centre for Constitutional Rights’ Constitutional Roundtables are an annual series of lunchtime discussion forums that provide an opportunity to consider developments in Canadian constitutional theory and practice. The Constitutional Roundtable series promotes scholarship and aims to make a meaningful contribution to intellectual discourse about Canadian constitutional law.

All are welcome. No Registration or RSVP required. Light lunch will be provided.

Venue: John Willis Classroom FL219, Flavelle House, Faculty of Law, University of Toronto

Abstract: The idea, dear to Thomas Jefferson, that a people cannot be subjected by the laws of the previous generations is in direct contrast with the intention of the constituent power to make the constitution– as opposed to ordinary legislation – last for more than one generation. One way to conciliate this paradox of constitutional theory is the possibility of amending the text of rigid constitutions if and when they become “outdated”. Therefore, a very effective argument to legitimize constitutional amendments has been that they serve the modernization of the constitution, making it compatible with current times without having to substitute it entirely, which could be politically impossible or undesirable. This paper critically examines the uses of the constitutional modernization argument (CMA) from a comparative perspective, by studying examples of constitutional reforms from 2000 to 2022 in various countries. The paper’s contribution is firstly to unpack the structure and assumptions of CMA and to divide it into sub-arguments in order to provide a better understanding of those types of justifications. The paper concludes on a critique of CMA as an unjustified objectivization of constitutional reforms which can mask the changed political preferences that amendments convey.

Eleonora Bottini is Full Professor of Public Law at the University of Caen-Normandy (France) and is currently the Martin-Flynn Global Law Professor at University of Connecticut School of Law. She served previously as associate professor at Sorbonne Law School in Paris and was the Alliance Visiting Professor at Columbia University. She specializes in comparative constitutional law, French constitutional law and legal theory. She has published several articles and book chapters in French, Italian and English and she is the author of a book based on her PhD thesis, “Constitutional sanction: study of a doctrinal argument” (Dalloz, 2016, in French), on the theoretical origins of judicial review.

 

 

Examining the Constitutional Concerns of Urbanization and Megacities

Posted on by Tal Schreier

By Julia Nowicki

“Urban agglomeration is amongst the most burning policy challenges of the twenty-first century”, says Ran Hirschl, professor of political science and law and fellow of the Royal Society of Canada. “The continued silence of constitutional thought and constitutional scholarship on the issue of cities, urbanization, is just striking.”

On Thursday, November 12th, 2020 Hirschl addressed the constitutional concerns of urbanization and cities’ relative lack of legislative authority during a Constitutional Roundtable discussion about his new book, “City, State: Constitutionalism and the Megacity”, hosted virtually by the Asper Centre. Hirschl says that the impetus for the book came from the 2019 Ontario Court of Appeal decision of Toronto (City) v Ontario Attorney General, which upheld the constitutionality of the Better Local Government Act. Passed in 2018 by the Ontario government, the Act had the effect of cutting the number of municipal wards in Toronto from 47 to 25, ahead of the municipal election that year.

Hirschl began his address by outlining the rapid acceleration of urban growth the world has faced in the last century. In Canada, Hirschl says, 55 per cent of the population lives in six metropolitan areas, and the Toronto metropolitan area itself is home to 20 per cent of Canada’s population. However, these statistics are not uniquely Canadian in nature, and urban population as compared to rural population globally is on the rise. “UN projections suggest that by the end of the 21st century, we will have cities such as Lagos, Kinshasa, Dar es Salaam, Mumbai and Karachi with populations between 70 and 85 […] million people,” Hirschl says. Rapid urban growth raises the issue of extreme density, which in turn may present a major challenge to the realization of social and economic rights of individuals.

In Canada, provinces are viewed as creatures of the province, and recent jurisprudence such as Toronto (City) affirms that provinces have the power to govern municipalities regardless of their relative size or population. This is affirmed in the Constitution Act of 1982, where the division of powers, s.92.8, places “ Municipal Institutions in the Province” within the purview of provincial legislation. In the U.S, cities lack any constitutional personality and are likewise governed by the state, according to a paper written by Hirschl, titled “Cities in National Constitutions: Northern Stagnation, Southern Innovation”. Issues such as gerrymandering, the power of the state to pre-empt city legislation, and the systemic sell-out of urban assets by states are representative of the relative constitutional weakness of cities in the U.S. Similar controls can be found in Australia, where states govern policy areas from education to infrastructure in cities, Hirschl says.

