Wednesday, September 12, 2007

Lazy Lawmakers Cause Judicial and Administrative Activism

There is an irony of some politicians who are constantly complaining about activist judges and interfering bureaucrats these days. I’ll bet that far-right grumpiness is wafting through the political air in Ottawa these days.

There needs to be some truth brought to power methinks. Dear politician, the way to avoid judicial and bureaucratic “activist” interpretations of your laws it to pass better and clearer laws. It is that simple.

We too often see weasel words and implications woven into legislation because politicians seem to lack the courage to say what they mean and mean what they say when they draft our laws. That intellectual laziness or lack of intellectual integrity merely invites activist interpretations BECAUSE it creates a need for interpretation. This clarity rule of law making cannot be iron clad and absolute obviously. Some laws are living things and are intentionally designed to have adaptive interpretations to deal with and accommodate a changing society – like the Charter of Rights and Freedoms for instance.

And while you are at it Dear politician, when you pass laws, show some respect for jurisdiction and the Constitution in your law making. A few years ago the Alberta legislature passed a law defining marriage in Alberta during the same-sex debates. They did it even after being told through undisputed legal opinions that it was outside their jurisdiction. At the same time that Alberta government was very happy to tell the federal government to keep its face out of provincial jurisdiction like education (remember Millennial Scholarships?) and health care. I suspect this pretensive political positioning was more about hubris and stupidity than it was about mere hypocrisy.

Contentious legislation that requires social, economic and ecological values trade-offs are exactly why we have democracies and the politicians are preferred our proxies to make these hard choices on our behalf. When we vote for you and grant you our consent to govern us we do not expect you to take the easy way out. We expect your insight, wisdom and judgment to be applied to serve the best interests of our society to the best of your ability.

We know politics is a difficult job and often a messy business. Get over it or get out of it. When you don’t do the difficult jobs and intentionally leave philosophical fuzziness in your legislation you are inviting, no you are requiring, the courts to be there. All to often they end up doing your job.
The problem is usually not judicial or administrative activism. Most often the problem is inadequate politicians.

So Mr. Harper, get off the backs of Elections Canada. If you want to eliminate the wearing of veils at voting stations – say so in the law and make it absolutely clear. You and the rest of the politicians were already forewarned by your administration this would happen and you let it slide. Not good enough. Not good enough at all.