(1) I have resisted the temptation to discuss in detail the “Proposed Restoration of Justice Act†and the many wonderous issues and arguments raised and discussed above in such colorful terms. Compared to them, the politico-legal debate we have been having in Canada regarding the (possible) sovereignty of Quebec since the mid-1960s looks downright low-key and orderly…
(2) Let us proceed to the crux of the matter, beyond any ad hominem attacks and all political jokeying. Our system's unique nature in 2L is founded on the twin and inseparable principles of democratic legitimacy and the rule of law. Neither principle can be violated or dismissed without severely damaging the very essence of what we stand for. None of us should encourage, condone, or accept any such attempts either individually or as a member of a group.
(3) The foundational act underlying any possible discussion on this matter is the RA's adoption of the “Judicature Act†(the Act). The RA, our only democratically-elected legislature, thereby conferred the Act with the necessary legitimacy and authority and spelled out a numb er of procedures. It follows that only the RA has the ultimate authority to repeal it or amend its contents.
(4) In order to adequately balance the twin and inseparable principles of democratic legitimacy and the rule of law, as well as to provide a clear mechanism of change should a major, non-transient Judicial Crisis arise in the DCS, I propose, in draft format, “An Act to give effect to the requirement for clarity regarding claims of Judicial Crisis in the CDS†for the consideration, amendment (if required) and adoption of the Representative Assembly.
An Act to give effect to the requirement for clarity regarding claims of Judicial Crisis in the CDS
Preamble
WHEREAS it is commonly held that, under international law and under the Constitution of the DCS, it is necessary for the Representative Assembly of the DCS and for DCS citizens as a whole to effect the repeal of the DCS Judicature Act or of its successors, if any;
WHEREAS any proposal regarding the repeal of the DCS Judicature Act or its successors, if any, is a matter of the utmost gravity and is of fundamental importance to all of its citizens;
WHEREAS the government of the DCS is entitled to consult its citizens by referendum on any issue and is entitled to formulate the wording of its referendum question;
WHEREAS it is commonly held that the result of a referendum on the repeal of the DCS Judicature Act or its successors, if any, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves if that result is to be taken as an expression of the democratic will that would give rise to an obligation to hold a vote in the Representative Assembly that might lead to its repeal;
WHEREAS it is commonly held that democracy means more than simple majority rule, that a clear majority in favour of the repeal of the DCS Judicature Act or its successors, if any, would be required to create an obligation to hold a vote in the Representative Assembly regarding such repeal, and that a qualitative evaluation is required to determine whether a clear majority in favour of the repeal of the DCS Judicature Act or any of its successors, if any, exists in the circumstances;
WHEREAS the repeal of the DCS Judicature Act or its successors, if any, would be governed by the principles of democracy, constitutionalism and the rule of law;
WHEREAS, it is commonly held that it would be for elected representatives of the Representative Assembly to determine what constitutes a clear question and what constitutes a clear majority in a referendum held regarding the repeal of the DCS Judicature Act or any of its successors, if any, the Representative Assembly, as the only political institution elected to represent all DCS citizens, has an important role in identifying what constitutes a clear question and a clear majority sufficient for the government of the DCS to hold a vote in the Representative Assembly in relation to the repeal of the DCS Judicature Act or its successors, if any;
AND WHEREAS it is incumbent on the government of the DCS not to hold a vote in the Representative Assembly that might lead to the repeal of the DCS Judicature Act or its successors, if any, unless the citizens of the DCS have clearly expressed their democratic will in favor of the repeal of the DCS Judicature Act or its successors, if any,
NOW, THEREFORE, the Representative Assembly of the DCS, enacts as follows:
Representative Assembly to consider question
1. (1) The Representative Assembly shall, within thirty days after being presented with a petition signed by at least ten per cent (10%) of all DCS citizens entitled to vote, asserting the existence of a Judicial Crisis in the CDS and setting out a referendum question to this effect, consider the question and, by resolution, set out its determination on whether the question is clear.
