Why I am Not a Conservative Either

Thoughts on Chief Justice Joyal’s very interesting speech on the Charter and Canada’s political culture

Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba, gave the keynote address at last January Canadian Constitution Foundation’s recent Law and Freedom Conference. His talk, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”, was interesting and thought-provoking. Although the prepared text has been available on the website of Advocates for the Rule of Law for some time, the CCF only posted the recording of his remarks yesterday, so now is the time for me to comment. Chief Justice Joyal sought to attract his audience’s attention to fact that Canadians have come to believe that courts, rather than legislators, are the forum in which important social issues must be settled. This is both a consequence of our lack of respect for legislatures, and a reason for why elected institutions find themselves in a weak position vis-à-vis the courts. Chief Justice Joyal would like to change our political culture. I am not persuaded that change in the direction he envisions would be for the better.

Before I go any further, however, I would like to thank Chief Justice Joyal for referring to my exchange with my friend Asher Honickman on the scope and judicial approach to section 7 of the Charter in the Q&A. (My posts are here, here, and here.) After Justice Stratas on the same occasion last year, Chief Justice Joyal is the second sitting judge to mention my blogging, and this is, needless to say, most gratifying for me personally, but also as a believer in the value of this still-underappreciated medium.

* * *

Political culture, according to Chief Justice Joyal’s definition is the set of

attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.

(The quotes, here and below, are from the text published by ARL)

Historically, Canada’s political culture was a mix of “liberal” and “non-liberal” (partly “Tory” and partly “social-demoratic”) ideas, which were bound together by a belief in Parliament and the legislatures as the arbiters of social conflict and makers of common rules for the common weal. Since the Canadian Charter of Rights and Freedoms came into force, however, the belief in legislative authority has been eroded. Instead, “a broad cross-section of the Canadian citizenry and its institutional actors” have developed

an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.

This, in turn, has created a “new and imbalanced relationship between the judiciary and the legislative branch”.

According to Chief Justice Joyal, these developments were not contemplated by those who made the Charter. It was, after all, a compromise between Pierre Trudeau’s federal government, which insisted on an entrenched set of protected rights, and provinces that were wary of restrictions on Parliamentary sovereignty and the “innovations” introduced by an “extremely potent judiciary” in the United States. Measures were taken to prevent a repetition of the American experience in Canada. The Charter contains section 1, which allows rights to be limited, and section 33, which

was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights.

For its part, section 7 was drafted

to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.

Yet these “common expectations” about how the Charter would be applied and what role it would play have not been fulfilled. The Supreme Court read section 7 to require substantive review of legislative choices. It engaged in interpretation and re-interpretation of the Charter that expanded the set of rights that its framers had chosen to protect. It loosened the rules of standing and justiciability, causing more claims to be brought. It weakened precedent, allowing issues to be re-litigated just a decade or two after they were (we thought) settled. It applied section 1  by engaging in the “traditionally legislative function” of “ad hoc interest balancing and cost benefit analysis”. The notwithstanding clause, meanwhile, turned into a “nuclear option” ― and a dead letter.

Chief Justice Joyal worries that this all has caused legislatures to be marginalized. Indeed, there has been a “flight from politics toward the zero-sum game of Charter litigation”, which

often leaves the broader citizenry on the sidelines in a potentially disempowered state[,] not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.

This trend ought to be reversed, in part through “continuing efforts at renewal of parliamentary and political institutions”, so as to “restor[e] a peculiarly Canadian institutional balance in the judicial/legislative relationship”, featuring “a resuscitated and bold legislative branch [able] to once again assertively shape attitudes and policies”, and even to “articulat[e] and promot[e] its own interpretation” of the Charter. The traditional Canadian political culture, with its mix of liberal and non-liberal sensitivities and belief in the public good as expressed in legislation ought to prevail over the

more American liberal / rationalist approach to rights protection, [which] gives expression to what used to be a very un-Canadian distrust of government [and] arguably removes more and more areas from legitimate spheres of government action and influence.

* * *

I am, I’m afraid, part the problem that Chief Justice Joyal identifies. I distrust government ― partly because I believe that power corrupts, partly because I democratic government is subject to ineradicable problems of political ignorance (and courts might not be much of a solution), partly because of what public choice theory has taught us. I am a (classical) liberal, an unapologetic one. Whether this is un-Canadian, or indeed peculiarly American, I hesitate to say. I do, however, reiterate my belief that one should not fall for the old trope of reading differences of national psyche into the alleged contrast between “life, liberty, and pursuit of happiness” and “peace, order, and good government”. My friend Alastair C.F. Gillespie and Brian Lee Crowley pointed out, in introducing what is looking to be a fascinating series of papers on Confederation by Mr. Gillespie, that “[c]omparisons of American revolutionary ideals and Canada’s supposedly ‘Tory’ Constitution have sometimes been too crudely made” and argue that “Canadians should … take pride that our founders’ speeches breathe an atmosphere of liberty, even if that liberty was not yet wholly realized.” (4-5) But be that as it may, I am rather skeptical that a return to politics would do us much good.

Now, unlike the dominant tide in Canadian political culture against which Chief Justice Joyal wants to push back, I am not uncritical of the courts ― of their power and of the manner in which they exercise it. But when I argue that courts overstep the bounds of their constitutional role, it is not out of any special solicitude for legislatures. It is because I believe that all power must be limited, and that those who wield it must not fancy themselves the saviours of society, when they are only its servants. This applies to the judicial power ― and also to the legislative and the executive. So I share Chief Justice Joyal’s discomfort at some of the post-Charter jurisprudential developments ― at the excessive ease with which courts have sometimes granted public interest standing, the creation of constitutional “rights” out of whole cloth, the often unprincipled application of section 1 balancing.

