Political Law Analysis of Democratic Government and Governing

• Author: Gregory Tardi
• Pages: 89-156

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 

Political Law Analysis of Democratic

Government and Governing

Introduction

In a D/democratic state, law, public policy and administration, and

politics intersect and interact in all major aspects of statecraft. e

particular type of analysis enabled by political law can thus be

applied to the entire range of the functions of the state. Among

these functions, it is necessary to select those where law, policy, and

politics most intensively meet in various permutations and combin-

ations. e task is to examine several of the most fundamental and

important among these public functions, applying the necessary

observations and questions to each one.

Elections

Democracy and democracy

Among all the aspects of government and governing, elections are

not only signif‌icant, but also unique. Bearing in mind the twin

senses of D/democracy, this is the only topic that transcends the

distinction between Democracy as a form of the political organiza-

tion of the state and democracy as a set of rules dealing with, and

POLITICAL LAW IN CANADA

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aimed at ensuring, the freedom of political choice of citizens within

the Democratic state. In analyzing this subject matter, the reader

must thus consider the following explanation both as a feature of

the Democratic state and as a set of instruments and rules regarding

the exercise of the franchise.

e roots of the Canadian Democratic system lie in the pre-

amble to the Constitution Act, . Before the time of Confederation,

the United Kingdom had already undergone centuries of evolu-

tion to become a state based on Democratic principles of political

organization. As a group of British colonies, the political units that

would come to form Canada considered no system other than the

Democracy of the United Kingdom to be suitable for them. In the

three conferences leading up to Confederation, no contemplation

was given to any other system of government but one that would

emulate English Democracy in general. e more specif‌ic constitu-

tional and legal rules for elections, which form part of the fabric of

democracy, also have British provenance. A number of principles

sustaining this interpretation of democracy have arisen from juris-

prudence. Most notably, the Supreme Court has referred to voting

as the sacred democratic function as a citizen. More recently, it held

that voting is a right of citizenship not extinguished by physical

absence. In cases resulting from prison inmates requesting the

right to vote, the Court also stated that the right to vote is f‌irmly

entrenched and that it is fundamental.

In sum, whether elections are interpreted as forming part of the

Democratic superstructure of a state or as a set of specif‌ic democratic

rules regarding voting, they occupy a pivotal position in the overall

concept of political law.

The Electoral System

e method that had evolved for selecting members to the British

House of Commons was that of single-member electoral districts,

using the f‌irst-past-the-post system. In every electoral district, no

matter how many candidates presented themselves, the one who

Political Law Analysis of Democratic Government and Governing

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obtained the highest number of votes was declared the winner, even

if they did not obtain  percent of the votes cast. is method

of electing members of Parliament was adopted by Canada. Using

this method, a general election was held simultaneously in each

electoral district. Section  of the Constitution Act,  provided

for the division of the original four provinces into electoral districts;

this method was eventually extended as the country grew. Today,

the f‌irst-past-the-post system is enshrined in the Electoral Bound-

aries Readjustment Act. e most contentious issue in respect of this

topic relates to the constitutionally justif‌iable design of electoral dis-

tricts. In , the Supreme Court of Canada settled the rules in this

regard in Reference re Prov Electoral Boundaries (Sask). e principle set

out by the Court is that of eective representation. is enables the

design of constituency boundaries that take into consideration fac-

tors such as historical context, geography, community interest, and

minority representation. e principle of eective representation is

dierent from the “one person, one vote” rule applicable in some

countries. It also prevents gerrymandering.

On occasion, proposals aiming to establish rules of democratic

representation other than f‌irst-past-the-post are publicly considered ;

provincial referenda on this topic have not produced change. Simi-

larly, litigants have asked the courts to alter the democratic rules of

representation to a system of proportional repres entation, but so far,

no such case has succeeded.

Constitutionalized Electoral Rights

e Constitution Act,  modernized the fundamental rules of dem-

ocracy (in the sense of voting) by recognizing several rights. e

most fundamental among these are the right to vote and the right to

be a candidate, both set out in section . Implementing the terms of

the supreme law, the principal legal instrument that lays the foun-

dations of the democratic system of elections is the Canada Elections

Act. Over the last several decades, the Supreme Court has developed

a number of high principles to ensure that the Act is applied in