However, a number of countries in the global south have attempted to strengthen the constitutional protection of cities, Hirschl says. India, as an example outlined in Hirschl’s paper, adopted two constitutional amendments in 1993. The 73rd Amendment addresses the governance of rural settlement and townships, while the 74th Amendment addresses that of cities. Although the latter amendment allows for 18 policy areas of which the state government may devolve power to the municipality, Hirschl writes that in practice impacts of these changes are varied and the successful implementation of city power is often impacted by political factors. In Brazil, a new federal constitution was adopted in 1988. Included within was Article 182, which provides that “urban development policy, carried out by the municipal public authority, according to the general guidelines fixed by law, is intended to order the full development of the social functions of cities and to guarantee the well-being of their inhabitants”; Article 183 granted protections to long-term dwellers from forced evacuations by land developers. This constitutional right to the city, according to Hirschl, was “complemented by the adoption of the City Statute in 2001 as well as the establishment of the Ministry of Cities and the National Cities Council in 2003.” The Ministry was, nevertheless, absolved in 2019 and the City Statue likewise was repealed, Hirschl says. Likely, the most successful attempt to protect city rights, Hirschl says, is the result of efforts in South Africa, the government of which has included an entire chapter within their constitution (1996) pertaining to city rights. Granting city control over land use, planning, and social housing, etc, “framers wanted to explicitly reverse apartheid related urban policy,” Hirschl says.

Although attempts to constitutionalize city power have been met with varied success, Hirschl maintains the importance of large municipalities in addressing various issues, including climate change, housing, or economic inequality.  “It is impossible to address either rising economic inequality […] or climate change, without direct involvement of city government, and so the constitutional empowerment of cities may be thought of as an effective means of addressing the problem in a more bottom up fashion,” Hirschl argues. “Likewise the more constitutional power cities hold, the more they are likely to invest in social housing.”

Urbanization is one of the most important issues facing us today, Hirschl says, and “new thinking […] about constitutionalism and urbanization is the call of the hour.”

A recording of Professor Hirschl’s Constitutional Roundtable can be viewed here.

Julia Nowicki is a 2L JD student at the Faculty of Law and the Asper Centre’s current work-study student.

Constitutional Roundtable with Akis Psykgas

Posted on by Tal Schreier

by Ryan Howes

On January 31, 2018, the Asper Centre Constitutional Roundtable Series hosted Athanasios (Akis) Psygkas, Lecturer in Law at University of Bristol and Visiting Scholar at the University of Toronto. His presentation was titled: “The hydraulics of constitutional claims: Four models of democratic constitutionalism and same-sex marriage.” Professor Brenda Cossman, Director of the Bonham Centre for Sexual Diversity Studies, joined as discussant.

There are many actors involved in constitutional interpretation. Psygkas identified a bottom-up process of constitutional evolution wherein multiple actors raise claims with constitutional implications. To articulate this “hydraulics” process, he conducted a case study of the legal recognition of same-sex marriage in four countries: the US, Spain, the UK, and Ireland.

In Obergefell v Hodges, the US Supreme Court held that the Fourteenth Amendment of the US Constitution requires state to issue marriage licenses to same-sex couples. The decision focused on liberty. Justice Kennedy, writing for the majority, provided a list of social actors (“central institutions in American life”) that contributed to the evolving debate of constitutional interpretation regarding same-sex marriage and argued that this debate had now reached a stage of deliberative maturity that permitted the Court to channel this into constitutional law.

In Spain, same-sex marriage was recognized through the legislature, beginning first at the regional level before being formalized in national legislation. In further contrast to the US, the petitions that were put forth in support of legalizing same-sex marriage focused on equality, not liberty. When challenged, the Spanish Constitutional Court stated that it cannot remain “aloof from social reality” and cited statistics concerning Spanish attitudes toward same-sex marriage in making its decision to recognize same-sex marriage.

In the UK, the process to recognize same-sex marriage was largely legislative and proceeded in stages. First, homosexual activity was decriminalized for persons over 21 years of age in 1967. But this provoked some backlash: legislation prohibiting promotion of homosexuality remained in place until 2003. Civil partnerships were created in 2004, which permitted homosexual couples legal recognition. Formal recognition of same-sex marriage came into effect in 2014. Throughout these stages, there was no electoral manifesto concerning same-sex marriage; rather, the process occurred organically through public consultations and hearings at the committee stage of the legislative process. The debate continues in Northern Ireland, where a married, English same-sex couple is challenging the state’s refusal to recognize their marriage.

The Republic of Ireland has direct citizen involvement in constitutional change through referendums, especially when change concerns fundamental laws, like constitutional amendments. The consensus in Ireland, however, had long been against recognizing same-sex marriage. This social attitude had influenced how politicians and the judiciary interpreted relevant legislation and articles of the Irish Constitution, especially Article 41, which concerns family. In 2013, a referendum on same-sex marriage was conducted and by a 62% approval vote brought the 34th Amendment of the Irish Constitution into existence, granting same-sex marriage legal recognition.

Each of these four examples demonstrate the varied systems and means through which social actors influence constitutional interpretation and change. The predominate direction of influence was bottom-up.