But, to repeat, these matters worry me because they, and other things, like extra-judicial statements that call into question judges’ commitment to the Rule of Law, raise the spectre of a judiciary that denies any constraint on its power ― and not because they portend an erosion of legislative power or mark a departure from the “common understandings” of 1982. Constitutional texts have a way of not working out the way their framers expect them to (my go-to example on this is the upending of the mechanism for electing the president set up by the Constitution of the United States), especially of course when the framers rely on “understandings” instead of actually writing down what they mean. So I am not bothered by the development of the norm, perhaps even the convention, against the use of section 33 of the Charter (which, as I have argued even in the face of some decisions that I would desperately like to see undone, has served us well ). Nor am I bothered by the Supreme Court’s reading of section 7 as encompassing substantive as well as procedural principles of justice, which ― as Benjamin Oliphant and I show in our recent Queen’s Law Journal article ― was at least a defensible interpretation of that provision’s original public meaning, even though it clearly contradicted its framers’ intent. It is only the meaning, in my view, that is binds the courts. (Chief Justice Joyal suggested, in the Q&A, that we might distinguish between “garden-variety” cases in which meaning might be controlling, and other, especially important ones, in which we must refer to intent. I do not see how such a distinction could operate.)

Ultimately, I do not share Chief Justice Joyal’s concern that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

A very similar concern motivates Jeremy Waldron’s critique of (strong-form) judicial review of legislation. The critique is a powerful one, but here is, I think, the “principled” objection to it. (Ilya Somin’s objection based on political ignorance is also an important one, but it is more contingent, in theory anyway.) The concern with what Chief Justice Joyal describes as the “de facto constitutionalization of political and social issues” assumes that some issues are inherently “political” and/or “social”, and must therefore be resolved through society’s political institutions. Prof. Waldron’s position is, in effect, that every conceivable issue is of this sort, though Chief Justice Joyal’s views do not extend so far. (Chief Justice Joyal said, in his talk, that we must “respect” the Charter.) But I am not persuaded by the claim, whether in its more radical Waldronian form, or in Chief Justice Joyal’s more moderate one.

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures ― say that of post-New Deal political culture in the United States, which reached its peak in the 1940s before declining in the subsequent decades, as the U.S. Supreme Court started vigorously enforcing guarantees of (non-economic) individual rights, or of New Zealand even to this day. But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

The defenders of these political cultures,think that pervasive economic regulation is the legislatures’ prerogative, should they choose to exercise it. (Prof. Waldron is explicit about this, in some of his work on the Rule of Law.) To be clear, I am not suggesting that they would support any given form of regulation as a matter of policy ― only that they think that legislatures are entitled to regulate, wisely or not. But previously, many economic issues would not have been considered to belong to the domain of politics at all; the framers of the Constitution Act, 1867 would likely have been shocked to learn about the extent of the economic regulation in which the institutions they created now engage. They would have thought an employee’s wages a matter to be settled between him and his employer, not a concern for society at large and thus not a fit subject for legislation. Of course, they did not provide mechanisms for courts to enforce these limits on legislative power, in part, one may suspect, because they did not expect them to be necessary. But that does not mean that they thought the legislatures were entitled to interfere in people’s lives in the ways that came to be increasingly accepted half a century later. The political culture changed ― not for the better in this instance, in my opinion. But why should we accept this change, and foreclose or resist subsequent change that reduces instead of expanding the domain of the political?

* * *

Chief Justice Joyal’s address is a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada. (This is not to say that he would accept this label, or perhaps even that it is an especially accurate one. But insofar as any label can be useful, this one is as good as any I can think of.) Having, along with Andrew Coyne and Bob Tarantino, complained about the (big-c) Conservative government’s failure to articulate such a vision in its near-decade in power, I welcome this statement. Moreover, I happen to share some of Chief Justice Joyal’s concerns about the acquiescence of the mainstream Canadian legal and political culture in the increasingly unbridled exercise of the judicial power by the Supreme Court.

However, although I may learn from conservatives, and sometimes make common cause with them, ― and am particularly happy to do so when they are as intelligent and articulate as Chief Justice Joyal ― I am not a conservative myself. I do not share the conservative vision of the constitution. Like Hayek, “I am not I personally cannot be content with simply helping to apply the brake” (2) on whatever (constitutional) innovation might be put forward in the name of “progress”. As a liberal, I want “to go elsewhere” (2) ― not back to the 1970s, or indeed even to the 1870s ― but to a never-yet seen political culture in which, in Lord Acton’s words, “[l]iberty is not a means to a higher political end. It is itself the highest political end.” If, as Chief Justice Joyal suggested in the conclusion of his speech, this ideal is at odds with the Canadian identity, so much the worse, I say, for that identity.

Says Who, Again?

Peter McCormick on why “by the Court” decisions matter – and who wrote them.

A few years ago, I blogged about an attempt to unmask the authors of “per curiam” opinions of the Supreme Court of the United States by having a computer identify individual judges’ word use patterns. Although I was skeptical about the value of the exercise, I noted that if, as its authors suggested, the attribution of opinions to the Court rather than to individual judges is indeed cause for concern, then

we in Canada have a problem ― and need somebody to replicate their study for our own Supreme Court a.s.a.p. [because] [f]or over 30 years, it has had the habit of issuing opinions ‘by the Court’ in the most important and controversial cases”.

In a couple of articles published last year, Peter McCormick takes up the double challenge of identifying the authors of the anonymous decisions of Supreme Court of Canada issued since Beverley McLachlin became Chief Justice, and of describing the overall history of such decisions (including those signed by all of the judges in a majority, such as the one in l’Affaire Nadon), going back to when they first became a significant factor in the Supreme Court’s jurisprudence.

Prof. McCormick details this history in  “‘By the Court’: The Untold Story of a Canadian Judicial Innovation“. Although the device of unanimous and anonymous decisions has been in use for almost as long as the Court has existed, it is only in the 1960s that it was deployed in significant cases, rather than minor procedural ones. And it was, prof. McCormick suggests, something of an accident. The Court issued its first anonymous opinion, signed by the eight members of the majority, in Reference Re: Steven Murray Truscott, [1967] SCR 309, in which, as prof. McCormick puts it, the government was asking the court, “Had you heard the appeal that you denied leave to eight years ago, would you
have allowed it?” (1057) In an “extraordinary” (1058) attempt to save face and resist the accusation implicit in the question, the majority issued a “joint opinion” signed by each of its members. Shortly thereafter, the precedent was applied when the Court delivered its opinion in Reference Re: Offshore Mineral Rights, [1967] SCR 792, signed this time as “the joint opinion of the Court”, and again a dozen years later, in Att. Gen. of Quebec v. Blaikie, [1979] 2 SCR 1016 ― a “revival” that prof. McCormick credits to Justices Martland and Ritchie.

