Wednesday, May 10, 2006 : Attack on judiciary shatters strategic silence

What are the unwritten constitional principles? PR This will make for a livly debate in the future. : Attack on judiciary shatters strategic silence: "Mr. Vellacott was apparently drawn out by a speech Chief Justice McLachlin delivered in New Zealand in December. It explored the notion of 'unwritten constitutional principles' -- principles thought to be so fundamental to society that judges may occasionally use them to underpin a ruling.
Chief Justice McLachlin reasoned that laws cannot encompass all possible situations. 'In sum, the rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile positive opinion,' she said.
To those of conservative mind, the speech was a red flag to a bull; a declaration that all manner of cases can be justified by reference to vague, 'unwritten constitutional principles.'
Ironically, Chief Justice McLachlin is widely seen as being loathe to strike down legislation under the Charter of Rights, often taking pains to bow in the direction of Parliament and its legislative agenda.
The best-known use of unwritten principles in recent years was the Quebec Secession Reference ruling, where the court cited four unwritten principles -- federalism, democracy, the rule of law and respect for minorities -- to create a blueprint for the possible partition of Canada.
However, University of Toronto law professor Sujit Choudhry noted that in a 2005 ruling pitting the B.C. government against several tobacco companies, the court also took a strong position against 'trivializing' the Constitution with extravagant interpretations of unwritten principles.
Mr. Vellacott's attack brought a highly unusual retort from Chief Justice McLachlin: She categorically denied his allegation that she had ever referred to judges as having 'almost God-like powers.'
Prof. Levy said the response can b"