• Supremacy of Constitution
  • June 21, 2012
  • Law Firm: Norton Rose Canada LLP - Montreal Office
  • If only, in these days of dietary supplements, we could all begin the day with a double dose of constitutional values.

    The Constitution is the supreme law of the Republic. Law or conduct inconsistent with the Constitution is invalid. The obligations imposed by the Constitution must be fulfilled. Without suggesting there are any absolutes, we should all treat the Constitution with the same deference that religions treat their supreme beings.

    Yet, some commentators, the media, and people phoning in to talk radio or contributing to internet or social media postings who boast about us having the best Constitution in the world, lose focus when someone disagrees with them. The recent proposed investigation into the courts and recent public debates relating to freedom of expression are good examples.

    The courts themselves do not consider themselves beyond scrutiny.

    The appeal court in the Simelane judgment reminded us that every citizen and every arm of government (which includes the judiciary) ought rightly to be concerned about constitutionalism and its preservation. The rule of law, we are reminded, is a central and founding value and no-one is above the law. According to chapter 8 of the Constitution, courts are independent and subject only to the Constitution and the law. Like members of the government and the executive, judges swear or affirm that they will uphold and protect the Constitution and the human rights entrenched in it. In contempt of court cases the courts accept that courts and judges may be criticised within the bounds of reasonableness. Where to draw the line in the separation of powers between the government and the judiciary is a very complex question. If you think that judges adjudicate like impartial computers, read “The Nine: Inside the Secret World of the Supreme Court” by Jeffrey Toobin to appreciate how the personalities on the US Supreme Court bench influence the results. Criticise reasonably therefore who is appointed to examine the conduct of the courts, how they go about it and what their findings are. If anyone attempts to interfere with the independence of the judiciary (which is a Constitutional right that is not subject to any limitations) a resounding objection will be a worthy exercise of your right of freedom of expression. But do not suggest that examination and criticism of the courts should be stifled at birth to the point of suffocation.

    The important thing about freedom of expression is that it is necessary to encourage the search for the truth and freedom of expression is essential for the proper functioning of democracy. It is healthy to encourage people to express their views publicly instead of in boardrooms and barrooms. Provided you do not go beyond the bounds of defamation or hate speech, you can express your opinion. But if you are an employee or a member of an organisation, for instance, and go beyond the contract that binds you, there may be consequences. That is why the English soccer team is looking for a new manager.

    We should also support the Constitutional Court’s recent appeal for a change to the defamation law to allow for what it calls restorative justice. This means that instead of damages claims in defamation cases, the courts should be able to order the defamer to retract and give an apology with at least the same prominence as the original defamatory statement. Some people find a withdrawal or apology more difficult than paying damages because that gives the victim true redress.

    Whether you are sitting next to a crying baby in an aeroplane remembering that the “child’s best interests are of paramount importance” or dealing with weightier matters, consider the core Constitutional value before saying anything so that we do not have the best Constitution on paper only.