Blaikie was followed by the trickle of “by the Court” opinions that has not stopped to this day: prof. McCormick counts “fifty of these in the forty-eight years since 1967, a number
that shrinks to forty-five if we treat companion cases … as single examples”. (1059) Not all of these opinions are very significant; there have been cases where the choice of unanimity was “clearly less a matter of strategic choice than of administrative convenience … where a judgment simply could not be attributed in the normal way” (1064) due to the death or health problems of its true author. But most of the anonymous decisions were in important cases, largely in various areas of constitutional law. Many unanimous opinions were delivered in response to reference questions asked by the federal government, especially when the Supreme Court was unanimous. Others arose in “cases that deal with issues that relate directly to the judiciary as an institution”, (1075) or indeed specifically with the Supreme Court ― although, as prof. McCormick notes, there have also been many cases dealing with judicial independence that were not anonymous, including the notorious Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3. And, under the long leadership of Chief Justice McLachlin, the Supreme Court’s use of anonymous opinions is arguably more vigorous than ever.

Does this matter though? Prof. McCormick insists that it does. The “packaging” of court decisions, as well as their “content”, is significant;  “the mode of presentation” of the Supreme Court’s decisions is “the product of conscious and shared choices” (1052) by the judges, not an accident. Because the Court matters, these choices matter too. The choice to present a judgment as the opinion of the “the Court” itself, rather than any individual judge, represents the extreme case of the Court’s collective ethos prevailing over the individual ambitions of its members, and is inextricably linked to the Court’s positioning itself as an institution to be reckoned with, especially in references where the Court acts as “a unified institution providing the other half of a conversation about national governance with the federal government”. (1074) Moreover, such a choice “flatly repudiates [the] expectation”, nearly universal in common law jurisdictions, that a judge will take responsibility for his or her decisions and can be praised or criticized for them: “the whole point is that no single judge is identified and no individual accepts responsibility”. (1054)

But prof. McCormick’s other article, “Nom de Plume: Who Writes the Supreme Court’s ‘By the Court’ Judgments?”(2016) 39 Dal LJ 77 (not freely available, alas), seeks to make sure that the judges face the music, if only belatedly. Like the American paper on which my original post about “by the Court” opinions was based, it uses linguistic analysis to identify the likely authors of anonymous opinions ― in prof. McCormick’s case, those of the Supreme Court of Canada since Beverley McLachlin became Chief Justice. This should give us an insight into “how the Court is evolving in its decision-making and equally important decision-explaining process”. (84) Is the process of reaching decisions attributed to the Court as a whole the same as with other cases, or is it somehow different (for example, with an even more important role for the Chief Justice)?

The attempt isn’t entirely successful: prof. McCormick is only able to identify a “probable” author for a little more than a third of the decisions that he has analyzed. For most of the others, he points to two, and in a couple of cases to three “possible” authors. (It is of course possible that these decisions were jointly written, as some of the Court’s attributed decisions are, but it seems unlikely that all were.) And even when prof. McCormick points to a single “probable” author, this is not always a clear finding. Still, it’s an impressive achievement. For instance, prof. McCormick points to Chief Justice McLachlin as the “probable” author of both the majority opinion in l’Affaire Nadon and the Court’s opinion in the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704. The Chief Justice is likely to have written or co-written many of the other “by the Court” decisions too, with a few other judges also more regular likely authors than others. Prof. McCormick concludes that more research would be warranted into the issue and, given both his partial but real success and the remaining uncertainties, it is hard to disagree.

Overall, prof. McCormick has persuaded me that my previous rather casual dismissal of the importance of this issue was misguided. “By the Court” decisions matter, as he says, because it matters how power ― including judicial power ― is exercised. While I often accept the need for confidentiality, even secrecy, in the working of government (including the courts), any given instance where government seeks to withdraw information ― perhaps especially information that it normally makes available, such as the identity of the author(s) of judicial opinions ― deserves scrutiny. An institution engaged in information-withholding should be prepared to justify itself. The Supreme Court does not do that. So long as it does not, at the very least, it should not be surprised at receiving some extra scrutiny, welcome or otherwise.

Abusus Non Tollit Usum

Should judges refrain from accusing their colleagues of acting illegitimately?

In a recent conversation, my friend and sometime guest here Maxime St-Hilaire argued that judges should refrain from accusing their colleagues of having overstepped the bounds of the judicial role, or otherwise acted illegitimately ― which they are mostly, although not exclusively, apt to do in dissenting opinions. Prof. St-Hilaire is especially opposed specifically to the use of the labels of “activism” and “restraint” to advance such criticism. Having long argued that these are unhelpful, muddy concepts, I agree with him to this extent. And I agree that accusations of illegitimate behaviour should not be levelled lightly, and that those who make them risk being exposed as hypocrites. However, I disagree with the point of principle: in my view, it is not inappropriate for a judge to claim that a colleague’s opinion not only misinterprets the law, but amounts to the sort of decision-making that is not open to judges acting within the confines of their constitutional role.

Prof. St-Hilaire has two reasons for his position. First, he believes that philosophizing is not part of the judicial job description. Second, he thinks that accusations of illegitimacy undermine the courts’ authority generally and judicial review of legislation specifically, and ultimately the Rule of Law itself. In my view, this is not so. Committing philosophy, as it were, is an inextricable part of the judges’ job. The scope of judicial authority is contestable and contested, and these contests are very much a part of the business of law, and not only a theoretical debate external to it. As for the Rule of Law, in my view, it does not depend on the courts presenting a united front despite existing disagreements among their members.