Extension of time
(2) Where the thirty days referred to in subsection (1) occur, in whole or in part, during a general election of members to serve in the Representative Assembly, the thirty days shall be extended by an additional forty days.
Considerations
(3) In considering the clarity of a referendum question, the Representative Assembly shall consider whether the question would result in a clear expression of the will of the citizens of the DCS.
Where no clear expression of will
(4) For the purpose of subsection (3), a clear expression of the will of the citizens of the DCS could not result from:
(a) a referendum question that focuses on a mandate to effect the repeal of the DCS Judicature Act or its successors, if any, as long as a minimum of two (2) judges, in addition to the Chief Justice, are willing and able to partake in the good functioning of the judicial system of the DCS existing and in force at the time; or
(b) a referendum question that envisages other possibilities in addition to the wholesale repeal of the DCS Judicature Act or its successors, if any, that obscure a direct expression of the will of the citizens of the DCS on whether the DCS should effect the repeal of the DCS Judicature Act or its successors, if any;
Other views to be considered
(5) In considering the clarity of a referendum question, the Representative Assembly shall take into account the views of all political parties represented in the Representative Assembly as well as the submissions of the Chief Justice and his / her colleagues (if any).
No Representative Assembly vote if question not clear
(6) The Government of the DCS shall not hold a vote in the Representative Assembly on whether the DCS should effect the repeal of the DCS Judicature Act or its successors, if any, if the Representative Assembly determines, pursuant to this section, that a referendum question is not clear and, for that reason, would not result in a clear expression of the will of the population of the DCS on whether a state of Judicial Crisis exists in the DCS.
Representative Assembly to consider whether there is a clear will to repeal
2. (1) Following a referendum relating to whether the DCS should effect the repeal of the DCS Judicature Act or its successors, if any, the Representative Assembly shall, except where it has determined pursuant to section 1 that a referendum question is not clear, consider and, by resolution, set out its determination on whether, in the circumstances, there has been a clear expression of a will by a clear majority of the citizens of the DCS.
Factors for the Representative Assembly to take into account
(2) In considering whether there has been a clear expression of a will by a clear majority of the population the DCS, the Representative Assembly shall take into account:
(a) the size of the majority of valid votes cast in favour of the repeal proposal: no less than sixty-seven per cent (67 %) of the votes cast must support the repeal proposal;
(b) the percentage of eligible voters voting in the referendum: no less than eighty per cent (80 %) of the DCS citizens must have cast their ballots in the referendum; and
(c) any other matters or circumstances it considers to be relevant.
Confirmation by the Representative Assembly.
(3) In considering whether there has been a clear expression of a will by a clear majority of the population of the DCS, the Representative Assembly shall take into account the views of all political parties represented in the Representative Assembly of the DCS, by taking an open vote to confirm or reject the results of the referendum.
Confirmation and entry into force of the repreal
3. (1) Should the Representative Assembly confirm by resolution that a clear expression of a will by a clear majority of the population the DCS has voted in favor of the repeal of the DCS Judicature Act or its successors, if any, the Representative Assembly shall, within thirty (30) days of such confirmation, hold an open vote of its members to ratify the result of the referendum.
(2) The referendum in favor of the repeal of the DCS Judicature Act or its successors, if any, shall be deemed ratified by the Representative Assembly if a two-thirds (2/3) majority of no less than eighty per cent (80%) of its total number of elected Members, vote in favour of the repeal of the DCS Judicature Act or its successors, if any; further to the ratification of the referendum by the Representative Assembly, the Judicature Act will be deemed repealed.
Limitations
3. The repeal of the DCS Judicature Act or its successors, if any, shall enter into force ninety (90) days after the confirmation vote of the Representative Assembly, or the entry into force of the DCS’s new judicial system legislation, whichever of these events may occur last.
4. The Representative Assembly shall in no circumstances consider a petition asserting the existence of a of Judicial Crisis in the CDS and setting out a referendum question to this effect, before the one-year anniversary of a previous ratification or rejection of a previous DCS Judicature Act repeal referendum by the Representative Assembly, if any.