Professor Cossman argued that in Canada same-sex marriage recognition was a predominantly court-centric process, with Charter dialogue dominating the arguments. Parliament responded to Supreme Court of Canada (SCC) rulings by changing legislation. This process began with the SCC ruling that the common law definition of marriage as between one man and one woman violated section 15 of the Charter (Halpern v Canada). The Same-Sex Marriage Reference soon followed in 2004. This appears to be an exception to the hydraulics process that Psygkas observed in the four countries discussed. Although there were many activist groups active at this time, the Canadian experience of recognizing same-same marriage appears to have been more of a top-down process and did not exemplify the same hydraulics process Psygkas observed elsewhere. The SCC interpreted the Charter and Parliament followed. Invariably, some bottom-up processes were at play in the Canadian same-sex marriage debate: our Charter is young and reflects Canadian values, and our judges are, after all, from the citizenry.

Psygkas argued that the driving force in this “hydraulics” process is a bottom-up demand for a specific constitutional position within complex institutional structures; the exact form it takes varies depending on the constitution and the institutions present. What implications does this have for when we observe social backlashes or rising sentiments that we perceive to be moving our society in the wrong direction? Current political preoccupations with the so-called “populist” wave are perhaps an instance of this process.

Ryan Howes is a JD Candidate at the Faculty of Law and is the Asper Centre work-study student.

Constitutional Roundtable Recap

Posted on by Tal Schreier

By Ryan Howes

 

Alistair Price on “The Relationship between Constitutional and Tort Damages for State Failures to Protect in Canada, England, and South Africa”

On November 29, 2017, the Asper Centre Constitutional Roundtable hosted Alistair Price, Associate Professor in Law, University of Cape Town. Price’s presentation was titled “The Relationship between Constitutional and Tort Damages for State Failures to Protect in Canada, England, and South Africa.” Richard Stacey, Assistant Professor, University of Toronto Faculty of Law was the discussant.

What is the appropriate legal approach to damages caused by public officials failing to meet their state-mandated positive duties?  Public law compensation often grants little or no monetary remedy for damages when it is available at all.  Tort is a more viable legal recourse for adequate monetary remedy. However, the standard for tort liability vis-à-vis public officials differs in Canada, England, and South Africa.  Each has adapted a unique approach in adopting tort law to the context of public wrongs.

On the conservative pole of the spectrum, English law has preserved the traditional torts approach. There is no positive legal obligation in tort required of public officials beyond that which is also ascribed to a private citizen. As defendants in tort, English law applies the same standard to public officials and private citizens.

South Africa is positioned at the opposing pole of this spectrum. Public officials are obliged to adequately perform their public duties. They are liable for damages flowing from omission or negligent performance of their ascribed positive responsibilities. Public officials are distinct from private citizens, held to a higher standard.

Canada has taken a middle approach. Price argues that this evades the excesses of the South African approach and the deficiencies of the English approach.

In South Africa, the basic relational structure of tort liability has been altered in adapting the legal system to address public wrongs. In England, this relational structure is persevered but the legal system fails to recognize that public officials occupy a status of categorical superiority relative to private citizens by virtue of their position. Applying the traditional private law approach of basic equality between the parties fails to recognize the judicial inequality that exists between the parties in the context of public damages.

In Canada, failure to perform positive public duties is actionable in tort law, but the basic relational structure still exists. The public official’s duty must have been a duty to this plaintiff at the material time. This often manifests in the context of policing. The Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police case is one such instance.

In commenting on Price’s paper and presentation, Richard Stacey offered a different perspective, one more favourable to the South African approach. Whereas Price finds laudable moderation in the Canadian approach, Stacey adopts a more categorical perspective wherein Canada is straddling the distinct paradigms embodied by England and South Africa. Canada is in a state of transition, moving toward the South African approach.

Stacey likened the current Canadian position to the geocentric model before the paradigm shift to a heliocentric model. Anomalies amass. Sub-theories grow in number to keep the theoretical framework coherent until the threshold is met and a paradigm shift occurs.

The paradigm shift is from merely applying traditional tort principles to adopting public law solutions for damages caused by public officials failing to fulfill their positive duties. The dissent and majority judgements in the Paradis Honey Ltd v Canada (Minister of Agriculture and Afri-Foods case represent the debate between these approaches within the context of Canadian law.

What accounts for these differences? Price posits that the constitutional culture of each country plays a role.

The constitutional culture in South Africa is deliberately transformative. The constitution is perceived as an instrument for social change. Damages from public negligence is just one more domain to which it is applied. By contrast, English constitutional culture is more conservative in bent.

Canadian constitutional culture contains elements of both, each contributing to the fertile soil of our living tree. How a disbalance will affect its continued development remains to be seen.

Ryan Howes is a 1L JD Candidate at the Faculty of Law and is currently the Asper Centre’s work-study student