It is tempting to say that the controversies about the nature of law, its relationship to morality, and the proper role of the judge in respect of both law and morality, which excite the minds of legal academics, ought to be of no concern to sitting judges. Indeed, some legal academics advocate this view as a means of escaping the (admittedly often stale and always abstruse) debates about legal positivism and anti-positivism. But a judge’s theory of law matters in some cases. It matters that in the Patriation Reference, [1981] 1 SCR 753,  a majority of the Supreme Court adhered to a legal theory that I have described in a forthcoming piece as “pusilanimous positivism ― which simultaneously insists that any rules of law that are not enacted, whose existence cannot seriously be denied, must have been made by judges, and that judges have no mandate to engage in such law-making”. Had they adhered to a different legal theory, they could have recognized the legal status of constitutional convention, or given effect to constitutional principles as Justices Martland and Ritchie would have. Conversely, if the Court remained wedded to the legal theory the majority embraced in the Patriation Reference, then its opinions in Re Manitoba Language Rights, [1985] 1 SCR 721Reference re Secession of Quebec, [1998] 2 SCR 217, and perhaps most significantly Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 and its progeny, which were also based on the idea that principles, and not just posited rules, were part of the law of the constitution, would have been quite different.

To be sure, one can be concerned that judges are not very good legal philosophers. Some legal theories ― notably Ronald Dworkin’s ― assume that they are, but this is probably a mistake. There is simply no particularly good reason to think that judges are good philosophers. But then, they are also not very good economists, political scientists, geneticists, and much else besides. A snarky person might add that they are all too often not very good lawyers, either. But judges still have to engage with these various disciplines on occasion ― especially, although certainly not only, in constitutional cases ― and they must then do it as best they can. Whether or not judges are candid about this does not change the underlying reality that these other disciplines bear on, and sometimes are decisive to, the courts’ resolution of the disputes that come before them ― and there is, surely, a great deal to be said for judicial candour.

But assuming that judicial candour is good, can there be too much of a good thing? Prof. St-Hilaire thinks so. For him (and for many others who agree with him) the contemporary understanding of the Rule of Law principle encompasses judicial review of legislation. Arguments to the effect that a court has acted illegitimately in exercising its power of judicial review legislation undermine the authority of judicial review generally, and criticism that calls the legitimacy of judicial review into question undermines the Rule of Law itself. Accordingly, judges of all people should refrain from it. (Prof. St-Hilaire is not opposed to this sort of arguments being made by academics or journalists, presumably because they do not have the same responsibilities to the Rule of Law.)

In my view, by contrast, judicial review is not an inherent part of the Rule of Law, but only one possible means to secure the Rule of Law requirement (naïve though it may be) that public authority be exercised in accordance with the law. Indeed judicial review must itself be exercised in accordance with the law ― notably, constitutional text, but also other relevant legal rules, whether or not they have entrenched constitutional status. When a court acts without legal justification, it acts every bit as illegitimately (as well as illegally) as the executive or the legislature in like circumstances. It follows that the power of judicial review can itself become destructive of the Rule of Law if used for purposes other than ensuring that the executive and the legislature stay within the bounds of their authority. If, for example, a court uses its power of judicial review to attempt to bring about the just society, then it is not upholding the Rule of Law at all. It is indulging its members’ preferences, in the same way as government that knowingly secures the enactment of unconstitutional legislation, but in a manner that is all the more pernicious because it claims the authority and respect due to law.

It seems to me that, if they see this happening in a decision made by their colleagues, judges can ― and even should ― speak out. For very good reason, judges are not accountable for their exercise of their powers, except in the limited but still very important sense of having to give reasons for (most of) their decisions. Among other benefits, reason-giving exposes judges to scrutiny and criticism, starting with scrutiny and criticism by their colleagues who, in the common law tradition, have generally (the occasional resistance of some Chief Justices notwithstanding) been allowed to publish dissenting or concurring opinions.The possibility of criticism, starting with criticism in a separate opinion, is the only check on the power of a judicial majority in a case, beyond the restraint that individual conscience may or may not impose. So this check should be applied vigorously in order to ensure that the judicial power, and especially the power of judicial review, is exercised so as to further, not to undermine, the Rule of Law. As the Rule of Law’s first line of defence, dissenting judges must undertake, not shirk, this responsibility.

Of course, as I wrote here not long ago, those who criticize judges, including other judges, should do so “without resorting to taunts, insults, and sloganeering”. Accusations of “activism”, unless elaborated and supported by argument, amount to sloganeering at best. But as I wrote in that post,

[i]f we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law.

Sure, “juristocracy” or “gouvernement des juges” can be used as taunts and empty slogans ― and are so used by people who do not for a second care for the Rule of Law. But as the Romans put it, abusus non tollit usum. That something can be abused does not mean that it should not be used properly.

Sub Lege

I often criticize judges, on this blog and elsewhere. I think it is very important that people who exercise power over citizens be subject to criticism whenever they exercise it unwisely or, worse, recklessly, and still more when they abuse or overstep the powers given them. While the media can, more or less, be counted on to criticize legislators and bureaucrats, from time to time anyway, criticizing judges is difficult, because this criticism has to be informed by technical knowledge and skills, which few journalists possess (though there are worthy exceptions). This means that it is especially important for lawyers, including academic lawyers such as myself, to be the judiciary’s critics. And precisely because I am an unabashed critic of the judiciary that I think I need to do so something that might be outside the scope of my normal blogging.

I want to express my dismay, my horror even, at the way in which judges have been treated in much of the British Press in response to the High Court’s ruling that legislation is necessary before the United Kingdom’s government can formally initiate the process of withdrawing the UK from the European Union. The Guardian has collected the front-page reactions: “Who do you think you are?” “The judges versus the people” “ENEMIES OF THE PEOPLE“. A paper “helpfully” noted that one of the (very distinguished) members of the panel that heard that case is gay. Another is apparently just as suspicious by virtue of his wealth. This is shocking, vile stuff.

I do not feel confident enough to comment on the merits of the High Court’s ruling, but there appears to be quite a strong case ― made for instance by John Finnis and other experts for the Judicial Power Project, as well as by Adam Tomkins ― for the proposition that the Court erred. That’s beside the point ― except insofar as these arguments, some of them quite forceful, remind us that it is possible to criticize judicial decisions without resorting to taunts, insults, and sloganeering. Whether or not the High Court rendered the right decision, it decided the case before it in accordance with its understanding of the law and of its own constitutional role. The argument implicit in the tabloids’ headlines is that the court had to decide otherwise ― having no regard to the law, but only to the supposed will of the people. But that would be a culpable dereliction of duty; that would make judges act like politicians in robes; that would make their unelected, unaccountable status grounds for criticism.

