Political Law Analysis of Democratic Government and Governing

AuthorGregory Tardi
Pages89-156

 
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

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

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

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