But perhaps trying to discern an argument amidst that fury is already too generous. Look at the words they use. Enemies of the people! In modern history, the phrase was apparently first popularized by Robespierre. In case anyone is wondering what life under the Jacobins was like, they should read Dame Hilary Mantel’s A Place of Greater Safety, which succeeds remarkably at creating an atmosphere of all-encompassing, pervasive fear. That same atmosphere was also characteristic of the other period in history where “enemy of the people” was a label used by power to justify mass murder ― Stalin’s purges. This is the heritage which the English press now claims. Land of hope and glory, mother of the free!

Criticizing courts is necessary if we are to hold on to the inevitably precarious proposition that there is a law apart from what the courts say the law is; that there can be a Rule of Law and not merely a rule of judges. If we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law. But if we are to have a government of laws not of men, then even the most revered men and women ― which in a democracy means the voters ― cannot stand above the law.

A final historical parallel, perhaps more exact although of greater antiquity, is in order. When in 1607 the King of England thought that he could substitute his own judgment for that of the law, his Chief Justice would not let him:

His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege [that the King ought not to be under any man but under God and the law].

Like once their king, the people of England ― or at least the demagogues who would speak for them ― may be offended by being “under the law”. But ― as the examples of the Jacobins and the Bolsheviks remind us ― it is the law that protects them in safety and peace. One has every right to insist that judges too keep to the law. But it is lunacy ― suicidal lunacy ― to wish to with to throw off the law’s protection under the pretense of throwing off its shackles.

A Judge Unbound

The Prime Minister has at last named his choice to fill the vacancy left on the Supreme Court by the retirement of Justice Thomas Cromwell. It is Justice Malcolm Rowe, now at the Newfoundland and Labrador Court of Appeal. For all the concern ― of the Prime Minister’s and his government’s own making ― about whether he would be prepared to breach the convention of regional representation on the Supreme Court in the service of an identitarian quest to appoint, say, an aboriginal woman, Justice Rowe’s appointment will, on the surface, be an unremarkable one. The convention stands undisturbed ― and perhaps stronger thanks to having been affirmed by a unanimous resolution of the House of Commons ― and the Court gets yet another successful and well-connected white male member. (Justice Rowe will be the first Newfoundlander to sit on the Supreme Court, however, so his appointment is groundbreaking in that way ― a step forward for old-fashioned regional diversity, if not for the contemporary demographic sort. Justice Rowe, who was born in 1953, is also relatively old ― among his new colleagues, only Justice Moldaver was older when he was appointed to the Supreme Court; many were substantially younger.)

Justice Rowe’s appointment is noteworthy, however, because of his views on his new job ― disclosed by the government as part of a questionnaire that he, as well as others who applied, had to complete in order to be considered. There are other interesting nuggets there, which others have highlighted. There’s Justice Rowe’s assertion that he was in fact the author of an opinion ostensibly signed by his court (see “Synopsis 2” in Part 7 of the Questionnaire); there’s the fact, highlighted by Dave Snow on Twitter, that he took a French immersion course just before applying, suggesting that his French might be rather rusty, at best; there’s a rather turgid writing style, though it is perhaps unfair to judge a man’s prose by the way in which he filled out a form. But let me focus on Justice Rowe’s ideas about judging and, especially, the Supreme Court. These ideas are, to me, concerning if not disqualifying.

Justice Rowe states that “[t]he Supreme Court is not, primarily, a court of correction,” which is certainly true, so far as it goes. He is right to say that “[t]hrough the leave to appeal process, the Court chooses areas of the law in which it wishes to make a definitive statement.” But his conclusion ― that “the Supreme Court judges ordinarily make law, rather than simply applying it” ― is still remarkable. It is worth recalling, though admittedly Justice Rowe is not the only person who does not, that as John Austin pointed out in The Province of Jurisprudence Determined, the phrase “judge made law” was itself made up, by Jeremy Bentham, and was intended as “disrespectful and therefore,” Austin thought, “injudicious.” More importantly, the idea that judges ― those of the Supreme Court anyway ― usually “make make law rather than simply applying it” suggests that Justice Rowe will not feel bound by the constraints that precedent and statutory and constitutional text are thought to impose on judges, including those of the highest courts. The view is not exactly original ― as I noted elsewhere, Chief Justice McLachlin has expressed her own sympathy for it ― but it is disconcerting nonetheless. For the Rule of Law to exist, courts, like other government institutions, ought to be bound by the law. If judges feel that they can simply make the law up, indeed that this is what they are expected to do, the Rule of Law is not long for this world.

Now, in the very next paragraph, Justice Rowe says that ― unlike in common law adjudication ― “the role of judges concerning the interpretation of statutes … is to give effect to the will of the legislature.” But of course a substantial part of the Supreme Court’s work does in fact involve interpretation of statutes ― whether of the Criminal Code, the Income Tax Act, or of other legislation. At best, then, Justice Rowe’s previous statement about judges as law-makers is thoughtless, or reflects a certain confusion about what it is that the Supreme Court does. (It may well be that this is what’s going on here: as prof. Snow has observed, Justice Rowe is simply wrong to claim that “[r]elatively few recent cases deal with the division of powers.”) At worst, he is deliberately saying one thing and its opposite, the better to justify any approach he might be pleased to take in a given case. As Benjamin Oliphant has pointed out, this is indeed something of a tendency in Justice Rowe’s answers ― and also in the jurisprudence of the Court which he is about to join.

Justice Rowe’s view of the Supreme Court’s place in the Canadian constitutional framework is, ultimately, the smugly self-assured one that is prevalent in the Canadian legal community. Judges make law ― especially, it would seem, constitutional law, where Justice Rowe sees room for reviewing the Privy Council’s division of powers jurisprudence (though he does not explain on what issues), while the plebs (including, presumably, its representatives in Parliament) gladly and wisely accepts the pronouncements of the patres iudices: “Canadians,” Justice Rowe informs us, “have come to accept and embrace this enhanced role for judges. The wisdom and well-founded principles that have informed this role in the jurisprudence of the Supreme Court reflect favourably on our country.” Some might even find Justice Rowe’s frankness in stating these views refreshing in comparison with the balls-and-strikes boilerplate future members of the U.S. Supreme Court are now generally expected to spout. Yet to me, a judiciary that is no more bound by a sense of modesty than it is by the law itself is a distressing prospect. Considering that the Prime Minister and his advisers seem to be comfortable with it, I may have to get used to it too.

Why Do the Write Thing?

Sir Geoffrey Palmer and Andrew Butler, both of them former legal academics and current barristers, Sir Geoffrey having also served as Attorney-General and Prime Minister in between, are about to publish a book advocating that New Zealand enact a “written” constitution. They have also set up a Twitter account and a website to both promote the book and seek out comments, which they say in the book’s description “will be reflected in a second edition to be published in 2017.” The Twitter account has published the following infographic listing reasons for adopting a written constitution:

These reasons apply not just in New Zealand but pretty much everywhere ― if they are indeed good reasons, that is. So the experience of countries that have adopted “written” constitutions ― including Canada and the United States ― should be relevant to assessing whether they are. If these reasons support the adoption of a “written” constitution, their effects should be observable in Canada (to the extent that our constitution is “written”), the U.S., and elsewhere. The countries with written constitutions should be doing better than those without (and notably New Zealand) on all these counts. With respect, it seems to be me that for the most part they are not. In this post I explain why.

But just before I do that, a brief comment is in order on the phrase “written constitution,” which as you may have noticed I only use in scare quotes. The reason for this is that “unwritten” constitutions tend in fact to be written down somewhere, so that they are not really unwritten at all. This is especially true of New Zealand’s “unwritten” constitution, which is written down both in legal sources such as the Constitution Act 1986, the Letters Patent Constituting the Office of Governor-General of New Zealand, or judicial decisions, and in extra-legal ones, such as the Cabinet Manual 2008, which re-states most if not all of the constitutional conventions and other important rules governing the executive branch, in authoritative although not legally binding format. When people speak of a “written” constitution, they tend to speak of a codified or an entrenched constitution, and usually, but not always, both. This is how Sir Geoffrey and Mr. Butler use the term: on their website, they say that “[p]eople have rights and they should be provided in a constitution that is supreme law and binds the Parliament.”

* * *

The above “reasons to adopt a written constitution” can be grouped in a few categories. Some of them have to do with the democratic process; others with the limitation of state power; others still with transparency and accountability. Let me consider these in turn. (I will not say anything about the enhancement of national identity, partly because I am not qualified to speak to the subject in New Zealand, and partly because I am, as a general matter, profoundly skeptical of any action, and especially any legal change, that pursues this objective.)

I do not think that anything about the strength of a polity’s democracy (to which I also take the “easier to participate” and, in part, “government is more accountable” claims to refer) turns on whether that polity’s constitution is codified, entrenched, both, or neither. Polities with unentrenched and uncodified constitutions, including of course New Zealand but also, to a lesser extent, Canadian provinces (whose constitutions are partly entrenched) can be well-functioning democracies. They can, and already do, have free and fair elections which produce regular changes of government. Is democracy stronger ― whatever that means ― in Canada or in the United States than it is in New Zealand? Quite a few Canadian election reformers passionately believe the opposite, because Canada has a first-past-the-post electoral system (as does the U.S., mostly), while New Zealand has moved to a version of proportional representation. Whether or not we agree with them ― I do not, as I’ve explained here ― it is to say the least not obvious where the democratic gains from moving to a codified or entrenched constitution are.

Codification and entrenchment will have some effect on the limitation of state power (including to protect human rights and the Rule of Law, and to prevent abuses). A codified constitution might be clearer and thus easier to understand than an uncodified one. An entrenched constitution is ― ostensibly anyway ― less malleable than one that can amended by ordinary legislation, and can in principle better protect individual and minority rights. But the gains on these various counts are actually rather smaller than they might at first appear.

So far as clarity is concerned, I’m not sure that the current sources of New Zealand’s constitution are especially unclear, as these things go ― they do not strike me as any more obscure than Canadian or American ones. One should also keep in mind Chief Justice Marshall’s warning, in McCulloch v Maryland, that

[a] constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. (200)

As for stability, an entrenched constitution is only as stable as the judiciary lets it be. As Grégoire Weber, among others (including yours truly), has pointed out, the Supreme Court of Canada has lately been re-writing the Canadian constitution a couple of times a year at least. The Supreme Court of the United States is regularly accused of similar mischief. Admittedly, if there could be guarantees of the courts strictly adhering to some version of originalist constitutional interpretation, this danger would be minimized. But there can be no such guarantees anywhere, and in New Zealand in particular, originalism is not the preferred interpretive approach to the New Zealand Bill of Rights Act 1990, so there seems to be little reason to think that judges could be persuaded to approach an entrenched constitution in this spirit.

The same goes, of course, for protecting rights. The protections provided by an entrenched constitution can be no stronger than the judiciary’s inclination to enforce them. Admittedly, the attitude of Canadian judges changed when the partly entrenched Canadian Bill of Rights was supplemented by the mostly entrenched Canadian Charter of Rights and Freedoms, I’m not sure if the same sort of change would occur in New Zealand ― which, after all, already largely respects individual rights. Would, for example, the adoption of an entrenched constitution, change anything to what seems to be a consensus that it is perfectly fine to disenfranchise prisoners serving long terms? I doubt it.

Turning to transparency and accountability, it seems to me that the great problem here is not the form of the constitution, but political ignorance. Ignorance of basic facts about the constitution is prevalent in the United States, where merely a third of the respondents to a recent poll could name the three branches of government ― despite a constitution whose very structure begins with these three branches. Pointing out that Donald Trump has never read the U.S. Constitution is a great rhetorical move (and I say this unironically), but while the charge is doubtless accurate so far as it goes, many of Mr. Trump’s fellow citizens (and not only among his voters) are every bit as guilty of it as he is. Ironically, Sir Geoffrey and Mr. Butler might just succeed in improving the public’s understanding of New Zealand’s constitution simply by encouraging conversations about it, without any changes being made. I wouldn’t be too optimistic though. As Ilya Somin and others explain, people have no incentive to become informed about the workings of  government, and the existence of an entrenched constitution changes nothing to this reality.

That said, New Zealand already has a number of accountability mechanisms, some of which seem to be functioning better than those in place in Canada. Though I’m far from an expert in the field, New Zealand’s access-to-information legislation might be stronger than its Canadian (federal) counterpart, for instance. And New Zealand’s government is much better than that of Canada at proactively making a lot of information (such as the advice it receives on the compliance of its laws with the Bill of Rights Act available to the public. (I might write about this in the future ―not too distant, I hope.) Perhaps entrenching these accountability mechanisms would give them greater symbolic weight. But it would also freeze them in place, which may not be a good thing ― not to mention that it would yield a constitution suffering from the “prolixity of a legal code.”

* * *

In a polity like New Zealand ― which already has a well-functioning, if in some people’s view imperfect democratic system, and which largely, if again imperfectly, respects human rights ― the gains from constitutional entrenchment are likely to be marginal in the short or even medium term. There will be some costs, too, though I have not discussed them here. Of course, the case of federal states may well be different ― it is usually said that a federal state needs an entrenched constitution to protect the division of powers (though note that Switzerland’s constitution is effectively not entrenched as against the Federal Assembly, its parliament, and that many on the American left would like the division of powers under the U.S. Constitution to be unenforceable against Congress). But this reason for constitutional entrenchment does not apply to New Zealand.

Other than the speculative prospect of a long-term crumbling of the polity’s commitment to human rights and the Rule of Law that would somehow not affect the judiciary, is there a good reason to entrench New Zealand’s constitution? Well, maybe, but it’s not one that Sir Geoffrey and Mr. Butler name. Entrenching the constitution makes sense if one’s goal is to shift power from Parliament and the executive to the courts. The courts’ incentives are different than those of the “political branches.” They might be more solicitous of minorities at the margins, but as or more importantly, they may also be less solicitous of special interests, because these special interests can do little for them. (Tough this is far from certain ― some special interests may find keen listeners on the bench, if for example they can provide the plaudits and recognition that judges, not unlike politicians, may come to crave.) It may be that in a unitary, Westminster-type system, democracy becomes too potent a force, and judicial review of legislation is the only countermeasure available, so it must be used faute de mieux, even in the knowledge that judicial power too will be abused and can degrade the constitution and the Rule of Law as much as the legislative and the executive.

These are serious reasons in my view. But whether they are conclusive or not, one thing is certain. Shifting power from elected officials to judges does not strengthen democracy ― it weakens it, deliberately. It does not make law clear. And it certainly does not make those who wield power more accountable. It might be worth doing regardless. But not for the reasons that Sir Geoffrey and Mr. Butler give us.

Someone’s Got to Do It

Was the Supreme Court right to change the law on the right to a speedy trial?

In my last post, I summarized the Supreme Court’s decision in R. v. Jordan, 2016 SCC 27, in which the Court, by a 5-4 majority and over the vigorous disagreement of the concurrence, held that criminals prosecutions in which a trial does not conclude by a set deadline will be presumed to breach the right to be tried within a reasonable time, protected by paragraph 11(d) of the Canadian Charter of Rights and Freedoms. (The deadline is of 18 months from the day charges are laid for cases that proceed without a preliminary inquiry, 30 months otherwise.) This decision, I said, raises a number of significant questions regarding constitutionality of the majority’s decision, the soundness of its approach as a matter of policy, its choice to implement this approach by judicial fiat, and the process it has followed in doing so. I addressed the first of these questions in my last post, saying that while one aspect of the majority’s decision was clearly at odds with constitutional text, I am not sure that this is true of its main feature, the fixed presumptive ceilings. Here, I address the other questions.

* * *

I will start with the one on which I have a pretty firm view ― that which concerns the court’s decision-making process. The concurrence castigates the majority for having imposed its presumptive “ceilings” ― and thereby transformed long-standing understanding of paragraph 11(b) ― without having been asked to do so by the parties and without adversarial debate. It adds that there was limited evidence in the record about both the current state of affairs ― which the majority characterized as “a culture of delay” ― and about the potential consequences of the new approach. I think that these criticisms are justified.

There is no question that the majority’s decision is a fairly radical departure from the existing law. Indeed, the majority is clear that it wants to change the way all the actors in the criminal justice system operate, and that governments may well have to spend more to meet their new constitutional obligations. Whether or not this new departure is a good idea, and whether or not it is consistent with the Court’s constitutional role ― questions to which I will come shortly ― it should not have been taken lightly. And while I have no doubt that the majority did consider it seriously, I do not think that it has done enough. Given the magnitude of the change it was considering, and the fact that it was not canvassed by the parties in argument, the Court should, it seems to me, have re-opened the argument and invited the parties to make submissions that would have addressed its concerns. Indeed, I wonder if the Court could have invited Attorneys General, only one of whom (Alberta’s) intervened, to participate in the debate.

Alternatively, the Court could have decided the case on the basis of the existing framework (perhaps modified as suggested by the concurrence), and suggested ― in its reasons ― that it would, in a future case, be willing to entertain submissions on whether that framework should be overhauled in the future. This would of course have delayed the implementation of any proposed changes, but it would also have allowed for any decision on whether these changes are a good idea to be made on the basis of a record put together and tested by the parties, and not only of the majority’s own limited research.

Speaking of the the research, Michael Spratt points out that the majority “did not do what every elementary school student is taught to do — show his or her work.” He calls the majority’s framework “a product of judicial alchemy and … entirely unprincipled.” I would not go this far, but an opinion that doesn’t show its authors’ work makes them vulnerable to such charges. As I said here after the Court’s decision in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, “I am happy to assume that the Court did its work, but others may not be, and neither they nor I should have to take that on faith.” Sure, the reasons in Jordan are very long, but the majority could have produced some sort of annex to explain the results of its research much better than it has done. It is a question of transparency, and arguably even simple respect for the public over which the Court is exercising a considerable power.

* * *

Put these (significant) concerns about process to one side, and the question whether the majority was right to decide the case the way it did gets much trickier. Admittedly, I am not especially well qualified to answer it, so take what follows with a generous helping of salt. And admittedly, more qualified people have been quite critical of the majority decision in Jordan. Mr. Spratt is especially scathing, arguing that “[t]he Supreme Court’s latest decision pays lip service to the constitution while doing little to improve the pace of Canadian justice.” In a very well argued interview with Jim Brown, on the CBC Radio’s The 180, my friend Joanna Baron has defended “incrementalism,” in preference to the majority’s approach that risks allowing too much time for trials in provincial courts, and not enough in the superior courts. Lauren Heuser, in a National Post op-ed, calls “the ceiling on trial times … worryingly firm,” especially in that it prevents courts from making exceptions on account of the “the depravity of an offence.” She writes that “[m]ore than a few people will be uncomfortable when suspected perpetrators of serious crimes walk free on perceived legal technicalities.”

Ms. Heuser’s suggestion, at least, is easy enough to dispose of. The Charter does not speak of “a right to be tried within a reasonable time, except for those accused of depraved offences.” The Jordan majority is quite right to say that only the complexity of the legal or factual issues, rather than the gravity of the charge, can justify a prosecution taking longer to conclude. Those who think otherwise need to amend the constitution.

But the underlying critique ― that (relatively) firm ceilings are not an appropriate response to the problem of delay due to the infinite variety of the cases to which they will be applied is serious. I do not know nearly enough to reject it. But I would like to raise a question for those who endorse it. It is, quite simply this: what makes you think that a few tweaks to an approach that appears to have thoroughly failed are enough? Ms. Heuser writes that “[w]hile one can question whether this ruling was the best way to light a fire under Canada’s court system, few would dispute that a fire needed to be lit.” The Jordan concurrence does not seem to address the majority’s claim that the system suffers from a “culture of delay” directly ― which seems like a concession. The concurrence does argue that the majority’s radical approach is unnecessary, because the case isn’t even a close one under the old one, at least as modified in its opinion. But there remains the fact that both the trial court and the unanimous Cour of Appeal thought that the delay which the concurrence thinks is clearly unconstitutional was just all right. I share Ms. Baron’s general preference for incrementalism, but I’m not convinced that the time for incrementalism on this issue has not run out.

Now, that doesn’t mean that what the Supreme Court did was right. Just because something must be done, and x is something, it doesn’t follow that x must be done. But what other options were there? Mr. Spratt agrees that “[c]hange is indeed needed,” but insists that “we should hold little hope that a cynical judgment from the Supreme Court will change anything.” Well, maybe ― though I think it’s unfair to describe the majority opinion in Jordan as “cynical,” despite its flaws, and would be unfair even the majority is ultimately wrong. But while it is easy enough for a blogging defence lawyer to rail against the practices of police and prosecutors, and the policies of governments, and accuse the courts of complicity, such tirades, even if justified, hardly answer the question of what a court ought to do when it does recognize the existence of a problem, even if belatedly.

* * *

Sometimes, though, the answer to the question of what one is to do even in the face of a situation crying out action, is “nothing.” The courts’ role, like that of other institutions, is limited. The Jordan concurrence has suggested that numerical ceilings should only be imposed, if at all, by legislation. Ms. Baron is also of that view. The concurrence has also criticized the majority for overturning settled precedent. So has Ms. Heuser. Both these critiques amount to a contention that the majority overstepped the proper judicial remit. I am not persuaded of this.

I agree that the majority’s decision is essentially legislative. The fact that it felt the need to lay out a transitional framework underscores this ― transitional provisions are common in statutes, but almost unheard-of in judicial decisions. But that alone isn’t enough to show that it is not appropriate for a court to make such a decision. Some judicial decisions are essentially legislative: one that comes to mind is Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, in which the Supreme Court imposed a hard cap on the amount of damages that can be awarded for pain and suffering in personal injury cases. Pace such legal philosophers as Ronald Dworkin and F.A. Hayek, courts do on occasion introduce new rules of law that cannot be derived in any straightforward way from either legal principles or from the practices prevalent in society, and most people seem prepared to live with these decisions. Legislatures often accept them even when they could overturn them.

So it’s not enough to say that the Court effectively made new law and thus usurped the legislatures’ prerogative. And of course, even if the legislatures had enacted statutes to impose ceilings on delays in the justice system, the courts would still have the last word on these statutes’ constitutionality. Ruling on ceilings in the context of a constitutional challenge to a statute is almost certainly better from a process standpoint, as such a case would likely feature a substantial record of the sort that was missing in Jordan. But in terms of institutional legitimacy, it would not be that different. Indeed, such a ruling would come with complications of its own, because it would confront the courts with very difficult questions under section 1 of the Charter, which are avoided when, as in Jordan, the constitutional challenge is not aimed at a rule or regulation ― most fundamentally, about whether delays that are intolerable if produced by a “culture of delay” can be saved as “reasonable limits” to the section 11(b) rights, under section 1, by a legislative ratification.

Ultimately, though, the issue is not whether, in a perfect world, the legislatures would act to limit delays, and how the courts should respond to such legislation. Rather, the issue is that legislatures have done nothing at all to remedy the problem of unconstitutional delays. If, the lack of evidence in the record notwithstanding, it is the case that delays are endemic, and that there is a “culture of delay” ― which no one denies ― the issue is the existence of widespread and ongoing violations of the constitutional rights of thousands of people. These violations have to be remedied. Sure, it’s not the courts’ job to pursue policy objectives to which the elected officials fail to attend. But we’re not talking about mere policy here. Sure, courts should beware of disregarding procedural constraints because doing so undermines the Rule law. But doesn’t systematic disregard for the constitution undermine the Rule of Law too? If the governments will not bring themselves in conformity with their constitutional obligations, shouldn’t the courts try to make them? And if the courts do not, who will?

* * *

For all that, I am not certain that the Supreme Court got Jordan right. Its interpretation of the Charter is not beyond question; its procedural careless is disturbing; its chosen solution to what is admittedly a grave problem may be a bad one; and perhaps, all things considered, it should not have endeavoured to do more than mitigate that problem’s worst manifestations. But it is far from clear that this is so. There is more to be said in defence of the majority opinion in Jordan than most observers seem to think. Getting the government to comply with constitutional obligations is hard ― but someone’s got to do it.